Effective Date: July 9, 2018
1.1. Your Evercoin account provided by Paycent Inc. (“Evercoin Account”) encompasses the following services:
2.1. General Requirements
To utilize the Service offered by Evercoin, the User must be at least 18 years old and all users must satisfy the following criteria: (a) Be of legal age to form a binding contract (at least 18 years of age in the United States); (b) Not be identified as a “Specially Designated National” by the Department of the Treasury, Office of Foreign Assets Control (OFAC) or identified as a person or entity from other relevant sanctions watchlists; (c) Not been identified on the U.S. Department of Commerce Denied Persons List (d) Never been previously suspended or removed from using the Evercoin Service; (e) Agree to only establish a single Evercoin Account and never establish multiple accounts with the Company; (e) Have the full power and authority to agree to this Agreement.
2.2. Restricted Locations
Individuals attempting to use the Service from jurisdictions embargoed by the United States or where use of the Service would be illegal or otherwise violate any applicable law will be prevented from using the Service in order to comply with relevant laws and regulations. You may not use the Service if you are located in, or are a resident of, any other jurisdiction where Evercoin has determined, at its discretion, to prohibit use of the Service. Evercoin may implement controls to restrict access to the Service from any jurisdiction deemed prohibited, pursuant to relevant laws and regulations and in accordance with a risk-based Anti-Money Laundering program.
United States laws prohibit the Company from doing business with residents of I ran, Syria, North Korea, the Crimea region, and Cuba as well as any person with economic sanctions levied against them specifically by the federal government. According to this Agreement, if you are not a resident of the countries listed above, are not subject to personal sanctions specified by the Specially Designated Nationals list, or other related lists, and meet the rest of the criteria listed in the Agreement, you are eligible to use the Service.
By engaging with the Evercoin Service you represent and warrant that you are not a citizen or resident of any jurisdiction where the Company has determined, at its discretion, to prohibit use of the Service. Evercoin may implement controls to prevent access to embargoed jurisdictions and other jurisdictions deemed restricted by the Company, at its discretion, pursuant to this section 2.2. The user acknowledges that they will comply with Section 2.2, even if controls are not effective and can be bypassed.
2.3. Prohibited Use
In connection with your use of the Evercoin Service, and your interactions with other users or any third parties you agree and represent you will not engage in any Prohibited Business or Prohibited Use defined herein. The Company reserves the right at all times to monitor, review, retain and/or disclose any information as necessary to satisfy any applicable law, regulation, sanctions programs, legal process, or government request. Evercoin reserves the right to suspend and/or cancel your Evercoin Account and/or block transactions or freeze funds without notice if determined that prohibited uses , as defined in 6.11. “Acceptable Use Policy”, is occurring.
3.1. Evercoin Account
In order to use any part of the Evercoin Service, the User must create and maintain an account with The Company. To create or maintain an Evercoin account or enable higher trading limits, the User will be required to provide various tiers of information in order to verify user identity and validate the information provided. Section 3.2, below, describes the identity verification process, documentation required, and relevant screening procedures.
At account opening, the User will :
Unlike custodial exchanges, creation of an account does not denote transfer of control, ownership, or custody of any assets to Evercoin.
3.2. Identity Verification
To enable certain functions within your Evercoin account, Evercoin may, at its discretion, require identity verification and/or additional screening procedures with respect to the User account in question and transactions associated with that User account. These verifications and screening procedures are in place in order to adhere with the U.S. Department of the Treasury Office of Foreign Assets Control sanctions programs, including Specially Designated Nationals, the U.S. Department of Commerce Denied Persons List, and any similar list issued by U.S. government authority.
