THE DLC-BASED SERVICES (AS DEFINED BELOW) WERE NOT DEVELOPED FOR, AND ARE NOT OFFERED OR AVAILABLE TO PERSONS OR ENTITIES WHO RESIDE IN, ARE CITIZENS OF, ARE LOCATED IN, ARE INCORPORATED IN, OR HAVE A REGISTERED OFFICE OR PRINCIPAL PLACE OF BUSINESS IN THE UNITED STATES OR ANY RESTRICTED TERRITORY (AS DEFINED BELOW) (ANY SUCH PERSON OR ENTITY FROM A RESTRICTED TERRITORY BEING A “RESTRICTED \PERSON”). IF YOU ARE A RESTRICTED PERSON YOU AGREE NOT TO USE OR ATTEMPT TO USE THE DLC-BASED SERVICES. USE OF ANY SOFTWARE, TECHNOLOGY OR MECHANISM, INCLUDING WITHOUT LIMITATION A VIRTUAL PRIVATE NETWORK (“VPN”), TO CIRCUMVENT THESE RESTRICTIONS IS PROHIBITED.
These terms of use, together with any documents and additional terms they expressly incorporate by reference, which includes any other terms and conditions or other agreement that Atomic.Finance, Inc. (“Atomic.Finance,” “we,” “us” and “our”) posts publicly or makes available to you or the company or other legal entity you represent (“you” or “your”) (collectively, these “Terms”), are entered into between Atomic.Finance and you concerning your use of, and access to, Atomic.Finance's websites, including Atomic.Finance and all associated sites linked thereto by Atomic.Finance or its affiliates (collectively with any materials and services available therein and successor website(s) thereto, the “Site”), Atomic.Finance's web applications and mobile applications (collectively with any materials and services available therein and successor application(s) thereto, the “Applications”) and the Services (as defined in Section 2.1 hereto).
By clicking “I agree” (or a similar language) to these Terms, acknowledging these Terms by other means, or otherwise accessing or using the Site, the Applications or the Services, you accept and agree to be bound by and to comply with these Terms, including, without limitation, the mandatory arbitration provision in Section 14. If you do not agree to these Terms, then you must not access or use the Site, the Applications or the Services. Please carefully review the disclosures and disclaimers set forth in Section 12 in their entirety before using any software developed by Atomic.Finance. The information in Section 12 provides important details about the legal obligations associated with your use of the Services.
1. MODIFICATIONS TO THESE TERMS
We reserve the right, in our sole discretion, to modify these Terms from time to time. If we make changes, we will provide you with notice of such changes, such as by providing notice through the Applications and/or the Services or updating the “Last Updated” date at the top of these Terms. Unless we state otherwise in our notice, all such modifications are effective immediately, and your continued use of the Site, the Applications and the Services after we provide that notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, then you must stop using the Site, the Applications and the Services.
2. USE OF SERVICES
2.1The Services. The mobile Application provides access to: (a) the self-custodial cryptocurrency wallet product; (b) the decentralized applications, APIs and all other software that Atomic.Finance has developed for entering into bilateral cryptocurrency transactions and contract arrangement and other blockchain-based assets (collectively, “Digital Assets”), including, without limitation, entering into Discreet Log Contract-based decentralized transactions (“DLCs”) related to Digital Assets such as Passive Strategies and Manual Options (the “DLC-Based Services”); and (c) messaging layer service available through the Atomic.Finance Protocol (collectively, the “Services”). By accessing or using the Site, the Applications or the Services, you agree that Atomic.Finance does not provide execution, settlement, or clearing services of any kind and is not responsible for the execution, settlement, or clearing of transactions automated through the Services. You acknowledge that any execution and settlement occurs directly on the Bitcoin blockchain.
