These terms of use, together with any additional agreements, documents and terms
incorporated by
reference, which includes any other terms and conditions or other agreement that dTrade Labs Inc.
(“Firefly”, “we”, “us” and “our”) posts publicly or makes available to you or
the
person or entity you
represent (“you” or “your”) (collectively, these “Terms”), are entered into between
Firefly
and you
concerning your use of, and access to, our (a) websites, including firefly.exchange; (b) web applications;
mobile applications and (c) all associated sites linked thereto by Firefly or its affiliates (collectively
with any materials and services available therein, and successor website(s) or application(s) thereto, the
“Site”).
By accessing or using the Site or the Services, you agree that Firefly does not provide
execution,
settlement, or clearing services of any kind and is not responsible for the execution, settlement, or
clearing of transactions automated through the Services.
-
(a) As a condition to accessing or using the Services or the Site, you represent
and warrant that:
-
- (i) if you are an individual, you are of legal age in the jurisdiction in which you reside and you
have the legal capacity to enter into these Terms and be bound by them;
- (ii) if you are an entity, then you have the legal authority to accept these Terms;
- (iii) you are not a resident, national, or agent of, located in, incorporated or otherwise formed
in, or have a registered office in, the United States;
- (iv) you are not a resident, national, or agent of, located in, incorporated or otherwise formed
in, or have a registered office in, Antigua and Barbuda, Algeria, Bangladesh, Bolivia, Belarus,
Burundi, Burma (Myanmar), Cote D'Ivoire (Ivory Coast), Crimea and Sevastopol, Cuba, Democratic
Republic of Congo, Ecuador, Iran, Iraq, Liberia, Libya, Magnitsky, Mali, Morocco, Nepal, North
Korea, Somalia, Sudan, Syria, Venezuela, Yemen, Zimbabwe or any other country to which Canada, the
United States, the United Kingdom or the European Union embargoes goods or imposes similar sanctions
(collectively, “Restricted Territories”);
- (v) you are not a member of any sanctions list or equivalent maintained by the Canadian
government, the United States government, the United Kingdom government, the European Union, or the
United Nations (a “Sanctioned Person”);
- (vi) you do not transact with or intend to transact with any Restricted Person or Sanctioned
Person;
- (vii) you do not, and will not, use VPN software or any other privacy or anonymization tools or
techniques to circumvent, or attempt to circumvent, any restrictions that apply to the Services; and
- (viii) your access to the Services (A) is not prohibited by and does not otherwise violate or
assists you to violate any (1) laws, constitutions, treaties, statutes, codes, ordinances,
principles of common and civil law and equity, orders, decrees, rules, regulations and municipal
by-laws, whether domestic, foreign or international; (2) judicial, arbitral, administrative,
ministerial, departmental and regulatory judgments, orders, writs, injunctions, decisions, rulings,
decrees and awards of any (a) multinational or supranational body or organization, nation,
government, state, province, country, territory, municipality, quasi-government, administrative,
judicial or regulatory authority, agency, board, body, bureau, commission, instrumentality, court or
tribunal or any political subdivision thereof, or any central bank (or similar monetary or
regulatory authority) thereof, any taxing authority, any ministry or department or agency of any of
the foregoing; (b) self-regulatory organization or stock exchange; (c) entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining to government; or (d)
any corporation or other entity owned or controlled, through stock or capital ownership or
otherwise, by any of such entities or other bodies pursuant to the foregoing (each, a
“Governmental
Authority”); or (3) policies, practices and guidelines of, or contracts with, any Governmental
Authority, which, although not actually having the force of law, are considered by such Governmental
Authority as requiring compliance as if having the force of law, as the same may be amended from
time to time and any successor thereto and in each case binding on, affecting or having jurisdiction
over Firefly, you, the Site or the Services (collectively, “Applicable Laws”); and (B) does
not
contributes to or facilitates any illegal activity.
