Terms of Use Agreement
Last Updated Date: [November 14 2024]
Please read this Terms of Use Agreement (the “Terms of
Use”) carefully. The website located at https://holdsensible.com and any related websites or
subdomains of FirstMate Labs, Inc. (“Sensible,”
“we,” or “our”), its affiliates or
agents (collectively, the “Website”) and the
information on the Website are owned and controlled by Sensible. These
Terms of Use governs the use of the Website and applies to all Users
visiting the Website or using the Website in any way, including using
any of Sensible’s services, software, technology, or other resources
available through or enabled via the Website (each including the
Website, a “Service” and, collectively, the
“Services”).
BY USING THE SERVICES, CONNECTING A DIGITAL WALLET TO THE WEBSITE,
AND/OR BROWSING THE WEBSITE, YOU REPRESENT THAT (1) YOU HAVE READ,
UNDERSTAND, AND AGREE TO BE BOUND BY THE AGREEMENT (DEFINED BELOW), (2)
YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH SENSIBLE, AND (3)
YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE PERSONALLY OR ON
BEHALF OF THE ENTITY (WHETHER OR NOT SUCH ENTITY IS FORMALLY
INCORPORATED) YOU HAVE NAMED AS THE USER, AND TO BIND THAT ENTITY TO THE
TERMS OF USE. THE TERM “YOU” REFERS TO THE INDIVIDUAL
OR ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED ON
THE WEBSITE. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF
USE, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE
SERVICES.
SENSIBLE IS NOT AN Exchange, trust company, licensed broker,
dealer, broker-dealer, investment advisor, investment manager, or
adviser. neither Sensible nor our Services give, offer, or render
investment, tax, or legal advice. SENSIBLE PROVIDES SOFTWARE THAT ALLOWS
YOU TO DEPLOY AND STAKE DIGITAL ASSETS TO potentially RECEIVE REWARDS AS
A RESULT OF YOUR USE OF THIRD-PARTY BLOCKCHAINS AND OTHER THIRD-PARTY
SERVICES (DEFINED BELOW). Before making financial or investment
decisions, we recommend that you contact an investment advisor, or tax
or legal professional. YOU ACKNOWLEDGE THAT ANY CRYPTOCURRENCY OR OTHER
DIGITAL ASSETS USED IN CONNECTION WITH THE SERVICES ARE NOT PROTECTED BY
FEDERAL DEPOSIT INSURANCE CORPORATION OR THE SECURITIES INVESTOR
PROTECTION CORPORATION.
The Service provides an interface that allows users of our Website
(“Users”) to interact with the Sensible staking
protocol (including all mainnet and testnet versions thereof, the
“Protocol”). The Protocol is an open-source smart
contract that enables users to stake cryptocurrency across one or more
third-party distributed ledgers compatible with the Services and
Protocol (each, a “Supported Blockchain”) or chain
lending protocols compatible with the Services and Protocol (each, a
“Supported Protocol”) and receive rewards in connection
therewith. For the avoidance of doubt, the Protocol is not part of the
Website and is not a Service made available by Sensible under this
Agreement. Sensible has no obligation to monitor or control any use of
the Protocol by third parties and/or any use of the Protocol that does
not take place on or through the Website. Sensible makes no
representations or warranties about the functionality of the Protocol as
used by you or any other person. All use of the Protocol is undertaken
at your own risk, and Sensible is not and shall not be liable to you or
to any third party for any loss or damage arising from or connected to
your or any third party’s use of the Protocol. Notwithstanding anything
to the contrary set forth herein, the terms of Section 12 of this
Agreement apply, mutatis mutandis, to any claims arising out of your use
of the Protocol. The Protocol is made available on an “as-is” and “as
available” basis, WITH ALL FAULTS, and you access and/or interact with
the Protocol at your own risk.
PLEASE BE AWARE THAT SECTION 16 (DISPUTE RESOLUTION) OF THIS
AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU
AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT
LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE
EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN
ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE
DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION.
UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE
PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST SENSIBLE
ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS
OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR
RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND
TO HAVE A JURY TRIAL.
ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO
YOUR USE OF THE SITE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE
LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ANY PRINCIPLES
THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.
THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF
GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
PLEASE BE AWARE THAT SECTION 4.4 (SENSIBLE COMMUNICATIONS) OF
THIS AGREEMENT, BELOW, CONTAINS YOUR OPT-IN CONSENT TO RECEIVE
COMMUNICATIONS FROM US.
Your use of, and participation in, certain Services may be subject to
additional terms (“Supplemental Terms”) and such
Supplemental Terms will either be listed in these Terms of Use or will
be presented to you for your acceptance when you sign up to use the
supplemental Service. If the Terms of Use are inconsistent with the
Supplemental Terms, the Supplemental Terms shall control with respect to
such Service. The Terms of Use and any applicable Supplemental Terms are
referred to herein as the “Agreement.”
