Terms of Service
Last Revised on August 26, 2024
Welcome to the Terms of Service (these “Terms”) for (i) the website, eigenfoundation.org (including its subdomains, the “Foundation Site”) and (ii) any other websites through which these Terms are linked (together with the Foundation Site, the “Website”), in each case as operated by or on behalf of EigenFoundation, a Cayman Islands foundation company, or its subsidiaries (“Organization”, “we” or “us”). The Organization’s services, including but not limited to the Website andany content, tools, software, documentation, features, and functionality offered by the Organization on or through the Website or third-party sites and services, are collectively referred to as the “Services”.
These Terms govern your access to and use of the Services. Please read these Terms carefully, as they include important information about your legal rights. By accessing and/or using the Services, you are agreeing to these Terms. If you do not understand or agree to these Terms, you may not use the Services.
For purposes of these Terms, “you” and “your” means you as the user of the Services. If you use the Services on behalf of a company or other entity then “you” includes both you in an individual capacity and that entity, and you represent and warrant that (a) you are an authorized representative of the entity with the authority to bind the entity to these Terms, and (b) you agree to these Terms on the entity’s behalf.
SECTION 7 CONTAINS AN ARBITRATION CLAUSE AND CLASS ACTION WAIVER. BY AGREEING TO THESE TERMS, YOU AGREE (A) TO RESOLVE ALL DISPUTES (WITH LIMITED EXCEPTION) RELATED TO THE ORGANIZATION’S SERVICES AND/OR PRODUCTS THROUGH BINDING INDIVIDUAL ARBITRATION, WHICH MEANS THAT YOU WAIVE ANY RIGHT TO HAVE THOSE DISPUTES DECIDED BY A JUDGE OR JURY, AND (B) TO WAIVE YOUR RIGHT TO PARTICIPATE IN CLASS ACTIONS, CLASS ARBITRATIONS, OR REPRESENTATIVE ACTIONS, AS SET FORTH BELOW. YOU HAVE THE RIGHT TO OPT-OUT OF THE ARBITRATION CLAUSE AND THE CLASS ACTION WAIVER AS EXPLAINED IN SECTION 7.
Table of Contents
- Who May Use the Services
- Rights We Grant You
- Ownership and Content
- Third Party Services and Materials
- Location of Our Privacy Policy and Other Policies
- Disclaimers, Limitations of Liability and Indemnification
- Arbitration and Class Action Waiver
- Additional Provisions
1. Who May Use the Services
1.1. Eligibility. You must be 18 years of age or older and not be a Prohibited Person to use the Services. A “Prohibited Person” is any person or entity that is (a) the subject of any economic or trade sanctions administered or enforced by any governmental authority, including any person designated on any list of prohibited or restricted parties by any governmental authority, such as the European Union (“EU”) Consolidated List of Persons, the United Kingdom (“UK”) Consolidated List of Financial Sanctions Targets, the United States (“U.S.”) Treasury Department’s list of Specially Designated Nationals, and the U.S. Department of Commerce Denied Persons or Entity Lists; (b) located in, incorporated in, or otherwise organized or established in, or resident of, any country, territory, or jurisdiction that is the subject of comprehensive country-wide or regional economic sanctions or embargoes or has been designated as “terrorist supporting” by the United Nations (“UN”) or any governmental authority of the European Union, UK, or the U.S., including the Office of Foreign Assets Control (“OFAC”) of the U.S. Treasury Department or the Office of Financial Sanctions (“OFSI”) of HM Treasury of the UK (each such country, territory, or jurisdiction, a “Sanctioned Jurisdiction”); (c) owned or controlled by such persons or entities described in (a)-(b); or (d) accessing or using the Services on behalf of persons or entities described in (a)-(c). You acknowledge and agree that you are solely responsible for complying with all applicable laws of the jurisdiction you are a resident of, or located or accessing the Services from, in connection with your use of the Services. By using the Services, you represent and warrant that you meet these requirements and will not be using the Services for any illegal activity or to engage in the prohibited activities in Section 2.4.
