Superset Trust Terms of Service
Published March 8, 2023
These Terms of Service (“Terms”) set forth a legally binding agreement between you and the trustees of the Superset Trust, a purpose trust created under the laws of Guernsey (each a “Trustee” and acting collectively on behalf of the Superset Trust, the “Trust,” “we,” or “us”) and govern your relationship with the Trust, including the respective rights and obligations of you and the Trust and your interactions through any platform that the Trust provides.
These Terms constitute a legally binding agreement between you and the Trust and affect your legal rights, responsibilities and obligations, and limit the Trust’s liability to you. They further require you to indemnify the Trust and agree to settle certain disputes through individual arbitration. These Terms do not affect your mandatory statutory rights under applicable laws, to the extent that such rights apply to you and cannot be limited or excluded. The Trust reserves the right, in its sole discretion, to change these Terms at any time without notice.
THE SERVICES ARE PROVIDED ON AN AS-IS BASIS AND THE TRUST MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE CONDITION OR FUNCTIONALITY OF SUCH SERVICES.
IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE OUR SERVICES.
ABOUT THE TRUST AND ITS SERVICES
The Trust is governed by the Trust Declaration and exists to faithfully and exclusively represent the interests of Members (as referenced in the Trust Declaration and defined herein) in permitting Delphia Research Inc. (“Delphia Research”) and its affiliates (together “Delphia Group Companies”) as well as other third parties to collect and use their data (“Member Data”). The Trust seeks to (i) put Member Data to exciting or productive uses and (ii) ensure that Members receive a fair share of the returns resultant from the use of Member Data and its derivatives. To effectuate this purpose, the Trust will negotiate with Delphia Group Companies and other third parties, on behalf of Members, to determine how Member Data may be collected, processed, stored, and used (including consideration of the data privacy and security practices of the Delphia Group Companies and other third parties) and what consideration Members will receive in exchange for such permitted uses, including both financial and non-financial forms of compensation. The Trust’s work as described in this section is referred to herein as the “Services.”
Subject to your agreement to these Terms, the Trust will provide one or more platforms through which you may engage in discussions with other Members, represent your views to the Trust, and otherwise interact with the Trust (“Data DAO”). You will become a “Member” of the Data DAO after you (a) agree to the Terms and Conditions of data contribution with Delphia Research and contribute data to Delphia Research and (b) agree to these Terms. Given these requirements for Membership, you may have certain additional rights and obligations based on separate agreements you may enter into with any Delphia Group Company or other third parties.
Proposals. As a Member, you will have the right to submit written proposals through the Data DAO for consideration by other Members and the Trust.
Voting. Members may vote on proposals submitted by other Members or the Trust. Proposals issued in accordance with these Terms that garner the support of (i) not less than fifty percent (50%) of all Members but less than seventy-five percent (75%) of all Members (“Ordinary Direction”) or (ii) at least seventy-five percent (75%) of all Members (“Supermajority Direction”), will be approved and submitted to the Trust for review and consideration in accordance with the terms of the Trust Declaration. Member votes will not be binding on Trustees; save that a Supermajority Direction to remove a Trustee (the "Removed Trustee") will be binding and will automatically result in the removal of the Removed Trustee upon the Removed Trustee's receipt of notice of the Supermajority Direction (as outlined in the Trust Declaration). Interested Members (defined below) may be excluded from voting on certain proposals based on their status as an Interested Member, with such exclusion to be decided by a separate vote of all other non-Interested Members. Further, the Trust may use Attributes (defined below) to determine your qualification to vote or the weight of your vote; provided, that, under no circumstances may the Trust use Attributes with respect to a Supermajority Direction to remove a Trustee.
Attributes. When you engage in certain activities within the Delphia Research platform, such as connecting data sources, this information (“Attributes”) may be associated with your Delphia Research account and Member profile that may be accessible to the Trust and other Members. Data associated with Attributes will be collected, processed, used, and stored according to the Member’s agreement with Delphia Research or other relevant third party.
Access to Information. As a Member, you may request and receive from the Trust the following information via the Data DAO: (a) any final report provided to the Trust by its Enforcer or auditor; (b) any record of formal Trust meetings and final decisions of the Trustees; and (c) information relating to the revenue, uses, and users of Member Data and its derivatives that have been provided to the Trust by Delphia Research.
