Effective Date: May 26, 2022
APTOOLS Technologies, Inc. ("APTOOLS", the "Company", "we", "us" or "our") is a blockchain development company focused on utilizing decentralized technologies such as the Solana blockchain. APTOOLS hosts a top level domain website, https://aptools.xyz/ that provides information regarding APTOOLS and its service offerings, as well as sub-domains for APTOOLS's product offerings (collectively, the "Site"), which includes text, images, audio, code and other materials and third party information.
APTOOLS makes available to certain users certain software services, including APTOOLS's unhosted wallet application and browser extension (the "Wallet" or the "App"). The Wallet enables users to (i) store locally on their own devices, tokens, cryptocurrencies and other crypto or blockchain-based digital assets (collectively, "Digital Assets"); (ii) link to decentralized applications, including, without limitation, decentralized exchanges (collectively "Dapp(s)"); (iii) from the App user interface, swap assets on a peer-to-peer basis via third-party Dapps ("Swapper"); (iv) view addresses and information that are part of digital asset networks and broadcast transactions; and (v) additional functionality as may be added to the App from time to time (collectively the "Services").
These Terms of Service (these "Terms" or this "Agreement") (i) contain the terms and conditions that govern your access to and use of the Site and Services and (ii) constitute a legally binding agreement between us and you and/or the entity you represent ("you", "your" or "user").
ARBITRATION NOTICE: THESE TERMS CONTAIN AN ARBITRATION CLAUSE FOR USERS IN THE UNITED STATES AND CANADA, WHICH PROVISION IS CONTAINED BELOW UNDER THE HEADING "DISPUTE RESOLUTION". IF YOU ARE LOCATED IN THE UNITED STATES OR CANADA, YOU AGREE THAT DISPUTES BETWEEN YOU AND APTOOLS WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU WAIVE YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR OTHER REPRESENTATIVE PROCEEDING.
We may modify the Terms at any time at our sole discretion. If we do so, we'll notify you either by posting the modified Terms on the Site, by providing you a notice through the App, or through other methods of communication which we deem reasonable. It's important that you review the Terms whenever we modify them, because, if you continue to use the Site or Services after we have modified the Terms, you are agreeing to be legally bound, and to abide, by the modified Terms.
If you don't agree to be bound by the modified Terms, then you may not use the Site or Services. Because our Services are evolving over time we may change or discontinue all or any part of the Site or Services, at any time and without notice, in our sole and absolute discretion.
You may use the Services if you are of the age of majority in your jurisdiction of residence, or older, and are not barred from using the Services under applicable law. By using the Site or Services and agreeing to these Terms, you represent and warrant that:
Registration and Your Information; Suspension/Termination of Services; Security
To use certain of the Services, you may be asked to have or to create an account ("Account"). To the extent you create an account, you agree that you won't disclose your Account credentials to anyone and you'll notify us immediately of any unauthorized use of your Account. You're responsible for all activities that occur under your Account, or are otherwise referable to your Account credentials, whether or not you know about them, and you are solely responsible for your conduct, and the tasks and activities you undertake, on or utilizing the Site or Services. We reserve the right to suspend or terminate your Account if you provide inaccurate, untrue, or incomplete information, or if you fail to comply with the Account registration requirements or these Terms. We may suspend or terminate your access to and use of the Site or Services at any time, for any reason, in our sole and absolute discretion, without incurring liability of any kind to you as a result of such suspension or termination.
You acknowledge and understand that, in certain circumstances, such as if you lose or forget your password for your Wallet, you will need to use a recovery phrase to access any cryptocurrency stored in your wallet (the "Recovery Phrase"). You are solely responsible for the retention and security of your Recovery Phrase. Your Recovery Phrase is the only way to restore access to the cryptocurrency stored in your Wallet if you lose access to your Wallet. Anyone who knows your Recovery Phrase can access, transfer or spend your cryptocurrency. If you lose your Recovery Phrase, you may not be able to access, transfer or spend your cryptocurrency. You acknowledge and agree that APTOOLS does not store and is not responsible in any way for the security of your Recovery Phrase and you agree to hold APTOOLS, its affiliates, representatives, agents and personnel harmless and that no such party shall be liable in any way in the event you lose your Recovery Phrase and cannot access, transfer or spend your cryptocurrency. You bear sole responsibility for any loss of your cryptocurrency due to failure to retain and/or secure your Recovery Phrase.
We welcome feedback, comments, ideas, and suggestions for improvements to the Site and Services ( "Feedback" ). You grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon or improvements with respect to and otherwise exploit and commercialize the Feedback and any such derivative works and improvements in any manner and for any purpose.
For purposes of these Terms: (i) "Content" means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Site or Services; and (ii) "User Content" means any Content that users or Account holders (including you) upload, submit, store, send, post or otherwise make available on the App or through our Site. Content includes without limitation User Content.