2.2 Conditions. As a condition to accessing or using the Services, the Applications or the Site, you represent and warrant to Atomic.Finance the following:
2.2.1 if you are entering into these Terms as an individual, then you are of legal age in the jurisdiction in which you reside and you have the legal capacity to enter into these Terms and be bound by them and if you are entering into these Terms as an entity, then you must have the legal authority to accept these Terms on that entity's behalf, in which case “you” (except as used in this paragraph) will mean that entity;
2.2.2 you are not a resident, national, or agent of, located in, incorporated or otherwise formed in, or have a registered office in, the United States;
2.2.3 you are not a resident, national, or agent of, located in, incorporated or otherwise formed in, or have a registered office in, Antigua and Barbuda, Algeria, Bangladesh, Bolivia, Belarus, Burundi, Burma (Myanmar), Cote D'Ivoire (Ivory Coast), the regions of Crimea, Donetsk, Luhansk and Sevastopol, Cuba, Democratic Republic of Congo, Ecuador, Iran, Iraq, Liberia, Libya, Mali, Morocco, Nepal, North Korea, Russia, Somalia, Sudan, Syria, Venezuela, Yemen, Zimbabwe or any other country to which Canada, the United States, the United Kingdom or the European Union embargoes goods or imposes similar sanctions (collectively, “Restricted Territories”);
2.2.4 you are not a member of any sanctions list or equivalent maintained by the United States government, the United Kingdom government, the European Union, or the United Nations (collectively, “Sanctions Lists Persons”) and you do not intend to transact with any Restricted Person or Sanctions List Person;
2.2.5 you do not, and will not, use VPN software or any other privacy or anonymization tools or techniques to circumvent, or attempt to circumvent, any restrictions that apply to the Applications or the Services; and
2.2.6 your access to the Site, the Applications or the Services is not (a) prohibited by and does not otherwise violate or assist you to violate any domestic or foreign law, rule, statute, regulation, by-law, order, protocol, code, decree, or another directive, requirement, or guideline, published or in force that applies to or is otherwise intended to govern or regulate any person, property, transaction, activity, event or other matter, including any rule, order, judgment, directive or other requirement or guideline issued by any domestic or foreign federal, provincial or state, municipal, local or other governmental, regulatory, judicial or administrative authority having jurisdiction over Atomic.Finance, you, the Site or the Services, or as otherwise duly enacted, enforceable by law, the common law or equity (collectively, “Applicable Laws”); or (b) contribute to or facilitate any illegal activity.
2.3 As a condition to accessing or using the Services, the Applications or the Site, you acknowledge, understand, and agree to the following:
2.3.1 from time to time the Site, the Applications and the Services may be inaccessible or inoperable for any reason, including, without limitation: (a) equipment malfunctions; (b) periodic maintenance procedures or repairs that Atomic.Finance or any of its suppliers or contractors may undertake from time to time; (c) causes beyond Atomic.Finance's control or that Atomic.Finance could not reasonably foresee; (d) disruptions and temporary or permanent unavailability of underlying blockchain infrastructure; or (e) unavailability of third-party service providers or external partners for any reason;
2.3.2 we reserve the right to disable or modify access to the Site, the Applications and the Services at any time in the event of any breach of these Terms, including, without limitation, if we reasonably believe any of your representations and warranties may be untrue or inaccurate, and we will not be liable to you for any losses or damages you may suffer as a result of or in connection with the Site, the Applications or the Services being inaccessible to you at any time or for any reason;
2.3.3 the Site and the Services may evolve, which means Atomic.Finance may apply changes, replace, or discontinue (temporarily or permanently) the Services at any time in its sole discretion;
2.3.4 the pricing information provided on the Site or the Applications does not represent an offer, a solicitation of an offer, or any advice regarding, or recommendation to enter into, a transaction with Atomic.Finance;
2.3.5 Atomic.Finance does not act as an agent for you or any other user of the Site, the Applications or the Services;
2.3.6 you are solely responsible for your use of the Services and the Applications, including all of your transfers of Digital Assets and the custody and control of your Digital Assets;
2.3.7 to the fullest extent not prohibited by Applicable Law, we owe no fiduciary duties or liabilities to you or any other party, and that to the extent any such duties or liabilities may exist at law or in equity, you hereby irrevocably disclaim, waive, and eliminate those duties and liabilities;
2.3.8 you are solely responsible for reporting and paying any taxes applicable to your use of the Services; and
2.3.9 we have no control over, or liability for, the delivery, quality, safety, legality, or any other aspect of any Digital Assets that you may transfer to or from a third party, and we are not responsible for ensuring that an entity with whom you transact completes the transaction or is authorized to do so, and if you experience a problem with any transactions in Digital Assets using the Applications or the Services, then you bear the entire risk.
