STOIC USER AGREEMENT
This Stoic User Agreement (“Agreement”) is made between Cindicator LLC (“Cindicator”, “us”, “we”, “our”) and you ( “you”, “your”) (each a “Party” and together the “Parties”) and governs your use of our Services that we provide you with the use of our websites or mobile application (as defined below).
This Agreement applies to your use and access to the Stoic Platform and its related services. Upon accessing or registration at the Stoic Platform, downloading mobile or desktop device-based applications from Stoic, you agree to be legally bound by and to comply with this Agreement and all additional terms, policies and agreements incorporated herein by reference and amended from time to time in our sole discretion.
You hereby acknowledge and agree that when you use the Stoic Platform any third-party terms or agreements may apply to your use. For example, when you use our mobile applications, the terms and conditions of the respective mobile applications marketplaces (like, App Store or Google Play) may additionally apply to your use.
If you are using the Stoic Platform and/or its related services on behalf of a business, you represent to us that you are duly authorized to bind that business or entity to this Agreement and all additional terms, policies and agreements incorporated herein by reference, and that business accepts this Agreement and all additional terms, policies and agreements incorporated herein by reference. You represent that such a business entity is duly organised, validly existing and in good standing under the laws of its country of organisation. The business entity shall be fully liable for all activities conducted by its employees while using the Stoic Platform.
You represent and warrant that you are of legal age to form a binding contract. Additionally, you represent and warrant that you have not previously been suspended or removed from using the Stoic Platform.
You shall never allow anyone to use your account. If you occasionally allowed your minor child to use your account notwithstanding of the actual form of such allowance (for example, you opened the Stoic Platform and allowed your minor child to use, your minor child opened the Stoic Platform on your device under your account, etc), you will be fully liable for the usage of this account and any payments related to this account. We have the right to suspend or terminate your account that is or was being used by any third person. However, if you allowed any third party to access or use your account in violation of this Agreement, you hereby acknowledge and agree to control any activity, generated content and behaviour of such third person, including your minor child, at the Stoic Platform as well as you agree and consent to any disclosure of personal data made by this third person, including your minor child, by using this Account and/or while interacting with other users and/or while generating any content at the Stoic Platform.
For the purposes of identity verification and the detection of money laundering, terrorist financing, fraud, or any other financial crime we may request the necessary information and documents from you to verify your identity. You hereby agree to provide us with the information we request and permit us to process and keep a record of such information. You authorise us to make the inquiries, whether directly or through third parties, that we consider necessary to verify your identity and/or protect against fraud or other financial crime, and to take action we reasonably deem necessary based on the results of such inquiries. The information we request may include certain personal information, including, but not limited to, your name, address, telephone number, e-mail address, date of birth, national identification number, government identification documents, and, if applicable, information regarding your bank account (such as the name of the bank, the account type and account number). By providing us with the requested information, you confirm that such information is accurate and authentic. You agree to keep us updated if any of the information you provided changes. You authorise us to make inquiries, whether directly or through third parties, that we consider necessary to verify your identity or protect you and/or us against fraud or other financial crime, and to take action we reasonably deem necessary based on the results of such inquiries.
In addition to the above, you must have the necessary equipment (an internet-connected computer, mobile phone, tablet or other supported device) and the associated telecommunication service subscriptions to access the Internet. In order to access certain functionality of the Stoic Platform’s you may be required to connect your decentralised blockchain wallet or gateway. The Stoic Platform can be accessed directly by its website, mobile or desktop applications.
Access to the Stoic Platform may become degraded or unavailable. We shall not be liable for any losses resulting from or arising out of such delays or unavailableness.
You need to carefully read and accept the terms and conditions of this Agreement before electronically signing it. You understand that electronically signing this Agreement is the legal equivalent of your manually signing this Agreement, and you will be legally bound by its terms and conditions in their entirety.
This Agreement takes effect at the Effective Date. You are encouraged to consult with your own advisor regarding any consequences related to your entering into this Agreement with us.
1. EFFECTIVE DATE
- Subject to other condition of this Agreement, Cindicator undertakes to enter into this Agreement with you and deliver the Services to you in exchange for the Service Fee if you are over 18 years old or you are a legal entity duly registered under applicable law.