Delphia’s Access to Member Data. As you have separately agreed with Delphia Research, you are contributing Member Data and permitting the Delphia Group Companies to collect, process, store, and use Member Data. Pursuant to these Terms, you authorize the Trust in its sole discretion to rescind your authorization for the Delphia Group Companies to further access and collect your Member Data, provided that such rescission is approved by the Trust in accordance with the terms of the Trust Declaration and the Trust gives you at least thirty (30) days’ written notice and the opportunity to override the Trust’s discretion so you may continue to permit the Delphia Group Companies to collect, process, store, and use your Member Data. You may override the Trust’s discretion by providing notice to Delphia Research, which will receive such notice on behalf of the Trust, at email@example.com.
Membership Termination. You may terminate your Membership at any time by emailing Delphia Research, which will receive such email on our behalf, at firstname.lastname@example.org with “Membership Cancellation Request” in the subject line. Your Membership may also be terminated if (a) you request that Delphia Research delete your data; (b) your Delphia Research account is terminated, inactive for two (2) years, or otherwise not contributed to with new data for a period of two (2) years; (c) you violate these Terms; (d) for any other reason as determined by the Trust in its sole discretion, including if another Member submits a complaint related to your activity on any of the Services provided to you by the Trust; or (e) as allowed under applicable law. Membership termination may also affect your rights according to your agreements with any Delphia Group Company or other third parties.
Interested Members. If you are an employee, shareholder who owns at least one percent (1%) , officer, strategic advisor, senior manager or equivalent of any Delphia Group Company or if you are a Trustee, then you must disclose this to the Trust prior to your becoming a Member and your status as such will be reflected as an Attribute that will be visible to all Members from your account. You must disclose your status as an Interested Member when you create your Delphia account through the form provided within the Delphia Research platform.
OWNERSHIP AND YOUR RIGHTS TO USE THE SERVICE AND CONTENT
Ownership. The Services and all of their content, including all copyrights, patents, trademarks, service marks, trade names and all other intellectual property rights therein (“Intellectual Property”), are owned or controlled by the Trust, our licensors, or certain other third parties. All right, title, and interest in and to the Services’ content and Intellectual Property is the property of the Trust, our licensors, or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent and/or other Intellectual Property and unfair competition rights and laws to the fullest extent possible. The Trust owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the content on the Services.
Your Rights to Use the Services and Content. Your right to use the Services and the content contained therein is subject to your strict compliance with these Terms and to approval by the Trust. Your right to access and use the Services and the Intellectual Property shall automatically terminate upon any violation of these Terms. These rights are non-exclusive, limited, and revocable by us at any time in our sole discretion without advance notice or liability. As your right to access and use the Services and the content is personal to you, you may not assign nor transfer your right; any attempt to do so is void. You may, for your personal, non-commercial, lawful use only (collectively, “Trust Licensed Elements”):
• Display content from the Services on devices;
• Stream content available through the Services;
• Download any apps (for voting);
• Obtain a registered account (on the Member Discord); and
• Use other functionality on the Services.
Availability of the Services. We may, in our sole discretion and without advance notice or liability, immediately suspend or terminate the availability of the Services (and any elements and features of them), in whole or in part, for any reason.
CREATING AN ACCOUNT
CONTENT YOU SUBMIT
General. The Trust may now, or in the future, offer you and other Members the opportunity to create, build, post, upload, display, publish, distribute, transmit, broadcast, or otherwise make available on or submit through the Services, on or in response to our pages, posts on any third-party platforms, or in connection with any of our promotions by any media or manner (collectively, “submit”) messages, text, illustrations, files, images, graphics, photos, comments, responses, sounds, music, videos, information, content, ratings, reviews, data, questions, suggestions, or other information or materials and the ideas contained therein (collectively, but excluding Trust Licensed Elements included therein, “User-Generated Content” or “UGC”). You may submit UGC through the Discord channel(s) we make available to you. Except to the extent of the rights and license you grant in these Terms and, subject to the terms of any applicable Third-Party Services, you retain whatever legally identifiable right, title, and interest that you have in your UGC.
Non-Confidentiality. Except as otherwise described in the terms of any applicable Third-Party Services you agree that (a) your UGC will be treated as non-confidential and non-proprietary by us – regardless of whether you mark them “confidential,” “proprietary,” or the like – and will not be returned, and (b) to the maximum extent not prohibited by applicable law, the Trust does not assume any obligation of any kind to you or any third-party with respect to your UGC. You acknowledge that the Internet and mobile communications may not be secure and may be subject to breaches of security; accordingly, you acknowledge and agree that your UGC is submitted at your own risk.