We do not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content.
Subject to the foregoing, APTOOLS and its licensors exclusively own all right, title and interest in and to the Site, the Services and Content, including all associated intellectual property rights. You acknowledge that the Site, Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.
Rights in User Content Granted by You
You warrant and represent that you have the right and authority to submit your User Content and that neither your User Content nor any part thereof infringes, misappropriates or otherwise violates the intellectual property rights or any other rights of any person.
You acknowledge that, in certain instances, where you have removed your User Content by specifically deleting it, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Services. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
Rights in App, Site and Services Granted by APTOOLS
The App, Site and Services are proprietary to APTOOLS and its licensors and must not be used other than strictly in accordance with these Terms. APTOOLS grants to you a limited, non-exclusive, non-transferable, non-sublicensable, fully-revocable right to use the App and Site for the purposes of accessing and using the Services strictly in accordance with these Terms.
You agree not to use the Site or Services in any manner or for any purpose other than as expressly permitted by this Agreement. Except as expressly authorized, you will not, and will not attempt to (i) modify, distribute, alter, tamper with, repair, or otherwise create derivative works of any Content included in the Services (except to the extent Content included in the Services is provided to you under a separate license that expressly permits the creation of derivative works), (ii) reverse engineer, disassemble, or decompile the App or Site or apply any other process or procedure to derive the source code of any software included in the App or Site , (iii) access or use the Services in a way intended to avoid incurring fees or exceeding usage limits or quotas, (iv) use scraping techniques to mine or otherwise scrape data, or (v) resell or sublicense the Services, or use the Services to provide software as a service or any cloud-based, time sharing, service bureau or other services. You will not use Our Marks unless you obtain our prior written consent. You will not misrepresent or embellish the relationship between us and you (including by expressing or implying that we sponsor, endorse, or contribute to you or your business endeavors). You will not imply any relationship or affiliation between us and you. For the purposes of these terms, "Our Marks" means any trademarks, service marks, service or trade names, logos, trade dress and other designations of source, origin, sponsorship, certification or endorsement of APTOOLS Technologies Inc. or its affiliates or their respective licensors.
We may charge fees for some or part of the Services we make available to you, including fees charged on token swaps that you execute on third-party exchanges by accessing such exchanges via the Swapper. We reserve the right to change those fees at any time, in our sole and absolute discretion. We will disclose the amount of fees we will charge you for the applicable Service at the time that you access the Service. You may view the fees currently charged for our Services at https://aptools.xyz/fees.
You may incur charges from third parties for use of Third-Party Services. For example, you may be charged fees via the Dapps (including, without limitation, decentralized exchanges) that you may access via the App, including via the Swapper. Third party fees are not charged by APTOOLS and are not paid to APTOOLS. Under no circumstances shall APTOOLS incur any liability, of any kind, to you arising from or relating to fees charged to you by Third-Party Services linked to or accessed through our Site or Services.
Although we will attempt to provide accurate fee information, any such information reflects our estimate of fees, which may vary from the fees actually paid to use the Services and interact with the Solana blockchain or any other network with which the Services are compatible.
In connection with the Swapper, you understand and agree that swap rates and prices are estimates only, and that they may change at any time. Accordingly, the prices or swap rates provided via the Services, including on the Swapper interface, are estimates only and may be inaccurate. APTOOLS may not be held liable for, and you hereby forever release APTOOLS from, any losses or other liabilities arising from an inaccurate estimate of fees provided in connection with any use of the Services.
As a condition to using the Site and/or Services, you agree not to use the Site or Services in ways that:
By using the Site or Services, you further represent, warrant and covenant that:
Although we have no obligation to monitor any User Content, we have absolute discretion to remove User Content at any time and for any reason without notice. You understand that by using the Services, you may be exposed to User Content that is offensive, indecent, or objectionable. We take no responsibility and assume no liability for any User Content, including any loss or damage to any of your User Content.
You agree to comply with all applicable U.S. and non-U.S. export control and trade sanctions laws ("Export Laws"). Without limiting the foregoing, you may not download the App or use the Services if (i) you are in, under the control of, or a national or resident of Cuba, Iran, North Korea, Sudan, or Syria or any other country subject to United States embargo, UN Security Council Resolutions, HM Treasury's financial sanctions regime, or if you are on the U.S. Treasury Department's Specially Designated Nationals List or the U.S. Commerce Department's Denied Persons List, Unverified List, Entity List HM Treasury's financial sanctions regime; or (ii) you intend to supply any Services to Cuba, Iran, North Korea, Sudan or Syria or any other country subject to United States embargo or HM Treasury's financial sanctions regime (or a national or resident of one of these countries), or to a person on the Specially Designated Nationals List, Denied Persons List, Unverified List, Entity List, or HM Treasury's financial sanctions regime.