- The Effective Date shall be the earliest date when you either (i) pay us the Advance Service Fee (as defined below), or (ii) in paper or electronic format fully and explicitly agrees to be bound by this Agreement.
- We reserve the right to reject entering into the Agreement with you or immediately terminate such Agreement if we are not satisfied with the results of the Verification (as defined below).
- Cindicator may decide to verify your data and undergo a know-your-client and anti-money laundering procedures to assess whether you are legally allowed and may contract with us (“Verification”).
- Cindicator may request and you should provide us (or third-party provider engaged by us) with the following data for the Verification:
1. Full name (first, middle and last name) of an individual or the full name of a legal entity in English language; and
2. Date of birth (for an individual) or date of state registration (for a legal entity); and
3. Scanned and readable electronic copies of all valid passports (for an individual) or certificate of incorporation (for a legal entity); and
4. Scanned and readable electronic copies of all valid visas and (or) temporary residency permits (for an individual) or an official document confirming carrying out of business in non-domestic jurisdiction (for a legal entity), and
5. Contact email address; and
6. Contact phone number.
3. You undertake to provide us with any other data that we, in our sole discretion, deem to be required to maintain compliance with any laws, regulations or policies. Such documents and information include, but are not limited to, passports, driver’s licenses, utility bills, photographs, government identification cards, sworn statements, tax identification numbers, information about your family members, beneficiaries, shareholders, beneficial owners, partners, directors, officers or any other connected individuals.
4. You undertake not to hide (including by using a VPN, proxy or similar service) your real location, or otherwise provide false or misleading information regarding your data.
5. We may collect any other information useful or necessary for communicating with you, including your data, to the extent this is permitted by applicable laws and this Agreement.
6. You agree that, upon our request, you will provide the requested information to satisfy applicable anti-money laundering laws and regulations, including your anti-money laundering policies and procedures, background documentation relating to your directors, trustees, settlors and beneficial owners, and audited financial statements, if any.
- Subject to Clause 1, we give you access and a right to use to our webpages, software, data, technology, solutions, information, access to third-party API and other services (“Services”)
- With the use of our Services you will be able to manage your crypto funds (“Crypto Funds”) by selecting either of trading strategy available withing our software ("Strategies"). All income, profit and loss resulting from the management of the Crypto Funds will be for your account unless stated otherwise in this Agreement.
- Strategies provided by Stoic Platform are:
Fixed Income - A market-neutral, steady performance strategy with lower risk and modest yield.
Meta - A long-short strategy with moderate risk and moderate yield.
Long Only - A long-term, portfolio rebalancing strategy with high risk and high upside potential.
More information about strategies is provided in https://stoic.ai and https://blog.cindicator.com.
- Our Services do not include:
1. comprehensive financial planning services, and our services are not a complete investment program;
2. tax, accounting or legal advice; and
3. custody of the Crypto Funds.
4. To use our Services you need to (i) open a separate account with the cryptocurrency exchange Binance (https://www.binance.com) (“Account”), and (ii) transfer your Crypto Funds to that Account, and (iii) inform us of opening the Account by communicating a unique Account identifier to us, and (iv) provide us with the API keys to the Account, and (v) to pay us the Advance Service Fee (as defined below).
5. Once everything is properly setup by our IT team, you should be able to execute trade orders using the Services.
6. We designed our Services for you to be able to arrange cryptotrading of the Crypto Funds in the Account with the use of our software. The Services may fail to serve you properly if you provide access or API keys to the Account to any other party. We therefore reserve the right to terminate this Agreement if you use the Account for any cryptotrading other than cryptotrading with the use of our Services.
7. We may furnish a copy of this Agreement to Binance or other relevant counterparty as evidence of our authority to provide you with Services in relation to the Account.
4. INTELLECTUAL PROPERTY
- Cindicator and its affiliates have (or intend to receive) valid, unrestricted and exclusive ownership of rights to use the patents, trademarks, trademark registrations, trade names, copyrights, know-how, technology and other intellectual property necessary to provide the Services and for carrying out of its business.