License of your UGC. Except as otherwise described in any applicable additional terms of the Trust that specifically govern the submission of your UGC, you hereby grant the Trust the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense, display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your UGC (and derivative works thereof), for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. Without limitation, the granted rights include the right to use any ideas, concepts, know-how, or techniques contained in any UGC for any purposes whatsoever, including developing, producing, and marketing products and/or services. You understand that in exercising such rights, metadata, notices, and content may be removed or altered, including copyright management information, and you consent thereto and represent and warrant you have all necessary authority to do so. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section.
Member Discord and Code of Conduct. As a Member, you will have access to a Member Discord channel and/or other access points to the Data DAO (as the Trust may determine in its sole discretion) through which you can share information with other Members and the Trust, submit written proposals for consideration by other Members and the Trust, vote on proposals submitted by other Members or the Trustees, and provide written guidance or other feedback to the Trust. By agreeing to these Terms you also agree to abide by certain rules required of all Members (“Code of Conduct”). You therefore agree that:
• Engagement. You will make a good faith effort to be, and remain, an active Member of the Trust by participating in the Member Discord channel and other access points to the Data DAO in furtherance of the purpose of the Trust (described above in ABOUT THE TRUST AND ITS SERVICES). You will make a good faith effort to participate in votes on proposals submitted by other Members or the Trustees.
• Respectful Conduct. You will engage in respectful discussions and communicate with the highest level of integrity and professionalism within the Member Discord channel and other access points to the Data DAO and under no circumstances will you engage in, or post content that is, unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violates any right of any third-party or are otherwise objectionable to other Members or the Trust. Be respectful of others’ opinions and comments so we can continue to build Services for everyone. If you think your UGC might offend someone or be embarrassing to someone, then chances are it probably will, and it does not belong on the Services. You will respect the privacy rights of other Members and respect the wishes of those who wish to remain anonymous. You should not reveal another person’s address, phone number, email address, social security number, credit card number, medical information, financial information, or any other information that may be used to track, contact, or impersonate that individual. Your UGC must not promote any infringing or illegal activity.
• One Person, One Vote. You will not, nor will you engage in efforts to, circumvent the one person one vote requirement; provided that, the Trust may use Attributes to determine the weight of your vote (described above in Voting).
• No Solicitation or Unwanted Communications. Do not harvest or collect email addresses or other contact information of others from the Services by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications. Do not solicit personal information from anyone or passwords or personally identifying information for commercial or unlawful purposes. This also includes not uploading, posting, transmitting, sharing, or otherwise making available any unsolicited or unauthorized advertising, solicitations, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation.
• No Impersonations. Do not impersonate any other person, user, or company, and do not submit UGC that you believe may be false, fraudulent, deceptive, inaccurate, or misleading, or that misrepresents your identity or affiliation with a person or company.
• No Malicious Activity. Content you submit through the Services must not contain viruses, Trojan horses, spyware, or any other technologies or malicious code that could impact the operation of the Services or any computer or other device. You further may not interfere with or circumvent any security feature (including any digital rights management mechanism, device or other content protection or access control measure) of the Services (whether provided by us or any third party) or any feature that restricts or enforces limitations on use of or access to the Services.
• No Criminal or Unlawful Activity. Do not engage in any criminal or unlawful activity through the Services, including (without limitation) communicating in any way to the Trust, its Members, any Delphia Group Company or other third parties any Material, Nonpublic Information. Information is “Material” if there is a substantial likelihood that, considering all of the surrounding facts and circumstances, a reasonable investor would consider that information important to an investment decision. Information is “Nonpublic” if it has not been disseminated by a method that is reasonably designed to provide broad, non-exclusionary distribution of the information to the public, including (without limitation) through major newswire services, national news services, financial news services, a webcast generally available to the public or a filing with the U.S. Securities and Exchange Commission.
• Your UGC. All of your UGC either must be your original content or you must have all necessary rights from third parties to use it in connection with our Services. Your UGC should not contain any visible logos, phrases, or trademarks that belong to third parties. Do not use any UGC that belongs to other people and pass it off as your own; this includes any content that you might have found elsewhere on the Internet. If anyone contributes to your UGC or has any rights to your UGC, or if anyone appears or is referred to in the UGC, then you must also have their permission to submit such UGC through the Services.