1.2. Accounts. To use certain of the Services, you may need to create an account on the Website (“Account”) or link a third-party Account to the Website. You agree to provide us with accurate, complete and updated information for your Account or otherwise in connection with your use of Services (“Registration Data”), and you agree to review and update such Registration Data as needed to keep it accurate, complete and up-to-date. You are solely responsible for any activity on your Account and maintaining the confidentiality and security of your password. We are not liable for any acts or omissions by you in connection with your Account. You must immediately notify us at notices@eigenfoundation.org if you know or have any reason to suspect that your Account or password have been stolen, misappropriated or otherwise compromised, or in case of any actual or suspected unauthorized use of your Account. You agree not to create any Account if we have previously removed yours, or we previously banned you from any of our Services, unless we provide written consent otherwise.
2. Rights We Grant You
2.1. The EigenLayer protocol is a software protocol that allows for the staking of digital assets, such as Ether (ETH), to support actively validated services (the “Protocol”). The Protocol, including underlying smart contracts and related documentation, is not part of the Services. We do not control all activity and data on the Protocol itself, nor do we take possession, custody, or control over any digital assets on the Protocol. You acknowledge and agree that we make no representations and warranties with respect to the Protocol. Certain elements of the Protocol may be made publicly available under an open-source or source-available license (e.g., at https://github.com/eigenfoundation/eigenlayer-contracts), and these Terms do not override or supersede the terms of those licenses. Notwithstanding anything to the contrary set forth herein, you agree that the terms of Section 6 (Disclaimers, Limitations of Liability and Indemnification) apply, mutatis mutandis, to your use of the Protocol.
2.2. Documentation. The Services may display, include, or make available documentation, research, blog posts, images, videos, commentary, and other descriptions or materials related to the EigenLayer community and the Protocol (collectively, “Documentation”). The Documentation is part of the Services. All Documentation is made available “as is” and “with all faults” and you use or rely on any Documentation at your own risk. Without limiting the foregoing, we do not warrant that the Documentation is accurate, complete, reliable, current, or error-free.
2.3. Right to Use Services. We hereby grant you a limited, revocable, non-transferable, non-sublicensable right and license to access and use the Services for your internal use only, provided that you comply with these Terms in connection with all such use. If any software, content or other materials owned or controlled by us are distributed or made available to you as part of your use of the Services (such as the Documentation), we hereby grant you a personal, non-assignable, non-sublicensable, non-transferrable, and non-exclusive right and license to download, access and display such software, content and materials provided to you as part of the Services, in each case for the sole purpose of enabling you to use the Services as permitted by these Terms. Your access and use of the Services may be interrupted from time to time for any or for no reason, including, without limitation, in the event of the malfunction of equipment, periodic updating, maintenance or repair of the Service or other actions that Organization, in its sole discretion, may elect to take. You agree that we shall have no liability to you arising from or related to any inability to access the Services.
2.4. Restrictions On Your Use of the Services. You shall not do any of the following in connection with your use of the Services, unless applicable laws or regulations prohibit these restrictions or you have our written permission to do so:
(a) download, modify, copy, distribute, transmit, display, perform, reproduce, duplicate, publish, license, create derivative works from, or offer for sale any information contained on, or obtained from or through, the Services, except for temporary files that are automatically cached by your web browser for display purposes, or as otherwise expressly permitted in these Terms;
(b) use, reproduce or remove any copyright, trademark, service mark, trade name, slogan, logo, image, or other proprietary notation displayed on or through the Services;
(c) use automation software (bots), hacks, modifications (mods) or any other unauthorized third-party software designed to access, use, or modify the Services;
(d) access or use the Services in any manner that could disable, overburden, damage, disrupt or impair the Services or interfere with any other party’s access to or use of the Services or use any device, software or routine that causes the same;
(e) attempt to gain unauthorized access to, interfere with, damage or disrupt the Services, Accounts registered to other users, or the computer systems or networks connected to the Services;
(f) circumvent, remove, alter, deactivate, degrade or thwart any technological measure or content protections of the Services or any of the computer systems, wallets, accounts, protocols or networks connected to the Services;
(g) use any robot, spider, crawlers or other automatic device, process, software or queries that intercepts, “mines,” scrapes or otherwise accesses the Services to monitor, extract, copy or collect information or data from or through the Services, or engage in any manual process to do the same;
(h) introduce any viruses, trojan horses, worms, logic bombs or other materials that are malicious or technologically harmful into our systems;
(i) submit, transmit, display, perform, post or store any content that is inaccurate, unlawful, or otherwise objectionable;
(j) impersonate any other person or entity using the Services, including by falsely stating, implying or otherwise misrepresenting your affiliation with any person or entity;
(k) violate any applicable law or regulation in connection with your access to or use of the Services; or
(l) access or use the Services in any way not expressly permitted by these Terms.
