Terms of Service

Last Updated: May 2023

These terms of use, together with any documents and additional terms they expressly incorporate by reference, which includes any other terms and conditions or other agreement that August Network Ltd. ("August," "we," "us" and "our") posts publicly or makes available to you or the company or other legal entity you represent ("you" or "your") (collectively, these "Terms" or "Agreement"), are entered into between August and you concerning your use of, and access to, August's websites, including August; web applications; mobile applications; and all associated sites linked thereto by August or its affiliates (collectively with any materials and services available therein, and successor website(s) or application(s) thereto, the "Site") and the Services (as defined in Section 2.1 hereto).

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 14. 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 12 in their entirety before using any software developed or owned by August. The information in Section 12 provides important details about the legal obligations associated with your use of the Services.

1. Modifications to These Terms​

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.

2. Use of Services​

2.1 The Services. The Site provides access to the decentralized applications; APIs; all other software that August has developed or otherwise owns for entering into bilateral cryptocurrencies transactions and contract arrangement and other blockchain-based assets (collectively, "Digital Assets"), including, without limitation, entering into smart contract-based decentralized transactions related to Digital Assets; and messaging layer service available through the August Protocol (the "Services"). By accessing or using the Site or the Services, you agree that August does not provide execution, settlement, or clearing services of any kind and is not responsible for the execution, settlement, or clearing of transactions automated through the Services. You acknowledge that any execution and settlement occurs directly on the Ethereum blockchain.

2.2 Conditions. As a condition to accessing or using the Services or the Site, you represent and warrant to August the following:

2.2.1 if you are entering into these Terms as an individual, then you are 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 and 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;

2.2.2 you are not a resident, national, or agent of Iran, Cuba, North Korea, Syria, or the Crimean Region of the Ukraine or any other country to which the United States embargoes goods or imposes similar sanctions (collectively, "Restricted Territories");

2.2.3 you are not a member of any sanctions list or equivalent maintained by the United States government, the United Kingdom government, the European Union, or the United Nations (collectively, "Sanctions Lists Persons") and you do not intend to transact with any Restricted Person or Sanctions List Person;

2.2.4 neither you nor any of your affiliates, nor any officer, director, agent or employee purporting to act on behalf of the DAO, has at any time, directly or indirectly, (i) made, provided or paid any unlawful contributions, gifts, entertainment or other unlawful expenses to any candidate for political office, or failed to disclose fully any such contributions in violation of law, (ii) made any payment to any local, state, federal or foreign governmental officer or official, or other person charged with similar public or quasi-public duties, other than payments required or allowed by Applicable Laws, (iii) made any payment to any agent, employee, officer or director of any entity to which you nor any of your affiliates do business with for the purpose of influencing such agent, employee, officer or director to do business with the DAO or such affiliate, (iv) engaged in any transactions, maintained any bank account or used any corporate funds, except for transactions, bank accounts and funds which have been and are reflected in the normally maintained books and records of the DAO and/or such affiliate, (v) violated any provision of Applicable Law concerning anti-corruption, or (vi) made any payment in the nature of criminal bribery or any other unlawful payment;

2.2.5 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

2.2.6 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 August, 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.

2.3 As a condition to accessing or using the Services or the Site, you acknowledge, understand, and agree to the following:

2.3.1 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 August or any of its suppliers or contractors may undertake from time to time; (c) causes beyond August's control or that August 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;

2.3.2 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;

2.3.3 the Site and the Services may evolve, which means August may apply changes, replace, or discontinue (temporarily or permanently) the Services at any time in its sole discretion;

2.3.4 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 August;

2.3.5 August does not act as an agent for you or any other user of the Site or the Services;

2.3.6 you are solely responsible for your use of the Services, including all of your transfers of Digital Assets and the custody and control of your Digital Assets;

2.3.7 to the fullest extent 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;

2.3.8 you are solely responsible for reporting and paying any taxes applicable to your use of the Services; and

2.3.9 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.

2.4 As a condition to accessing or using the Services or the Site, you covenant to August the following:

2.4.1 in connection with using the Services, you only will transfer legally-obtained Digital Assets that belong to you;

2.4.2 you will comply with 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;

2.4.3 any Digital Assets you use in connection with the Services are either owned by you or you are validly authorized to carry our actions using such Digital Assets;

2.4.4 in addition to complying with all restrictions, prohibitions, and other provisions of these Terms, you will 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 Ether address, passwords, API keys, private keys associated with your Services account and other related credentials.

3. Fees and Price Estimates​

In connection with your use of the Services, you are required to pay all fees necessary for interacting with the Ethereum blockchain, including transaction costs, as well as all other fees reflected on the Site at the time of your use of the Services. 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.