During registration of the User’s Evercoin account, the User agrees to provide the Company with information requested for the purpose of identity verification and for the detection of money laundering, terrorist financing, fraud, or any other financial crime, and permit the Company to keep a record of such information. The User will need to complete certain verification procedures before they are permitted to use the Service, upon requesting trading or transaction limits to be increased, and at any time the Company, at its sole discretion, determines. In providing the personal information necessary to open an Evercoin account, the User authorizes the Company to make inquiries, whether directly or through third parties, that the Company considers necessary to verify User identity or protect the User and/or the Company against fraud and other financial crimes, and to take action the Company reasonably deems necessary based on the results of such inquiries. When the Company initiates these inquiries, the User acknowledges and agrees that your personal information may be disclosed to identity verification, credit reference , fraud prevention, or financial crime agencies and that these agencies may respond to our request in full. This is an identity check only and should have no adverse effect on your credit rating .
Additionally, the Company may require a waiting period during the identity verification process or prior to transacting certain volume limits.
By utilizing the Service, the User authorizes their wireless operator (AT&T, Sprint, T-Mobile, US Cellular, Verizon, or any other branded wireless operator) to use your mobile number, name, address, email network status, customer type, customer role, billing type, mobile device identifiers (OMSI and IMEI) and other subscriber status details, if available, solely to allow verification of User identity and to compare information provided to the Company with the User wireless operator account profile information for duration of the business relationship.
Evercoin may, in its sole discretion, refuse to provide the Service to any User or limit the number or capabilities of Evercoin accounts the User may hold.
3.3. Responsibility for Account Activities
The User is responsible for maintaining adequate security and control over security words and passcodes, personal identification documents, personal identification numbers and API keys to access the Service. The loss, compromise, or theft of the foregoing information may result in the unauthorized access to the User’s Evercoin account or assets viewable within the Evercoin wallet. The User is responsible for keeping personal and account information in a secured location to prevent unauthorized access. The Company assumes no responsibility for any loss that the User may sustain due to compromise of any account related information due to no fault of the Company.
Evercoin is a non-custodial exchange service, and it is entirely the responsibility of the user to understand the difference between a custodial and non-custodial service.
The most important distinction is that this means that the User is solely responsible for safeguarding the assets that are viewable through the Evercoin Wallet.
The Evercoin Wallet and the Evercoin Service does not contain any assets, rather the wallet provides a way to manage the private key and the ability to sign transactions using this key as well as to view assets that are stored in their respective blockchains..
Because of this, the user must safeguard their own private key, and loss of the private key means loss of access to the associated assets. If the private key is given to the wrong party, they will be able to steal your funds.
Evercoin does not hold and has no way to access or know the user’s private key.
4. Risk Disclosures and Assumption of Risk
Use of the Service and trading of Coins including, but not limited to, cryptocurrency, cryptographic tokens and other digital rights or assets, involves significant risks and the potential for financial loss, including, but not limited to, the following:
The User hereby assumes, and agrees that the Company will have no responsibility or liability for the risks outlined in Section 4 of this User Agreement. The User hereby irrevocably waives any and all claims, whether known or unknown to you, against the Company, its partners and Affiliates (described in Section 21) and their respective shareholders, members, directors, officers, employees, agents and representatives related to any of the risks set forth herein.
The Company does not provide any trading advice, does not have any fiduciary duty to any User of the Service, and does not make any warranty about the sustainability of any Coin for trading or ownership by the User. The User represents and warrants that they have: (a) the necessary technical expertise and ability to review and evaluate the security, integrity, and operation of any Coin that they decide to acquire or trade; and (b) the knowledge, experience, understanding, and information to make your own evaluation of the merits and risks of any Coin acquisition or trade. The User hereby accepts the risks of the trading of Coins and is responsible for conducting a thorough review of the potential risk and reward of each Coin’s acquisition or trading. The User should not engage in the acquisition or trade of Coins unless they have sufficient financial resources and can afford to lose all value of all of their Coins.
The Company’s listing of any particular Coin for acquisition or trade on its Service does not indicate approval or disapproval of the Coin or its integrity, security, underlying software protocol, or operation. The risks associated with Coins and their underlying software protocols exist despite the Company’s decision to support a particular Coin.