2.5. Interactions with Other Users on the Services. You are responsible for your interactions with other users on, through, or in connection with the Services. While we reserve the right to monitor interactions between users, we are not obligated to do so, and you acknowledge and agree that we cannot be held liable for your interactions with other users, or for any user's actions or inactions. If you have a dispute with one or more users, you release us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute(s). In entering into this release you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
3. Ownership and Content
3.1. Ownership of the Services. The Services, including their “look and feel” (e.g., text, graphics, images, logos), proprietary content, information and other materials, are protected under copyright, trademark and other intellectual property laws. You agree that the Organization and/or its licensors own all right, title and interest in and to the Services (including any and all intellectual property rights therein) and you agree not to take any action(s) inconsistent with such ownership interests. We and our licensors reserve all rights in connection with the Services and its content, including, without limitation, the exclusive right to create derivative works.
3.2. Ownership of Feedback. We welcome feedback, bug reports, comments, and suggestions for improvements to the Services (“Feedback”). You acknowledge and expressly agree that any contribution by you of Feedback does not and will not give or grant you any right, title or interest in the Services or in any such Feedback. All Feedback becomes the sole and exclusive property of the Organization, and you agree that the Organization may use and disclose Feedback in any manner and for any purpose whatsoever without further notice or compensation to you, and without retention by you of any proprietary or other right or claim. You hereby assign to the Organization any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that you may have in and to any and all Feedback, and, to the extent that any rights in and to Feedback cannot be assigned (including without limitation any moral rights), you hereby agree to waive such rights.
3.3. Your Content License Grant. In connection with your use of the Services, you may be able to post, upload, or submit content to be made available through the Services ("Your Content"). When you share any of Your Content on, through, or in connection with the Services, you grant us a perpetual, irrevocable, royalty free, transferable, freely sub-licensable (through multiple tiers), worldwide and irrevocable license to access, use, host, cache, store, reproduce, transmit, display, publish, distribute, and modify (for technical purposes, e.g., making sure content is viewable on smartphones as well as computers and other devices) Your Content as reasonably required to be able to operate, improve and provide the Services and our other products and services. You agree that the other users of the Services shall have the right to comment on and/or tag any of Your Content and/or to use, publish, display, modify or include a copy of Your Content as part of their own use of the Services; except that the foregoing shall not apply to any of Your Content that you post privately for non-public display on the Services or otherwise share with us through non-public channels. To the fullest extent permitted by applicable law, the Organization reserves the right, and has absolute discretion, to remove, screen, edit, or delete any of Your Content at any time, for any reason, and without notice. By posting or submitting Your Content through the Services, you represent and warrant that you have, or have obtained, all rights, licenses, consents, permissions, power and/or authority necessary to grant the rights granted herein for Your Content. You agree that Your Content will not contain material subject to copyright or other proprietary rights, unless you have the necessary permission or are otherwise legally entitled to post the material and to grant us the license described above.