- In no way shall this Agreement entitle, and (or) license, and (or) grants you to any intellectual property of Cindicator and (or) its affiliates, including the intellectual property rights to the webpage, and (or) to all text, graphics, interface, visual interfaces, photographs, trademarks, logos, artwork, computer code, design, structure, selection, coordination, expression and other content connected with the Services and (or) our business. All such content and intellectual property and its arrangement belong to Cindicator and (or) its affiliates and is protected by the intellectual property rights and fair competition laws.
- There are no implied licenses under this Agreement, and any rights not expressly granted to you are reserved by and belong to Cindicator and (or) its affiliates.
5. SERVICE FEE
- Services are provided to you through a subscription-based model (“Subscription”). By purchasing a Subscription, you get access to Stoic Platform Services.
- To get access to a Subscription you pay us a fee (“Service Fee”) in amount depending on the pricing plan that you choose. You may choose one of the following pricing plans:
Starter (for portfolio in amount $1000 — $3500) - $9 per month with annual payment.
Plus (for portfolio in amount $3500— $10000)- $25 per month with annual payment.
Pro (for portfolio in amount higher than $10000)- 5% in crypto annual deposit fee.
- No later than 10 days after you open the Account and deposit the initial Crypto Funds, you will pay us an upfront fee of 5% of the initial Crypto Funds (“Advance Service Fee”), which will be credited toward the Service Fee due at the close of the 12-month period after Account opening. You will pay us the Service Fee no later than 10 days after we invoice you for it at the end of each such 12-month period.
- If technically feasible, you will delegate to us the duty to transfer the Advance Service Fee and the Service Fee in the cryptocurrency and to the account we designate for this purpose from your Account.
- The base currency to calculate the Advance Service Fee and the Service Fee will be Tether (“USDT”). If Crypto Funds are initially contributed in a currency other than Tether, we will calculate the value of such contributed Crypto Funds in Tether at the then-prevailing exchange rate on Binance.
- We have the right to pass on any fees to you that are charged by Binance or other cryptocurrency exchanges, brokers, market-makers, liquidity providers, or other types of cryptocurrency counterparties, trading venues, or intermediaries on transactions related to performing our services under this Agreement.
- The price of the Subscription may be changed, which you will be notified about no later than the last day of the Subscription period via the Stoic Platform or email. If you do not cancel your Subscription as set out in this Agreement, you will be charged the updated Subscription price.
- You can increase the Subscription level by making a corresponding request through the Stoic Platform, and paying the difference in the price of Subscription levels in proportion to the remaining days of the Subscription period. In the event of such an increase in the Subscription level, the payment for the next Subscription period will be charged in the amount corresponding to the price of the new Subscription level. Changing the Subscription level does not change the payment date of the next Subscription Period.
- Any Subscription can be cancelled by you - at any time in the manner described. To do this, you must log in and click on the button “Cancel” or any similar button showing your intent to cancel the Subscription. If you refuse to automatically renew your Subscription, the Subscription is provided to you until the end of the paid Subscription period and such Subscription will not be renewed thereafter. However, you will not be eligible for a prorated refund of any portion of the Subscription price paid for the then-current Subscription Period.
- Any Subscription can be cancelled by us in the following cases:
- at its own discretion by giving you advance notice;
- if the payments due are rejected or your payment method (its agent or branch) returns the payments you previously transferred.
- For the purposes of this clause 6, “Cindicator Confidential Information” includes all nonpublic information disclosed by Cindicator, its affiliates, business partners or their respective employees, contractors or agents that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Cindicator Confidential Information includes, inter alia:
1. nonpublic information relating to Cindicator or its affiliates or business partners’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs;
2. third-party information that Cindicator is obligated to keep confidential
3. the nature, content and existence of any discussions or negotiations between you and Cindicator;
4. any information regarding our webpages, software, data, technology, solutions or intellectual property;
5. other Cindicator information with exception of information that:
1. is or becomes publicly available without breach of this Agreement;
2. can be shown conclusively by documentation to have been known to you at the time of its receipt from Cindicator;
3. is received from a third party who did not acquire or disclose the same by a wrongful or tortious act;
4. can be shown conclusively by documentation to have been independently developed by you without reference to Cindicator Confidential Information.
2. You may use Cindicator Confidential Information only in connection with the use of Services under this Agreement and pursuant to the terms of this Agreement.