5. Funding, Trades, & Transfers
5.1. Account Funding
In order to fund a user account and initiate an initial trade on the Service, the User may have to first transfer supported assets to their Evercoin wallet. The Service associated with the user account include a digital wallet service provided by the Company. The User’s digital wallet permits you to generate one or more addresses to which assets may be transferred from an external source (e.g. other Coin trading platforms with the regulatory licensing to support fiat-to-cryptocurrency trades). The Company may require that you verify the User’s control over the external source of funds and may be subject to additional screening or verification prior to transfers being approved.
5.2. Exchange Orders & Trades
A “Trade” is an exchange of currency, for which trading is supported on the Service, between the User and the Company, whereby you dispose of a certain asset in exchange for another asset you specify for exchange. An “Order” is created when you enter the appropriate instruction in the Service to initiate a Trade. When the User initiates an Order they authorize the Company to execute a Trade on spot basis for all or a portion of the number of assets specified in the Order and in accordance with that Order. By using the Service, the User agrees to pay the Company any applicable fees for Trades and authorizes the company to deduct any such fees from the transaction.
5.3. No Brokerage or Investment Advice
The Company does not provide any investment, tax, or legal advice, nor does the Company broker trades on the User’s behalf. The Company is not the User’s broker, intermediary, agent or advisor and has no fiduciary relationship or obligation to the User with Trades or other decisions or activities affected by the User utilizing the Service.
5.4. Order Confirmation
The Service will, at the time the Order is specified, generate and display a confirmation summarizing the details of the desired transaction, including type and amount of the asset the user is seeking to dispose of, the amount of the asset the user is seeking to acquire as a result of the exchange, the estimated amount of fees the Service will apply to the transaction, and the total number and type of asset that will be t ransferred out of and into your Evercoin wallet based off of the User’s proposed Order . The User’s order will be placed upon its confirmation. Despite the aforementioned, the User agrees that failure of the Service to provide such Order summary or confirmation shall not prejudice or invalidate any Order submitted by the User or any Trade completed based on such Order.
5.5. Order Matching and Trade Execution
When a User places an Order their Evercoin account will be updated to reflect the open Order. Evercoin will monitor the market to fill the open Order, however makes no guarantees and will not be held liable that open Orders will be filled and trades executed.
The User may only cancel an order initiated via the Service if such a cancellation occurs only for Limit Orders. The User cannot cancel a Market Order as an order based upon open market data. Limit Orders can be canceled only prior to an order match being found. After a match is found for a Limit Order, there is no way to cancel the order.
5.7. Insufficient Funds
In the event the User places an Order, but lacks the necessary funds to complete the Order, the Service may cancel the entire Order based upon the funds available in the User’s Evercoin wallet. In this event, fees to complete the Order may still be applicable and deducted from the Trade.
The User will be responsible for: (a) Paying all fees charged by any third party service provider associated with any external account or external address; (b) Paying all fees charged by Evercoin for any transfers; (c) Ensure that sent and received transfers are handled in compliance with Evercoin’s requirements and Agreement; (d) Ensure that the address to which Coins be sent is correct and contains no errors, and the sent address is formatted to receive the sent currency.
Failure to comply with the requirements of this Section 5.8 may result in transferred funds being permanently lost. The timing for completing any third-party actions are beyond the control of the Company and the Company makes no guarantee regarding the amount of time it may take to complete any transfer.
Evercoin may impose limits on the amount of any inbound or outbound transfers, or suspend or terminate the ability to transfer into or out of the User’s Evercoin Wallet in order to comply with applicable laws and regulations, based off of a law enforcement or other government authority inquiry, or at the Company’s sole discretion.
5.9 Unlimited Withdrawals
Evercoin is a non-custodial platform. As such, the user controls all of their assets at all times. Because of this there are never any withdrawal limits nor any need to ever withdraw funds. Users may at any time transfer funds from Evercoin Wallet to another wallet at their discretion and there is no way for Evercoin to limit or prevent this.
