Comment on page
LAST UPDATED: NOVEMBER 2023
THE DERIVIO INTERFACE (AS DEFINED BELOW) IS NOT AVAILABLE TO PERSONS OR ENTITIES WHO RESIDE IN, ARE LOCATED IN, ARE INCORPORATED IN, OR HAVE A REGISTERED OFFICE IN THE UNITED STATES OF AMERICA OR CANADA (COLLECTIVELY, “BLOCKED PERSONS”). MOREOVER, NO SERVICES (AS DEFINED BELOW) ARE OFFERED TO PERSONS OR ENTITIES WHO RESIDE IN, ARE CITIZENS OF, ARE LOCATED IN, ARE INCORPORATED IN, OR HAVE A REGISTERED OFFICE IN ANY RESTRICTED TERRITORY (AS DEFINED BELOW, AND ANY SUCH PERSON OR ENTITY FROM A RESTRICTED TERRITORY, A “RESTRICTED PERSON”). WE DO NOT MAKE EXCEPTIONS; THEREFORE, IF YOU ARE A BLOCKED PERSON, THEN DO NOT ATTEMPT TO USE THE DERIVIO INTERFACE AND IF YOU ARE A RESTRICTED PERSON, THEN DO NOT ATTEMPT TO USE ANY OF THE SERVICES. USE OF A VIRTUAL PRIVATE NETWORK (“VPN”) TO CIRCUMVENT THE RESTRICTIONS SET FORTH HEREIN IS PROHIBITED.
- Derivio’s websites, including derivio.xyz (and their respective subdomains); web applications; mobile applications; and all associated sites linked thereto by Derivio (collectively with any materials and services available therein, and successor website(s) or application(s) thereto, the “Site”);
- all products and features available via the Site, including the smart contracts, decentralized applications, APIs and all other software that Derivio or a third party has developed for trading blockchain-based assets (collectively, “Digital Assets”), including perpetuals related to Digital Assets, options related to Digital Assets, or exchanging one Digital Asset for another Digital Asset (collectively the “Interface”); and
- non-fungible tokens (“NFTs”) available in connection with the Interface, or registration for or attendance at events sponsored or hosted by Derivio (collectively with the Site and the Interface, the “Services”).
Please read these Terms carefully, as these Terms govern your use of the Services. These Terms expressly cover your rights and obligations, and our disclaimers and limitations of legal liability, relating to your use of, and access to, the Services. By clicking “I agree” (or a similar language) to these Terms, acknowledging these Terms by other means, or otherwise accessing or using the Services, you accept and agree to be bound by and to comply with these Terms, including the mandatory arbitration provision in Section 15. If you do not agree to these Terms, then you must not access or use the Services.
Please carefully review the disclosures and disclaimers set forth in Section 12 in their entirety before using any software developed by Derivio. The information in Section 12 provides important details about the legal obligations associated with your use of the Services. By accessing or using the Services, you agree that Derivio 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.
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 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 As a condition to accessing or using the Services, you represent and warrant to Derivio the following:
- 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;
- 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;
- if you are entering into these Terms to access the Interface or will in the future access the Interface, then you are not a Blocked Person, and are not accessing the Interface from within the United States or Canada (collectively, "Blocked Countries");
- you must not be a resident, citizen or agent of, or incorporated in, and do not have a registered office in Iran, Cuba, North Korea, Syria, Myanmar (Burma), the regions of Crimea, Donetsk or Luhansk, or any other country or region that is the subject of comprehensive country-wide or region-wide economic sanctions by the United States (collectively, “Restricted Territories”);
- you are not the subject of economic or trade sanctions administered or enforced by any governmental authority or otherwise designated on any list of prohibited or restricted parties (including the list maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury) (collectively, “Sanctioned Person”);
- you do not intend to transact with any Restricted Person or Sanctioned Person;
- you do not, and will not, use a VPN or any other privacy or anonymization tools or techniques to circumvent, or attempt to circumvent, any restrictions that apply to the Services; and
- your access to the Services (a) is not 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 Derivio, you, the Services, or as otherwise duly enacted, enforceable by law, the common law or equity (collectively, “Applicable Laws”); and (b) does not contribute to or facilitate any illegal activity.
