Please review these terms of service ("Terms of Service") carefully. These Terms of Service apply to your access to and use of www.fluxr.com(and all associated sites linked to it), the all other information and services provided through these sites and applications (or otherwise under the 'Fluxr®' brand) (together "Fluxr"). Fluxr is the property of Fluxr Systems, Inc., ("the Company", "us", "we" or "our").
Acceptance of the Terms of Service. Your use of Fluxr, whether as a registered user or not, signifies that you agree to these Terms of Service. If you do not agree, do not use Fluxr. By agreeing to these Terms of Service (and any further changes we make), you represent that you are of legal age to form a binding contract in the jurisdiction where you reside, and that you are not a person barred from using or receiving Fluxr under the laws of the United States or other applicable jurisdiction.
Changes to the Terms of Service. We may change these Terms of Service at any time, and will notify you of such change. All changes will be effective immediately upon notice thereof, which we may do by posting on Fluxr, by email, or otherwise. If you continue to use Fluxr after we post changes to these Terms of Service, you are signifying your acceptance of the new terms. By reloading this page, you will have the most up-to-date version available to Fluxr users.
Changes to Fluxr. We may discontinue, change and/or condition your access to any service or feature on Fluxr at any time without notice, in our sole discretion, without liability to you.
Ownership of information; License to use Fluxr; redistribution of data. Unless otherwise noted, all rights, titles, and interests in Fluxr (and each of its services and features), in all languages, formats, and media throughout the world, including, but not limited to, all copyrights and trademarks therein, are the exclusive property of Fluxr Systems, Inc., our affiliates or the third party that supplied them.
Restrictions. Except as expressly permitted by these Terms of Service, you may not:
use any data mining, robots or similar data gathering and extraction tools on Fluxr;
copy, reproduce, recompile, decompile, disassemble, reverse engineer, distribute, publish, display, perform, modify, upload to, create derivative works from, transmit, transfer, sell, license, upload, edit post, frame, link, or in any way exploit all or any portion of Fluxr; or
interfere (or attempt to interfere) with the functioning of all or any aspect of Fluxr in any way.
Fluxr is made available to you for your personal use only. You may not use all or any portion of Fluxr for commercial purposes without our signed, written consent. For information on commercial and partnership inquiries with us, please see the Contact page.
Permitted Uses. So long as you are in compliance with these Terms of Service (including without limitation, our attribution guidelines) you may:
use snapshots of Fluxr charts or other data visualizations in education sessions, analyses, press releases, books, articles, blog posts and other publications;
display Fluxr charts or other data visualizations during video broadcasts, such as overviews, news, analytics, or to otherwise promote all or any portion of Fluxr;
display and/or ingest content expressly enabled by us (e.g., via github.com/Fluxr); and
download material from Fluxr and/or make one print copy for your own personal, noncommercial use.
Any content from Fluxr (such as the snapshots, charts and other material referenced above) is "Fluxr content". The Company grants you a non-exclusive, non-transferable, revocable, limited license to conduct each of these activities. However, you are still responsible for ensuring that your use complies with applicable law, and doesn't violate any proprietary rights. If we ask you to take down or stop using any Fluxr content (or content containing Fluxr content), you agree you will promptly do so.
Attribution Guidelines. You must either:
Use Fluxr content, without modification, as generated by our "share" feature; or
Use Fluxr content with your own attribution, which must include a reference to Fluxr and show that Fluxr is a registered trademark of Payward, Inc. You must make sure that your attribution is either (1) clearly visible at all times when such charts and products are used or (2) in the case of use or display during video or other promotions where this is not possible, you must include a description of the product used therein (e.g., "Charting platform used for this analysis is provided by Fluxr®," or simply "Charts by Fluxr®."). Your attribution must be in a font size not less than 10 PT = 13PX = 3.4MM.
If you are using our "share" feature or otherwise generate material from Fluxr that contains copyright and other proprietary notices, you must not remove these. You acknowledge that you have no ownership rights in and to any of Fluxr.