The Site, Services and App may contain links to Third-Party Services (including, without limitation, Dapps), and may leverage or plug into such Third Party Services to enable certain features, such as the Swapper. When using a Dapp or other Third Party Services, you understand that you are at no time transferring your assets to us. We provide access to Third Party Services only as a convenience, do not have control over their content, do not warrant or endorse, and are not responsible for the availability or legitimacy of, the content, products or services on or accessible from those Third Party Services (including any related website, resources or links displayed therein). We make no warranties or representations, express or implied, about such linked Third Party Services, the third parties they are owned and operated by, the information contained on them or the suitability of their products or services. You acknowledge sole responsibility for and assume all risk arising from your use of any third-party website, applications, or resources.
We may terminate this Agreement and/or your access to and use of the Site and Services, in our sole discretion, at any time and without notice to you. You may cancel your Account, if you have one, at any time by removing the Wallet web browser extension and ceasing any and all use of the Site, Services and/or Content. Upon any termination, discontinuation or cancellation of this Agreement, the Services or your Account, (i) all rights and/or licenses granted to you under these Terms shall immediately cease and terminate and you shall forthwith cease the use of and/or access to the App, Site, Services and Content in any way whatsoever; and (ii) notwithstanding the foregoing, the following provisions will survive: Feedback, Content and Content Rights, Content Ownership, Responsibility and Removal (except for the subsection "Rights in Content Granted by APTOOLS"), Termination, Warranty Disclaimers, Indemnity, Limitation of Liability, Dispute Resolution, and General Terms.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SITE AND THE SERVICES (INCLUDING ANY PRIVATE KEY STORAGE SERVICE OFFERED AS PART OF THE SERVICES, WHETHER CLOUD OR HARDWARE-BASED) AND CONTENT IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. THE APP, SITE AND SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APTOOLS SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR NON-INFRINGEMENT. APTOOLS DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT ACCESS TO THE SITE OR SERVICES OR ANY OF THE MATERIALS CONTAINED THEREIN WILL BE CONTINUOUS, UNINTERRUPTED, TIMELY, OR ERROR-FREE. APTOOLS DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO THE FUNCTIONALITY OF THE SOLANA NETWORK, OR THAT SOLANA NETWORK WILL OPERATE FREE FROM INTERRUPTIONS, DELAYS, DEFECTS AND/OR ERRORS THAT MAY DELAY, HINDER OR PREVENT THE TRANSMISSION OF TRANSACTIONS OR MESSAGES TO OR ON THE SOLANA NETWORK, OR ANY OTHER NETWORK. THE DURATION OF ANY IMPLIED WARRANTY THAT IS NOT EFFECTIVELY DISCLAIMED WILL BE LIMITED TO THE LONGER OF (I) THIRTY (30) DAYS FROM THE DATE THAT YOU FIRST USE THE APPLICABLE SERVICE AND (II) THE SHORTEST PERIOD ALLOWED UNDER APPLICABLE LAW. SOME STATES / JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
USE OF ANY PRIVATE KEY STORAGE SERVICE INCLUDED AS PART OF THE SERVICES IS OFFERED TO YOU AS A CONVENIENCE, SUBJECT TO THE LIMITATIONS ABOVE. TO BE SAFE, YOU SHOULD ALWAYS BACK UP YOUR PRIVATE ACCESS KEY VIA SECONDARY MEANS.
OUR SERVICES RELY ON EMERGING TECHNOLOGIES, SUCH AS THE SOLANA NETWORK AND THIRD PARTY DECENTRALIZED EXCHANGES. SOME SERVICES ARE SUBJECT TO INCREASED RISK THROUGH YOUR POTENTIAL MISUSE OF THINGS SUCH AS PUBLIC/PRIVATE KEY CRYPTOGRAPHY. BY USING THE SERVICES YOU EXPLICITLY ACKNOWLEDGE AND ACCEPT THESE HEIGHTENED RISKS. APTOOLS SHALL NOT BE LIABLE FOR THE FAILURE OF ANY MESSAGE TO SEND TO OR BE RECEIVED BY THE INTENDED RECIPIENT IN THE INTENDED FORM, OR FOR DIMINUTION OF VALUE OF SOLANA OR ANY OTHER DIGITAL TOKEN OR DIGITAL ASSET ON THE SOLANA NETWORK OR ANY OTHER NETWORK, AND APTOOLS MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SAME.
You will indemnify, defend and hold harmless APTOOLS and its affiliates and its and their respective officers, directors, employees, agents and representatives (the "APTOOLS Parties"), from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees, arising out of, relating to or in any way connected with (i) your access to or use of the Site, Services or Content, (ii) your User Content, (iii) Third Party Services, or (iv) your violation of these Terms.