PLEASE NOTE THAT The Agreement IS subject to change by Sensible in its
sole discretion at any time. When changes are made, Sensible will make a
new copy of the Terms of Use available at the Website and any new
Supplemental Terms will be made available from within, or through, the
affected Service on the Website. We will also update the “Last Updated”
date at the top of the Terms of Use. If we make any material changes, we
may notify you by email or by notification through the Services or
through our social media channels. Any changes to the Agreement will be
effective immediately for new Users of the Website and/or Services and
will be effective thirty (30) days after posting notice of such changes
on the Website for existing Users. Sensible may require you to provide
consent to the updated Agreement in a specified manner before further
use of the Website, and/or the Services is permitted. If you do not
agree to any change(s) after receiving a notice of such change(s), you
shall stop using the Services. Otherwise, your continued use of the
Services constitutes your acceptance of such change(s). PLEASE REGULARLY
CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
DESCRIPTION OF THE SERVICES. The Services include the Platform and Services enabled thereby, as further defined and described below. There are important risks and limitations associated with the use of the Services as described below and elsewhere in these Terms of Use. Please read them carefully.
The Platform. Sensible’s Services include access to its “Platform,” which is a proprietary online platform enabled through the Website and supported documentation made available therewith, that allows Users to interact with the Protocol, including to use the Protocol to stake certain supported cryptocurrencies using third-party embedded digital wallets (each, a “Digital Wallet”, as further described below). Users can** **use the Platform to (i) visualize any cryptocurrency assets (“User Assets”) that are associated with a Digital Wallet, and (ii) stake User Assets on Supported Blockchains or deposit User Assets on Supported Protocols in accordance with the technological and contractual parameters of such Supported Blockchain or Supported Protocol (the applicable “Blockchain Rules”) using the Protocol. These visualizations may include graphs, projections, and other information about your User Assets (collectively, “User Asset Information”). Information that may be provided to you by the Platform about your allocation of your User Assets and any Rewards (defined below) earned in connection therewith are all considered User Asset Information.
Supported Blockchains. The Sensible Protocol allows end users to deploy digital currency assets across Supported Blockchains and Supported Protocols and to receive digital currency asset rewards from those Supported Blockchains and Supported Protocols, including generated yield and/or fees (such rewards, “Rewards”) in accordance with the applicable Blockchain Rules. For the avoidance of doubt, Sensible does not own or control any Supported Blockchain or Supported Protocol. All use of the Protocol or any Supported Blockchain or Supported Protocol is at your own risk.
Your User Assets. You represent and warrant that (a) you own or have the authority to connect to the Digital Wallet from the third-party source of funds that you use to fund such Digital Wallet; (b) you own or have the authority to deploy any User Assets you use through the Services; (c) all User Assets you deploy or otherwise make available in connection with the Services have been earned, received, or otherwise acquired by you in compliance with all applicable laws; and (d) no User Assets that you deploy or otherwise make available in connection with the Services have been “tumbled” or otherwise undergone any process designed to hide, mask, or obscure the origin or ownership of such User Assets.
Compatibility Risk. The Services may not be compatible with all forms of cryptocurrency, and certain of your User Assets may not be compatible with the Services. Whether or not a User Asset is then-currently compatible with the Services may change at any time, in Sensible’s sole discretion, with or without notice to you.
Staking and Depositing User Assets. When you stake or deposit User Assets using the Services, such User Assets may be batched with the digital assets of other Users. When such User Assets are staked or deposited, and/or when you unstake and/or withdraw any User Assets that have been staked or deposited, there may be a delay between the initiation of the applicable transaction by you and the completion of such transaction. While Sensible endeavors to honor all staking, depositing, and withdrawal requests as promptly as is reasonably possible, the exact timing and allocation of any such deployment and withdrawal of your User Assets shall be determined in accordance with the Blockchain Rules and, as applicable, any of Sensible’s then-current policies and procedures. You acknowledge and agree that Sensible shall have no liability to you or any third party with respect to any losses arising from the timing of any deployment or withdrawal of User Assets, including without limitation any delay in staking, depositing, or unstaking such User Assets.
Rewards. Any Rewards that you receive in connection with your use of the Services to deploy your User Assets to the Protocol is provided by the applicable Supported Blockchain(s), Supported Protocols, or by the Protocol, and is not a payment from Sensible to you. Any Rewards you receive or do not receive is at the sole discretion of such Supported Blockchain(s), Supported Protocols, and the Protocol in accordance with the applicable Blockchain Rules, and Sensible shall have no obligation to you to facilitate any Rewards payment and no liability to you in connection with any Rewards or your failure to receive the same. Sensible does not guarantee any Rewards or other rewards on or in connection with your User Assets as deployed on the Protocol.
Taxes. You are solely responsible (and Sensible has no responsibility) for determining what, if any, taxes apply to any transactions involving your User Assets, including your receipt of any Rewards.
ELIGIBILITY; USER REPRESENTATIONS AND WARRANTIES.