- 2.2 As a condition to accessing or using the Services, you acknowledge, understand, and agree to the following:
- from time to time, the Services may be inaccessible or inoperable for any reason, including: (a) equipment or technology or other infrastructure delay, inaccessibility, or malfunctions; (b) periodic maintenance procedures or repairs that Derivio or any of our suppliers or contractors may undertake from time to time; (c) causes beyond Derivio’s control or that Derivio 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. Without limitation of any other provision of these Terms, and as set forth below, Derivio has no responsibility or liability for any losses or other injuries resulting from any such events;
- we reserve the right to disable or modify access to the Services (such as restricting features of the Services) at any time in the event of any breach of these Terms, including, if we reasonably believe any of your representations and warranties may be untrue, misleading, 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 Services being inaccessible to you at any time or for any reason;
- the Services may evolve, which means Derivio may apply changes, replace, or discontinue (temporarily or permanently) the Services at any time in our sole discretion;
- the pricing information and other data provided on the Site does not represent (i) an offer, a solicitation of an offer, or recommendation to enter into, a transaction with Derivio (other than the payment of fees to Derivio) or (ii) any advice regarding a transaction entered into using the Site and the Services;
- Derivio does not act as an agent for you or any other user of the Services;
- you are solely responsible for your use of the Services, including all of your transfers of Digital Assets;
- 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;
- you are solely responsible for reporting and paying any taxes applicable to your use of the Services;
- 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;
- we may, from time to time, operate contests, promotions, sweepstakes or other activities or offer referral programs (“Promotions and Referrals”), which may be governed by separate terms and conditions and rules that may contain certain eligibility requirements; and you are responsible for reading all terms and conditions and rules relating to the Promotions and Referrals to determine whether you are eligible to participate; if you enter or participate in any Promotions and Referrals, then you agree to abide by and to comply with all terms and conditions and rules of such Promotions and Referrals; all Promotions and Referrals will be optional so you should not enter or participate in such Promotions and Referrals if you do not agree to abide by and comply with all such terms and conditions and rules; and
- if you receive discounts on fees from any Promotions and Referrals that are not subject to separate terms and conditions and rules, then Derivio reserves the right to add to, modify or eliminate the discounts and any other aspect of such Promotions and Referrals.
2.3 As a condition to accessing or using the Services, you covenant to Derivio the following:
- in connection with using the Services, you only will transfer legally-obtained Digital Assets that belong to you;
- you will obey all Applicable Laws in connection with using the Services, and you will not use the Services if the laws of your country, or any other Applicable Law, prohibit you from doing so;
- any Digital Assets you use in connection with the Services are either owned by you or you are validly authorized to carry out actions using such Digital Assets; and
- in addition to complying with all restrictions, prohibitions, and other provisions of these Terms, you will (a) ensure that, at all times, all information that you provide on the Site and during your use of the Services is current, complete, and accurate; and (b) maintain the security and confidentiality of your private keys associated with your blockchain address, passwords, API keys, private keys and other related credentials.
3. FEES AND PRICE ESTIMATES
In connection with your use of the Services, unless expressly stated otherwise pursuant to a promotion operated by Derivio, you are required to pay all fees necessary for interacting with blockchains, including “gas” 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 blockchains.