3. You undertake to take all reasonable measures to avoid disclosure, dissemination or unauthorized use of Cindicator Confidential Information, including, at a minimum, those measures that you take to protect you own confidential information of a similar nature.
4. You undertake not to:
1. disclose Cindicator Confidential Information during the term of this Agreement or at any time during the ten (‘10’) year period following the end of the term of this Agreement; and
2. issue any press release or make any other public communication with respect to this Agreement; and
3. misrepresent or embellish the relationship between you and us (including by expressing or implying that Cindicator supports, sponsors, endorses, or contributes to your business endeavors), or express or imply any relationship or affiliation between you and us or our affiliates except as expressly permitted by this Agreement.
7. YOUR REPRESENTATIONS AND WARRANTIES
- Your representations and warranties are listed in this Agreement. You confirm that your representations and warranties are true, complete, accurate and non-misleading on and from the Effective Date. By paying the Advance Service Fee, and (or) utilizing our Services, and (or) carrying out any other action pursuant to this Agreement you repeat those representations and warranties as at the respective date.
- You hereby undertake to immediately notify us and cease using the Services as soon as practically possible if your jurisdiction or other circumstances change such that the below representations and warranties would be no longer true, complete, accurate and non-misleading. We shall be able to return you some of Advance Service Fee pro rata to the period during which you consumed our Services.
- You represent and warrant, as follows:
1. You have the full right, legal capacity, power, authority, and qualification to enter into this Agreement as well as to deliver and perform under this Agreement. No waiver or consent of any person is required in connection with the execution, delivery, and performance of this Agreement by you.
2. This Agreement is a valid and binding agreement enforceable against you in accordance with its terms. You have reviewed the Agreement, and are satisfied with its provisions, have no objections, and have intention to follow and honor its regulations.
3. If an individual, you are over 18 years old.
4. If you are a corporation, partnership, limited liability company, trust or other entity:
1. you are duly organized, validly existing, and in good standing under the laws of its jurisdiction;
2. you have corporate power to carry on your business as it is now being conducted;
3. you are qualified to do business in every jurisdiction in which the character and location of the assets owned by you or the nature of the business transacted by you requires qualification or in which failure to so qualify would have a material adverse impact on you;
4. you are authorized and qualified to enter into this Agreement and otherwise to comply with your obligations under this Agreement;
5. the person signing this Agreement on behalf of such entity has been duly authorized by such entity to do so;
6. this Agreement has been duly executed and delivered on your behalf.
5. You are fully informed as to and you are fully compliant with:
1. the legal and regulatory requirements within your own state or country for your management of the Crypto Funds,
2. any foreign exchange restrictions applicable to you, and
3. any relevant tax considerations relating to you arising out of the tax laws applicable to you.
6. You are not a ‘Prohibited Person’ which means that you:
1. are not from a country, territory, individual or entity named on any Sanctions List;
2. do not deal with any third party named on any Sanctions List; or
3. are not operationally based or domiciled in a country or territory in relation to which current sanctions have been issued by the United Nations, United States, European Union, or the United Kingdom.
7. You have reached out to us on your own initiative and that we have not been engaged in any sort of active marketing or promotion in the jurisdiction where you reside.
8. You have obtained the Crypto Funds and the funds used to acquire the Crypto Funds by lawful means.
9. Crypto Funds are free from all claims, liens, charges, pledges, mortgages, trust, equities and other encumbrances that may limit our ability to provide you with the Services. Crypto Funds do not have a criminal origin, and in particular do not constitute the proceeds of drug money laundering, a criminal association or a terrorist activity.
10. The information you have provided to us is true, valid, accurate, not misleading, and complete.
11. Services do not constitute a regulated activity in the jurisdiction where you reside and require no permits or licenses.
12. You have no intention to (and will not) use the Services in connection with any activity that violates applicable laws in any relevant jurisdiction, including, but not limited to, use the Services in connection with transactions that violate U.S. federal or state securities or commodity laws;
13. You, or an advisor or consultant relied upon by you in reaching a decision to enter into this Agreement, have such knowledge and experience in financial, tax and business matters as to enable you or such advisor or consultant to evaluate the merits and risks of entering into this Agreement and to make an informed decision with respect to entering into this Agreement.