Additionally, while we hope that you will use the Services to exchange information and content and have a venue through which to engage in appropriate discussions with other Members and the Trust, please remember that the Services will be accessible to other Members and the Trustees, or otherwise may be accessible by the public; therefore, content you submit through the Services may be accessible and viewable by others.
DO NOT SUBMIT PERSONALLY IDENTIFYING INFORMATION (E.G., FIRST AND LAST NAME TOGETHER, PASSWORD, PHONE NUMBER, ADDRESS, CREDIT CARD NUMBER, MEDICAL INFORMATION, EMAIL ADDRESS, OR OTHER PERSONALLY IDENTIFIABLE INFORMATION OR CONTACT INFORMATION) THROUGH THE SERVICES AND TAKE CARE WHEN OTHERWISE DISCLOSING THIS TYPE OF INFORMATION TO OTHERS.
If you submit content that the Trust reasonably believes violates this Code of Conduct, then we may take any legally available action that we deem appropriate, in our sole discretion, including removal of your content from the Services and terminating your Membership. However, we are not obligated to take any action not required by applicable law.
Your Interactions with Other Users. You are solely responsible for your interaction with other Members of the Services, whether online or offline. We are not responsible or liable for the conduct or content of any Member. We reserve the right, but have no obligation, to monitor or become involved in disputes between you and other Members. Exercise common sense and your best judgment in your interactions with others on our Services.
REPRESENTATIONS AND WARRANTIES
Representations and Warranties. You represent and warrant that you:
• are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to lists maintained by the United Nations Security Council, the U.S. Government (including without limitation, the Specially Designated Nationals List and Foreign Sanctions Evaders List of the U.S. Department of Treasury and the Entity List of the U.S. Department of Commerce), the European Union or its Member States, or other applicable government authority;
• are not located in any country to which the United States has embargoed goods or has otherwise applied any sanctions;
• are at least 18 years of age or older; and
• will be solely responsible for paying any federal, state and local taxes now or hereafter claimed or imposed by any governmental authority associated with your receipt of the Services under these Terms.
No Partnership, Joint Venture, or Agency Relationship.
For the avoidance of doubt, you are not entering a partnership, joint venture, or agency relationship with any other Member nor are you entering a partnership or joint venture with the Trust or any Trustee.
NOTICES, QUESTIONS, AND CUSTOMER SERVICE
Notices to You. You agree that we may send you notices or respond to your inquiries using the Member Discord channel (or any other access point to the Data DAO) or otherwise in any other manner reasonably determined by the Trust. You agree that all agreements, notices, disclosures, and other communications that we may provide to through the Member Discord channel (or any other access point to the Data DAO), or in any other manner reasonably determined by the Trust, may be sent electronically, and that such communication is valid and satisfies any legal requirement that such communications be in writing.
Notices to the Trust. All legal notices to us must be sent to Delphia Research, which will receive such notices on our behalf, at Attention: Legal Inquiry, at email@example.com. You acknowledge that we have no obligation to provide you with customer support of any kind.
PRODUCT SPECIFICATIONS; TYPOGRAPHICAL ERRORS.
We strive to accurately describe the Services available pursuant to these Terms; however, we do not warrant that such specifications or other descriptions are complete, accurate, reliable, current, or error-free.
DISPUTE RESOLUTION TERMS
PLEASE READ THIS SECTION CAREFULLY – IT AFFECTS YOUR LEGAL RIGHTS.
Informal Dispute Resolution. If you have a dispute with us, please contact Delphia Research, which will receive such communication on behalf of the Trust, at firstname.lastname@example.org and we will try to resolve it. Pursuant to these Terms, you agree that you will make a good faith effort to informally resolve any disputes that may arise between you and us before resorting to arbitration, and agree to provide written notice to us describing your claim so that we can attempt to resolve it with you. If we do not satisfactorily resolve your claim within thirty (30) calendar days of receiving your written notice, then you may provide a second written notice explaining your intent to pursue your claim in arbitration. You may not initiate arbitration without first following the informal dispute resolution procedure provided in this paragraph.