Registering Your Account. To access certain features of the Services, you may be required to register an account on the Services (“Account”). Notwithstanding anything to the contrary herein, you acknowledge and agree that you have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and will forever be owned by and inure to the benefit of Sensible. Furthermore, you are responsible for all activities that occur under your Account. You shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Services by minors. You may not share your Account or password with anyone, and you agree to notify Sensible immediately of any unauthorized use of your password or any other breach of security. You shall not have more than one Account at any given time. Sensible reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Services if you have been previously removed by Sensible, or if you have been previously banned from any of the Services.
Registration Data. When you register an Account or otherwise access or use the Services in any way, you agree to (a) provide true, accurate, current and complete information about yourself as may be prompted by the Services from time to time (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You acknowledge and agree that our obligation to provide you with any Services is conditioned on the Registration Data being accurate and complete at all times during the term of this Agreement. If you provide any information that is untrue, inaccurate, not current or incomplete, or Sensible has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Sensible has the right to suspend or terminate your access to the Services and refuse any and all current or future use of the Services (or any portion thereof). You agree not to use the Services if you have been previously removed by Sensible, or if you have been previously banned from any of the Services.
Eligibility. You represent and warrant that:
You are (i) at least eighteen (18) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using Services under the laws of the United States, your place of residence or any other applicable jurisdiction. If you are acting on behalf of a DAO or other entity, whether or not such entity is formally incorporated under the laws of your jurisdiction, you represent and warrant that you have all right and authority necessary to act on behalf of such entity;
None of (i) you; (ii) any affiliate of any entity on behalf of which you are entering into this Agreement; (iii) any other person having a beneficial interest in any entity on behalf of which you are entering into this Agreement (or in any affiliate thereof); or (iv) any person for whom you are acting as an agent or nominee in connection with this Agreement is (A) a country, territory, entity or individual named on an OFAC list as provided at http://www.treas.gov/ofac, or any person or entity prohibited under the OFAC programs, regardless of whether or not they appear on the OFAC list; or (B) a senior foreign political figure, or any immediate family member or close associate of a senior foreign political figure. There is no legal proceeding pending that relates to your activities relating to buying, selling, staking, or otherwise using cryptocurrency or any other token- or digital asset- trading or blockchain technology related activities;
You have not failed to comply with, and have not violated, any applicable legal requirement relating to any blockchain technologies or token-trading activities, and no investigation or review by any governmental entity is pending or, to your knowledge, has been threatened against or with respect to you, nor does any government order or action prohibit you or any of your representatives from engaging in or continuing any conduct, activity or practice relating to cryptocurrency.
Digital Wallets. In connection with certain features of the Services you will need to send cryptocurrency assets to an embedded Digital Wallet made available by Privy, Inc. (“Privy”), a Third-Party Service. Access to and use of a Digital Wallet is subject to additional terms and conditions between you and Privy. Please note that if a Digital Wallet or associated service becomes unavailable then you should not attempt to use such Digital Wallet in connection with the Services, and we disclaim all liability in connection with the foregoing, including without limitation any inability to access any User Assets you have sent to such Digital Wallet. PLEASE NOTE THAT YOUR RELATIONSHIP WITH PRIVY OR ANY OTHER THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR DIGITAL WALLET IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND SENSIBLE DISCLAIMS ANY LIABILITY FOR INFORMATION THAT MAY BE PROVIDED TO IT OR USER ASSETS THAT MAY BE DEPLOYED TO THE PROTOCOL BY OR THROUGH SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE SETTINGS THAT YOU HAVE SET IN SUCH DIGITAL WALLETS. Access to your Digital Wallet may require the use of a private key or passphrase (“Private Key”) and Sensible has no ability to access your Digital Wallet without your involvement and authority. Your Private Key is unique to you, and shall be maintained by you. If you lose your Private Key, you may lose access to your Digital Wallet and any contents thereof. Sensible does not have the ability to recover a lost Private Key. While a Digital Wallet may be interoperable with other compatible blockchain platforms, tokens, or services, only User Assets supported by Sensible that are stored in your Digital Wallet will be accessible through the Services.
Access Through a Linked App. The Service may allow you to link your Account with a valid account on a third-party platform or social network (“Linked Account”) by allowing Sensible to access your Linked Account, as is permitted under the applicable terms and conditions that govern your use of each Linked Account. You represent that you are entitled to disclose your Linked Account login information to Sensible and/or grant Sensible access to your Linked Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Linked Account and without obligating Sensible to pay any fees or making Sensible subject to any usage limitations imposed by such Third-Party Service providers. By granting Sensible access to any Linked Account, you understand that Sensible may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials that you have provided to and stored in your Linked Account (“Linked App Content”) so that it is available on and through the Service via your Account. Unless otherwise specified in this Agreement, all Linked App Content is considered to be Your Content (as defined in Section 5) for all purposes of this Agreement. Depending on the Linked Accounts you choose and subject to the privacy settings that you have set in such Linked Accounts, personally identifiable information that you post to your Linked Accounts may be available on and through your Account on the Service. If a Linked Account or associated service becomes unavailable, or Sensible’s access to such Linked Account is terminated by the Third-Party Service provider, then Linked App Content will no longer be available on and through the Service. YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND SENSIBLE DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. Sensible makes no effort to review any Linked App Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Sensible is not responsible for any Linked App Content.
Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the Services, including but not limited to, a computer system or mobile device that is suitable to connect with and use the Services as applicable. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Services.
Your Assumption of Risk.
When you use the Services, you understand and acknowledge that Sensible is not a financial OR INVESTMENT advisor and that the Services ENTAIL A RISK OF LOSS AND may not meet your needs. The Services provided by Sensible rely on Supported Blockchains, Supported Protocols, and the applicable Blockchain Rules, which may not be reliable, consistent or dependent in all scenarios. Sensible may not be able to foresee or anticipate technical or other difficulties that may result in data loss or other service interruptions. Sensible encourages you to periodically confirm the valuation of your User Assets and the accuracy of any User Asset Information through independent sources. Sensible does not and cannot make any guarantee that your User Assets will earn any Rewards or that your User Assets will not lose value. The prices of cryptocurrency assets can be extremely volatile. Sensible makes no warranties as to the markets in which your User Assets are staked, transferred, purchased, or traded.
You understand that like any other software, the Platform, the Protocol, and the Services could be at risk of third-party malware, hacks or cybersecurity breaches. You agree that it is your responsibility to monitor your User Assets regularly and confirm their proper use and deployment consistent with your intentions.
In order to be successfully completed, any transaction involving your User Assets initiated by or sent to your Digital Wallet must be confirmed by and recorded on the applicable Supported Blockchain or Supported Protocol. Sensible has no control over any Supported Blockchainor Supported Protocol, and therefore cannot and does not ensure that any transaction details that you submit or receive via our Services will be validated by or confirmed on the relevant Supported Blockchainor Supported Protocol, and Sensible does not have the ability to execute any transactions or facilitate any cancellation or modification requests. You accept and acknowledge that you take full responsibility for all activities that you effect through your Digital Wallet and accept all risks of loss, including loss as a result of any authorized or unauthorized access to your Digital Wallet, to the maximum extent permitted by law. You further accept and acknowledge the following:
You represent and warrant that you (i) have the necessary technical expertise and ability to review and evaluate the security, integrity, and operation of your Digital Wallet and any Supported Blockchains or Supported Protocols to which your User Assets may be deployed and staked or deposited in connection with the Services; (ii) have the knowledge, experience, understanding, professional advice and information to make your own evaluation of the merits, risks, and applicable compliance requirements under applicable laws of any use of your Digital Wallet and any Supported Blockchains or Supported Protocols to which your User Assets may be deployed in connection with the Services; (iii) know, understand, and accept the risks associated with your Digital Wallet and any Supported Blockchains or Supported Protocols to which your User Assets may be deployed in connection with the Services; and (iv) accept the risks associated with blockchain technology generally, and are responsible for conducting your own independent analysis of the risks specific to your use of the Services. You further agree that Sensible will have no responsibility or liability for such risks.
There are risks associated with using digital assets, including but not limited to, hardware, software, and Internet connections; the risk of malicious software introduction; the risk that third parties may obtain unauthorized access to information stored within your Digital Wallet; the risks of counterfeit assets, mislabeled assets, assets that are vulnerable to metadata decay, assets on smart contracts with bugs, and assets that may become untransferable; and the risk that such digital assets may fluctuate in value. You accept and acknowledge that Sensible will not be responsible for any communication failures, disruptions, errors, distortions, delays, or losses you may experience when using blockchain technology, however caused.
The regulatory regimes governing blockchain technologies, cryptocurrencies, and tokens are uncertain, and new regulations or policies, or new or different interpretations of existing regulations, may materially adversely affect the development of the Services and the value of your User Assets.
Sensible makes no guarantee as to the functionality of any blockchain’s decentralized governance, which could, among other things, lead to delays, conflicts of interest, or operational decisions (including without limitation changes to any Blockchain Rules) that are unfavorable to your User Assets and/or impact your ability to receive Rewards. You acknowledge and accept that the Blockchain Rules governing the operation of a Supported Blockchain or Supported Protocol may be subject to sudden changes that may materially alter such Supported Blockchain or Supported Protocol and affect the value and function of any of your User Assets staked on or deposited to that Supported Blockchain or Supported Protocol.
Sensible makes no guarantee as to the security of any Supported Blockchain, Supported Protocol or Digital Wallet. Sensible is not liable for any hacks, double spending, or any other attacks on a Supported Blockchain, Supported Protocol or Digital Wallet.
Any Supported Blockchain may slash or otherwise impose penalties on certain validators (including validators to which your User Assets have been deployed) in response to any activity not condoned by such Supported Blockchain, whether in accordance with the applicable Blockchain Rules or otherwise. You acknowledge and agree that Sensible shall have no liability in connection with any such slashing or penalties, including any slashing or penalties that result in a loss or depreciation of value of your User Assets.
The Supported Blockchains and Supported Protocols are controlled by third parties, and Sensible is not responsible for their performance nor any risks associated with the use thereof. The Services rely on, and Sensible makes no guarantee or warranties as to the functionality of or access to, any Supported Blockchain, Supported Protocol, Digital Wallet, or other Third-Party Service.