2.4 As a condition to accessing or using the Services, the Applications or the Site, you covenant to Atomic.Finance the following:
2.4.1 in connection with using the Applications or the Services, you only will transfer legally-obtained Digital Assets that belong to you;
2.4.2 you will comply with all Applicable Laws in connection with using the Site, the Applications and the Services, and you will not use the Site, the Applications or the Services if the laws of your country, or any other Applicable Law, prohibit you from doing so;
2.4.3 any Digital Assets you use in connection with the Applications or the Services are either owned by you or you are validly authorized to carry out actions using such Digital Assets;
2.4.4 in addition to complying with all restrictions, prohibitions, and other provisions of these Terms, you will ensure that, at all times, all information that you provide on the Site and during your use of the Applications and the Services is current, complete, and accurate; (b) maintain the security and confidentiality of your private keys associated with your public Bitcoin address, passwords, API keys, private keys associated with your Services account and other related credentials.
3. FEES AND PRICE ESTIMATES
In connection with your use of the Services, you are required to pay all fees necessary for interacting with the Bitcoin blockchain, including transaction costs, as well as all other fees reflected on the Site at the time of your use of the Services. Although we attempt to provide accurate fee information, this information reflects our estimates of fees, which may vary from the actual fees paid to use the Services and interact with the Bitcoin blockchain.
4. NO PROFESSIONAL ADVICE OR FIDUCIARY DUTIES
All information provided in connection with your access and use of the Site, the Applications and the Services is for informational purposes only and should not be construed as professional advice. You should not take, or refrain from taking, any action based on any information contained on the Site, the Applications or any other information that we make \available at any time, including, without limitation, blog posts, articles, links to third-party content, discord content, news feeds, tutorials, tweets, and videos. Before you make any financial, legal, or other decisions involving the Services, you should seek independent professional advice from an individual who is licensed and qualified in the area for which such advice would be appropriate. The Terms are not intended to, and do not, create or impose any fiduciary duties on us. You further agree that the only duties and obligations that we owe you are those set out expressly in these Terms.
5. PROHIBITED ACTIVITY
You may not use the Site, the Applications or the Services to engage in the categories of activity set forth below (“Prohibited Uses”). The specific activities set forth below are representative, but not exhaustive, of Prohibited Uses. If you are uncertain as to whether or not your use of the Site, the Applications or the Services involves a Prohibited Use or have other questions about how these requirements apply to you, then please contact us at legal@atomic.finance. By using the Site, the Applications or Services, you confirm that you will not use the Site, the Applications or Services to do any of the following:
5.1 violate any Applicable Laws including, without limitation, any relevant and applicable anti-money laundering and anti-terrorist financing laws and sanctions programs, such as, without limitation, the Bank Secrecy Act and the U.S. Department of Treasury's Office of Foreign Asset Controls;
5.2 engage in transactions involving items that infringe or violate any copyright, trademark, right of publicity or privacy or any other proprietary right under Applicable Law, including but not limited to, sales, distribution, or access to counterfeit music, movies, software, or other licensed materials without the appropriate authorization from the rights holder; use of Atomic.Finance's intellectual property, name, or logo, including use of Atomic.Finance's trade or service marks, without express consent from Atomic.Finance or in a manner that otherwise harm Atomic.Finance; any action that implies an untrue endorsement by or affiliation with Atomic.Finance;
5.3 use Site, the Applications or the Services in any manner that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying the Site, the Applications or the Services, or that could damage, disable, overburden, or impair the functioning of the Site, the Applications or the Services in any manner;
5.4 engage in activity that violates any Applicable Laws concerning the integrity of trading markets, including (but not limited to) the manipulative tactics commonly known as spoofing and wash trading.