4. NO PROFESSIONAL ADVICE OR FIDUCIARY DUTIES
All information provided in connection with your access and use of 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 blog posts, data, 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 your use of the Services involves a Prohibited Use or have other questions about how these requirements apply to you, then please contact us at [email protected]. By using the Services, you confirm that you will not engage in any of the following Prohibited Uses:
- violate any Applicable Laws including any relevant and applicable anti-money laundering and anti-terrorist financing laws and sanctions programs, such as the Bank Secrecy Act and the U.S. Department of Treasury’s Office of Foreign Asset Controls;
- engage in transactions involving items that infringe or violate any copyright, trademark, right of publicity or privacy, or any other proprietary right under Applicable Law, including sales, distribution or access to counterfeit music, movies, software or other licensed materials without the appropriate authorization from the rights holder; use of Derivio’s or our licensors’ intellectual property, name or logo, including use of Derivio’s trade, service or licensed marks, without express consent from Derivio or in a manner that otherwise harms Derivio; any action that implies an untrue endorsement by or affiliation with Derivio;
- engage in improper or abusive trading practices, including, but not limited to, (a) any fraudulent act or scheme to defraud, deceive, trick or mislead; (b) trading ahead of another user of the Services or front-running; (c) fraudulent trading; (d) accommodation trading; (e) fictitious transactions; (f) pre-arranged or non-competitive transactions; (g) cornering, or attempted cornering, of any Digital Assets; (h) violations of bids or offers; (i) wash trading (i.e., entering buy and sell orders at or about the same price, volume, and time for the purpose of generating trading volume); (j) manipulation (i.e., trading for the purposes of affecting the market price of a Digital Asset and creating an artificial price); (k) spoofing (i.e., placing buy or sell orders without a bona fide intent to transact and with the intent to cancel before execution); (l) knowingly making any bid or offer for the purpose of making a market price that does not reflect the true state of the market; (m) entering orders for the purpose of entering into transactions without a net change in either party’s open positions but a resulting profit to one party and a loss to the other party, commonly known as a “money pass;” or (n) any other trading activity that, in the reasonable judgment of Derivio, is abusive, improper or disruptive to the operation of the Interface.
- use the Services in any manner that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying the Services, or that could damage, disable, overburden, or impair the functioning of the Site or the Services in any manner;
- circumvent any content-filtering techniques, security measures or access controls that Derivio employs on the Site, including through the use of a VPN;
- use any robot, spider, crawler, scraper or other automated means or interface not provided by us to access the Services, to extract data, or to introduce any malware, virus, Trojan horse, worm, logic bomb, drop-dead device, backdoor, shutdown mechanism or other harmful material into the Site or the Services;
- provide false, inaccurate, or misleading information while using the Services or engage in activity that operates to defraud Derivio, other users of the Services or any other person;
- use or access the Services to transmit or exchange Digital Assets that are the direct or indirect proceeds of any criminal or fraudulent activity, including terrorism or tax evasion;
- use the Services in any way that is, in our sole discretion, libelous, defamatory, profane, obscene, pornographic, sexually explicit, indecent, lewd, vulgar, suggestive, harassing, stalking, hateful, threatening, offensive, discriminatory, bigoted, abusive, inflammatory, fraudulent, deceptive or otherwise objectionable, or likely or intended to incite, threaten, facilitate, promote, or encourage hate, racial intolerance or violent acts against others;
- use the Services from a jurisdiction (including an IP address in a jurisdiction) that we have, in our sole discretion, determined is a jurisdiction where the use of the Site, the Interface or the Services is prohibited, including any Blocked Countries or any Restricted Territory;
- harass, abuse or harm another person, including Derivio’s employees and service providers;
- impersonate another user of the Services or otherwise misrepresent yourself; or
- engage or attempt to engage, or encourage, induce or assist any third party to engage or attempt to engage in any of the activities prohibited under this Section 5 or any other provision of these Terms.
You hereby grant to us a royalty-free, fully paid-up, sublicensable (through multiple tiers), 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 for promoting Derivio or the Services. 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. You acknowledge that certain aspects of the Services may use, incorporate or link to certain open-source components and that your use of the Services is subject to, and you will comply with, any applicable open-source licenses that govern any such open-source components (collectively, the “Open-Source Licenses”). Without limiting the generality of the foregoing, you may not (a) resell, lease, lend, share, distribute, or otherwise permit any third party to use the Services; (b) use the Services for time-sharing or service bureau purposes; or (c) otherwise use the Services in a manner that violates the Open-Source Licenses.
- 7.2. Excluding third-party software that the Services incorporates, as between you and Derivio, Derivio owns the Services, including all technology, content and other materials used, displayed or provided on the Site or in connection with the Services (including all intellectual property rights subsisting therein, whether or not subject to the Open-Source Licenses), and hereby grants you a limited, non-exclusive, revocable, non-transferable, non-sublicensable license to access and use those portions of the Site and the Services that are proprietary to Derivio and not available pursuant to the Open-Source Licenses.
- 7.3. Any of Derivio’s product or service names, logos, and other marks used on the Site or as a part of the Services including Derivio’s name and logo are trademarks owned by Derivio or our licensors You may not copy, imitate, or use them without the prior written consent of Derivio 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 Site or the Services.