Agreement to Arbitration. Any dispute, claim, or cause of action you may have against us that is not resolved informally through the process described in the preceding paragraph shall be settled by binding arbitration administered by the AAA in accordance with its Consumer Arbitration Rules or Commercial Arbitration Rules, as applicable depending on the amount in controversy. Payment of all filing, administration and arbitrator fees will be governed by the AAA's applicable rules. Judgment on any award rendered by the arbitrator may be entered in the State of Delaware.
Exclusions from Arbitration. Notwithstanding the above, you or we may choose to pursue a dispute in court and not by arbitration if the dispute qualifies for resolution in small claims court. We may also seek injunctive relief, damages, or other appropriate relief in state or federal court if the dispute involves an infringement or threatened infringement of our intellectual property rights. Any such dispute brought by you or us in court shall be filed in the courts located in the State of Delaware, and you consent and agree to the personal jurisdiction and venue of courts within this jurisdiction.
Arbitration Opt-out Right. YOU HAVE THE RIGHT TO OPT OUT OF BINDING ARBITRATION WITHIN 30 DAYS OF THE DATE YOU FIRST ACCEPT THE ABOVE AGREEMENT TO ARBITRATION BY NOTIFYING DELPHIA RESEARCH, WHICH WILL RECEIVE SUCH EMAIL ON BEHALF OF THE TRUST, AT SUPPORT@SUPERSETDAO.COM. In order to be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration.
Class Action Waiver. DISPUTES WILL BE ARBITRATED ONLY ON AN INDIVIDUAL BASIS AND WILL NOT BE JOINED OR CONSOLIDATED WITH ANY OTHER ARBITRATIONS OR OTHER PROCEEDINGS THAT INVOLVE ANY CLAIM OR CONTROVERSY OF ANY OTHER PARTY. YOU AND THE TRUST AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
Jury Trial Waiver. If for any reason this arbitration agreement is found to be unenforceable, you and the Trust expressly and knowingly WAIVE THE RIGHT TO TRIAL BY JURY. This means that a Judge rather than a Jury will decide disputes between you and the Trust if, for any reason, the arbitration agreement is not enforced.
Choice of Law and Venue. Any and all disputes, claims, and causes of action between you and the Trust, including those arising out of or connected with the Services or these Terms and whether sounding in contract, tort, law, equity, or otherwise, shall be governed by, and enforced in accordance with, the internal laws of the State of Delaware, including its statute of limitations, without reference to its choice of law rules or any principle calling for application of the law of any other jurisdiction. Any such dispute shall be filed in the courts located in the State of Delaware, and you consent and agree to the personal jurisdiction and venue of these courts.
Time Limitation. You agree to bring any and all claims against the Trust within one (1) year from the date of accrual of a cause of action, and that actions brought after this date will be deemed time-barred.
Prior Agreements. The foregoing dispute resolution provisions shall supersede any inconsistent provisions of any prior agreement between the parties relating to the Services and shall remain in full force and effect notwithstanding any termination of your use of the Services or your membership.
Survival. This dispute resolution agreement survives the termination of your use of the Services or of your Membership. If you bring a claim against the Trust that is based in whole or in part on events or omissions that occurred as related to the Services you received under these Terms, then this dispute resolution agreement shall apply.
DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOUR ACCESS TO AND USE OF THE SERVICES IS AT YOUR SOLE RISK, AND IT IS PROVIDED ON AN “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS” BASIS. THE TRUST AND ITS RESPECTIVE TRUSTEES, EMPLOYEES, MEMBERS, AGENTS, VENDORS, LICENSORS, LICENSEES, CONTRACTORS, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE “TRUST PARTIES”) HEREBY DISCLAIM AND MAKE NO REPRESENTATIONS, WARRANTIES, ENDORSEMENTS, OR PROMISES, EXPRESS OR IMPLIED, IN CONNECTION WITH, OR OTHERWISE DIRECTLY OR INDIRECTLY RELATED TO THE SERVICES, EXCEPT AS SET FORTH BELOW. EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED HEREIN OR AS REQUIRED BY APPLICABLE LAW, THE TRUST PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUSES.
LIMITATION OF OUR LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE TRUST PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, BREACH OF CONTRACT, PRODUCT LIABILITY, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES OR IN THESE TERMS, OR YOUR ACCESS TO, USE OF, OR INABILITY TO ACCESS OR USE THE SERVICES, EVEN IF THE TRUST PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
FOR THE AVOIDANCE OF DOUBT, A FORMER TRUSTEE SHALL HAVE NO LIABILITY FOR ANY ACTS OR EVENTS RELATING TO THE SERVICES FROM THE DATE THAT PERSON CEASES TO BE A TRUSTEE.