5.5 circumvent any content-filtering techniques, security measures or access controls that Atomic.Finance employs on the Site, the Applications or the Services, including, without limitation, through the use of a VPN;
5.6 use any robot, spider, crawler, scraper, or other automated means or interface not provided by us, to access the Services or to extract data, or introduce any malware, virus, Trojan horse, worm, logic bomb, drop-dead device, backdoor, shutdown mechanism or other harmful material into the Site or the Services;
5.7 provide false, inaccurate, or misleading information while using the Site or the Services or engage in activity that operates to defraud Atomic.Finance, other users of the Services, or any other person;
5.8 use or access the Site or Services to transmit or exchange Digital Assets that are the direct or indirect proceeds of any criminal or fraudulent activity, including, without limitation, terrorism or tax evasion;
5.9 use the Site in any way that is, in our sole discretion, libelous, defamatory, profane, obscene, pornographic, sexually explicit, indecent, lewd, vulgar, suggestive, harassing, stalking, hateful, threatening, offensive, discriminatory, bigoted, abusive, inflammatory, fraudulent, deceptive, or otherwise objectionable or likely or intended to incite, threaten, facilitate, promote, or encourage hate, racial intolerance, or violent acts against others;
5.10 use the Site or the Services from a jurisdiction that we have, in our sole discretion, determined is a jurisdiction where the use of the Site or the Services is prohibited;
5.11 harass, abuse, or harm of another person or entity, including Atomic.Finance's employees and service providers; impersonate another user of the Services or otherwise misrepresent yourself; or
5.12 impersonate another user of the Applications or the Services or otherwise misrepresent yourself;
5.13 engage in activity that violates any other Applicable Law not described under this Section 5, including (but not limited to) the restrictions and regulatory requirements imposed by Applicable Laws; or
5.14 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.
6. CONTENT
You hereby grant to us a royalty-free, fully paid-up, sublicensable, transferable, perpetual, irrevocable, non- exclusive, worldwide license to use, copy, modify, create derivative works of, display, perform, publish and distribute, in any form, medium, or manner, any content that is available to other users as a result of your use of the Site or the Services (collectively, “Your Content”), including, without limitation, for promoting Atomic.Finance, its affiliates, the Services or the Site. You represent and warrant that (a) you own Your Content or have the right to grant the rights and licenses in these Terms; and (b) Your Content and our use of Your Content, as licensed herein, does not and will not violate, misappropriate or infringe on any third party's rights.
7. PROPRIETARY RIGHTS
7.1 Any of Atomic.Finance's product or service names, logos, and other marks used on the Site, the Applications or as a part of the Services, including Atomic.Finance's name and logo are trademarks owned by Atomic.Finance, its affiliates, or its applicable licensors. You may not copy, imitate, or use them without the prior written consent of Atomic.Finance or the applicable licensors, and these Terms do not grant you any rights in those trademarks. You may not remove, obscure, or alter any legal notices displayed in or along with the Services.
7.2 The Services are non-custodial. When you deposit Digital Assets into any DLC, you retain control over those Digital Assets at all times. The private key associated with the Bitcoin address from which you transfer Digital Assets and/or the private key associated with the Service account (Atomic key) is the only private key that can control the Digital Assets you transfer into the DLC. In some cases, you may withdraw Digital Assets from any DLC only to the Bitcoin wallet from which you deposited the Digital Assets.
8. LINKS
The Sites, the Applications or the Services provide, or third parties may provide, links to other World Wide Web or accessible sites, applications, or resources. You acknowledge and agree that the Company is not responsible for the availability of such external sites, applications or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods, or services available on or through any such site or resource.