14. You have adequate means to provide for your current cash needs and possible contingencies, and your financial condition is such that you can afford to bear all risks associated with the use of Services, including the risk of total loss of the Crypto Funds.
15. You understand and accept that failure to comply with security requirements to your wallet software or a wallet service provider may have the result that you may not receive access to the Services and (or) Crypto Funds, and (or) Account;
16. You have an intention to (and will) maintain control of your Crypto Funds, and (or) Account, and you have no intention to (and will not) share or disclose the Account credentials with any other party;
17. You take the sole responsibility for any restrictions and risks associated with using of the Services and with you managing your Crypto Funds;
18. You acknowledge and are aware that we are not responsible for generating a positive return from the Crypto Funds, and that the value of the Crypto Funds may go down.
19. You understand and expressly accept all risks, limitations of Cindicator liabilities, disclaimers, indemnification obligations as set forth in the Agreement.
8. TERM, AMENDMENTS AND TERMINATION
- The term of this Agreement will commence on the Effective Date and will continue until either you or we terminate it pursuant to Clause
- You or we may terminate the Agreement by providing at least 10 days’ prior written notice of such termination. Without limitation of the generality of the foregoing, we may also terminate this Agreement if (i) you are a Prohibited Person, or (ii) you withdraw the API keys to the Account from the Services or change them so as they appear to be inaccessible to us.
- Upon any termination of this Agreement:
1. All your rights under this Agreement immediately terminate
2. You undertake to immediately return or, if instructed by Cindicztor, destroy all Confidential Information in your possession
3. We will delete your API keys from the Services;
4. We may withdraw any Service Fee from your Crypto Fund which remains unpaid as of the date immediately preceding the date of this Agreement’s termination.
5. this clause 8, clauses 4, 6, 7, 10, 11, 12, 13 of this Agreement as well as definitions contacin in this Agreement will continue to apply in accordance with their terms.
4. Cindicator reserves the right to change or modify this Agreement at any time and in its sole discretion. If Cindicator makes changes to this Agreement, it will provide notice of such changes or by updating the ‘Last Updated’ date at the beginning of this Agreement.
9. TAX LIABILITY AND COSTS
- You are solely responsible for all calculation, reporting, collection and remittance of taxes and for other compliance with law in connection with the use of the Services.
- Cindicator is not responsible for your compliance with all applicable tax laws.
- The Advance Service Fee and the Service Fee are exclusive of all applicable taxes. If for whatever reason you may need to withhold the tax or any duty from any payment of the Advance Service Fee and the Service Fee, then the amount of such tax or any duty must be added on top of that payment so as the amount arriving to us, after any deduction and withholding, must be equal to the amount that Cindicator would have received if no deduction or withholding had been required.
- You undertake to provide Cindicator upon its request with documentation showing that the withheld and deducted amounts have been paid to the relevant tax authority.
10. SCOPE OF OUR LIABILITY
- IN THE ABSENCE OF WILLFUL MISFEASANCE, BAD FAITH, OR GROSS NEGLIGENCE ON OUR PART, OR RECKLESS DISREGARD OF OUR OBLIGATIONS AND DUTIES UNDER THIS AGREEMENT CINDICATOR AND ITS AFFILIATES IS NOT, SHOULD NOT AND WILL NOT BE LIABLE TO YOUR AND YOUR AFFILIATES FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA), EVEN IF CINDICATOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER CINDICATOR NOR ANY OF ITS AFFILIATES WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR AND YOUR AFFILIATES’ INABILITY TO USE THE SERVICES, INCLUDING, WITHOUT LIMITATION, AS A RESULT OF ANY TERMINATION OR SUSPENSION OF THE CINDICATOR NETWORK OR THIS AGREEMENT, INCLUDING AS A RESULT OF POWER OUTAGES, MAINTENANCE, DEFECTS, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU OR YOUR AFFILIATES IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF SERVICES; (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ACCOUNT, ANY DATA, INCLUDING RECORDS, PRIVATE KEY, LOGIN INFORMATION OR OTHER CREDENTIALS, ASSOCIATED WITH THE SERVICES, WHETHER OR NOT OBTAINED UNDER THIS AGREEMENT; OR © DEFAULT OF ANY COUNTERPARTY, BANK, BROKER, CUSTODIAN, SUB-CUSTODIAN, EXCHANGE OR OTHER THIRD PARTY WHICH HOLDS OR PROCESSES THE CRYPTO FUNDS OR DOCUMENTS OF TITLE PERTAINING TO THE ACCOUNT ON OUR BEHALF OR WITH OR THROUGH WHOM TRANSACTIONS ARE ARRANGED, CONDUCTED, COMPLETED OR SETTLED IN RELATION TO THE ACCOUNT.