-
(b) As a condition to accessing or using the Services or the Site, you
acknowledge and agree that:
-
- (i) from time to time the Site and the Services may be inaccessible or inoperable for any reason,
including without limitation: (A) equipment malfunctions; (B) periodic maintenance procedures or
repairs that we or any of its suppliers or contractors may undertake from time to time; (C) causes
beyond our control or that we could not reasonably foresee; (D) disruptions and temporary or
permanent unavailability of underlying software, including without limitation blockchain
infrastructure; or (E) unavailability of third-party service providers or external partners for any
reason;
- (ii) we reserve the right to suspend, restrict or modify access to the Site and the Services at
any time in the event of any breach of these Terms, including, without limitation, if we reasonably
believe any of your representations and warranties may be untrue or inaccurate, and we will not be
liable to you, and you will hold us harmless from, any losses or damages you may suffer as a result
of or in connection with the Site or the Services being inaccessible to you at any time or for any
reason;
- (iii) we may change, replace, or discontinue (temporarily or permanently) some or all of the
Services at any time in our sole discretion;
- (iv) the pricing information provided on the Site does not represent an offer, a solicitation of
an offer, or any advice regarding, or recommendation to enter into, a transaction with Firefly;
- (v) Firefly does not act as an agent for you or any other user of the Site or the Services;
- (vi) you are solely responsible for your use of the Services, including all of your transfers of
Digital Assets;
- (vii) to the fullest extent not prohibited by Applicable Laws, we owe no fiduciary duties or
liabilities to you or any other party, and that to the extent any such duties or liabilities may
exist under Applicable Laws, you hereby irrevocably disclaim and waive all of such duties and
liabilities and hold us harmless from any of the foregoing;
- (viii) you are solely responsible for reporting and paying any taxes applicable to your use of the
Services;
- (ix) we have no control over, or liability for, the delivery, quality, safety, legality, or any
other aspect of any Digital Assets that you may transfer to or from a third party and we are not
responsible for ensuring that an entity with whom you transact with completes the transaction or is
authorized to do so; and
- (x) you bear the entire risk with any transactions in Digital Assets and in using the Services.
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(c) As a condition to accessing or using the Services or the Site, you covenant
to Firefly the following:
-
- (i) in connection with using the Services, you will only transfer legally-obtained Digital Assets;
- (ii) you will obey all Applicable Laws in connection with using the Services, and you will not use
the Site or the Services if the laws of your country, or any other Applicable Laws, prohibit you
from doing so;
- (iii) any Digital Assets you use in connection with the Services are either (A) owned by you or
(B) you are validly authorized to carry out actions using such Digital Assets; and
- (iv) in addition to complying with all restrictions, prohibitions, and other provisions of these
Terms, you will (A) ensure that, at all times, all information that you provide on the Site and
during your use of the Services is current, complete, and accurate and (B) maintain the security and
confidentiality of your private keys associated with your digital wallet, passwords, API keys and
other related credentials.
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2. Fees
In connection with your use of the Services, the Firefly DAO will pay all fees necessary for
interacting with Edgeware, a self-upgrading smart contract platform in the Polkadot ecosystem
(“Edgeware”), including “gas” costs, as well as all other fees reflected on the Site at the
time of
your use of the Services.
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3. No Professional Advice or Fiduciary Duties
All information provided in connection with your access and use of the Site and the Services is for
informational purposes only and should not be construed as professional advice. You should not take,
or refrain from taking, any action based on any information contained on the Site or any other
information that we make available at any time, including, without limitation, blog posts, articles,
links to third-party content, Discord content, Telegram content, news feeds, tutorials, tweets, and
videos. Before you make any financial, legal, or other decisions involving the Services, you should
seek independent professional advice from an individual who is licensed and qualified in the area for
which such advice would be appropriate. The Terms are not intended to, and do not, create or impose
any fiduciary duties on us. You further agree that the only duties and obligations that we owe you are
those set out expressly in these Terms.