3.4. Notice of Infringement – Copyright Policy. If you believe that any text, graphics, photos, audio, videos or other materials or works uploaded, downloaded or appearing on the Services have been copied in a way that constitutes copyright infringement under applicable copyright laws, including, to the extent applicable, the Digital Millennium Copyright Act (the “DMCA”), you may submit a notification to our copyright agent by providing the following information in writing:
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identification of the copyrighted work that is claimed to be infringed;
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identification of the allegedly infringing material that is requested to be removed, including a description of where it is located on the Service;
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information for our copyright agent to contact you, such as an address, telephone number and e-mail address;
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a statement that you have a good faith belief that the identified, allegedly infringing use is not authorized by the copyright owners, its agent or the law;
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a statement that the information above is accurate, and under penalty of perjury, that you are the copyright owner or the authorized person to act on behalf of the copyright owner; and
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the physical or electronic signature of a person authorized to act on behalf of the owner of the copyright or of an exclusive right that is allegedly infringed.
Notices of copyright infringement claims should be sent by mail to: EigenFoundation, Attn: Eric Medoff, General Counsel, Highvern Cayman Limited Elgin Court, Elgin Avenue George Town Grand Cayman, Grand Cayman Grand Caymen KY1-1106; or by e-mail to notices@eigenfoundation.org. It is our policy, in appropriate circumstances and at our discretion, to disable or terminate the accounts of users who repeatedly infringe copyrights or intellectual property rights of others.
4. Third Party Services and Materials
4.1. Third Party Services and Materials. The Services may display, include, link to, or otherwise make available services, content, data, information, applications, or materials from third parties (including Content made available by other users of the Services or the Protocol) or provide links to certain third-party websites (“Third-Party Services and Materials”). All Third-Party Services and Materials are made available solely as a convenience, and the Organization does not endorse any Third-Party Services and Materials. You agree that your access and use of such Third-Party Services and Materials is governed solely by the terms and conditions of such Third-Party Services and Materials, as applicable. The Organization is not responsible or liable for, and makes no representations as to any aspect of such Third-Party Services and Materials, including, without limitation, their content or the manner in which they handle, protect, manage, or process data, or any interaction between you and the provider of such Third-Party Services and Materials. The Organization is not responsible for examining or evaluating the content, accuracy, completeness, availability, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third-Party Services and Materials or websites. You irrevocably waive any claim against the Organization with respect to such Third-Party Services and Materials. We are not liable for any damage or loss caused or alleged to be caused by or in connection with your enablement, access, or use of any such Third-Party Services and Materials, or your reliance on the privacy practices, data security processes, or other policies of such Third-Party Services and Materials. Third-Party Services and Materials and links to other websites are provided solely as a convenience to you.
5. Location of Our Privacy Policy and Other Policies
5.1. Privacy Policy. Our Privacy Policy describes how we handle the information you provide to us when you use the Services. For an explanation of our privacy practices, please visit our Privacy Policy located at docs.eigenfoundation.org.
5.2. Community Guidelines. Our Community Guidelines available on our website under https://docs.eigenfoundation.org/category/legal describe our rules of behavior and engagement when you use the Services or participate in any events hosted by us, which are intended to foster a positive and engaging community. All of Your Content must comply with the Community Guidelines.