- 7.4. The Services are non-custodial. When you deposit Digital Assets into any smart contract available on the Interface, you are not transferring Digital Assets to Derivio, and you retain control over those Digital Assets at all times. The private key associated with the blockchain address from which you transfer Digital Assets is the only private key that can control the Digital Assets you transfer into the smart contracts available on the Interface.
The Services or third parties may provide, links to other World Wide Web or accessible sites, applications, or resources. You acknowledge and agree that Derivio 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 will 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 to only allow open Perpetual Contracts 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 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: Section 7 and Sections 9 through Section 17.
- 10.1. By accessing or using the Services , you understand and agree to the inherent risks associated with cryptographic systems and blockchain-based networks; Digital Assets, including the usage and intricacies of native Digital Assets, like ether (ETH); smart contract-based tokens, including fungible tokens and NFTs; and systems that interact with blockchain-based networks. Derivio 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 Derivio is not responsible for the operation of the blockchain-based 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 blockchain-based 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 and 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 networks. Neither Derivio 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. You acknowledge and understand that 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 Derivio to continue to make available our proprietary software and 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, the smart contracts available on the Interface will be updated to account for any advances in cryptography and to incorporate additional security measures necessary to address risks presented from technological advancements, but that intention does not guarantee or otherwise ensure full security of the Services.
- 10.4. You understand that blockchains remain 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 blockchains is variable and may increase at any time causing impact to any activities taking place on blockchains, 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 relating to the Services. This warning and other warnings that Derivio provides in these Terms are in no way evidence or represent an on-going duty to alert you to all of the potential risks of utilizing the Services.
- 10.6. Although we intend to provide accurate and timely information and data 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 information regarding our policies. Accordingly, you acknowledge and understand that 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 entering into derivatives may carry financial risk. Digital Assets, especially in connection with derivatives, are, by their nature, highly experimental, risky, and volatile. Transactions entered into in connection with the Services are irreversible, final and there are no refunds. You acknowledge and agree that you will access and use the Services at your own risk. The risk of loss in trading Digital Assets, especially entering into derivatives, can be substantial. You should, therefore, carefully consider whether such trading is suitable for you in light of your circumstances and financial resources. By using the Services, you represent and warrant that you have been, are, and will be solely responsible for making your independent appraisal and investigations into the risks of a given transaction and the underlying Digital Assets, including derivatives. You represent that you have sufficient knowledge, market sophistication, professional advice, and experience to make your evaluation of the merits and risks of any transaction conducted in connection with the Services or any Digital Asset. You accept all consequences of using the Services, including the risk that you may lose access to your Digital Assets indefinitely. All transaction decisions are made solely by you. Notwithstanding anything in these Terms, we accept no responsibility whatsoever for, and will in no circumstances be liable to you for any loss or injury sustained by you or any third parties in connection with, your use of the Services for performing Digital Asset transactions, including entering into derivatives.
- 10.9. We must comply with Applicable Law, which may require us to, upon request by government agencies, take certain actions or provide information. You acknowledge and understand that Derivio may in its sole discretion take any action it deems appropriate to cooperate with government agencies or comply with Applicable Law.
- 10.10. You understand that blockchains remain under development, which creates technological, trading, and other risks when using the Services. These risks include, among others, delays in trades, withdrawals, and deposits resulting from the servers of Derivio 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. You understand that you are responsible for all trades you place, including any erroneous orders that may be filled. We do not take any action to resolve erroneous trades that result from your errors.
- 10.12. You hereby assume the risks set forth in this Section 10 and Section 2, and acknowledge and agree that Derivio 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 Derivio and our shareholders, members, directors, officers, employees, agents, and representatives, suppliers, and contractors (“Representatives”) related to any of the risks set forth in this Section 10 and Section 2.
You will defend, indemnify, and hold harmless Derivio and our Representatives (collectively, “Indemnified Parties”) from any claim, demand, lawsuit, action, proceeding, investigation, liability, damage, loss, cost or expense, including reasonable attorneys’ fees, arising out of or relating to (a) your use of, or conduct in connection with the Services; (b) Digital Assets associated with your Ethereum address; (c) any feedback or user content you provide to Derivio, if any, concerning 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, Derivio (or, at our sole discretion, the applicable Indemnified Party) will have the right, in our or its sole discretion, to control any action or proceeding and to determine whether Derivio wishes to settle, and if so, on what terms, and you agree to cooperate with Derivio in the defense.