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4. Prohibited Activities
By using the Site or the Services, you confirm that you will not use the Site or the Services to do
any of the following (collectively, “Prohibited Uses”):
- (a) violate any Applicable Laws including, without limitation, any
applicable anti-money laundering and anti-terrorist financing laws and sanctions programs;
- (b) engage in transactions involving items that infringe or violate any
copyright, trademark, right of publicity or privacy or any other proprietary right under
Applicable Laws, including but not limited to (i) sales, distribution, or access to counterfeit
music, movies, software, or other licensed materials without the appropriate authorization from
the rights holder (ii) use of Firefly’s intellectual property, name, or logo, including use of
Firefly's trade or service marks, without express consent from Firefly or in a manner that otherwise
harms Firefly and (iii) any action that implies an untrue endorsement by or affiliation with
Firefly;
- (c) use the Site and/or the Services in any manner that could interfere
with, disrupt, negatively affect, or inhibit other users from fully enjoying the Site and/or the
Services, or that could damage, disable, overburden, or impair the functioning of the Site or the
Services in any manner;
- (d) circumvent any content-filtering techniques, security measures or
access controls that Firefly employs on the Site, including without limitation through the use of a
VPN;
- (e) use any robot, spider, crawler, scraper, or other automated means or
interface not provided by us to access the Site or the Services or to extract data, or introduce
any malware, virus, Trojan horse, worm, logic bomb, drop-dead device, backdoor, shutdown mechanism
or other harmful material into the Site or the Services;
- (f) provide false, inaccurate, or misleading information while using the
Site or the Services or engage in activity that operates to defraud Firefly, other users of the
Services, or any other person;
- (g) use or access the Site or Services to transmit or exchange Digital
Assets that are the direct or indirect proceeds of any criminal or fraudulent activity, including
without limitation terrorism or tax evasion;
- (h) use the Site or the Services in any way that is, in our sole
discretion, libelous, defamatory, profane, obscene, pornographic, sexually explicit, indecent,
lewd, vulgar, suggestive, harassing, stalking, hateful, threatening, offensive, discriminatory,
bigoted, abusive, inflammatory, fraudulent, deceptive, or otherwise objectionable or likely or
intended to incite, threaten, facilitate, promote, or encourage hate, racial intolerance, or
violent acts against others;
- (i) use the Site or the Services from a jurisdiction that we have, in our
sole discretion, determined is a jurisdiction where the use of the Site or the Services is
prohibited;
- (j) harass, abuse, or harm of another person or entity, including Firefly's
employees and service providers;
- (k) impersonate another user of the Site or the Services or
otherwise misrepresent yourself; or
- (l) encourage, induce or assist any third party to engage in any of the
activities prohibited under this Section 5 or any other provision of these Terms.
The foregoing activities are representative, but not exhaustive, of Prohibited Uses. If you are
uncertain as to whether or not your use of the Site or the Services involves a Prohibited Use or have
other questions about how these requirements apply to you, then please contact us at [email protected] .
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5. Your Content
You hereby grant to us a royalty-free, fully paid-up, sublicensable, transferable, perpetual,
irrevocable, non-exclusive, worldwide license to use, copy, modify, create derivative works of,
display, perform, publish and distribute, in any form, medium, or manner, any content that is
available to other users as a result of your use of the Site or the Services (collectively, “Your
Content”), including, without limitation, for promoting Firefly, its affiliates, the Services or
the
Site. You represent and warrant that (a) you own Your Content or have the right to grant the rights
and licenses in these Terms and (b) Your Content and our use of Your Content, as licensed herein, does
not and will not violate, misappropriate or infringe on any third party’s rights.
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6. Proprietary Rights
- (a) You acknowledge that the Site or the Services may use, incorporate or
link to certain open-source components and that your use of the Site or Services is subject to,
and you will comply with, any applicable open-source licenses that govern any such open-source
components (collectively,
“Open-Source Licenses”). Without limiting the generality of
the
foregoing, you may not (i) resell, lease, lend, share, distribute, or otherwise permit any third
party to use the Site or the Services; (ii) use the Site or the Services for time-sharing or
service bureau purposes; or (iii) otherwise use the Site or the Services in a manner that violates
any Open-Source Licenses.
- (b) Excluding the open-source software described in Section 7(a) or
third-party software that the Site or the Services incorporates you acknowledge and agree that
Firefly owns the Site and the Services, including all technology, content, and other materials
used, displayed, or provided on the Site or in connection with the Services (including all
intellectual property rights subsisting therein). Firefly hereby grants you a limited, revocable,
transferable, license to access and use those portions of the Site and the Services that are
proprietary to Firefly.
- (c) Any of Firefly's product or service names, logos, and other marks used
on the Site or as a part of the Services, including Firefly's name and logo are trademarks owned by
Firefly, its affiliates, or its applicable licensors (collectively, the “Firefly
Trademarks”). You
may not copy, imitate, or use them without the prior written consent of Firefly or the applicable
licensors, and these Terms do not grant you any rights in the Firefly Trademarks. You may not
remove, obscure, or alter any legal notices displayed in or along with the Services.