6. Disclaimers, Limitations of Liability and Indemnification
6.1. Disclaimers
(a) Your access to and use of the Services (including, for clarity, the Documentation) and the Protocol is entirely at your own risk. You understand and agree that the Services are provided to you on an “AS IS” and “AS AVAILABLE” basis. Without limiting the foregoing, to the maximum extent permitted under applicable law, the Organization, its parents, subsidiaries, affiliates, related companies, service providers, and its and their officers, directors, employees, consultants, advisors, agents, representatives, partners, and licensors (the “Organization Persons”) DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTIES RELATING TO TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, USAGE, QUALITY, PERFORMANCE, SUITABILITY OR FITNESS OF THE SERVICES AND THE PROTOCOL FOR ANY PARTICULAR PURPOSE, OR AS TO THE ACCURACY, QUALITY, SEQUENCE, RELIABILITY, WORKMANSHIP OR TECHNICAL CODING THEREOF, OR THE ABSENCE OF ANY DEFECTS THEREIN WHETHER LATENT OR PATENT. The Organization Persons make no warranty or representation and disclaim all responsibility and liability for: (a) the completeness, accuracy, availability, timeliness, security or reliability of the Services (including the Documentation) and the Protocol; (b) any harm to your computer system, loss of data, or other harm that results from your access to or use of the Services or the Protocol; (c) the operation or compatibility with any other application or any particular system or device; (d) whether the Services or the Protocol will meet your requirements or be available on an uninterrupted, secure or error-free basis; (e) whether the Services or the Protocol will protect your assets from theft, hacking, cyber attack, or other form of loss caused by third-party conduct; and (f) the deletion of, or the failure to store or transmit, Your Content and other communications maintained by the Services. Nothing contained in the Services constitutes, or is meant to constitute, financial, legal, or other professional advice of any kind. If you require advice in relation to any financial, legal, or other professional matter you should consult an appropriate professional. No advice or information, whether oral or written, obtained from the Organization Persons or through the Services, will create any warranty or representation not expressly made herein.
(c) THE LAWS OF CERTAIN JURISDICTIONS, INCLUDING THE CAYMAN ISLANDS, DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES AS SET FORTH IN SECTION 6.2 BELOW. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
(d) THE ORGANIZATION PERSONS TAKE NO RESPONSIBILITY AND ASSUME NO LIABILITY FOR ANY CONTENT THAT YOU, ANOTHER USER, OR A THIRD PARTY CREATES, UPLOADS, POSTS, SENDS, RECEIVES, OR STORES ON OR THROUGH OUR SERVICES OR THE PROTOCOL.
(e) YOU UNDERSTAND AND AGREE THAT THROUGH YOUR USE OF THE SERVICES OR THE PROTOCOLYOU MAY BE EXPOSED TO CONTENT THAT MIGHT BE OFFENSIVE, ILLEGAL, MISLEADING, OR OTHERWISE INAPPROPRIATE, AND AGREE THAT THE ORGANIZATION SHALL HAVE NO LIABILITY IN CONNECTION WITH SUCH CONTENT.
6.2. Limitations of Liability
TO THE EXTENT NOT PROHIBITED BY LAW, YOU AGREE THAT (i) IN NO EVENT WILL THE ORGANIZATION PERSONS BE LIABLE (A) FOR DAMAGES OF ANY KIND, INCLUDING INDIRECT SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICES), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THESE TERMS OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE SERVICES OR THESE TERMS AND WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), EVEN IF THE ORGANIZATION PERSONS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (B) FOR ANY OTHER CLAIM, DEMAND, OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE DELIVERY, USE, OR PERFORMANCE OF THE SERVICES; AND (ii) IN THE EVENT THAT ORGANIZATION IS FOUND TO HAVE ANY LIABILITY TO YOU NOTWITHSTANDING THE FOREGOING, SUCH LIABILITY SHALL NOT EXCEED THE GREATER OF (1) ONE HUNDRED DOLLARS ($100.00), (2) THE AMOUNT YOU PAID THE ORGANIZATION PERSONS, IF ANY, IN THE PAST SIX (6) MONTHS FOR THE SERVICES (OR OFFERINGS PURCHASED ON THE SERVICES) GIVING RISE TO THE CLAIM; OR (3) THE STATUTORY REMEDY FOR SUCH CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
6.3. Acknowledgement; Assumption of Risks
(a) By using the Services or Protocol, you represent that you have sufficient knowledge and experience in any business or financial matters that may be applicable, including a sufficient understanding of blockchain technologies, cryptocurrencies, and other digital assets, storage mechanisms, and blockchain-based software systems to be able to assess and evaluate the risks and benefits of the Services contemplated hereunder, and will bear the risks thereof, including loss of all amounts paid or stored, and the risk that the cryptocurrencies and other digital assets may have little or no value. You acknowledge and agree that there are risks associated with purchasing and holding cryptocurrency and using blockchain technology. These include, but are not limited to, risk of losing access to cryptocurrency or digital assets due to slashing, loss of private key(s), custodial error or purchaser or user error, risk of mining, staking, or blockchain-related attacks, risk of hacking and security weaknesses, risk of unfavorable regulatory intervention in one or more jurisdictions, risk related to token taxation, risk of personal information disclosure, risk of uninsured losses, volatility risks, and unanticipated risks.