6.1. Conditions, Restrictions, Suspension, Termination, and Cancellation
The Company may, at any time and in its sole discretion, refuse any transfer request, Order, or other transaction or User request submitted via the Service. The Company may impose limits on the amount or limit on the number of transfers or Trades that can be completed in a daily or other periodic basis or impose any other restrictions the Company deems appropriate. The Company reserves the right, at all times and in its sole discretion, to: (a) restrict trading if there is a reasonable suspicion of fraud, diminished capacity, inappropriate activity, or if the Company receives notice that the User’s ownership of their Evercoin account has been compromised; (b) limit the number of open Orders the User can establish via Evercoin Service; (c) suspend, restrict or terminate User access to the Service and/or deactivate or cancel User accounts if required by government notification or legal subpoena, in the event of Prohibited Use being identified or pending litigation or investigation against the user account, should a service partner be unable to support a user’s activity, or the Company deems any activity in a user account has circumvented Company controls.
The Company may, at its discretion and without liability to the User, with or without prior notice and at any time, temporarily suspend or permanently terminate User access to any or a portion of the Service. The Company will not be liable for any loss suffered by the User as a result of any modification made to User access and the User acknowledges that a assets and exchange rates may may change during those times.
Unlike a custodial exchange service, users who have maintained their own private keys properly can not lose control of their assets even when the Evercoin account or service is suspended or terminated. .
If Evercoin suspends, closes, or terminates User access of the Service in any way and for any reason, the Company will provide the User with notice of actions taken unless a court order or other legal process prohibits the Company from providing the User with such a notice. The User agrees and acknowledges that Evercoin maintains the sole right to limit user activity, including suspending, limiting access to certain services, or terminating the relationship between Company and User, and that these decisions may be made on a confidential basis. In the event the Company makes the decision to terminate a User account, the User will be permitted to transfer the funds associated with their Evercoin wallet for ninety (90) days after the date of account termination, unless otherwise prohibited by applicable laws and regulations, subpoena, or court order.
Users may cancel their Evercoin account at any time by removing all funds stored in their Evercoin wallet and deleting the mobile application from their mobile device. Evercoin is a non-custodial exchange and Users maintain the functionality to cease use of the Service at any time. The User will not be charged for voluntarily taking the steps needed to cancel their account. Should outstanding amounts be owed the Service, the User bears full responsibility in repayment to the Service. At such time of account cancellation, the User authorizes the Service to cancel any pending transactions.
6.2. User-Provided Information
Users must provide the information required by any screen displayed within the Service and the User represents and warrants that all information provided is accurate and complete.
6.3. Support for Digital Currency Protocols
The Company retains the right, in its sole discretion, to determine whether to support transfer or trading of any Coin using the Service, and also retains the right to discontinue or terminate support for any Coin at any time, for any or no reason. Unless otherwise required by law or law enforcement, the Company will make reasonable efforts to notify the User of changes to Coins supported by the Services. Should Evercoin cease its support of a Coin, the Company will make commercially reasonable efforts to notify you at least 14 days prior to the change in order to afford the User the opportunity to transfer the discontinued Coin out of their User Evercoin wallet. If a User does not transfer these funds from their Evercoin wallet, they may not again be accessible after the 14 day period. Evercoin will not be liable for any losses, liability or expenses related to its decision to cease any support for any Coin.
6.4 Derivative Protocols
Unless otherwise publicly stated or unless Evercoin notifies the User, the Company does not support Derivative Protocols and Users should not use their Evercoin account in an attempt to transfer, store, trade, or engage in any other type of transaction involving a Derivative Protocol. Evercoin will have no responsibility or liability whatsoever with respect to any Derivative Protocol.
6.5. Compliance with Tax Legislation
It is the User’s sole responsibility for complying with all applicable laws related to trading activities and other use of the Evercoin Service. The User is responsible for determining whether, and to what extent, any taxes apply to the transactions conducted through the Evercoin Service and to withhold, collect, report, and remit the correct amounts of taxes to the appropriate tax collection authorities.