- (d) You acknowledge and understand that the Services are non-custodial.
When you deposit Digital Assets into an account in any Firefly-developed smart contract, you retain
control over those Digital Assets at all times. The private key associated with the digital
address from which you transfer Digital Assets is the only private key that can control the
Digital Assets you transfer into Firefly-developed smart contracts. In some cases, you may withdraw
Digital Assets from any Firefly-developed smart contract only to the digital address from which you
deposited the Digital Assets.
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7. Third Party Links
The Site or the Services may provide, or third parties may provide, links to other external sites,
applications or resources. You acknowledge and agree that we are not responsible for the availability
of such external sites, applications or resources, does not endorse and is not responsible or liable
for any content, advertising, products, or other materials on or available from such sites or
resources. You further acknowledge and agree that we shall not be responsible or liable, directly or
indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or
reliance on any such content, goods, or services available on or through any such site or resource.
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8. Modification, Suspension and Termination
We may, at our sole discretion, from time to time and with or without prior notice to you, modify,
suspend or disable (temporarily or permanently) the Site or the Services, in whole or in part, for any
reason whatsoever, including, without limitation, to only allow open Margin Position and Perpetual
Contracts to be closed. Upon termination of your access, your right to use the Services will
immediately cease. We will not be liable for, and you agree to indemnify us for, any losses suffered
by you resulting from any modification to any Services or from any modification, suspension, or
termination, for any reason, of your access to all or any portion of the Site or the Services.
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9. Risks
- (a) By using the Services or interacting with the Site in any way, you
represent and warrant that you understand the inherent risks associated with cryptographic systems
and blockchain-based networks; Digital Assets, including the usage and intricacies of native
Digital Assets, smart contract-based tokens, and systems that interact with blockchain-based
networks. Firefly does not own or control any of the underlying software through which blockchain
networks are formed. In general, the software underlying blockchain networks is open source, such
that anyone can use, copy, modify, and distribute it. By using the Services, you acknowledge and
agree that (i) Firefly is not responsible for the operation of the software and networks underlying
the Services, (ii) there exists no guarantee of the functionality, security, or availability of
such software and such networks, and (iii) the underlying networks are subject to sudden changes
in operating rules, such as those commonly referred to as “forks,” which may materially affect the
Services.
- (b) You acknowledge and agree that (i) blockchain networks use
public/private key cryptography, (ii) you alone are responsible for securing your private keys,
(iii) we do not have access to your private keys, (iv) losing control of your private keys will
permanently and irreversibly deny you access to your Digital Assets, (v) neither Firefly nor any
other person or entity will be able to retrieve or protect your Digital Assets and (vi) if your
private keys are lost, then you will not be able to transfer your Digital Assets to any other
blockchain address or wallet and if this occurs, then you will not be able to realize any value or
utility from the Digital Assets that you may hold.
- (c) The Services and your Digital Assets could be impacted by one or more
regulatory inquiries or regulatory actions, which could impede or limit the ability of Firefly to
continue to make available its proprietary software and, thus, could impede or limit your ability
to access or use the Services.
- (d) You acknowledge and understand that cryptography is a progressing field
with advances in code cracking or other technical advancements, such as the development of quantum
computers, which may present risks to Digital Assets and the Services, and could result in the
theft or loss of your Digital Assets. To the extent possible, we intend to use commercially
reasonable efforts to update Firefly-developed smart contracts related to the Services to account
for any advances in cryptography and to incorporate additional security measures necessary to
address risks presented from technological advancements, but you agree that such intention does
not guarantee or otherwise ensure full security of the Services.
- (e) You understand that Edgeware remains under development, which creates
technological and security risks when using the Services in addition to uncertainty relating to
Digital Assets and transactions therein.
- (f) You acknowledge that the Services are subject to flaws and that you are
solely responsible for evaluating any code provided by the Services or Site. This warning and
others we provide in these Terms in no way evidence or represent an ongoing duty to alert you to
all of the potential risks of utilizing the Services or accessing the Site.