(b) Smart contracts execute automatically when certain conditions are met. For the avoidance of doubt, we do not have the ability to reverse a transaction that is recorded on a public blockchain or executed through or in connection with the Protocol. Further, since smart contracts typically cannot be stopped or reversed, vulnerabilities in their programming and design or other vulnerabilities that may arise due to hacking or other security incidents can have adverse effects to digital assets, including but not limited to significant volatility and risk of loss.
(c) You acknowledge that there are inherent risks associated with using or interacting with public blockchains and blockchain technology. There is no guarantee that such technology will be unavailable or subject to errors, hacking, or other security risks. Underlying blockchain protocols may also be subject to sudden changes in operating rules, including forks, and it is your responsibility to make yourself aware of upcoming operating changes.
6.4. Indemnification
By entering into these Terms and accessing or using the Services or Protocol, you agree that you shall indemnify, and hold the Organization Persons harmless, and at Organization’s election defend such Organization Persons from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) incurred by the Organization Persons arising out of or in connection with: (a) your violation or breach of any term of these Terms or any applicable law or regulation; (b) your violation of any rights of any third party; (c) your use or misuse of the Services or Protocol; (d) your negligence or willful misconduct; or € Your Content. If you are obligated to indemnify any Organization Person hereunder, then you agree that Organization (or, at its discretion, the applicable Organization Persons) will have the right, in its sole discretion, to control any action or proceeding and to determine whether Organization wishes to settle, and if so, on what terms, and you agree to fully cooperate with Organization in the defense or settlement of such claim.
6.5. Third Party Beneficiaries
You and the Organization acknowledge and agree that the Organization Persons (other than the Organization) are third party beneficiaries of these Terms, including under Sections 6 and 7.
7. Arbitration and Class Action Waiver
7.1. PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
7.2. Informal Process First. You and the Organization agree that in the event of any dispute between you and the Organization Persons, either party will first contact the other party and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation, any court action, after first allowing the receiving party 30 days in which to respond. Both you and the Organization agree that this dispute resolution procedure is a condition precedent which must be satisfied before initiating any arbitration against the other party.
7.3. Arbitration Agreement and Class Action Waiver. After the informal dispute resolution process, any remaining dispute, controversy, or claim (collectively, “Claim”) relating in any way to the Services and any usage of the Protocol, will be resolved by arbitration, including threshold questions of arbitrability of the Claim, and except as otherwise set forth in Section 7.5 (Exceptions). You and the Organization agree that any Claim will be settled by final and binding arbitration, using the English language, administered by JAMS under its Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”) then in effect (those rules are deemed to be incorporated by reference into this section, and as of the date of these Terms). Legislation concerning arbitration may govern the arbitrability of all disputes in an applicable jurisdiction. However, the arbitrator will apply applicable substantive law consistent with such legislation and the applicable statute of limitations or condition precedent to suit. Arbitration will be handled by a sole arbitrator in accordance with the JAMS Rules. Judgment on the arbitration award may be entered in any court that has jurisdiction. Any arbitration under these Terms will take place on an individual basis – class arbitrations and class actions are not permitted. You understand that by agreeing to these Terms, you and the Organization are each waiving the right to trial by jury or to participate in a class action or class arbitration.