6.6. Anti-Money Laundering (AML) Compliance; Know Your Customer (KYC) Compliance
As a regulated financial service company operating in the United States, the Company is required to identify users of the Service in accordance with AML and KYC laws and regulations. Evercoin complies with these regulations as they are necessary for the Company to be able to continue to provide the Service to its users. The Company collects and verifies User information in order to protect Evercoin and the community from fraudulent or criminal users and keep appropriate records of Evercoin Users.
6.7. Error Correction Attempts
The Company may, at its own discretion, attempt to correct, reverse or cancel any Order, Trade, or transfer with respect to which the Company has deemed that there was an error, whether such error was due to the User, the Company, or a third party. By utilizing the service Users agree to these terms and hereby authorize Evercoin to attempt any such correction, reversal, or cancellation described in the previous sentence. The Company provides no guarantee or warranty that any such attempt by the Company will be successful and will have no liability or responsibility for the error of any correction attempt.
6.8. Digital Currency Promotions
The User bears all responsibility for taking the necessary action to enable and receive financial and other benefits made available by holding a certain asset . This includes, without limitation, the addition of new assets via “airdrop” or other means or any other benefits conferred by holding a certain asset . The Company will have no responsibility or liability and the User will bear full responsibility for taking steps to claim the aforementioned benefits, i.e. promotional assets awarded via “airdrop” or other means.
6.10. Acceptable Use Policy
The User is independently responsible for complying with all applicable laws in all actions during use of the Evercoin Service. By utilizing the Service, User’s agree to comply with all applicable laws and adhere to this Acceptable Use Policy.
Certain activity is designated by the Company to be prohibited. By agreeing to this User Agreement upon sign-up, Users confirm that they will not use their Evercoin account to conduct any of the following, deemed “Prohibited Uses”:
6.11. User and Company Relationship & Acknowledgement
The Company is an independent contractor for all purposes. Nothing in this Agreement shall be deemed or intended to be deemed, nor shall it cause, the User and the Company to be treated as partners, joint ventures, or otherwise joint associates for profit, or either the User or the Company to be treated as the agent of the other.
The Orders and Trades specified by the User when using the Service are subject to fees as specified during each transaction. The User agrees to pay the Company the fees described when making the transaction. These fees will apply to any Trades or other transactions initiated effective immediately. As such, the User authorizes the Company to add the specified amount of fee to the User’s transaction.
9. Electronic Delivery of Communications
The User consents and agrees to receive all communications, receipts, agreements, documents, notices and disclosures in relation to the Service electronically via the Service. The Company will provide the aforementioned electronic communications to the User by posting them to the User Evercoin profile, communicating to the User via text message or mobile push notification, and/or be posted via the Service notification center.
9.1. Hardware and Software Requirements
In order for the User to access and retain electronic communications from the Service, the User will need a computer with an Internet connection that has a current web browser with cookies enabled and 128-bit encryption. The User will need to have a valid phone number on file with the Company and have sufficient storage space to save any electronic communication sent or use a printing device to print out electronic communications.
9.2. How to Withdraw Your Consent
The User may withdraw their consent to receive communications electronically by contacting the Company support line firstname.lastname@example.org . If the User withdraws consent to receive communications electronically, the Company reserves the right to immediately close the User account or charge additional fees for paper copies.
9.3. Updating User Information
It is the User’s responsibility to provide the Company and the Service with true, accurate, and complete profile information at all times. Users understand and agree that if the Company sends an electronic communication, but it is not received due to inaccurate or out-of-date profile information provided, a service provider blocking said communication or other service provider malfunction or interruption, or the User is unable to receive electronic communication for any other reason, the Company will be deemed to have provided the User that communication.
10. Intellectual Property & Proprietary Rights
The Service and all technology, content and other materials used, displayed or provided in connection with the Service together with all intellectual property rights in any of the foregoing are, as between the User and the Company, owned by the Company.