- (g) Although we intend to provide accurate and timely information on the
Site and during your use of the Services, the Site and other information available when using the
Services may not always be entirely accurate, complete, or current and may also include technical
inaccuracies or typographical errors. To continue to provide you with as complete and accurate
information as possible, information may be changed or updated from time to time without notice,
including, without limitation, information regarding our policies. Accordingly, you should verify
all information before relying on it, and all decisions based on information contained on the Site
or as part of the Services are your sole responsibility. No representation is made as to the
accuracy, completeness, or appropriateness for any particular purpose of any information
distributed via the Site or otherwise when using the Services. Prices and pricing information may
be higher or lower than prices available on platforms providing similar services.
- (h) Any use or interaction with the Services requires a comprehensive
understanding of applied cryptography and computer science to appreciate the inherent risks,
including those listed above. You represent and warrant that you possess relevant knowledge and
skills to appreciate and understand such risks. Any reference to a type of Digital Asset on the
Site or otherwise during the use of the Services does not indicate our approval or disapproval of
the technology on which the Digital Asset relies, and should not be used as a substitute for your
understanding of the risks specific to each type of Digital Asset.
- (i) Use of the Services may carry financial risk. Digital Assets,
especially in connection with Margin Positions and Perpetual Contracts, are, by their nature,
highly experimental, risky, and volatile. Transactions entered into in connection with the
Services are irreversible, final and there are no refunds. You acknowledge and agree that you will
access and use the Site and the Services at your own risk. The risk of loss in trading Digital
Assets, especially entering into Margin Positions and Perpetual Contracts, can be substantial. You
should, therefore, carefully consider whether such trading is suitable for you in light of your
circumstances and financial resources. By using the Services, you represent and warrant that you
have been, are, and will be solely responsible for making your independent appraisal and
investigations into the risks of a given transaction and the underlying Digital Assets, including
Margin Positions and Perpetual Contracts. You represent that you have sufficient knowledge, market
sophistication, professional advice, and experience to make your evaluation of the merits and
risks of any transaction conducted in connection with the Services or any Digital Asset. You
accept all consequences of using the Services, including the risk that you may lose access to your
Digital Assets indefinitely. All transaction decisions are made solely by you. Notwithstanding
anything in these Terms, we accept no responsibility whatsoever for, and will in no circumstances
be liable to you in connection with, your use of the Services, including without limitation
entering into Margin Positions or Perpetual Contracts.
- (j) You and we agree to comply with all Applicable Laws and acknowledge
that such compliance may require us to, upon request by government agencies, take certain actions
or provide information, including without limitation information about you, which may not be in
your best interests.
- (k) You hereby assume, and agree that Firefly will have no responsibility or
liability for, the risks set forth in this Section 10. You hereby irrevocably waive, release and
discharge all claims, whether known or unknown to you, against Firefly, its affiliates, and each of
their respective shareholders, members, directors, officers, managers, employees, lawyers,
accountants, advisors, agents, representatives, suppliers and contractors related to any of the
risks set forth in this Section 10.
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10. Indemnification
You agree you will defend, indemnify, and hold harmless Firefly, its affiliates, and each of their
respective shareholders, members, directors, officers, managers, employees, lawyers, agents,
accountants, advisors, representatives, suppliers, and contractors (collectively, “Indemnified
Parties”) from any claim, demand, lawsuit, action, proceeding, investigation, liability, damage, loss,
cost or expense, including without limitation legal fees and expenses, arising out of or relating to:
(a) your use of, or conduct in connection with, the Site or the Services; (b) Digital Assets
associated with your digital addresses; (c) any feedback or user content you provide to Firefly, if
any, concerning the Site or the Services; (d) your violation of these Terms; or (e) your infringement
or misappropriation of the rights of any other person or entity. If you are obligated to indemnify any
Indemnified Party, we (or, at its discretion, the applicable Indemnified Party) will have the right,
in our sole discretion, to control any action or proceeding and to determine whether we wish to
settle, and if so, on what terms, and you agree to corporate with us in connection with the foregoing.
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11. Disclaimers
- (a) We are a developer of open-source software. Firefly does not operate a
Digital Asset or derivatives exchange platform or offer trade execution or clearing services and,
therefore, has no oversight, involvement, or control concerning your transactions using the
Services. All transactions between users of Firefly-developed open-source software are executed
peer-to-peer directly between the users’ digital addresses through a smart contract. You are
responsible for complying with all Applicable Laws that govern your Margin Positions and Perpetual
Contracts.