12. DISCLOSURES; DISCLAIMERS
- 12.1 Derivio is a developer of software. Derivio does not operate a Digital Asset or derivatives exchange platform or offer trade execution or clearing services and has no oversight, involvement, or control concerning your transactions using the Services. All transactions between users of the Interface are executed peer-to-peer directly between the users’ blockchain addresses through a smart contract. You are responsible for complying with all Applicable Laws that govern your Digital Assets. As a result of restrictions under the Commodity Exchange Act and the regulations promulgated thereunder by the U.S. Commodity Futures Trading Commission (“CFTC”), no Blocked Person may enter into derivatives using the Services.
- 12.2 You understand that Derivio is not registered or licensed by any regulatory agency or authority. No such agency or authority has reviewed or approved the use of the Services.
- 12.3 To the maximum extent permitted under Applicable Law, 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 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 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 Services are correctable or will be correctable.
- 12.4 You acknowledge that data you provide while accessing or using the Services 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 of our control.
13. LIMITATION OF DAMAGES; EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES
- 13.1 Without limitation of any other provision of these Terms, you hereby agree that neither Derivio nor any of its Representatives will have any responsibility or liability whatsoever for any loss or injury sustained by you or any third parties as a result of (i) any equipment or technology or other infrastructure delay, inaccessibility, or malfunctions; (ii)periodic maintenance procedures or repairs that Derivio or any of our suppliers or contractors may undertake from time to time; (iii) causes beyond Derivio’s control or that Derivio could not reasonably foresee; (iv) disruptions and temporary or permanent unavailability of underlying blockchain infrastructure; or (v) unavailability of third-party service providers or external partners for any reason. Under no circumstances will Derivio or its Representatives have any liability for any such loss or injury caused by any of the foregoing events, including but not limited to any obligation to cover or reimburse any damages or losses caused by such events. You expressly acknowledge that any risk of loss resulting from such events shall be borne by you, and you expressly assume any and all such risks.
- 13.2 In no event will Derivio, our suppliers and contractors, and Derivio’s or our suppliers’ and contractors’ respective stockholders, members, directors, officers, managers, employees, attorneys, agents, representatives, suppliers and contractors (collectively, the “Risk Limited Parties”) be liable for any incidental, indirect, special, punitive, consequential or similar damages or liabilities whatsoever (including damages for loss of fiat, assets, data, information, revenue, opportunities, use, goodwill, profits or other business or financial benefit) arising out of or in connection with the Services (and any of their content and functionality), any execution or settlement of a transaction, any performance or non-performance of the Services, your Digital Assets, Perpetual Contracts or any other product, service or other item provided by or on behalf of Derivio, whether under contract, tort (including negligence), civil liability statute strict liability breach of warranties or under any other theory of liability and whether or not we have been advised of, knew of or should have known of the possibility of such damages and, notwithstanding any failure of the essential purpose of these Terms or any limited remedy hereunder, nor is Derivio in any way responsible for the execution or settlement of transactions between users of the Services
14. LIMITATION OF LIABILITY
Without limitation of any provision of these Terms, in the event that Derivio or any related party is found liable under these Terms, the aggregate liability of Derivio (together with our equity owners, members, directors, managers, officers, employees, attorneys, agents, representatives, suppliers, or contractors), arising out of or in connection with your use of the Services (and any of their content and functionality), any performance or nonperformance of the Services, your Digital Assets, derivatives or any other product, service or other item provided by or on behalf of Derivio, whether under contract, tort (including negligence), civil liability, statute, strict liability or other theory of liability, will not exceed the amount of fees paid by you to Derivio under these Terms, if any, in the two (2) month period immediately preceding the event giving rise to the claim for liability.