You control your Digital Wallet, and Sensible is not responsible for its performance, nor any risks associated with the use thereof.
USE OF THE SERVICES.
License to the Services. Subject to the Agreement, Sensible grants you a limited license to access and use the Services solely as described hereunder. Unless otherwise specified by Sensible in a separate license, your right to use any and all Services is subject to this Agreement. You acknowledge and agree that nothing set forth herein shall be construed as a sale of any ownership interest in or to the Services or any intellectual property rights associated therewith.
Updates. You understand that Services are evolving. You acknowledge and agree that Sensible may update Services with or without notifying you. You may need to update third-party software from time to time in order to use Services.
Certain Restrictions. The Services are intended for your internal use only. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host, or otherwise commercially exploit the Services or any portion of the Services, including the Website; (b) you shall not frame or use framing techniques to enclose any trademark, logo, or other Services (including images, text, page layout or form) of Sensible; (c) you shall not use any metatags or other “hidden text” using Sensible’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile, or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices, or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, and data mining tools) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services. Any future release, update, or other addition to the Services shall be subject to the Agreement. Sensible, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of the Services may terminate the licenses granted by Sensible pursuant to the Agreement.
Sensible Communications. By entering into this Agreement or using the Services, you agree to receive communications from us, including via e-mail. Communications from us and our affiliated companies may include but are not limited to operational communications concerning your use of the Services, updates concerning new and existing features on the Services, communications concerning promotions run by Sensible or our third-party partners, and news concerning Sensible and industry developments.
Third-Party Services. Certain features of the Services may rely on third-party websites, services, technology, or applications accessible or otherwise connected to the Services but not provided by Sensible, including without limitation any Supported Blockchain or Supported Protocol, the Protocol, any validator on such Supported Blockchain, our third-party identity verification providers, and your Digital Wallet (each, a “Third-Party Service” and, collectively,** **“Third-Party Services”). Notwithstanding anything to the contrary in these Terms of Use, you acknowledge and agree that (i) Sensible shall not be liable for any damages, liabilities, or other harms in connection with your use of and/or any inability to access the Third-Party Services; and (ii) Sensible shall be under no obligation to inquire into and shall not be liable for any damages, other liabilities or harm to any person or entity relating to any losses, delays, failures, errors, interruptions, or loss of data occurring directly or indirectly by reason of Third-Party Services or any other circumstances beyond Sensible’s control, including without limitation the failure of a Supported Blockchain, Supported Protocol, or other Third-Party Service.
RESPONSIBILITY FOR CONTENT. You acknowledge that all data, information, and other content (“Content”) within the Services, is the sole responsibility of the party from whom such Content originated. This means that you, and not Sensible, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available through any Services (“Your Content”).
OWNERSHIP.
Services. Except with respect to Your Content, you agree that as between you and Sensible, Sensible and its suppliers own all rights, title, and interest in the Services, including but not limited to, any software, computer code, algorithms, technology, themes, objects, concepts, artwork, animations, sounds, methods of operation, and documentation, as well as all intellectual and proprietary rights related thereto. You will not remove, alter, or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Services.
Trademarks. Sensible’s stylized name and all related graphics, logos, service marks, and trade names used on or in connection with any Services, or in connection with the Services, are the trademarks of Sensible and may not be used without permission in connection with your, or any third-party, products or services. Other trademarks, service marks, and trade names that may appear on or in the Services are the property of their respective owners.
Your Content. You grant Sensible a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive, and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display Your Content (in whole or in part) for the purposes of (i) operating and providing Services to you; (ii) improving the Services; and (iii) developing new products and services; and you represent that you own or otherwise have all rights in and to Your Content necessary to grant the foregoing licenses. You agree that you, not Sensible, are responsible for all of Your Content that you make available on or in Services.
Feedback. You agree that the submission of any ideas, suggestions, documents, and/or proposals to Sensible through its suggestion, feedback, wiki, Discord channel, forum, or other pages or means (“Feedback”) is at your own risk and that Sensible has no obligations (including without limitation obligations of confidentiality and compensation) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Sensible a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Services and/or Sensible’s business.
FEES.
Fees. Access to certain Services may be free. However, Sensible charges fees (“Fees”) in connection with your use of certain Services from time to time, including without limitation Fees based on the Rewards generated through use of the Protocol. All Fees and payment terms for such Fees are as indicated on the Service, and any payment obligations you incur are binding at the time of the applicable transaction.** In the event that Sensible makes available, and you elect to use, any Services in connection with which Sensible charges Fees, you agree that Sensible may deduct all such Fees from your Rewards at Sensible’s then-current standard rates. You agree that all Fees are non-cancellable, non-refundable, and non-recoupable. **
Gas Fees. To the extent required by Sensible and if applicable in connection with a particular Service, you will be solely responsible for ensuring that any payment of Fees made to Sensible by you is sufficient to cover any Gas Fee required to complete any transaction or effect any other use of the Services. “Gas Fees” are transaction fees determined by market conditions on the applicable Supported Blockchain, and are not determined, set, or charged by Sensible.