- IN ANY CASE, CINDICATOR’S AND ITS AFFILIATES’ AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE VALUE (IN USDT) YOU PAID TO CINDICATOR FOR THE SERVICES UNDER THIS AGREEMENT.
- YOUR AND YOUR AFFILIATES WAIVE YOUR RIGHT TO DEMAND THE RETURN OF ANY AMOUNTS PAID TO CINDICATOR FOR THE SERVICES UNDER ANY CIRCUMSTANCES, INCLUDING, WITHOUT LIMITATION, A DEMAND FOR SPECIFIC PERFORMANCE.
- IN PARTICULAR, AND IN ADDITION TO THE TERMS OF THIS DOCUMENT, YOU AND YOUR AFFILIATES ASSUME ALL RISK OF LOSS RESULTING FROM, CONCERNING OR ASSOCIATED WITH THE RISKS SET FORTH IN THE AGREEMENT.
- SOFTWARE AND OTHER IT TECHNOLOGY ARE AVAILABLE TO YOU ‘AS IS.’ CINDICATOR AND ITS AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING SOFTWARE AND OTHER IT TECHNOLOGY OR THE THIRD PARTY CONTENT THAT YOU USE, INCLUDING ANY WARRANTY THAT SUCH TECHNOLOGY OR THIRD PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING YOUR AND YOUR AFFILIATES’ CONTENT OR THE THIRD PARTY CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, CINDICATOR AND ITS AFFILIATES DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
- CINDICATOR IS NOT RESPONSIBLE FOR SUSTAINED CASUALTIES DUE TO VULNERABILITY OR ANY KIND OF FAILURE, ABNORMAL BEHAVIOR OF SOFTWARE, BLOCKCHAINS OR ANY OTHER FEATURES OF SOFTWARE AND OTHER IT TECHNOLOGY. CINDICATOR IS NOT RESPONSIBLE FOR CASUALTIES DUE TO LATE REPORT BY DEVELOPERS OR REPRESENTATIVES (OR NO REPORT AT ALL) OF ANY ISSUES.
- IN NO EVENT WE WILL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (I) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (II) FOR LOSS OF USE, INACCURACY, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, LOSS OF PROFITS, DATA OR BUSINESS INTERRUPTION; OR (III) FOR ANY MATTER BEYOND OUR REASONABLE CONTROL, WHETHER OR NOT FORESEEABLE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN HAS FAILED ITS ESSENTIAL PURPOSE.
- You agree to indemnify, compensate, defend and hold harmless us, our partners, stockholders, members, directors, officers, employees, affiliates, agents and any person who controls such persons and the successors and assigns of all of the foregoing persons, from and against any loss, damage, expense, liability or claim (including reasonable attorney’s fees and the reasonable cost of investigation) which we or any such person may incur, insofar as such loss, damage, expense, liability or claim arises out of or is based upon: (a) any untrue statement or alleged untrue statement of a material fact or breach by you of any representation or warranty contained in this Agreement; (b) your failure to perform, when and as required, any agreement, obligation, duty or covenant contained in this Agreement; or (c) your failure to comply with applicable laws, rules or regulations of any governmental entity or any self-regulatory organization to the extent they relate to the subject matter of this Agreement.
- If Cindicator, its affiliates are obligated to respond to a third party subpoena or other compulsory legal order or process described above, you and your affiliates will also reimburse Cindicator, its affiliates for reasonable attorneys’ fees, as well as their employees’ and contractors’ time and materials spent responding to the third party subpoena or other compulsory legal order or process at reasonable hourly rates.