- (b) You understand that Firefly is not registered or licensed by the U.S.
Commodity Futures Trading Commission, the U.S. Securities and Exchange Commission or any other
financial regulatory authority. No financial regulatory authority has reviewed or approved the use
of the Firefly-developed open-source software. The Site and the Firefly-developed open-source
software do not constitute advice or a recommendation concerning any commodity, security, or other
Digital Asset or instrument. Firefly is not acting as an investment adviser or commodity trading
adviser to any person or entity.
- (c) You understand and agree that Margin Positions entered into using the
Firefly open-source software are commodity contracts. Margin Positions are not shares or any
equivalent in any existing or future public or private company, corporation, or other entity in
any jurisdiction.
- (d) Firefly does not own or control the underlying software protocols that
are used in connection with Margin Positions or Perpetual Contracts. In general, the underlying
protocols are open source and anyone can use, copy, modify, and distribute them. Firefly is not
responsible for the operation of the underlying protocols, and Firefly makes no guarantee of their
functionality, security, or availability.
- (e) TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS, YOU UNDERSTAND
AND AGREE THAT THE SITE AND THE SERVICES (AND ANY OF THEIR CONTENT OR FUNCTIONALITY) PROVIDED BY
OR ON BEHALF OF US ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND WE EXPRESSLY DISCLAIM,
AND YOU HEREBY WAIVE, ANY REPRESENTATIONS, CONDITIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS
OR IMPLIED, LEGAL, STATUTORY OR OTHERWISE, OR ARISING FROM STATUTE, OTHERWISE IN LAW, COURSE OF
DEALING, OR USAGE OF TRADE, INCLUDING, WITHOUT LIMITATION, IMPLIED OR LEGAL WARRANTIES AND
CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE,
TITLE, SECURITY, AVAILABILITY, RELIABILITY, ACCURACY, QUIET ENJOYMENT AND NON-INFRINGEMENT OF
THIRD PARTY RIGHTS. WITHOUT LIMITING THE FOREGOING, WE DO NOT REPRESENT OR WARRANT THAT THE SITE
OR THE SERVICES (INCLUDING ANY DATA RELATING THERETO) WILL BE UNINTERRUPTED, AVAILABLE AT ANY
PARTICULAR TIME, OR ERROR-FREE. FURTHER, WE DO NOT WARRANT THAT ERRORS IN THE SITE OR THE SERVICE
ARE CORRECTABLE OR WILL BE CORRECTABLE.
- (f) You acknowledge that your data on the Site or the Services may become
irretrievably lost or corrupted or temporarily unavailable due to a variety of causes, and agree
that, to the maximum extent permitted under Applicable Laws, we will not be liable for any loss or
damage caused by denial-of-service attacks, software failures, viruses or other technologically
harmful materials (including those which may infect your computer equipment), protocol changes by
third-party providers, Internet outages, force majeure events or other disasters, scheduled or
unscheduled maintenance, or other causes either within or outside our control.
- (g) The disclaimer of implied warranties contained herein may not apply if
and to the extent such warranties cannot be excluded or limited under the Applicable Law of the
jurisdiction in which you reside.
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12. Exclusion of Consequential Damages
You acknowledge and agree that in no event shall the Indemnified Parties be liable for any
incidental, indirect, special, punitive, consequential or similar damages or liabilities whatsoever
(including, without limitation, damages for loss of fiat, assets, data, information, revenue,
opportunities, use, goodwill, profits or other business or financial benefit) arising out of or in
connection with the Site or the Services and any of their content and functionality, any execution or
settlement of a transaction, any performance or non-performance of the Services, your Digital Assets,
Margin Positions, Perpetual Contracts or any other product, service or other item provided by or on
behalf of Firefly, whether under contract, tort (including negligence), civil liability, statute,
strict liability, breach of warranties, or under any other theory of liability, and whether or not the
Indemnified Parties have been advised of, knew of or should have known of the possibility of such
damages and notwithstanding any failure of the essential purpose of these Terms or any limited remedy
hereunder. In addition, you acknowledge and agree that Firefly shall not be in any way responsible for
the execution or settlement of transactions between users of Firefly-developed open-source software.