Linking your Accounts. You may have the option to link certain third party accounts and/or non-custodial wallets to Fluxr. By doing so, you authorize us to retrieve your own information ("Account Information") maintained by these third-parties. We do not review any Account Information for accuracy, legality or non-infringement, and are not responsible for its content. By submitting access information (such as your API keys and/or public keys), orders and trades (together and separately "Exchange Directions") to us:
you are licensing that content to us for the purpose of providing you with Fluxr (and as otherwise permitted under these Terms of Service). You represent that you are entitled to submit it to us for use for this purpose, without any obligation by us to pay any fees or be subject to any restrictions or limitations; and
you expressly authorize and instruct us to: (i) access your Account Information on your behalf (and you expressly authorize such third parties to disclose your information to us); (ii) submit Exchange Directions to the site you have indicated; (iii) use and store Exchange Directions submitted by you to accomplish the foregoing and to configure Fluxr so that it is compatible with these third party sites; and (ii) retrieve and use Account Information for display to you via Fluxr.
To use the Web3 Services, you must use a third-party wallet which allows you to engage in transactions on blockchains. We do not have custody or control over any wallet or the contents thereof that you link to or otherwise use to interact with the Web3 Services. We do not execute or effectuate purchases, transfers, or sales of digital assets through the Web3 Services.
We cannot and do not represent or guarantee that any orders or trades submitted to third-party sites (including without limitation Web3 service providers), through Fluxr will be executed correctly, in a timely manner, or at all, by an exchange using your Exchange Directions. We make no warranties and assume no liability in connection with the use of Exchange Directions. Any transactions performed using Fluxr are governed by the third party site and/or Web3 service provider's terms of service.
YOU PROVIDE US WITH EXCHANGE DIRECTIONS AT YOUR OWN RISK. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT FLUXR IS NOT A WALLET PROVIDER, EXCHANGE, BROKER, FINANCIAL INSTITUTION, OR CREDITOR, AND THAT WE HAVE NO LIABILITY TO YOU FOR ANY UNAUTHORIZED ACCESS TO OR USE OF YOUR EXCHANGE CREDENTIALS.
Content supplied by You.
Registered users. You may elect to register as a user and create an account with us. By registering as a user, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Fluxr registration form (the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete.
User created content. Fluxr features may permit you to share thoughts, links, ideas and other content ("User Content"), such as via our "chat" function, or other social sharing function. While we welcome your contributions, you may not input, distribute, upload, post, email, transmit or otherwise make available any content through Fluxr that: (i) is promotional in nature, including solicitations for funds or business, without our prior written authorization, or constitutes junk mail, spam, chain letters, pyramid schemes or the like; (ii) is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; (iii) you do not have the right to make available under any law or under contractual or fiduciary relationships; (iv) infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party; (v) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware, or telecommunications equipment; (vi) is harmful to minors; (vii) constitutes the personally identifiable information of any other person that such person has not authorized you to disclose; or (viii) violates any of our posted policies (such as our chat rules and community guidelines).
You may interact with our chat moderators. Please follow their warnings and guidance. Note that, whether you have been warned or not, and whether or not your content violates these Terms of Service, we have no obligation to keep it available through Fluxr, and may remove it at any time.
Feedback. By submitting ideas, content, suggestions, documents, and/or proposals ("Contributions") to us, you acknowledge and agree that: (a) your Contributions do not contain confidential or proprietary information; (b) we are not under any obligation of confidentiality, expressed or implied, with respect to the Contributions; (c) we shall be entitled to use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way, in any media worldwide; (d) we may have something similar to the Contributions already under consideration or in development; (e) your Contributions automatically become the property of Fluxr Systems Inc., without any obligation of Fluxr Systems Inc., to you; and (f) you are not entitled to any compensation or reimbursement from us under any circumstances.
By publicly posting content on Fluxr you grant us a non-exclusive, transferable, non-revocable, worldwide, license to use, copy, modify, merge, publish, make derivative works, and distribute such content, in perpetuity. This means that we may use your contributions to do things such as promote Fluxr and/or quality content to other users.
Access and security.
You accept responsibility for the confidentiality and use of any username and email address that is used to register an account, access, or use Fluxr. You are responsible for maintaining the confidentiality of your username, password, Exchange Directions, and account. You are fully responsible for all activities that occur under your username, password, Exchange Directions or account. For avoidance of doubt, this includes any trades, orders placed, or other directives to an exchange using Exchange Directions registered with Fluxr whether or not authorized by you. You agree to (a) immediately notify us of any unauthorized use of your password or account or any other breach of security; (b) ensure that you exit from your account at the end of each session; (c) prevent third party access to your Exchange Directions; and (d) immediately revoke Exchange Directions with the relevant exchange if they become compromised.