The User may utilize the Service solely as authorized by the Company and only for as long as the Company permits. The User acknowledges and agrees that as between the Company and the User, all developer tool s , Evercoin brand mark, and all related Evercoin intellectual property rights are and shall at all times remain the sole and exclusive property of the Company and are protected by applicable intellectual property laws and treaties. No one other than the Company has rights with respect to developer tools or Company brand marks except as expressly set forth herein.
The Company will own any feedback, suggestions, ideas, or other information or materials regarding the Company or the Service that the User may provide, whether by email, chat through the Service, or otherwise. The User hereby assigns to the Company all right, title, and interest in relation to the aforementioned together with all associated intellectual property rights. The User will not be entitled to and waives any right to compensation in relation to any feedback provided by the User.
11. General Provisions
11.1. Disclaimer of Warranties
THE EVERCOIN SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVERCOIN SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR NON-INFRINGEMENT. EVERCOIN DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT ACCESS TO ANY OR ALL PART OF THE EVERCOIN SERVICE, OR ANY OF THE MATERIALS CONTAINED THEREIN, WILL BE CONTINUOUS, UNINTERRUPTED, TIMELY, OR ERROR-FREE.
The Company makes no representations about the about the accuracy or completeness of historical price data of Coins on the Service. The Company will make reasonable efforts to ensure that requests for orders and trades are completed in a timely manner, but the Company makes no representations, warranties, or assurance regarding the amount of time needed to complete the request due to factors outside of the Company’s control.
11.2. Limitation of Liability
IN NO EVENT WILL THE LIABILITY OF EVERCOIN, ITS AFFILIATES AND SERVICE PROVIDERS, OR ANY OF THEIR RESPECTIVE SHAREHOLDERS, MEMBERS, DIRECTORS, OFFICERS, AGENTS, JOINT VENTURERS, EMPLOYEES OR REPRESENTATIVES, BE LIABLE FOR ANY AMOUNT GREATER THAN THE AMOUNT OF FEES PAID BY THE USER TO EVERCOIN UNDER THIS AGREEMENT IN THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM OF LIABILITY, EVEN IF WHETHER SAID CLAIM IS DUE TO NEGLIGENCE OF EVERCOIN OR ANY OTHER CLAIM RISING DUE TO USE OF THE EVERCOIN SERVICE BY THE USER.
11.3. Disclaimer of Damages
IN NO EVENT WILL EVERCOIN, ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, MEMBERS, OFFICERS, ATTORNEYS, EMPLOYEES, AGENTS, SUPPLIERS, REPRESENTATIVES, OR CONTRACTORS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR SIMILAR DAMAGES OR LIABILITIES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF DATA, INFORMATION, REVENUE, PROFITS, OR OTHER BUSINESS OR FINANCIAL BENEFIT) ARISING OUT OF OR IN CONNECTION WITH THE SERVICE, EVERCOIN MATERIALS, ANY PERFORMANCE OR NON-PERFORMANCE OF THE SERVICE OR ANY OTHER PRODUCT, SERVICE OR OTHER ITEM PROVIDED BY OR ON BEHALF OF THE COMPANY, WHETHER UNDER CONTRACT, STATUTE, STRICT LIABILITY, OR OTHER REASON (INCLUDING, FOR AVOIDANCE OF DOUBT, ANY NEGLIGENCE OF EVERCOIN), EVEN IF EVERCOIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.4. Release of Evercoin & Indemnification
If the User has a dispute with one or more users of the Evercoin service, the User releases Evercoin, its affiliates and service providers, and each of their respective officers, agents, directors, employees, joint venturers, and representatives from any and all claims, demands, and damages of every kind and nature arising out of or in connection to any such disputes. The user agrees to indemnify and hold Evercoin, its affiliates and service providers, and each of its or their respective officers, agents, directors, employees, joint venturers, and representatives harmless from any claim or demand (inclusive of attorney fees, fees, fines, or penalties imposed by any regulatory authority) arising out of or in relation to the User breach of this Agreement or User violation of any law, rule or regulation, or the rights of any third party.