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13. Limitation of Liability
You agree that if, notwithstanding the other provisions of these Terms, an Indemnified Party is found
to be liable for any claim, demand, lawsuit, action, proceeding, investigation, liability, damage,
loss, cost or expense, such Indemnified Party’s liability shall in no event exceed the amount of the
fees paid by you to Firefly under these Terms, if any, in the twelve (12) month period immediately
preceding the event giving rise to the claim for liability.
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14. Survival
The following sections of these Terms will survive any termination of your access to the Site or the
Services, regardless of the reasons for its expiration or termination, in addition to any other
provision which by law or by its nature should survive: Sections 5 through 18.
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15. Governing Law
The interpretation and enforcement of these Terms, and any dispute related to these Terms, the Site
or the Services, will be governed by and construed and enforced under the laws of the British Virgin
Islands without regard to conflict of law rules or principles (whether of the British Virgin Islands
or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. You
agree that we may initiate a proceeding related to the enforcement or validity of our intellectual
property rights in any court having jurisdiction. For any other proceeding that is not subject to
arbitration under these Terms, the courts located in Road Town, Tortola, British Virgin Islands will
have exclusive jurisdiction. You waive any objection to venue in any such courts.
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16. Dispute Resolution and Arbitration
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND
CLAIMS WITH FIREFLY AND LIMITS HOW YOU CAN SEEK RELIEF FROM FIREFLY. ALSO, ARBITRATION PRECLUDES YOU
FROM SUING IN COURT OR HAVING A JURY TRIAL.
- (a) You and we agree that any dispute arising out of or related to these
Terms, the Site or the Services is personal to you and us and that any dispute will be resolved
solely through individual action, and will not be brought as a class arbitration, class action, or
any other type of representative proceeding.
- (b) Except for disputes in which you or we seek injunctive or other
equitable relief for the alleged unlawful use of intellectual property, you and we waive all
rights to a jury trial and to have any dispute arising out of or related to these Terms or the
Services resolved in court. Instead, for any dispute or claim that you have against us or relating
in any way to the Site or the Services, you agree to first contact us and attempt to resolve the
claim informally by sending a written notice of your claim (“Notice”) to us by email at
[email protected] The Notice must: (i) include your name, residence address, email address, and
telephone number; (ii) describe the nature and basis of the claim; and (iii) set forth the
specific relief sought. Our notice to you will be similar in form to that described above. If you
and Firefly cannot reach an agreement to resolve the claim within thirty (30) days after such
Notice is received, then either party may submit the dispute to binding arbitration administered
by the British Virgin Islands International Arbitration (the “BVI IAC”) Centre or, under
the limited circumstances set forth above, in court. All disputes submitted to the BVI IAC will be
resolved through confidential, binding arbitration before one arbitrator (the
“Arbitrator”). The place of arbitration shall be Road Town, Tortola, British Virgin
Islands, unless the parties agree otherwise and shall be conducted under the BVI IAC Arbitration
Rules. The language to be used in the arbitral proceedings shall be English. The most recent
version of the BVI IAC Arbitration Rules are available on the BVI IAC website and are hereby
incorporated by reference. You either acknowledge and agree that you have read and understand the
BVI IAC Arbitration Rules or waive your opportunity to read the BVI IAC Arbitration Rules and
waive any claim that the BVI IAC Arbitration Rules are unfair or should not apply for any reason.
- (c) The Arbitrator will have exclusive authority to make all procedural and
substantive decisions regarding any dispute and to grant any remedy that would otherwise be
available in court, including the power to determine the question of arbitrability. The Arbitrator
may conduct only an individual arbitration and may not consolidate more than one individual’s
claims, preside over any type of class or representative proceeding or preside over any proceeding
involving more than one individual.
- (d) The Arbitrator, Firefly, and you will maintain the confidentiality of
any arbitration proceedings, judgments and awards, including, but not limited to, all information
gathered, prepared, and presented for purposes of the arbitration or related to the dispute(s)
therein. The Arbitrator will have the authority to make appropriate rulings to safeguard
confidentiality unless the law provides to the contrary. The duty of confidentiality does not
apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing
on the merits, in connection with a court application for a preliminary remedy or in connection
with a judicial challenge to an arbitration award or its enforcement, or to the extent that
disclosure is otherwise required by law or judicial decision.