9. MODIFICATION, SUSPENSION, AND TERMINATION
We may, at our sole discretion, from time to time and with or without prior notice to you, modify, suspend or disable (temporarily or permanently) Site, the Applications or the Services, in whole or in part, for any reason whatsoever, including, without limitation, to only allow open DLCs to be closed. Upon termination of your access, your right to use the Site, the Applications or the Services, as applicable, will immediately cease. We will not be liable for any losses suffered by you resulting from any modification to the Site, the Applications or any Services or from any modification, suspension, or termination, for any reason, of your access to all or any portion of the Site, the Applications or the Services. The following sections of these Terms will survive any termination of your access to the Site, the Applications or the Services, regardless of the reasons for its expiration or termination, in addition to any other provision which by law or by its nature should survive: Sections 7 through 18.
10. ASSUMPTION OF RISKS
10.1 By utilizing the Services or interacting with the Site or the Applications in any way, you represent and warrant that you understand the inherent risks associated with cryptographic systems and blockchain-based networks; Digital Assets, including the usage and intricacies of native Digital Assets, like Bitcoin (BTC); Bitcoin blockchain-based tokens, and systems that interact with blockchain-based networks. Atomic.Finance 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 Bitcoin blockchain, is open source, such that anyone can use, copy, modify, and distribute it. By using the Services, you acknowledge and agree (a) that Atomic.Finance is not responsible for the operation of the software and networks underlying the Services, (b) that there exists no guarantee of the functionality, security, or availability of that software and networks, and (c) that the underlying networks are subject to sudden changes in operating rules, such as those commonly referred to as “forks,” which may materially affect the Services. Blockchain networks use public/private key cryptography. You alone are responsible for securing your private key(s). We do not have access to your private key(s). Losing control of your private key(s) will permanently and irreversibly deny you access to Digital Assets on the Bitcoin blockchain or other blockchain-based network. Neither Atomic.Finance nor any other person or entity will be able to retrieve or protect your Digital Assets. If your private key(s) are lost, then you will not be able to transfer your Digital Assets to any other blockchain address or wallet. If this occurs, then you will not be able to realize any value or utility from the Digital Assets that you may hold.
10.2 The Services and your Digital Assets could be impacted by one or more regulatory inquiries or regulatory actions, which could impede or limit the ability of Atomic.Finance to continue to make available its proprietary software and, thus, could impede or limit your ability to access or use the Services.
10.3 You acknowledge and understand that cryptography is a progressing field with advances in code cracking or other technical advancements, such as the development of quantum computers, which may present risks to Digital Assets and the Services, and could result in the theft or loss of your Digital Assets. To the extent possible, we intend to update Atomic.Finance-developed software related to the Services to incorporate additional security measures necessary to address risks presented from technological advancements, but that intention does not guarantee or otherwise ensure full security of the Services.
10.4 You understand that the Bitcoin blockchain remains under development, which creates technological and security risks when using the Services in addition to uncertainty relating to Digital Assets and transactions therein. You acknowledge that the cost of transacting on the Bitcoin blockchain is variable and may increase at any time causing impact to any activities taking place on the Bitcoin blockchain, which may result in price fluctuations or increased costs when using the Services.
10.5 You acknowledge that the Services are subject to flaws and that you are solely responsible for evaluating any code provided by the Services, the Applications or Site. This warning and others Atomic.Finance provides in these Terms in no way evidence or represent an on-going duty to alert you to all of the potential risks of utilizing the Services or accessing the Site or the Applications.
10.6 Although we intend to provide accurate and timely information on the Site and the Applications and during your use of the Services, the Site, the Applications and other information available when using the Services may not always be entirely accurate, complete, or current and may also include technical inaccuracies or typographical errors. To continue to provide you with as complete and accurate information as possible, information may be changed or updated from time to time without notice, including, without limitation, information regarding our policies. Accordingly, you should verify all information before relying on it, and all decisions based on information contained on the Site or the Applications 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 the Applications 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 the Applications or otherwise during the use of the Services does not indicate our approval or disapproval of the technology on which the Digital Asset relies, and should not be used as a substitute for your understanding of the risks specific to each type of Digital Asset.