Two Factor Authentication. We recommend (and, in certain instances, may require) the use of two factor authentication to protect your account. You are responsible for enabling this feature. You acknowledge that failing to enable this or other security measures as recommended from time to time, puts your Fluxr account at particular risk for compromise.
Computer Viruses, Phishing, SIM Swap/Porting, and Spoofing. You acknowledge that you are solely responsible for protecting your accounts (e.g., your email and mobile accounts) and systems (e.g., your desktop, laptop or mobile computing device) used to access Fluxr from computer viruses, keystroke loggers, memory scrapers, spyware, ransomware, and other types of malware. You additionally acknowledge that you are solely responsible for ensuring the security of your accounts and protecting yourself from SIM swap/porting scams, phishing attacks, email scams, calls from unauthorized persons, spoofed websites and/or sms messages purporting to be official Fluxr or affiliated services.
Credits, Subscriptions and Payments.
We may make credits ("Credits") available for your purchase via Fluxr. Credits may only be redeemed on Fluxr, have no cash value and no expiration date. Credits are not redeemable for cash or crypto assets.
Fees for Credits, subscriptions and other services (collectively, the "Purchased Services", and such fees, the "Fees") will be stated at the time of your purchase or sign-up, as applicable, and may be pro-rated for the first partial month of service. Fees for subscriptions and other services may be stated in Credits, and may be available for purchase only in Credits. All Fees are subject to change, and may be subject to tax, collected by us or a third party through which you transact. Purchased Services are non-refundable, even if your account is terminated for any reason.
We do not accept all payment methods for the Purchased Services, and not all features (such as our "Auto Refill" program) are available for all payment methods. Acceptable payment methods (each, a "Payment Method") may be viewed on our website.
By purchasing Credits or ordering any subscription through Fluxr, you authorize us to charge the Payment Method indicated (or deduct the applicable amount of Credits, as applicable) in accordance with the settings on your account. If you have opted for auto refill of credits, or ordered a subscription, you are solely responsible for properly canceling the auto refill and/or subscription. Unless you notify us before a charge that you want to cancel or do not want to continue with your auto refill (using the process outlined below), you authorize us, or a third party through which you transact (without notice to you) to collect the then-applicable fees and any taxes, using the indicated Payment Method.
If your Payment Method is declined for payment, we may cancel your Credit auto refill unless you provide us with a working Payment Method. If you have insufficient Credits to purchase subscription(s), we may cancel such subscription(s).
An email request or support ticket asking for your auto refill of credits and/or subscription to be canceled is NOT considered cancellation. You may cancel your auto refill and/or subscription at any time by visiting the credits and subscriptions and services section of your account page. Cancellations will be effective as of the end of the applicable subscription period. We do not offer partial refunds for remaining subscription time.
Refer A Friend.
A "Qualified Referral" is an individual who sets up their first Fluxr account (a "Referred Customer") after arriving to Fluxr by clicking your Refer A Friend program link.
The Referred Customer and the person who referred them cannot be the same person. You are limited to one Qualified Referral for each Referred Customer. Additional/repeat accounts created by you or someone who already has an account with us are not counted as additional Qualified Referrals.
We may offer rewards ("Fluxr Credits"), e.g., in the form of Credits, for each Qualified Referral generated in compliance with these terms, as further detailed in your account management page. For you to be eligible for Fluxr Credits, both you and your Referred Customer(s) must : (a) be in compliance with these Terms of Service, (b) maintain Fluxr accounts in good standing, and (c) not, in our reasonable determination, be acting fraudulently or illegally. Further, the Referred Customer must use your personal referral link to set up their Fluxr account. As a referrer, you are responsible for any and all tax liability (if any) resulting from Fluxr Credits. Fluxr Credits have no cash value and may not be exchanged, refunded, transferred (except where we expressly permit otherwise; provided that in no event may they be transferred outside of Fluxr), reproduced or redeemed for cash or any other form of credit. This Refer A Friend program may not be combined with other offers or discounts.