12. Disputes, Arbitration & Waiver of Class Action
If the User has a dispute with the Company, the Company will attempt to resolve any such disputes through the support team. In the event that the Company not be able to resolve the dispute, the User and the Company agree: (a) that any dispute arising under this Agreement shall be finally settled in binding arbitration, on an individual basis, in accordance with the American Arbitration Association’s rules for arbitration of consumer-related disputes (accessible at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf ) and; (b) agree to hereby expressly waive trial by jury and right to participate in a class action lawsuit or class-wide arbitration.
Arbitration will be conducted by a single, neutral arbitrator and shall take place in the State of California , or in another mutually agreeable location, in the English language. The arbitrator may award any relief that a court of competent jurisdiction could award, including attorney’s fees when authorized by law, and the arbitral decision may be enforced in any court. At the User request, hearings may be conducted in person or by telephone and the arbitrator may provide for submitting and determining motions or briefs, without oral hearings. The prevailing party in any action or proceeding to enforce this agreement shall be entitled to costs and attorney’s fees. Should the arbitration administrator impose filing fees or other administrative costs on the User, the Company will reimburse you, upon request, to the extent such costs exceed those the User would otherwise be required to pay to conduct a court proceeding. If required by the arbitration administrator's rules or applicable law, The Company agrees to pay additional fees or costs. Apart from the aforementioned, each party will be responsible for any other fees or costs associated with attorney’s fees they may incur. Should a court decide any provision of section 12 is invalid or unenforceable, that provision shall be severed and the other parts of this section 12 shall still apply. In any case, the remainder of this User Agreement, will continue to apply.
13. Governing Law
The User agrees that the laws of the State of California , without regard to principles of conflict of laws, will govern this Agreement and any claim or dispute that has arisen or may arise between you and the Company, except to the extent governed by federal law.
14. Copyright Violations
The Company has a policy of limiting or terminating access to the Service of any User who infringes upon the intellectual property of others. If you believe that anything on our Service infringes the copyright that you own or control, you may notify the Company’s designated agent. Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. Please note that any such notification be submitted and the User knowingly misrepresents an activity or material on our Service is infringing, you may be liable to the Company for certain costs and damages.
15. Entire Agreement
16. Modification of Agreement
The User may not assign or transfer any right to use the Service or any of your rights or obligations under this Agreement 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 or obligations under this Agreement, in whole or in part, without notice or obtaining User consent or approval.
The invalidity or unenforceability of any of the terms set forth herein shall not affect the validity or enforceability of any other provisions set forth in this Agreement, all of which shall remain in full force and effect.
19. Force Majeure
The Company shall not be liable for delays, failure in performance or interruption of service that result directly or indirectly from any cause or condition beyond the Company’s reasonable control including, but not limited to, any flood, extraordinary weather conditions, earthquakes, or other act of God, fire, insurrection, riot, labor dispute, terrorist act, civil disobedience, act of civil or military authority, interruption in telecommunications or Internet service, failure of hardware or software, or any other occurrence which is beyond the Company’s reasonable control and shall not affect the validity or enforceability of any remaining provisions of this Agreement.
20. Change of Control
In the event that the Company is acquired by or merged with a third party entity, the Company reserves the right, in any of these circumstances, to transfer or assign the information collected from you as a part of such merger, acquisition, sale or other change of control.
An “Affiliate” is a legal term that refers to a corporation that is related to another corporation, whether by ownership of shares, common-ownership, or by other means of control. The Service may be provided by the Company or its Affiliates and, to the extent an Affiliate operates the Service, they will operate under terms identical to the terms of this User Agreement.
22. Non-Waiver of Rights
The Company’s failure or delay in exercising any right, power, or privilege under this Agreement shall not operate as a waiver thereof.
23. English Language Controls
Any translation of this Agreement is provided for the User’s convenience and the meanings of the provisions set forth herein are subject to definitions and interpretations of the English language. Any translation provided may not accurately represent the information in the original English.