10.8 Use of the Services, in particular for Digital Assets transactions and entering into DLCs, may carry financial risk. Digital Assets and DLCs are highly experimental, risky, and volatile. Transactions entered into in connection with the Services are irreversible, final and there are no refunds. You acknowledge and agree that you will access and use the Site, the Applications and the Services at your own risk. The risk of loss in transacting in Digital Assets using DLCs can be substantial. You should, therefore, carefully consider whether such transactions are suitable for you in light of your circumstances and financial resources. By using the Services, you represent and warrant that you have been, are, and will be solely responsible for making your independent appraisal and investigations into the risks of a given DLC transaction. You represent that you have sufficient knowledge, market sophistication, professional advice, and experience to make your evaluation of the merits and risks of any transaction conducted in connection with the Services. You accept all consequences of using the Services, including the risk that you may lose access to your Digital Assets indefinitely. All transaction decisions are made solely by you. Notwithstanding anything in these Terms, we accept no responsibility whatsoever for, and will in no circumstances be liable to you in connection with, your use of the Services. Without limiting the generality of the foregoing, you acknowledge and agree that returns are not guaranteed, any information or data disclosed in the Services regarding past performance, returns and/or annual percentage yield is for information purposes only and past performance is not indicative of future results.
10.9 We must comply with Applicable Law, which may require us to, upon request by government agencies, take certain actions or provide information, which may not be in your best interests.
You understand that the Service remains under development, which creates technological, transaction related, and other risks when using the Services. These risks include, among others, delays in trades, withdrawals, and deposits resulting from the servers of Atomic.Finance or the operator of the Services being offline; an incorrect display of information on the Site in the case of server errors; or transactions using the Services being rolled back in the case of server errors. You acknowledge that these risks may have a material impact on your transactions using the Services, which may result in, among other things, failing to fulfill transactions at your desired price or at all.
10.11 You hereby assume, and agree that Atomic.Finance 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 Atomic.Finance, its affiliates, and their respective shareholders, members, directors, officers, employees, agents, and representatives, suppliers, and contractors related to any of the risks set forth in this Section 10.
11. INDEMNIFICATION
You will defend, indemnify, and hold harmless Atomic.Finance, its affiliates, and its and its affiliates' respective stockholders, members, directors, officers, managers, employees, attorneys, agents, representatives, suppliers, and contractors (collectively, “Indemnified Parties”) from any claim, demand, lawsuit, action, proceeding, investigation, liability, damage, loss, cost or expense, including without limitation reasonable attorneys' fees, arising out of or relating to (a) your use of, or conduct in connection with, the Site, the Applications or the Services (including, without limitation, the DLC-Based Services); (b) Digital Assets associated with your Bitcoin address; (c) any feedback or user content you provide to Atomic.Finance, if any, concerning the Site, the Applications or the Services; (d) your violation of these Terms; or (e) your infringement or misappropriation of the rights of any other person or entity. If you are obligated to indemnify any Indemnified Party, Atomic.Finance (or, at its discretion, the applicable Indemnified Party) will have the right, in its sole discretion, to control any action or proceeding and to determine whether Atomic.Finance wishes to settle, and if so, on what terms, and you agree to corporate with Atomic.Finance in the defense.
12. DISCLOSURES; DISCLAIMERS
Atomic.Finance is a developer of software. Atomic.Finance does not operate a Digital Asset or derivatives exchange platform or offer trade execution or clearing services and, therefore, has no oversight, involvement, or control concerning your transactions using the Services. All transactions between users of the Services are executed peer-to-peer directly between the users' Bitcoin addresses through a smart contract. You are responsible for complying with all Applicable Laws that govern your DLCs.
You understand that Atomic.Finance is not registered or licensed by any financial regulatory authority. No financial regulatory authority has reviewed or approved the use of the Atomic.Finance-developed open- source software. The Site and the Atomic.Finance-developed software do not constitute advice or a recommendation concerning any commodity, security, or other Digital Asset or instrument. Atomic.Finance is not acting as an investment adviser or commodity trading adviser to any person or entity.
Atomic.Finance does not own or control the underlying software protocols that are used in connection with Bitcoin Blockchain or Discreet Log Contracts used to enter into DLCs using the Services. In general, the underlying protocols are open source and anyone can use, copy, modify, and distribute them. Atomic.Finance is not responsible for the operation of the underlying protocols, and Atomic.Finance makes no guarantee of their functionality, security, or availability.
