USER AGREEMENT (CONTINUED)

(continued from page 1 of User Agreement)

24. Limitation of Liability; No Warranty; Risks. IN NO EVENT SHALL AcloudBank LABS, ITS AFFILIATES AND SERVICE PROVIDERS, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, MEMBERS, EMPLOYEES OR REPRESENTATIVES, BE LIABLE (I) FOR ANY AMOUNT OF DIGITAL ASSETS OR OTHER ITEMS OF VALUE ASSOCIATED WITH YOUR USE OF THE AcloudBank LABS SERVICES OR (II) FOR ANY LOST PROFITS, LOST REVENUES, LOSS OF GOODWILL OR REPUTATION, LOSS OF DATA, DIMINUTION IN VALUE OR BUSINESS OPPORTUNITY, ANY LOSS, DAMAGE, CORRUPTION OR BREACH OF DATA OR ANY OTHER INTANGIBLE PROPERTY OR ANY SPECIAL, INCIDENTAL, INDIRECT, INTANGIBLE, OR CONSEQUENTIAL DAMAGES, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH ANY USE OF THE AcloudBank LABS SITE OR THE AcloudBank LABS SERVICES, OR THIS AGREEMENT, EVEN IF AcloudBank LABS HAS BEEN ADVISED OF OR KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE, EXCEPT TO THE EXTENT OF A FINAL JUDICIAL DETERMINATION THAT SUCH DAMAGES WERE A RESULT OF AcloudBank LABS’ GROSS NEGLIGENCE, FRAUD, WILLFUL MISCONDUCT OR INTENTIONAL VIOLATION OF LAW. IN NO EVENT SHALL AcloudBank LABS’ AGGREGATE LIABILITY RELATING TO THESE TERMS, YOUR USE OF THE SITE OR THE SERVICES, OR ANY RESULTS OBTAINED OR OUTCOMES DETERMINED BY YOUR USE OF THE SITE OR THE SERVICES (REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM NEGLIGENCE OR OTHERWISE) EXCEED THE TOTAL AMOUNT PAID BY YOU FOR THE SERVICES UNDER THE FEE ARRANGEMENT ALONE (NOT TO INCLUDE MECHANICAL COSTS, BLOCKCHAIN TRANSACTION COSTS OR ANY OTHER FEES OR COSTS) GIVING RISE TO THE LIABILITY IN THE TWENTY FOUR HOURS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE, OR, IF NO FEES UNDER THE FEE ARRANGEMENT HAVE BEEN PAID, EXCEED $50.00 USD. IN JURISDICTIONS WHERE THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES IS NOT PERMITTED, OUR LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.  THE AcloudBank LABS SERVICES 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, AcloudBank LABS SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR NON-INFRINGEMENT. AcloudBank LABS DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT ACCESS TO THE AcloudBank LABS SITE, ANY PART OF THE AcloudBank LABS SERVICES, OR ANY OF THE MATERIALS CONTAINED THEREIN, WILL BE CONTINUOUS, UNINTERRUPTED, TIMELY, OR ERROR-FREE. AcloudBank LABS DOES NOT GUARANTEE THAT ANY OPERATION WILL BE EXECUTED, ACCEPTED, RECORDED OR REMAIN IN TACT. EXCEPT FOR THE EXPRESS STATEMENTS SET FORTH IN THIS AGREEMENT, YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU HAVE NOT RELIED UPON ANY OTHER STATEMENT OR UNDERSTANDING, WHETHER WRITTEN OR ORAL, WITH RESPECT TO YOUR USE AND ACCESS OF THE AcloudBank LABS SERVICES AND THE SITE. WITHOUT LIMITING THE FOREGOING, YOU HEREBY UNDERSTAND AND AGREE THAT AcloudBank LABS WILL NOT BE LIABLE FOR ANY LOSSES OR DAMAGES ARISING OUT OF OR RELATING TO: (I) ANY INACCURACY, DEFECT OR OMISSION OF DIGITAL ASSET INFORMATION OR DATA, OR ANY ERROR, DELAY OR INTERRUPTION IN THE TRANSMISSION OF SUCH DATA OR ANY FAILED OR UNCOMPLETED TRANSACTIONS; (II) VIRUSES OR OTHER MALICIOUS SOFTWARE OBTAINED BY ACCESSING OUR WEBSITES, SOFTWARE, SYSTEMS OPERATED BY US OR ON OUR BEHALF OR ANY OF THE AcloudBank LABS SERVICES OR ANY WEBSITE OR SERVICE LINKED TO OUR WEBSITE; (III) GLITCHES, BUGS, ERRORS, OR INACCURACIES OF ANY KIND IN OUR WEBSITES, SOFTWARE, SYSTEMS OPERATED BY US OR ON OUR BEHALF OR ANY OF THE AcloudBank LABS SERVICES; OR (IV) A SUSPENSION OR OTHER ACTION TAKEN WITH RESPECT TO YOUR USE OF AcloudBank LABS SERVICES.