4. No Professional Advice or Fiduciary Duties​

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.

5. Prohibited Activity​

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 [e-mail]. By using the Site or Services, you confirm that you will not use the Site or Services to do any of the following:

5.1 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 U.S. Department of Treasury's Office of Foreign Asset Controls;

5.2 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 August's intellectual property, name, or logo, including use of August's trade or service marks, without express consent from August or in a manner that otherwise harm August; any action that implies an untrue endorsement by or affiliation with August;

5.3 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;

5.4 engage in activity that violates any applicable law, rule, or regulation concerning the integrity of trading markets, including (but not limited to) the manipulative tactics commonly known as spoofing and wash trading.

5.5 circumvent any content-filtering techniques, security measures or access controls that August employs on the Site, including, without limitation, through the use of a VPN;

5.6 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;

5.7 provide false, inaccurate, or misleading information while using the Site or the Services or engage in activity that operates to defraud August, other users of the Services, or any other person;

5.8 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;

5.9 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; 5.10 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;

5.11 harass, abuse, or harm of another person or entity, including August's employees and service providers; impersonate another user of the Services or otherwise misrepresent yourself; or

5.12 engage in activity that violates any applicable law, rule, or regulation of the United States or another relevant jurisdiction, including (but not limited to) the restrictions and regulatory requirements imposed by U.S. law.

5.13 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.

6. Content​

You hereby grant to us a royalty-free, fully paid-up, sublicensable, transferable, perpetual, irrevocable, non- exclusive, worldwide license to use, copy, modify, create derivative works of, display, perform, publish and distribute, in any form, medium, or manner, any content that is available to other users as a result of your use of the Site or the Services (collectively, "Your Content"), including, without limitation, for promoting August, its affiliates, the Services or the Site. You represent and warrant that (a) you own Your Content or have the right to grant the rights and licenses in these Terms; and (b) Your Content and our use of Your Content, as licensed herein, does not and will not violate, misappropriate or infringe on any third party's rights.

7. Proprietary Rights​

7.1 Any of August's product or service names, logos, and other marks used on the Site or as a part of the Services, including August's name and logo are trademarks owned by August, its affiliates, or its applicable licensors. You may not copy, imitate, or use them without the prior written consent of August 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.

8. Links​

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 the Company 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 Company 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.

9. Modification, Suspension, and Termination​

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 open August funds to be closed. 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. 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 7 through 15.

10. Assumption of Risks​, Warranties

10.1 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); Ethereum blockchain-based tokens, and systems that interact with blockchain-based networks. August 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. By using the Services, you acknowledge and agree (a) that August 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. 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 August 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.

10.2 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 August to continue to make available its proprietary software and, thus, could impede or limit your ability to access or use the Services.

10.3 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 August-developed or owned software related to the Services 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.

10.4 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.

10.5 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 August 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.

10.6 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.

10.7 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.

10.8 Use of the Services, in particular for Digital Assets transactions and entering into August Finance funds, may carry financial risk. Digital Assets and the Protocol are 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 transacting in Digital Assets using August Finance funds can be substantial. You should, therefore, carefully consider whether such transactions are 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 August pool transaction. 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. 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.

10.9 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.

10.10 You understand that the Service remains under development, which creates technological, transaction related, and other risks when using the Services. These risks include, among others, delays in trades, withdrawals, and deposits resulting from the servers of August or the operator of the 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.

10.11 Volatility of Cryptocurrency.

You understand that Ethereum and other blockchain technologies and associated currencies or tokens are highly volatile due to many factors including but not limited to adoption, speculation, technology and security risks. You also acknowledge that the cost of transacting on such technologies is variable and may increase at any time causing impact to any activities taking place on the Ethereum blockchain. You acknowledge these risks and represent that August or any related entity or person cannot be held liable for such fluctuations or increased costs.

10.12 You hereby assume, and agree that August will have no responsibility or liability for, the risks set forth in this Section 10. You hereby irrevocably waive, release and discharge all claims, whether known or unknown to you, against August, 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 10.

10.13 Warranty Disclaimers. THE INTERFACE AND THE PROTOCOL IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WE MAKE NO WARRANTY THAT THE INTERFACE WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. WE MAKE NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY INFORMATION OR CONTENT ON THE INTERFACE OR THE PROTOCOL.