15. DISPUTE RESOLUTION AND ARBITRATION
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT MAY SIGNIFICANTLY IMPACT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO BRING A LAWSUIT AGAINST DERIVIO IN ANY COURT OR GOVERNING AUTHORITY. EXCEPT AS EXPRESSLY PROVIDED BELOW, THIS SECTION REQUIRES YOU TO SUBMIT ANY DISPUTE, CLAIM, OR DISAGREEMENT (EACH A “DISPUTE”) ARISING OUT OF THESE TERMS OR THE SERVICES, INCLUDING ANY DISPUTE THAT AROSE BEFORE THE EFFECTIVE DATES OF THESE TERMS, TO BINDING INDIVIDUAL ARBITRATION. THIS SECTION EXTENDS TO DISPUTES THAT AROSE OR INVOLVE FACTS OCCURRING BEFORE THE EXISTENCE OF THIS OR ANY PRIOR VERSIONS OF THE TERMS AS WELL AS DISPUTES THAT MAY ARISE AFTER THE TERMINATION OF THE TERMS.
- 15.1. You agree that if any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, “Disputes”) cannot be resolved between the parties, it will be resolved solely by binding individual arbitration and not in a class action, representative or consolidated action or proceeding. You and Derivio each agree to waive the right to a trial by jury or to participate in any class action. This arbitration provision shall survive termination of these Terms.
- 15.2. As limited exceptions to this Section 15, Derivio may seek to resolve a Dispute in a small claims court if it qualifies; and retains the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of Derivio's intellectual property rights.
- 15.3. Parties must only submit a Dispute to arbitration where there has been attempts in good faith to resolve the Dispute and parties have not been able to reach an agreement. The arbitration will be conducted at the seat of arbitration specified above. A party who wishes to undertake arbitration must provide advanced written notice to the other party. Payment of all filing, administration and arbitrator fees will be governed by the party filing for arbitration.
- 15.4. Any arbitration hearings will be conducted confidentially and remotely, to the extent permitted by the relevant seat of arbitration rules, unless we both agree to a different location. The parties agree that there shall only be one arbritrator and the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
- 15.5. Except as provided in this Section, 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 favour 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 Derivio prevails 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.
- 15.6. YOU AGREE THAT EACH PARTY MAY ONLY 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.
- 15.7. With the exception of any of the provisions in Section 18.6 of these Terms (“Class Action Waiver”), if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
- 15.8. Both you and Derivio agree that any claim arising out of or related to these Terms or the Services must be filed within one (1) year after such claim arose, otherwise the claim is permanently barred, which means that you and Derivio will not have the right to assert the claim.
16. GOVERNING LAW
These Terms and any action related thereto will be governed by the jurisdiction of Saint Vincent and the Grenadines, without regard to its conflict of laws provisions.
17. GENERAL INFORMATION
- 17.2. You consent to receive all communications, agreements, documents, receipts, notices, and disclosures electronically (collectively, our “Communications”) that we provide in connection with these Terms or any Services. You agree that we may provide our Communications to you by posting them on the Site, by emailing them to you at the email address you provide in connection with using the Services, if any, or by Telegram at the username you provided to us during the course of your use of the Services. You should maintain copies of our Communications by printing a paper copy or saving an electronic copy. You may also contact us with questions, complaints, or claims concerning the Services at [email protected].
- 17.3. Any right or remedy of Derivio 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 Derivio in exercising any right, power, or privilege under these Terms will not operate as a waiver thereof.
- 17.4. The invalidity or unenforceability of any of these Terms will not affect the validity or enforceability of any other of these Terms, all of which will remain in full force and effect.
- 17.5. We will have no responsibility or liability for any failure or delay in performance of any of the Services, or any loss or damage that you may incur, due to any circumstance or event beyond our control, including 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.
You may not assign or transfer any right to use 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, with or without notice or obtaining your consent or approval.
- 17.7. Except to the extent otherwise provided or unless the context otherwise requires, for the purposes of these Terms: (a) headings of sections are for convenience only and will not be used to limit or construe such sections; (b) whenever the words “include,” “includes” or “including” are used in these Terms, they are deemed to be followed by the words “without limitation”; and (c) the use of “or” is not intended to be exclusive.
- 17.8. These Terms contain the entire agreement between you and Derivio, and supersede all prior and contemporaneous understandings between the parties with respect to the Services.
- 17.9. In the event of any conflict between these Terms and any other agreement you may have with us, these Terms will control unless such other agreement specifically identifies these Terms and declares that such other agreement supersedes these Terms.
- 17.10. You agree that, except as otherwise expressly provided in this Agreement, there is no third-party beneficiaries to the Agreement other than the Indemnified Parties.