- Cindicator, its affiliates will promptly notify you of any claim subject to clause 10.1., but the failure to promptly notify you will only affect your obligations under clause 10.1. of the Agreement to the extent that the failure prejudices your ability to defend the claim.
- You and your affiliates may:
1. use counsel of your own choice (subject to Cindicator’s written consent) to defend against any claim; and
2. settle the claim as you deem appropriate, if you obtain prior written consent of Cindicator or its affiliates before entering into any settlement.
5. Cindicator or its affiliates may also assume control of the defense and settlement of the claim at any time.
12. RESOLUTION OF DISPUTES
BY ELECTRONICALLY EXECUTING THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS PROVISION CAREFULLY AND UNDERSTAND THAT IT LIMITS YOUR RIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND US.
- In this Arbitration Section “Claim” means any dispute, claim, or controversy (whether based on contract, tort, intentional tort, constitution, statute, ordinance, common law, or equity, whether pre-existing, present, or future, and whether seeking monetary, injunctive, declaratory, or any other relief) arising from or relating to this Agreement or the relationship between us and you (including claims arising prior to or after the date of the Agreement, and claims that are currently the subject of purported class action litigation in which you are not a member of a certified class), and includes claims that are brought as counterclaims, crossclaims, third party claims or otherwise, as well as disputes about the validity or enforceability of this Agreement or the validity or enforceability of this Arbitration Section.
- Any Claim will be resolved by binding arbitration administered by the American Arbitration Association or JAMS, under the applicable arbitration rules of the administrator in effect at the time a Claim is filed (“Rules”). Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted. You can obtain the Rules and other information about initiating arbitration by contacting the American Arbitration Association at 1633 Broadway, 10th Floor, New York, NY 10019, www.adr.org; or by contacting JAMS at 1920 Main Street, Suite 300, Irvine, CA 92614, (949) 224-1810, www.jamsadr.com. The email for serving any arbitration demand or claim on us is firstname.lastname@example.org.
- Claims will be arbitrated by a single, neutral arbitrator, who will be a retired judge or a lawyer with at least ten years’ experience.
- Any in-person arbitration hearing will be held in the city with the federal district court closest to your residence, or in such other location as you and we may mutually agree. The arbitrator will apply applicable substantive law consistent with the Federal Arbitration Act, 9 U.S.C. §§ 1-16, and, if requested by either Party, provide written reasoned findings of fact and conclusions of law. The arbitrator will have the power to award any relief authorized under applicable law. Any appropriate court may enter judgment upon the arbitrator’s award. The arbitrator’s decision will be final and binding except that: (1) any Party may exercise any appeal right under the FAA; and (2) any Party may appeal any award relating to a claim for more than $100,000 to a three-arbitrator panel appointed by the administrator, which will reconsider de novo any aspect of the appealed award. The panel’s decision will be final and binding, except for any appeal right under the FAA.
- YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and we agree otherwise in writing, the arbitrator may not consolidate more than one person’s claims. The arbitrator will have no power to arbitrate any Claims on a class action basis or Claims brought in a purported representative capacity on behalf of the general public, other borrowers, or other persons similarly situated. The validity and effect of this paragraph (e) will be determined exclusively by a court, and not by the administrator or any arbitrator.
- If any portion of this Arbitration Section is deemed invalid or unenforceable for any reason, it will not invalidate the remaining portions of this section. The terms of this Arbitration Section will prevail if there is any conflict between the Rules and this section.
- YOU AND WE AGREE THAT, BY ENTERING INTO THIS AGREEMENT, THE PARTIES ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AND WE ACKNOWLEDGE THAT ARBITRATION WILL LIMIT OUR LEGAL RIGHTS, INCLUDING THE RIGHT TO PARTICIPATE IN A CLASS ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO CONDUCT FULL DISCOVERY, AND THE RIGHT TO APPEAL (EXCEPT AS PERMITTED IN PARAGRAPH (d) OR UNDER THE FEDERAL ARBITRATION ACT).
- You and we acknowledge and agree that the arbitration agreement set forth in this Arbitration Section is made pursuant to a transaction involving interstate commerce, and thus the Federal Arbitration Act will govern the interpretation and enforcement of this Arbitration Section. This Arbitration Section will survive the termination of this Agreement.