THE COMPANY WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSS AND TAKES NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO YOU FOR, ANY USE OF THE INTERFACE OR THE PROTOCOL, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (I) USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED WALLET ADDRESSES; (II) SERVER FAILURE OR DATA LOSS; (III) CRYPTOCURRENCY WALLETS OR CORRUPT FILES; (IV) UNAUTHORIZED ACCESS TO INTERFACE; OR (V) ANY THIRD PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK AGAINST ANY BLOCKCHAIN NETWORK UNDERLYING THE INTERFACE OR THE PROTOCOL.

11. Indemnification​

You will defend, indemnify, and hold harmless August, 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 Service); (b) Digital Assets associated with your Ethereum address; (c) any feedback or user content you provide to August, 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, August (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 August wishes to settle, and if so, on what terms, and you agree to corporate with August in the defense.

12 Disclosures; Disclaimers​

August is a developer and owner of software. August 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 the Services 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 August Protocol pools, 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. You understand that August is not registered or licensed by the BVI Financial Services Commission. the CFTC, SEC, or any financial regulatory authority. No financial regulatory authority has reviewed or approved the use of the August-developed or owned open- source software. The Site and the August-developed or owned software do not constitute advice or a recommendation concerning any commodity, security, or other Digital Asset or instrument. August is not acting as an investment adviser or commodity trading adviser to any person or entity. August does not own or control the underlying software protocols that are used in connection with Ethereum Blockchain used to enter into August Protocol pools using the Services. In general, the underlying protocols are open source and anyone can use, copy, modify, and distribute them. August is not responsible for the operation of the underlying protocols, and August makes no guarantee of their functionality, security, or availability.

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 Services are correctable or will be correctable.

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.

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.

13. Limitation of Liability​

In no event shall August'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, August Protocol pools or any product, service or other item provided by or on behalf of August, whether under contract, tort, negligence, civil liability, statute, strict liability or other theory of liability exceed the lesser of US $50 or the amount of fees paid by you to August under these Terms, if any, in the twelve (12) month period immediately preceding the event giving rise to the claim for liability, except to the extent of a final judicial determination that such damages were the result of August's gross negligence, fraud, willful misconduct or intentional violation of the law.

14. Dispute Resolution & Arbitration​

14.1 Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to this User Agreement or the breach, termination, enforcement, interpretation or validity thereof or the use of the Interface (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and the Company agree that the British Virgin Islands Arbitration Act governs the interpretation and enforcement of this User Agreement, and that you and the Company are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of this User Agreement.

14.2 Exceptions. As limited exceptions to Section 14.1 above: (i) we both may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights.

14.3 Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by JAMS under its JAMS Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”) then in effect, except as modified by this User Agreement. The JAMS Rules are available at https://www.jamsadr.com/. A party who wishes to start arbitration must submit a written Demand for Arbitration to JAMS and give notice to the other party as specified in the JAMS Rules. JAMS provides a form Demand for Arbitration at https://www.jamsadr.com/.

Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location, but will be conducted remotely to the extent permitted by the JAMS Rules. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.

14.4 Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules, and we won’t seek to recover the administration and arbitrator fees we are responsible for paying, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.

14.5 Injunctive and Declaratory Relief. Except as provided in Section 14.2 above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and 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 that party’s individual claim. To the extent that you or we prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.

14.6 Class Action Waiver. YOU AND THE COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ Dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.

14.7 Severability. With the exception of any of the provisions in Section 14.6 of this User Agreement (“Class Action Waiver”), if an arbitrator or court of competent jurisdiction decides that any part of this User Agreement is invalid or unenforceable, the other parts of this User Agreement will still apply.

15. General Information​

15.1 Privacy Policy. Please refer to our privacy policy, which is incorporated herein by reference and available here at https://docs.fractalprotocol.org/legal/legal-notices/terms-of-service for information about how we collect, use, share and otherwise process information about you.

15.2 Consent to Electronic Delivery. 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 [e-mail].

15.3 Remedies. Any right or remedy of August 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 August in exercising any right, power, or privilege under these Terms shall not operate as a waiver thereof.

15.4 Severability. The invalidity or unenforceability of any of these Terms shall not affect the validity or enforceability of any other of these Terms, all of which shall remain in full force and effect.

15.5 Force Majeure. 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 Assignment. 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 Governing Law. 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 British Virgin Islands. 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 courts located in the British Virgin Islands will have exclusive jurisdiction. You waive any objection to venue in any such courts.

15.8 Headings. Headings of sections are for convenience only and shall not be used to limit or construe such sections.

15.9 Entire Agreement. These Terms contain the entire agreement between you and August, and supersede all prior and contemporaneous understandings between the parties regarding the Site and the Services.

15.10 Interpretation. 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.

15.11 No Third Parties. You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to the Terms other than the Indemnified Parties.