To the maximum extent permitted under Applicable Law, the Site, the Applications and the Services (and any of their content or functionality) provided by or on behalf of us are provided on an “AS IS” and “AS AVAILABLE” basis, and we expressly disclaim, and you hereby waive, any representations, conditions or warranties of any kind, whether express or implied, legal, statutory or otherwise, or arising from statute, otherwise in law, course of dealing, or usage of trade, including, without limitation, the implied or legal warranties and conditions of merchantability, merchantable quality, quality or fitness for a particular purpose, title, security, availability, reliability, accuracy, quiet enjoyment and non-infringement of third party rights. Without limiting the foregoing, we do not represent or warrant that the Site, the Applications or the Services (including any data relating thereto) will be uninterrupted, available at any particular time, or error-free. Further, we do not warrant that errors in the Site or the Services are correctable or will be correctable.
You acknowledge that your data on the Site or the Applications may become irretrievably lost or corrupted or temporarily unavailable due to a variety of causes, and agree that, to the maximum extent permitted under Applicable Law, we will not be liable for any loss or damage caused by denial-of-service attacks, software failures, viruses or other technologically harmful materials (including those which may infect your computer equipment), protocol changes by third-party providers, Internet outages, force majeure events or other disasters, scheduled or unscheduled maintenance, or other causes either within or outside our control.
The disclaimer of implied warranties contained herein may not apply if and to the extent such warranties cannot be excluded or limited under the Applicable Law of the jurisdiction in which you reside.
13. LIMITATION OF LIABILITY
In no event shall Atomic.Finance's aggregate liability (together with its affiliates, including its and its affiliates' respective stockholders, members, directors, managers, officers, employees, attorneys, agents, representatives, suppliers, or contractors) arising out of or in connection with the Site, the Applications and the Services (and any of their content and functionality), any performance or nonperformance of the Site, the Applications, the Services, your Digital Assets, DLCs or any product, service or other item provided by or on behalf of Atomic.Finance, whether under contract, tort, negligence, civil liability, statute, strict liability or other theory of liability exceed the lesser of US $50 or the amount of fees paid by you to Atomic.Finance under these Terms, if any, in the one month period immediately preceding the event giving rise to the claim for liability.
14. DISPUTE RESOLUTION & ARBITRATION
14.1 Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Atomic.Finance and limits how you can seek relief from Atomic.Finance. Also, arbitration precludes you from suing in court or having a jury trial. You and Atomic.Finance agree that any dispute arising out of or related to these Terms, the Site, the Applications or the Services is personal to you and Atomic.Finance and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action, or any other type of representative proceeding.
14.2 If any dispute occurs between the parties relating to the application, interpretation, implementation or validity of this Agreement, the Parties agree to seek to resolve the dispute or controversy through mediation with Canadian Arbitration Association before pursuing any other proceedings. Nothing herein shall preclude Atomic.Finance from seeking injunctive relief in the event that Atomic.Finance perceives that without such injunctive relief, serious harm may be done to Atomic.Finance. Any Party to the dispute may serve notice on the others of its desire to resolve a particular dispute by mediation. The mediator shall be appointed by agreement between the Parties or, if the Parties cannot agree within five days after receipt of the notice of intention to mediate, the mediator will be appointed by Canadian Arbitration Association. The mediation will be held in Ontario. The Parties agree to attempt to resolve their dispute at mediation. The costs of the mediator shall be paid by the party filing or initiating the mediation. If the dispute has not been resolved within thirty days of the notice of desire to mediate, any Party may terminate the mediation and proceed to arbitration as set out below.