Eligibility for the Refer a Friend program is limited to individuals only, and any additional written requirements that we provide. The Refer A Friend program cannot be used by businesses for affiliate lead generation as determined in our sole discretion.
You must comply with all up-to-date "SPAM" laws (i.e., CAN-SPAM, CASL). For example, emails must be created and distributed in a personal manner and bulk email distribution is strongly discouraged. Any distribution of your referral link that could constitute unsolicited commercial email or "spam" under any applicable law or regulation is expressly prohibited and will be grounds for immediate termination of your account and/or exclusion from our Refer A Friend program (as we may elect).
We will take such action(s) as we deem appropriate (e.g., clawback of Fluxr Credits if we determine, in our reasonable discretion, that you and/or your Qualified Referrals are in violation of our Terms of Service.
We reserve the right to modify, suspend or cancel this Refer A Friend program at any time and without notice in our sole discretion. Any unclaimed Fluxr Credits will be forfeited at that time.
Account Termination.
By you. Upon your request, your account can be deleted from Fluxr. If you request your account be deleted, we will delete the personal data associated with your account, and you will no longer be able to retrieve any data that was associated with your account. However, certain data will be retained on our systems if we are unable to delete it due to legal, regulatory or technical reasons.
By us. We may, without prior notice and at our discretion, immediately terminate, condition, limit your access to or suspend your Fluxr account, block any associated email address, in each case, without a refund of any monies paid.
Consent to Electronic Delivery. You agree and consent to receive electronically all communications, agreements, documents, receipts, notices and disclosures (collectively, "Communications") that we may provide in connection with your use of Fluxr. You agree that we may provide these Communications to you by posting them on the Fluxr website or emailing them to you at the email address you have provided.
Disclaimers
SOME JURISDICTIONS MAY NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS, SO SOME OR ALL OF THE DISCLAIMERS IN THIS SECTION MAY NOT APPLY TO YOU.
General Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN WRITING BY US, FLUXR IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. WE EXPRESSLY DISCLAIM, AND YOU WAIVE, ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO ANY AND ALL ASPECTS OF FLUXR.
We will not be liable, in any way, to you or any other person for any: (a) inaccuracies or errors in or omissions from Fluxr; (b) delays, errors, or interruptions in the transmission or delivery of Fluxr; or (d) loss or damage arising therefrom or occasioned thereby, or by any reason of nonperformance. We also do not guarantee backward compatibility of our services and Application Programming Interface (API).
YOU ACKNOWLEDGE THAT ANY INFORMATION YOU STORE OR TRANSFER THROUGH FLUXR MAY BECOME IRRETRIEVABLY LOST OR CORRUPTED, TEMPORARILY UNAVAILABLE, OR MISAPPROPRIATED DUE TO A VARIETY OF CAUSES, INCLUDING SOFTWARE FAILURES, PROTOCOL CHANGES BY THIRD-PARTY PROVIDERS, INTERNET OUTAGES, FORCE MAJEURE EVENT OR OTHER DISASTERS INCLUDING THIRD-PARTY DDOS ATTACKS, SCHEDULED OR UNSCHEDULED MAINTENANCE, OR OTHER CAUSES EITHER WITHIN OR OUTSIDE THE CONTROL OF THE COMPANY. YOU ARE SOLELY RESPONSIBLE FOR BACKING UP AND MAINTAINING DUPLICATE COPIES OF ANY INFORMATION YOU STORE OR TRANSFER THROUGH FLUXR.
Disclaimer regarding Third Parties. We consider each of the following to be "Third Party Platforms":
Third party websites to which Fluxr links, or from which you elect to pull in Account Information; and
Software components supplied by third parties to Fluxr, which are utilized by permission of the respective licensors and/or copyright holders on the terms provided by such parties.
We do not sponsor or endorse, nor are we responsible for any content, activities, products or services in or on any Third Party Platforms, or for the actions or inactions of any third parties. Please note that your use of Third Party Platforms will be governed by the terms of such third parties.