7.4. Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and the Organization agree that in the event that there are one-hundred (100) or more individual Claims of a substantially similar nature filed against Organization by or with the assistance of the same law firm, group of law firms, or organizations, then within a thirty (30) day period (or as soon as possible thereafter), JAMS shall (1) administer the arbitration demands in batches of 100 Claims per batch (plus, to the extent there are less than 100 Claims left over after the batching described above, a final batch consisting of the remaining Claims); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”). All parties agree that Claims are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise JAMS, and JAMS shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by the Organization. You and the Organization agree to cooperate in good faith with JAMS to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Claims, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings. This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
7.5. Exceptions. Notwithstanding the foregoing, you and the Organization agree that the following types of disputes will be resolved in a court of proper jurisdiction: (i) disputes or claims within the jurisdiction of a small claims court consistent with the jurisdictional and dollar limits that may apply, as long as it is brought and maintained as an individual dispute and not as a class, representative, or consolidated action or proceeding; (ii) disputes or claims where the sole form of relief sought is injunctive relief (including public injunctive relief); or (iii) intellectual property disputes.
7.6. Costs of Arbitration. Payment of all filing, administration, and arbitrator costs and expenses will be governed by the JAMS Rules, except that if you demonstrate that any such costs and expenses owed by you under those rules would be prohibitively more expensive than a court proceeding, the Organization will pay the amount of any such costs and expenses that the arbitrator determines are necessary to prevent the arbitration from being prohibitively more expensive than a court proceeding (subject to possible reimbursement as set forth below). Fees and costs may be awarded as provided pursuant to applicable law. If the arbitrator finds that either the substance of your claim or the relief sought in the demand is frivolous or brought for an improper purpose (as measured by the applicable standards set forth in civil procedures), then the payment of all fees will be governed by the JAMS rules. In that case, you agree to reimburse the Organization for all monies previously disbursed by it that are otherwise your obligation to pay under the applicable rules. If you prevail in the arbitration and are awarded an amount that is less than the last written settlement amount offered by the Organization before the arbitrator was appointed, the Organization will pay you the amount it offered in settlement. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
7.7. Opt-Out. You have the right to opt-out and not be bound by the arbitration provisions set forth in these Terms by sending written notice of your decision to opt-out to notices@eigenfoundation.org. The notice must be sent to the Organization within thirty (30) days of your first registering to use the Services or agreeing to these Terms; otherwise you shall be bound to arbitrate disputes on a non-class basis in accordance with these Terms. If you opt out of only the arbitration provisions, and not also the class action waiver, the class action waiver still applies. You may not opt out of only the class action waiver and not also the arbitration provisions. If you opt-out of these arbitration provisions, the Organization also will not be bound by them.
7.8. WAIVER OF RIGHT TO BRING CLASS ACTION AND REPRESENTATIVE CLAIMS. To the fullest extent permitted by applicable law, you and the Organization each agree that except as expressly set forth in Section 7.4 (Batch Arbitration), any proceeding to resolve any dispute, claim, or controversy will be brought and conducted ONLY IN THE RESPECTIVE PARTY’S INDIVIDUAL CAPACITY AND NOT AS PART OF ANY CLASS (OR PURPORTED CLASS), CONSOLIDATED, MULTIPLE-PLAINTIFF, OR REPRESENTATIVE ACTION OR PROCEEDING (“CLASS ACTION”). You and the Organization AGREE TO WAIVE THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS ACTION. You and the Organization EXPRESSLY WAIVE ANY ABILITY TO MAINTAIN A CLASS ACTION IN ANY FORUM. If the dispute is subject to arbitration, then except as expressly set forth in Section 7.4 (Batch Arbitration),THE ARBITRATOR WILL NOT HAVE THE AUTHORITY TO COMBINE OR AGGREGATE CLAIMS, CONDUCT A CLASS ACTION, OR MAKE AN AWARD TO ANY PERSON OR ENTITY NOT A PARTY TO THE ARBITRATION. Further, you and the Organization agree that except as expressly set forth in Section 7.4 (Batch Arbitration), the ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS FOR MORE THAN ONE PERSON’S CLAIMS, AND IT MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CLASS ACTION. For the avoidance of doubt, however, you can seek public injunctive relief to the extent authorized by law and consistent with the Exceptions clause above.