14.3 Arbitration
14.3.1 Subject to the mediation provisions set out above, if any dispute or controversy occurs between the Parties relating to the interpretation or implementation of any of the provisions of this Agreement, the dispute will be resolved by arbitration at Canadian Arbitration Association pursuant to the general Canadian Arbitration Association Rules for Arbitration (the “CAA Rules”). Any Party may serve notice of its desire to refer a dispute to arbitration. The arbitration shall be conducted by a single arbitrator. The arbitration shall be held in Ontario. The arbitration shall proceed in accordance with the provisions of the Arbitration Act, 1991 (Ontario). The decision arrived at by the arbitrator shall be final and binding and no appeal shall lie therefrom. Judgement upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The costs of the arbitrator shall be paid by the party seeking and filing the arbitration.
14.3.2 As limited by these Terms and the CAA Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
14.3.3 The arbitrator, Atomic.Finance, and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including, but not limited to, all information gathered, prepared, and presented for purposes of the arbitration or related to the dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.
14.4 Any claim arising out of or related to these Terms, the Site, the Applications or the Services must be filed within one year after such claim arose; otherwise, the claim is permanently barred, which means that you and Atomic.Finance will not have the right to assert the claim.
14.5 If any portion of this Section 14 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 14 or the parties' ability to compel arbitration of any remaining claims on an individual basis under this Section 14; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 14 is found to prohibit an individual claim seeking public injunctive relief, then that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 14 will be enforceable.
15. GENERAL INFORMATION
15.1 Privacy Policy. Please refer to our privacy policy, which is incorporated herein by reference and available here at https://Atomic.Finance/privacy, for information about how we collect, use, share and otherwise process information about you.
15.2 Consent to Electronic Delivery. You consent to receive all communications, agreements, documents, receipts, notices, and disclosures electronically (collectively, our “Communications”) that we provide in connection with these Terms, the Site, the Applications or any Services. You agree that we may provide our Communications to you by posting them on the Site, pushing them through the Applications or by emailing them to you at the email address you provide in connection with using the Services, if any. You should maintain copies of our Communications by printing a paper copy or saving an electronic copy. You may also contact us with questions, complaints, or claims concerning the Services at legal@atomic.finance.
15.3 Remedies. Any right or remedy of Atomic.Finance 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 Atomic.Finance in exercising any right, power, or privilege under these Terms shall not operate as a waiver thereof.
15.4 Severability. The invalidity or unenforceability of any of these Terms shall not affect the validity or enforceability of any other of these Terms, all of which shall remain in full force and effect.
15.5 Force Majeure. We will have no responsibility or liability for any failure or delay in performance of the Site, the Applications or any of the Services, or any loss or damage that you may incur, due to any circumstance or event beyond our control, including without limitation any flood, extraordinary weather conditions, earthquake, or other act of God, fire, war, insurrection, riot, labor dispute, accident, action of government, communications, power failure, or equipment or software malfunction.
15.6 Assignment. You may not assign or transfer any right to use the Site, the Applications or the Services, or any of your rights or obligations under these Terms, without our express prior written consent, including by operation of law or in connection with any change of control. We may assign or transfer any or all of our rights or obligations under these Terms, in whole or in part, without notice or obtaining your consent or approval.
15.7 Governing Law. The interpretation and enforcement of these Terms, and any dispute related to these Terms, the Site, the Applications or the Services, will be governed by and construed and enforced under the laws of the Province of Ontario, as applicable, without regard to conflict of law rules or principles (whether of the Province of Ontario or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Notwithstanding Section 14, you agree that we may initiate a proceeding related to the enforcement or validity of our intellectual property rights and otherwise seek equitable remedies in any court having jurisdiction. For any other proceeding that is not subject to arbitration under these Terms, the courts located in Ontario will have exclusive jurisdiction. You waive any objection to venue in any such courts.
15.8 Headings. Headings of sections are for convenience only and shall not be used to limit or construe such sections.
15.9 Entire Agreement. These Terms contain the entire agreement between you and Atomic.Finance, and supersede all prior and contemporaneous understandings between the parties regarding the Site, the Applications and the Services.
15.10 Interpretation. In the event of any conflict between these Terms and any other agreement you may have with us, these Terms will control unless the other agreement specifically identifies these Terms and declares that the other agreement supersedes these Terms.
15.11 No Third Parties. You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to the Terms other than the Indemnified Parties.