Disclaimer regarding Information. Through Fluxr, we may provide you with access to information, data, facts, views, opinions, statements or recommendations, as well as to User Content (collectively "Information"). Much of the Information is not ours, but instead is reproduced from cryptocurrency exchanges and other sources from around the world. We believe that these sources provide reliable information, but cannot guarantee it., and do not verify this Information (and we do not have any obligation to do so). All Information is provided on an as-is basis. We do not guarantee the sequence, accuracy, completeness, or timeliness of Information. No Information constitutes a solicitation, offer, opinion, endorsement or recommendation by us to buy or sell any digital asset or other product, or to provide legal, tax, accounting, or investment advice or services regarding the profitability or suitability of any security or investment. Your use of any and all Information at your sole risk. WE DO NOT RECOMMEND USING THIS INFORMATION TO MAKE ANY INVESTMENT DECISION. WE EXPRESSLY DISCLAIM ALL RESPONSIBILITY AND LIABILITY FOR INFORMATION AVAILABLE VIA FLUXR THIS IS NOT CREATED BY US.
Further, we make no representations or warranty and assume no obligation or liability for scripts, content, and/or indicators whether provided by us or not. Your use of any third-party scripts, indicators, and other content is at your sole risk.
Disclaimer regarding investment decisions and trading. Decisions to buy, sell, hold or trade in cryptocurrencies, securities, commodities and other investments involve risk and are best made based on the advice of qualified financial professionals. Trading in cryptocurrencies, securities or other investments involves a risk of substantial losses. The practice of "Day Trading" involves particularly high risks and can cause you to lose substantial sums of money. Before undertaking any trading program, you should consult a qualified financial professional. Please consider carefully whether such trading is suitable for you in light of your financial condition and ability to bear financial risks. Under no circumstances shall we be liable for any loss or damage you or anyone else incurs as a result of any trading or investment activity that you or anyone else engages in based on any information or material you receive through Fluxr.
Disclaimer regarding hypothetical performance results. Hypothetical performance results have many inherent limitations, some of which are mentioned below. No representation is being made that any account will or is likely to achieve profits or losses similar to those shown. In fact, there are frequently sharp differences between hypothetical performance results and actual results subsequently achieved by any particular trading program. One of the limitations of hypothetical performance results is that they are generally prepared with the benefit of hindsight. In addition, hypothetical trading does not involve financial risk and no hypothetical trading record can completely account for the impact of financial risk in actual trading. For example the ability to withstand losses or to adhere to a particular trading program in spite of the trading losses are material points, which can also adversely affect trading results. There are numerous other factors related to the market in general or to the implementation of any specific trading program which cannot be fully accounted for in the preparation of hypothetical performance results and all of which can adversely affect actual trading results.
Limitation of Liability and Indemnity.
SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE LIMITATIONS OF THIS SECTION MAY NOT APPLY TO YOU.
Limitation of Liability. EXCEPT AS OTHERWISE REQUIRED BY LAW, IN NO EVENT SHALL THE COMPANY, ITS DIRECTORS, MEMBERS, EMPLOYEES, REPRESENTATIVES, CONTRACTORS, AGENTS, OR AFFILIATES BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ALL OR ANY PORTION OF FLUXR; PROVIDED THAT THIS LIMITATION OF LIABILITY SHALL NOT APPLY IN THE EVENT OF GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD BY THE COMPANY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE COMPANY (INCLUDING ITS DIRECTORS, MEMBERS, EMPLOYEES, REPRESENTATIVES, CONTRACTORS, AGENTS, OR AFFILIATES), WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, FLUXR, EXCEED THE GREATER OF: (i) FEES PAID BY YOU TO THE COMPANY DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE OF ANY CLAIM GIVING RISE TO SUCH LIABILITY OR (ii) 100 USD.
Indemnity. You agree to indemnify and hold the Company and our subsidiaries, affiliates, officers, agents, contractors, employees, partners and licensors harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of (i) your use of Fluxr (e.g., your User Content and/or your connection to Fluxr); (ii) any use of Fluxr using your username and password, and/or your connection to Fluxr; (iii) your violation of the Terms of Service, or (iv) your violation of any rights of another.
Applicable Law; Arbitration. PLEASE READ THIS SECTION CAREFULLY, AS IT SIGNIFICANTLY AFFECTS YOUR LEGAL RIGHTS BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH THE COMPANY AND IT LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. ARBITRATION PREVENTS YOU FROM SUING THE COMPANY IN COURT OR FROM SEEKING A JURY TRIAL.