- (e) You and Firefly agree that for any arbitration you initiate, you will
pay the filing fee and all other BVI IAC fees and costs. For any arbitration initiated by Firefly,
Firefly will pay all BVI IAC fees and costs. You and Firefly agree that the courts of the British
Virgin Islands sitting in Road Town, Tortola, British Virgin Islands have exclusive jurisdiction
over the enforcement of an arbitration award.
- (f) Any claim arising out of or related to these Terms or the Services must
be filed within one year after such claim arose; otherwise, the claim is permanently barred, which
means that you and Firefly will not have the right to assert the claim.
- (g) If any portion of this Section 16 is found to be unenforceable or
unlawful for any reason: (i) the unenforceable or unlawful provision shall be severed from these
Terms; (ii) severance of the unenforceable or unlawful provision shall have no impact whatsoever
on the remainder of this Section 16 or the parties’ ability to compel arbitration of any remaining
claims on an individual basis under this Section 16; and (iii) to the extent that any claims must
therefore proceed on a class, collective, consolidated, or representative basis, such claims must
be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties
agree that litigation of those claims shall be stayed pending the outcome of any individual claims
in arbitration. Further, if any part of this Section 16 is found to prohibit an individual claim
seeking injunctive relief, then that provision will have no effect to the extent such relief is
allowed to be sought out of arbitration, and the remainder of this Section 16 will be enforceable.
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17. Amendments
We reserve the right, at our sole discretion, to amend these Terms from time to time. If we make
changes, we will provide you with notice of such changes, which may include providing notice through
the Services or updating the date at the top of these Terms. Unless we state otherwise in our notice,
all such modifications are effective immediately, and your continued use of the Site and the Services
after we provide that notice will confirm your acceptance of the changes. If you do not agree to the
amended Terms, then you must stop using the Site and the Services.
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18. General
- (a) You acknowledge and agree that our privacy policy, which is available
at [https://firefly.exchange/privacy], is incorporated herein
by reference and forms part of these Terms.
- (b) You consent to receive all communications, agreements, documents,
receipts, notices, and disclosures electronically (collectively, our “Communications”) that
we provide in connection with these Terms, the Site or any Services. You agree that we may provide
our Communications to you by posting them on the Site or by emailing them to you at the email
address you provide in connection with using the Services, if any.
- (c) Any right or remedy of any Indemnified Party set forth in these Terms
is in addition to, and not in lieu of, any other right or remedy whether described in these Terms
or under Applicable Laws, whether at law or in equity. The failure or delay of such Indemnified
Party in exercising any right, power, or privilege under these Terms shall not operate as a waiver
thereof.
- (d) The invalidity or unenforceability of any provision of these Terms
shall not affect the validity or enforceability of any other provision of these Terms, all of
which shall remain in full force and effect.
- (e) You acknowledge and agree that we will have no responsibility or
liability for any failure or delay in performance of the Site or any of the Services, or any loss
or damage that you may incur, due to any circumstance or event beyond our control, including
without limitation any flood, extraordinary weather conditions, earthquake, or other act of God,
fire, war, insurrection, riot, labor dispute, accident, action of government, communications,
power failure, or equipment or software malfunction.
- (f) You agree that you may not assign or transfer any right to use the Site
or the Services, or any of your rights or obligations under these Terms, without our express prior
written consent, including by operation of law or in connection with any change of control, which
may be withheld at our sole discretion. We may assign or transfer any or all of our rights or
obligations under these Terms, in whole or in part, without notice or obtaining your consent or
approval.
- (g) Headings of sections are for convenience only and shall not be used to
limit or construe such sections.
- (h) These Terms contain the entire agreement between you and Firefly, and
supersede all prior and contemporaneous understandings between the parties regarding the Site and
the Services.
- (i) In the event of any conflict between these Terms and any other
agreement you may have with us, these Terms will control unless the other agreement specifically
identifies these Terms and declares that the other agreement supersedes these Terms.
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(j) You agree that, except as otherwise expressly provided in this
Agreement, there shall be no third-party beneficiaries to the Agreement other than the Indemnified
Parties.
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(k) Headings of sections are for convenience only and shall not be used to
limit or construe such sections.