- In the event that a dispute does not proceed to arbitration, this Agreement and all other aspects of your use of the Service will be governed by and construed in accordance with the laws of the United States and, to the extent applicable, to the laws of the State of New York, without regard to its conflict-of-laws principles. You agree that you will notify us in writing of any claim or dispute concerning or relating to the Service and the information or services provided through it, and give us a reasonable period of time to address it before bringing any legal action, either individually, as a class member or representative, or as a private attorney general, against us.
13. MISCELLANEOUS PROVISIONS
- Successors and Assigns. This Agreement will be binding on the Parties’ successors and assigns.
- Waiver. No waiver will be implied from our conduct or failure to enforce rights. Our exercise of any right or remedy provided in this Agreement will be without prejudice to the right to exercise any other right or remedy provided by law or equity, except as expressly limited in this Agreement. The failure by Cindicator and its affiliates to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit Cindicator’s and its affiliates’ right to enforce such provision later. All waivers by Cindicator must be unequivocal and in writing to be effective.
- Notices. All notices and other communications required or permitted by this Agreement to be in writing will be effective upon receipt, which must be acknowledged by the receiving Party, and must be sent by e-mail to us at email@example.com. Legal notices sent to any other address will not satisfy any legal requirement that you provide notice to us. All notices and other communications to you may be given by email to your email address that you provided when registering for the service. The notices and communications from us will be deemed to have been duly given and effective upon transmission. You acknowledge that you have control of the email account provided to us, and that communications from us may contain sensitive and confidential communications. If your registered email address changes, you must update it by following instructions on how to do so within the service.
- No Third-Party Beneficiaries. This Agreement has been entered into for the sole benefit of the Parties and does not confer any benefits on any third parties.
- Governing Law. This Agreement and all actions arising out of or in connection with this Agreement will be governed by and construed in accordance with the laws of the state of New York, USA, excluding its conflict-of-laws provisions.
- Attorney’s Fees. If a Party files any claim under or related to this Agreement, the prevailing Party in that dispute will be entitled to recover from the losing Party all fees, costs, and expenses incurred as a result of resolving that claim, including reasonable attorney’s and accountant’s fees.
- Force Majeure. Neither Party will be liable to the other Party for any delay or failure in performance under this Agreement due to causes beyond the reasonable control of the Party unable to perform, but only if those causes could not have been prevented by reasonable precautions and could not have been circumvented through the use of reasonable alternative sources, workaround plans, or other means. These causes include strikes, shortages, failure of suppliers, riots, insurrection, fires, floods, storms, earthquakes, acts of god, war, governmental action, labor conditions, global pandemics, and power outages.
- Severability. If any of the provisions of this Agreement are or become illegal, unenforceable, or invalid (in whole or in part for any reason), the remainder of this Agreement will remain in full force and effect without being impaired or invalidated. Any invalid or unenforceable portions will be interpreted to affect the intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement, but the rest of the Agreement will remain in full force and effect.
- Survival. Termination of this Agreement does not release any Party from liabilities or obligations set forth in the Agreement which (a) the Parties have expressly agreed would survive termination or (b) remain to be performed.
- Counterparts. This Agreement has been executed in two counterparts, each an original, one for each Party.
- Entire Agreement. This Agreement contains the entire understanding of the Parties with respect to the matters contained in it and supersedes all previous or contemporaneous agreements, undertakings, representations, understandings, or communications between you and us, whether written or verbal, relating to the same subject matter. Cindicator may modify this Agreement by providing notice of such changes, such as by sending you an email, providing notice through the Stoic Platform, or updating the “Last Updated” date of this Agreement. By continuing to access or use the Stoic Platform, you confirm your agreement to the modified Agreement. If you do not agree to any modification to this Agreement, you must stop using the Stoic Platform. We encourage you to frequently review General Terms to ensure you understand the terms and conditions that apply to your access to, and use of, the Stoic Platform
- Language. The original text of this Agreement is prepared in English. Albeit Cindicator may place a translation of the Agreement on its webpage, the English version shall prevail if there is any conflict.
SIGNED ELECTRONICALLY BY THE PARTIES