CLASS ACTION WAIVER: TO THE EXTENT PERMISSIBLE BY LAW, ALL CLAIMS MUST BE BROUGHT IN A PARTY'S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS OR ENGAGE IN ANY CLASS ARBITRATION. YOU ACKNOWLEDGE THAT BY AGREEING TO THESE TERMS OF SERVICE, YOU AND THE COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION.
Mandatory Arbitration. You and the Company agree to arbitrate in the English language any dispute arising out of or relating to these Terms of Service, or your use of Fluxr, except for disputes in which either party seeks equitable and other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets or patents.
Dispute Resolution. You and the Company agree to notify each other in writing of any dispute within thirty (30) days of when it arises and agree to attempt informal resolution as detailed here prior to any demand for arbitration. Notice to the Company is only valid if sent to legal@kraken.com and notice to You is only valid if sent to the registered e-mail address on Your account. This notice must provide the details of the dispute and the attempted resolution. If your dispute remains unresolved after formal notice and discussion with the Company, both You and the Company agree to file the arbitration within one hundred eighty (180) days from the time when the dispute originally arose. You and the Company agree that these notice provisions can only be modified by an explicit agreement in writing. If at any point a party fails to respond during informal dispute resolution, You and the Company remain obligated to comply with the subsequent deadline to file the arbitration. If either You or the Company fails to comply with the notice provision, informal resolution requirement, or deadline, You and the Company agree that any such claim is forever barred, that such failure may be raised by either party in a Motion for Summary Adjudication, and that the Arbitrator must issue issue an Award resolving all claims against the party that failed to comply. The notice provision, informal resolution requirement, and deadlines do not apply to counterclaims.. You and the Company further agree: (i) that the venue for any arbitration is San Francisco, California; (ii) that arbitration will be conducted confidentially by a single arbitrator in accordance with JAMS Expedited Rules; (iii) that the arbitration shall not be considered a consumer arbitration for fee purposes and you will be treated as an "investor" as that term is defined by JAMS; and (iv) that the state or federal courts in San Francisco, California have exclusive jurisdiction over any appeals of an arbitration award and over any suit not subject to arbitration. Any dispute between the parties will be governed by these Terms of Service, the laws of the State of California, and applicable United States law, without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction.
Costs and Fees. Each party shall bear its own costs and fees, including attorneys' and other arbitration fees, in connection with the arbitration. If the arbitrator determines that a party has generally prevailed in the arbitration proceeding, the arbitrator shall have the right to award to that party its reasonable out-of-pocket expenses related to the arbitration, including filing fees, arbitrator compensation, attorney's fees and legal costs.
Miscellaneous
Entire Agreement; Order of Precedence. These Terms of Service contain the entire agreement, and supersede all prior and contemporaneous understandings between you and the Company regarding Fluxr. These Terms of Service do not alter the terms or conditions of any other electronic or written agreement you may have with the Company for Fluxr or for any other Company product or service. In the event of any conflict between these Terms of Service and any other agreement you may have with the Company, the terms of that other agreement will control only if these Terms of Service are specifically identified and declared to be overridden by such other agreement.
No Waiver. Our failure or delay in exercising any right, power or privilege under these Terms of Service shall not operate as a waiver thereof.
Rights and Remedies. Our exercise of any rights or remedies under these Terms of Service is without prejudice to any other right or remedy available to us under these Terms of Service or applicable law.
Severability. The invalidity or unenforceability of any portion of these Terms of Service shall not affect the validity or enforceability of any other of these Terms of Service, all of which shall remain in full force and effect.
Force Majeure Events. The Company shall not be liable for the consequences of any occurrence outside of its reasonable control.
Assignment. You may not assign or transfer any of your rights or obligations under these Terms of Service without prior written consent from the Company, including by operation of law or in connection with any change of control. The Company may assign or transfer any or all of its rights under these Terms of Service, in whole or in part, without obtaining your consent or approval.
Headings. Headings of sections are for convenience only and shall not be used to limit or construe such sections.
Survival. Section 4-8, 14-16 and this Section 17 (Miscellaneous) shall survive any termination or expiration of these Terms of Service.