Taxes. You are responsible for all federal, state, local, sales, use, value added, excise, or other taxes, fees, or duties arising out of the Agreement or the transactions contemplated by the Agreement (other than taxes based on Sensible’s net income).
Promotions. Sensible may from time to time make available certain conditional offers, airdrops, promotional prices, or discounted fees (each, a “Promotion”) to new or existing Users of the Services or offer a referral program that incentivizes Users to invite their friends and family members to use the Services (“Referral Program”). The rules governing such Promotion will be made available in connection with such Promotion. Sensible will determine your eligibility for any Promotion in its sole discretion and may change the terms of or terminate a Promotion at any time, with or without notice to you. The terms and conditions governing the Referral Program are set forth in Section 17.
Currency.** **You may not substitute any other currency, whether cryptocurrency or fiat currency, for the currency in which you have contracted to pay any Fees. For clarity, no fluctuation in the value of any currency, whether cryptocurrency or otherwise, will impact or excuse your obligations with respect to any purchase.
Payment Processing Services.** **Sensible may add or change any payment processing services at any time. Such services may be subject to additional terms or conditions.
DISCLAIMER OF WARRANTIES AND CONDITIONS.
As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF SERVICES IS AT YOUR SOLE RISK, AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. SENSIBLE PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES.** THE SENSIBLE PARTIES MAKE NO REPRESENTATION THAT THE SERVICES WILL FUNCTION AS INTENDED OR BE SUITABLE FOR YOUR PURPOSES, AND YOU BEAR ALL RISK ASSOCIATED WITH ANY USER ASSETS THAT YOU USE IN CONNECTION THEREWITH.**
SENSIBLE PARTIES MAKE NO WARRANTY, REPRESENTATION, OR CONDITION THAT (1) SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF SERVICES WILL BE ACCURATE OR RELIABLE. SENSIBLE MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE PROTOCOL OR YOUR USE OF THE SAME. THE SENSIBLE PARTIES MAKE NO REPRESENTATION THAT THE SERVICES WILL BE FREE OF THIRD-PARTY MALWARE, HACKS OR OTHER CYBSECURITY BREACHES.
ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS THEREFROM.
THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS, AND OTHER DISRUPTIONS. SENSIBLE MAKES NO WARRANTY, REPRESENTATION, OR CONDITION WITH RESPECT TO THE SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, AND REPUTATION OF THE SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM SENSIBLE OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
From time to time, Sensible may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Sensible’s sole discretion. The provisions of this section apply with full force to such features or tools.
Sensible Is Not an Investment Advisor. NEITHER SENSIBLE NOR ITS SUPPLIERS OR LICENSORS SHALL BE RESPONSIBLE FOR INVESTMENT AND OTHER FINANCIAL DECISIONS, OR DAMAGES, OR OTHER LOSSES RESULTING FROM USE OF THE SERVICES OR THE PROTOCOL. NEITHER SENSIBLE NOR ITS SUPPLIERS OR LICENSORS SHALL BE CONSIDERED AN “EXPERT” UNDER THE APPLICABLE SECURITIES LEGISLATION IN YOUR JURISDICTION. NEITHER SENSIBLE NOR ITS SUPPLIERS OR LICENSORS WARRANT THAT THIS WEBSITE COMPLIES WITH THE REQUIREMENTS OF ANY APPLICABLE REGULATORY AUTHORITY, SECURITIES AND EXCHANGE COMMISSION, OR ANY SIMILAR ORGANIZATION OR REGULATOR OR WITH THE SECURITIES LAWS OF ANY JURISDICTION.
No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT SENSIBLE PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD SENSIBLE PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF YOUR DIGITAL WALLET, THE PROTOCOL, EXTERNAL SITES, SUPPORTED BLOCKCHAINS AND SUPPORTED PROTOCOLS, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. Sensible shall be under no obligation to inquire into and shall not be liable for any damages, other liabilities or harm to any person or entity relating to any losses, delays, failures, errors, interruptions, or loss of data occurring directly or indirectly by reason of circumstances beyond Sensible’s control, including without limitation through the deployment of User Assets to any Supported Blockchain OR SUPPORTED PROTOCOL in connection with the Services.
No Liability in Connection with Open-Source Software. Notwithstanding anything to the contrary in these Terms of Use, you acknowledge and agree that any content, software, or services you access under the terms of an OSS license is at your own risk, and Sensible shall not be liable for any damages, other liabilities or harm to any person or entity relating to any losses, delays, failures, errors, interruptions, or loss of data occurring directly or indirectly by reason of circumstances outside beyond Sensible’s control, including without limitation through your use of any content, software, or services under the terms of an OSS license.
No Liability for Third-Party Materials. As a part of the Services, you may have access to materials that are hosted by another party. You agree that it is impossible for Sensible to monitor such materials and that you access these materials at your own risk.
LIMITATION OF LIABILITY.
Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL SENSIBLE PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT SENSIBLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR USE OF SERVICES OR ANY COMMUNICATIONS, INTERACTIONS OR EXCHANGES WITH OTHER USERS OF SERVICES OR THIRD PARTIES THAT INTERACT WITH THE SERVICES, ON ANY THEORY OF LIABILITY, INCLUDING ANY SUCH DAMAGES RESULTING FROM (a) LOSS OR DIMINISHMENT IN VALUE OF USER ASSETS; (b) THE USE OR INABILITY TO USE SERVICES; (c) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED; OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE SERVICES; (d) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (e) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR IN CONNECTION WITH THE SERVICES, INCLUDING WITHOUT LIMITATION ANY SUPPORTED BLOCKCHAIN OR SUPPORTED PROTOCOL; (f) ANY USE OF THE PROTOCOL; OR (g) ANY OTHER MATTER RELATED TO SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A SENSIBLE PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A SENSIBLE PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A SENSIBLE PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, SENSIBLE PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a) $100; or (b) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES where such remedy or penalty cannot be waived or reduced pursuant to this agreement. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A SENSIBLE PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A SENSIBLE PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A SENSIBLE PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
User Content. SENSIBLE ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, OR MIS-DELIVERY OF OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS, OR PERSONALIZATION SETTINGS.
Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SENSIBLE AND YOU.
TERM AND TERMINATION.
Term. The Agreement commences on the date when you accept the Agreement (as described in the preamble above) and remain in full force and effect while you use Services, unless terminated earlier in accordance with the Agreement.
Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used Services or (b) the date you accepted the Agreement, and will remain in full force and effect while you use any Services, unless earlier terminated in accordance with the Agreement.
Termination of Services by Sensible. Sensible reserves the right to terminate this Agreement and your access to the Services at any time, for any or for no reason, with or without notice to you.
Termination of Services by You. If you want to terminate the Services provided by Sensible, you may do so by (a) notifying Sensible at any time and (b) ceasing all further use of the Services. Your notice should be sent, in writing, to Sensible’s address set forth below.
Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services may also include deletion of Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Sensible will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Agreement that by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, indemnification and limitation of liability.
No Subsequent Registration. If your ability to access the Services, is discontinued by Sensible due to your violation of any portion of the Agreement, then you agree that you shall not attempt to re-register with or access the Services, and you acknowledge that you will not be entitled to receive a refund for any Fees related to those Services to which your access has been terminated.
DISPUTE RESOLUTION. Please read this Section 16 (the “Arbitration Agreement”) carefully. It is part of your contract with Sensible and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and Sensible agree that any dispute, claim, or disagreement arising out of or relating in any way to your access to or use of the Services or the Terms of Use and prior versions of the Terms of Use, including claims and disputes that arose between you and Sensible before the effective date of these Terms of Use (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that (1) you and Sensible may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or Sensible may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior version of the Terms of Use as well as claims that may arise after the termination of these Terms of Use.
Informal Dispute Resolution. There might be instances when a Dispute arises between you and Sensible. If that occurs, Sensible is committed to working with you to reach a reasonable resolution. You and Sensible agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost, and mutually beneficial outcome. You and Sensible therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), Sensible and you will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference. The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Sensible that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to the contact information set forth below. The Notice must include the following: (1) your name, telephone number, mailing address, and e‐mail address; (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute. The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple Users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
Waiver of Jury Trial. YOU AND SENSIBLE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Sensible are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the subsection entitled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
Waiver of Class and Other Non-Individualized Relief. YOU AND SENSIBLE AGREE THAT, EXCEPT AS SPECIFIED IN SUBSECTION 16.9, EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under Subsection 16.9. Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this Subsection 16.4 are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Sensible agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of Delaware. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or Sensible from participating in a class-wide settlement of claims.
Rules and Forum. The Terms of Use evidence a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Conference process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and Sensible agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf. A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration (if applicable) as well as the applicable Digital Wallet address; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution Conference process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration. If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. Unless you and Sensible otherwise agree, or the Batch Arbitration process discussed in subsection 16.9 is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA Rules. You and Sensible agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of Delaware and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under subsection 16.9 is triggered, the AAA will appoint the arbitrator for each batch.
Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to Subsection 16.4, including any claim that all or part of Subsection 16.4 is unenforceable, illegal, void or voidable, or that Subsection 16.4 has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in Subsection 16.9, all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in Subsection 16.9. The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Sensible need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Conference process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Sensible agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against Sensible by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”). All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Sensible. You and Sensible agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings. This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the address set forth below, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, email address, Digital Wallet address (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Terms of Use will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
Invalidity, Expiration. Except as provided in Subsection 16.4, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Sensible as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
Modification. Notwithstanding any provision in these Terms of Use to the contrary, we agree that if Sensible makes any future material change to this Arbitration Agreement, it will notify you. Unless you reject the change within thirty (30) days of such change become effective by writing to Sensible at the address set forth in Section 18.10, your continued use of the Services, including the acceptance of products and services offered on the Services following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of these Terms of Use and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Services, any communications you receive, or these Terms of Use, the provisions of this Arbitration Agreement as of the date you first accepted the Terms of Use (or accepted any subsequent changes to these Terms of Use) remain in full force and effect. Sensible will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of these Terms of Use.
Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Sensible.
REFERRAL PROGRAM.
Program Overview. The Referral Program allows Account holders (“Referrers”) the opportunity to receive certain benefits (“Incentives”) for referring other individuals (“Friends”) to register an Account, if a Friend uses the Referrer’s referral link or code (“Referral Link”). This Section 17, in addition to the foregoing terms and any Supplemental Terms published in a referral invitation or otherwise associated with any particular Referral Program offer or promotional code will govern the Referral Program.
Sharing Referral Links. Referrals are personal and should only be sent to individuals that you personally know and must be used only for personal and non-commercial purposes. The sharing of Referral Links outside of your warm network of personal connections is strictly prohibited. Referral Links may not be published or distributed, including on commercial websites (such as coupon websites or Reddit) or on blogs. You are prohibited from “spamming” anyone with referral invitations. This includes mass emailing, texting or messaging people you do not know or using automated systems or bots through any channel to distribute your Referral Link. You are prohibited from paying to advertise any Referral Link or paying or providing anything of value to any person to whom you direct a Referral Link or any other third party to obtain an Incentive. When sharing a Referral Link, you must always tell the Friend that you will be receiving an Incentive (and the nature of such Incentive) if such individual registers an Account using your Referral Link and obtain the express consent of such potential referral prior to sharing any Referral Link with such individual. You shall at all times remain compliant with all applicable laws, rules and regulations. You agree that all statements about Sensible and its products and services made by you will (a) be truthful and accurate based on publicly available information and (b) be accompanied by a clear, conspicuous statement that any statements made reflect only your opinion and not those of Sensible. You agree to indemnify and hold harmless Sensible Parties from any and all damages, costs, claims, expenses, and other liability (including reasonable attorneys’ fees) arising from or relating to the breach or alleged breach by you of this Section 17 (Referral Program). By permitting you to participate in the Referral Program, we are not authorizing you to make any statements on behalf of Sensible, our products and services, or the Referral Program, and all such statements are expressly disapproved by Sensible.
Reservation of Rights. Sensible may suspend or terminate the Referral Program or your ability to participate in it at any time for any reason. For example, we reserve the right to review and investigate all referral activities, and to suspend Accounts or revoke or void earned Incentives in our sole discretion if we notice any activity that we believe is abusive, fraudulent, in violation this Agreement or any Supplemental Terms, or otherwise as we deem fair and appropriate. We also reserve the right to deactivate Referral Links or change the Incentives associated with the use of any Referral Link or Referral Program offer at any time for any reason. Without limiting the foregoing, Sensible reserves the right, in its sole discretion, to retroactively revoke or void any Incentive that it deems, in its sole discretion, to be procured (a) in violation of this Agreement, including without limitation, (1) not in accordance with the eligibility requirements and (2) via distribution through unauthorized channels or in violation of any applicable law, rule or regulation; or (b) in association with content that Sensible deems offensive or inappropriate in its sole discretion. Without limiting the foregoing, such content includes all forms of pornography, obscenity, indecent language, and content that incites or endorses hate or violence, is demeaning, disparages or damages the goodwill, reputation, or brand image of Sensible, or incites or endorses discrimination in any form.
Multiple Referrals. A referred individual may only use one Referral Link. If a referred individual receives Referral Links from multiple individuals, only the individual associated with the Referral Link actually used by the referred individual to register an Account will receive credit for the referral.
GENERAL PROVISIONS.
Independent Contractors. The relationship of Sensible and you under this Agreement is that of independent contractors. Notwithstanding anything else set forth herein, neither party will be deemed to be an employee, agent, partner or legal representative of the other for any purpose and neither will have any right, power or authority to create any obligation or responsibility on behalf of the other. Your use of the Services shall not imply, suggest, or otherwise attempt to create an employment relationship between Sensible and you.
Electronic Communications. The communications between you and Sensible may take place via electronic means, whether you visit Services or send Sensible e-mails, or whether Sensible posts notices on Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Sensible in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Sensible provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing.
Release. You hereby release Sensible Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of Services, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Agreement or your use of Services.
Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Sensible’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
Force Majeure. Sensible shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
Questions, Complaints, Claims. If you have any questions, complaints, or claims with respect to Services, please contact us at: support@holdsensible.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, please let Sensible know, so we can investigate further.
Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Sensible agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the courts of Wilmington, Delaware.
Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of THE STATE OF Delaware, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the AGREEMENT.
Choice of Language. It is the express wish of the parties that the Agreement and all related documents have been drawn up in English.
Notice. Where Sensible requires that you provide an e-mail address, you are responsible for providing Sensible with your most current e-mail address. In the event that the last e-mail address you provided to Sensible is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Sensible’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Sensible at the following address: 1 Dock 72 Way, FirstMate Labs Inc, Brooklyn NY 11249. Such notice shall be deemed given when received by Sensible by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
Export Control. You may not use, export, import, or transfer Services except as authorized by the laws of the jurisdiction in which you obtained Services, and any other applicable laws.
Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.