IF THIS CLASS ACTION WAIVER IS LIMITED, VOIDED, OR FOUND UNENFORCEABLE, THEN, UNLESS THE PARTIES MUTUALLY AGREE OTHERWISE, THE PARTIES’ AGREEMENT TO ARBITRATE SHALL BE NULL AND VOID WITH RESPECT TO SUCH PROCEEDING SO LONG AS THE PROCEEDING IS PERMITTED TO PROCEED AS A CLASS ACTION. If a court decides that the limitations of this paragraph are deemed invalid or unenforceable, any putative class, private attorney general, or consolidated or representative action must be brought in a court of proper jurisdiction and not in arbitration.
8. Additional Provisions
8.1. Updating These Terms. We may modify these Terms from time to time in which case we will update the “Last Revised” date at the top of these Terms. If we make changes that are material, we will use reasonable efforts to attempt to notify you, such as by e-mail to any e-mail address provided as part of the Registration Data and/or by placing a prominent notice on the first page of the Website. However, it is your sole responsibility to review these Terms from time to time to view any such changes and to keep your Registration Data current. The updated Terms will be effective as of the time of posting, or such later date as may be specified in the updated Terms. Your continued access or use of the Services after the modifications have become effective will be deemed your acceptance of the modified Terms. No amendment shall apply to a dispute for which an arbitration has been initiated prior to the change in Terms.
8.2. Suspension; Termination. If you breach any of the provisions of these Terms, all licenses granted by the Organization will terminate automatically. Additionally, the Organization may, in its sole discretion, suspend or terminate your access to or use of any of the Services, with or without notice, for any or no reason, including, without limitation, (i) if we believe, in our sole discretion, you have engaged in any of the prohibited activities set forth in Section 2.4; (ii) if you provide any incomplete, incorrect or false information to us, including as Registration Data; (iii) if you have breached any portion of these Terms; and/or (iv) if we determine such action is necessary to comply with these Terms, any of our policies, procedures or practices, or any law, rule, or regulation. If the Organization deletes your Account for any actual or suspected breach of these Terms by you, you are prohibited from re-registering for the Services under a different name. In the event of Account deletion for any reason, the Organization may, but is not obligated to, delete any of Your Content. the Organization shall not be responsible for the failure to delete or deletion of Your Content. All sections which by their nature should survive the termination of these Terms shall continue in full force and effect subsequent to and notwithstanding any termination of this Agreement by the Organization or you. Termination will not limit any of the Organization’s other rights or remedies at law or in equity.
8.3. Injunctive Relief. You agree that a breach of these Terms will cause irreparable injury to the Organization for which monetary damages would not be an adequate remedy and the Organization shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.
8.4. Force Majeure. We will not be liable or responsible to you, nor be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any of our obligations under these Terms or in providing the Services, when and to the extent such failure or delay is caused by or results from any events beyond our ability to control, including acts of God; flood, fire, earthquake, epidemics, pandemics, tsunami, explosion, war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, government order, law, or action, embargoes or blockades, strikes, labor stoppages or slowdowns or other industrial disturbances, shortage of adequate or suitable Internet connectivity, telecommunication breakdown or shortage of adequate power or electricity, and other similar events beyond our control.
8.5. Miscellaneous. If any provision of these Terms shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions. These Terms and the licenses granted hereunder may be assigned by the Organization but may not be assigned by you without the prior express written consent of the Organization. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for reference only and shall not be read to have any legal effect. These Terms are governed by the laws of the Cayman Islands, without regard to conflict of laws rules, and the proper venue for any disputes arising out of or relating to these Terms, to the extent permitted under Section 7, will be the courts located in the Cayman Islands.
8.6. How to Contact Us. You may contact us regarding the Services or these Terms by e-mail at notices@eigenfoundation.org.