YOU FURTHER UNDERSTAND, ACCEPT AND AGREE THAT YOUR USE OF ANY OF OUR SERVICES ASSOCIATED WITH OR IN CONNECTION WITH DIGITAL ASSETS IS DONE ENTIRELY AT YOUR OWN RISK, INCLUDING WITHOUT LIMITATION YOUR USE OF ANY DIGITAL ASSET WALLET OR WALLETS AND/OR YOUR USE OF ANY SOFTWARE THAT CONNECTS BLOCKCHAINS TO ONE ANOTHER. YOU ACKNOWLEDGE AND ACCEPT THAT THE USE OF SUCH SERVICES IS SUBJECT TO SIGNIFICANT RISK OF HACKING AND/OR SYSTEMS FAILURE WHICH MAY RESULT IN THE LOSS OF A PORTION OF OR ALL OF YOUR DIGITAL ASSETS, AND THAT YOU AGREE TO INDEMNIFY AND HOLD US HARMLESS, AND WAIVE ANY CLAIMS AGAINST US TO THE MAXIMUM EXTENT ALLOWABLE BY LAW FOR FITNESS IN THE SECURITY OR OPERATION OF OUR SERVICES WHETHER PERCEIVED, ANTICIPATED OR EXPECTED. YOU FURTHER ACKNOWLEDGE AND ACCEPT THAT, WITHOUT LIMITING THE FOREGOING, AN INDEPENDENT TECHNOLOGY SECURITY AUDIT (AN “AUDIT”) IS AN EXPENSIVE UNDERTAKING, AND THAT UNLESS IT HAS BEEN EXPRESSLY STATED BY US THAT AN AUDIT HAS BEEN COMPLETED, YOU ARE TO PRESUME THAT NO SUCH WORK HAS BEEN DONE, IRRESPECTIVE OF THE EXISTENCE OF ANY PLANS OR STATEMENTS BY US OR OUR REPRESENTATIVES THAT WE INTEND TO OR WOULD LIKE TO PEFORM AND COMPLETE AN AUDIT OR AUDITS.

(a) To You. We may provide any notice to you under this Agreement using commercially reasonable means, including: (i) posting a notice on the Site; (ii) sending a message to an email address to the extent our Services require or request an email address associated with your use of the Services; (iii) posting the notice in the interface of the applicable Service; or (iv) using public communication channels. Notices we provide by posting on the Site or using public communication channels will be effective upon posting, and notices we provide by email will be effective when we send the email to the extent such communication is practicable and of our choosing. It is your responsibility to keep your email address current to the extent our Services require or request an email address associated with your use of the Services. You will be deemed to have received any email sent to the email address then associated with your use of the Services when we send the email, whether or not you actually receive the email.

  • (b) To Us. To give us notice under this Agreement, you must contact us by email at [email protected].

    • 38. Electronic Delivery of Communications. You agree and consent to receive electronically all communications, agreements, documents, notices and disclosures (collectively, "Communications") that we provide in connection with your use of the Services. Communications include:

    Terms and policies you agree to (e.g., this Agreement and our Privacy Policy), including updates to these agreements or policies; Legal, regulatory, and tax disclosures or statements we may be required to make available to you; and Responses to claims or customer support inquiries filed in connection with your use of the Services. We will provide such Communications to you by posting them on the Site and/or through other electronic communication.

    39. Hardware and Software Requirements. In order to access and retain electronic Communications, you will need the following computer hardware and software:

    A device with an Internet connection; A current web browser that includes 128-bit encryption (e.g. Internet Explorer version 9.0 and above, Firefox version 3.6 and above, Chrome version 31.0 and above, or Safari 7.0 and above) with cookies enabled; Sufficient storage space to save past Communications or an installed printer to print them.

    APPENDIX 1: ARBITRATION AGREEMENT1.1. Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and AcloudBank Labs agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Services or of the Site, any Communications you receive, any products sold or distributed or made available through the Site, the Services, or the User Agreement and prior versions of the User Agreement, including claims and disputes that arose between us before the effective date of these terms (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and AcloudBank Labs may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or AcloudBank Labs may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the User Agreement as well as claims that may arise after the termination of this User Agreement.1.2. Waiver of Jury Trial. YOU AND AcloudBank LABS HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and AcloudBank Labs are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the subsection entitled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.  

    1.3. Waiver of Class and Other Non-Individualized Relief. YOU AND AcloudBank LABS AGREE THAT, EXCEPT AS SPECIFIED IN SUBSECTION 1.8, EITHER PARTY (YOU OR AcloudBank LABS) MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party's individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the subsection 1.8 entitled “Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this subsection, “Waiver of Class and Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and AcloudBank Labs agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located within our State Location as defined in the User Agreement. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or AcloudBank Labs from participating in a class-wide settlement of claims.

    1.4. Rules and Forum. The User Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If, by contacting us at [email protected], you inform us of a complaint involving a Dispute which does not resolve satisfactorily within forty-five (45) business days after receipt of your complaint, you and AcloudBank Labs agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the "AAA Rules") then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf.  

    A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). If you initiate the arbitration, you must provide AcloudBank Labs a copy of your Request by email at [email protected] or through our registered agent for service of process. The Request must include: (1) the name, telephone number, mailing address, email address of the party seeking arbitration; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought, including an accurate, good faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying that you have informed us of a complaint involving a Dispute (if you are the party making the Request); and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.

    If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.

    Unless you and AcloudBank Labs otherwise agree, or the Batch Arbitration process discussed in subsection 1.8 is triggered, the arbitration will be conducted in a county of our choosing in our State Location. Disputes involving claims, counterclaims, or requests for relief under $25,000, not inclusive of attorneys’ fees and interest, will be conducted solely on the basis of documents you and AcloudBank Labs submit to the arbitrator. If your claim exceeds $25,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. In any case, you and AcloudBank Labs agree to not request more than three depositions per side in each arbitration or Batch Arbitration proceeding. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA Rules.

    You and AcloudBank Labs agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.