IN NO EVENT WILL THE TRUST PARTIES’ TOTAL LIABILITY TO YOU EXCEED, IN THE AGGREGATE FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SERVICES AND YOUR RIGHTS UNDER THESE TERMS, AN AMOUNT MORE THAN TWO HUNDRED AND FIFTY DOLLARS (USD $250.00) OR THE VALUE OF THE TRUST FUND (AS DEFINED IN THE TRUST DECLARATION) FROM TIME TO TIME, WHICHEVER IS LOWER.
YOU ACKNOWLEDGE THAT THE TRUST WOULD NOT PROVIDE ACCESS TO THE SERVICES IF NOT FOR THE FOREGOING LIMITATIONS OF LIABILITY, AND THAT THESE LIMITATIONS OF LIABILITY ARE ESSENTIAL ELEMENTS OF THE TERMS. THESE LIMITATIONS OF LIABILITY REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES. THE LIMITATIONS SPECIFIED IN THIS SECTION WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TERMS IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
BECAUSE SOME JURISDICTIONS DO NOT ALLOW A LIMITATION OR EXCLUSION OF LIABILITY IN ALL CIRCUMSTANCES, IN THOSE JURISDICTIONS, THE TRUST PARTIES’ LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
Except where specifically prohibited by applicable law, you agree to defend (if requested by the Trust), indemnify, and hold the Trust Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any Trust Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with: (i) your use of the Services and any associated activities of which you engage; (ii) your breach or alleged breach of these Terms; (iii) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Services or your activities related to the same; (iv) information or material transmitted through your device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (v) any misrepresentation made by you as it relates to the Services, these Terms or the Trust; and (vi) your violation of the rights of a third party, including without limitation another user or third-party service provider (all of the foregoing, “Claims and Losses”). The Trust Parties reserve the right to assume the exclusive defense and control of any Claims and Losses; however, you will cooperate as fully as required by the Trust Parties in the defense of any Claims and Losses. The Trust Parties retain the exclusive right to settle, compromise, and determine whether to pay any and all Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an official representative of the impacted Trust Party. This section is not intended to limit any cause of action against us that you may have but that is not waivable under applicable law.
The Trust’s Consent or Approval. As to any provision in these Terms that grant the Trust a right of consent or approval or permits the Trust to exercise a right in its “sole discretion,” the Trust may exercise that right in its sole and absolute discretion. Note the Trust’s consent or approval may be deemed to have been granted by the Trust without being in writing and signed by a Trustee.
US and International Issues. The Trust makes no representation that the Services are appropriate or available for use beyond the United States of America. If you use the Services from other locations, you are doing so on your own initiative and responsible for compliance with applicable local laws regarding your conduct as related to the Services, if and to the extent local laws apply.
Severability; Interpretation. If any provision of these Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms. To the extent permitted by applicable law, you agree to waive and will waive any applicable statutory and common law that may permit a contract to be construed against its drafter.
Investigations; Cooperation with Law Enforcement; Termination; Survival. As permitted by applicable law, the Trust reserves the right, without limitation, to: (i) investigate any suspected breaches of these Terms; (ii) use any information obtained by the Trust to comply with law enforcement requests or applicable laws; (iii) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters; and (iv) prosecute violators of these Terms. The provisions of these Terms should survive in the case your use of the Services is for any reason terminated, including the rights and licenses you grant to the Trust in these Terms, as well as the indemnities, releases, disclaimers, limitations on liability and the provisions regarding jurisdiction, choice of law,
no class action, jury trial waiver and mandatory arbitration.
Assignment. The Trust may assign its rights and obligations under these Terms in whole or in part, to any party at any time without any notice. These Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of the Trust.
Entire Agreement; No Waiver. These Terms reflect the entire agreement between you and the Trust regarding the Services and supersede any prior and contemporaneous agreements, representations, warranties, assurances, or discussion related to the Services or regarding these Terms. Except as expressly set forth in these Terms, (i) any failure or delay in exercising any of the rights, powers, or remedies under these Terms or other legal right will not operate as a waiver of such or any other right, power, or remedy, and (ii) any waiver of any provision of these Terms will not be effective unless made in writing and signed by the party against whom the waiver is sought to be enforced.
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