THE APTOOLS PARTIES SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY LOST PROFITS OR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE OUT OF OR IN CONNECTION WITH ANY AUTHORIZED OR UNAUTHORIZED USE OF THE SITE, THE APP OR THE SERVICES, EVEN IF AN AUTHORIZED REPRESENTATIVE OF APTOOLS HAS BEEN ADVISED OF OR KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. APTOOLS SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO SOFTWARE, PRODUCTS, SERVICES, AND/OR INFORMATION OFFERED OR PROVIDED BY THIRD-PARTIES AND ACCESSED THROUGH THE APP, SITE OR SERVICES.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL THE APTOOLS PARTIES' TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF ONE HUNDRED U.S. DOLLARS ($USD100.00) OR ITS EQUIVALENT IN THE LOCAL CURRENCY OF THE APPLICABLE JURISDICTION.
By accessing and using the Services, you represent that you understand the inherent risks associated with using cryptographic and blockchain-based systems, and that you have a working knowledge of the usage and intricacies of Digital Assets. You further understand that the markets for these Digital Assets are highly volatile due to factors including (but not limited to) adoption, speculation, technology, security, and regulation. You acknowledge and accept that the cost and speed of transacting with cryptographic and blockchain-based systems such as Solana are variable and may increase dramatically at any time. You further acknowledge and accept the risk that your Digital Assets, or any Digital Assets you acquire, including through a third-party exchange accessed via the Swapper may lose some or all of their value and you may suffer loss due to the fluctuation of prices of tokens and/or significant price slippage and cost. You understand that anyone can create a token, including fake versions of existing tokens and tokens that falsely claim to represent projects, and acknowledge and accept the risk that you may mistakenly trade those or other tokens. You further acknowledge that we are not responsible for any of these variables or risks and that we cannot be held liable for any resulting losses that you experience while accessing or using the Site or Services.
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 APTOOLS to continue to make its proprietary software, and thus, could impede or limit your ability to continue to use the Services.
You understand and acknowledge that cryptography is a progressing field with advances in code cracking and 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 update APTOOLS-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 that intention does not reflect a binding commitment and does not in any way guarantee or otherwise ensure full security of the Services.
You understand that the Solana blockchain (and all other networks with which the Services may be compatible) remains under development, which creates technological and security risks when using the Services in addition to uncertainty relating to Digital Assets and transactions therein. You acknowledge that the cost of transacting on the Solana blockchain is variable and may increase at any time, thereby impacting any activities taking place on the Solana blockchain, which may result in price fluctuations or increased prices for using the Services.
You acknowledge that the Services are subject to flaws and that you are solely responsible for evaluating any code provided by the Site or Services. This warning and others APTOOLS provides in these Terms in no way evidence or represent any on-going duty to alert you of the potential risks of utilizing the Services or accessing the Site.
Although we intend to provide accurate and timely information on the Site and during your use of the Services, that intention does not reflect a binding commitment, and the Site and other information available when using the Services may not be accurate, complete, error-free or current. 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 in any manner, and all decisions based on such information contained on the Site or made available through the Services are your sole and absolute responsibility. No representation of any kind or nature is made as to the accuracy, completeness or appropriateness for any particular purpose of any pricing or other information distributed via the Site or Services. Pricing information may be higher or lower than prices available on platforms providing similar services.
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.
Use of the Services, in particular for trading Digital Assets, may carry financial risk. Digital Assets 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 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. 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 for performing Digital Asset transactions.
APTOOLS is a developer of software. APTOOLS does not operate a Digital Asset 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 APTOOLS-developed software are executed peer-to-peer directly between the users' Solana (or other network) addresses through smart contracts. You are responsible for complying with all laws that may be applicable to or govern your use of the Services, including, but not limited to, the Commodity Exchange Act and the regulations promulgated thereunder by the U.S. Commodity Futures Trading Commission ("CFTC"), the federal securities laws and the regulations promulgated thereunder by the U.S. Securities and Exchange Commission ("SEC") and all foreign applicable laws.
You understand that APTOOLS is not registered or licensed by the CFTC, SEC, or any financial regulatory authority. No financial regulatory authority has reviewed or approved the use of the APTOOLS-developed software. The Site and the APTOOLS-developed software do not constitute advice or a recommendation concerning any commodity, security, or other Digital Asset or instrument. APTOOLS is not acting as an investment adviser or commodity trading adviser to any person or entity.
You expressly agree that you assume all risks in connection with your access and use of the Site and Services and your interaction therewith. You further expressly waive and release the APTOOLS Parties from any and all liability, claims, causes of action, or damages arising from or in any way relating to your use of the Site and Services and your interaction therewith. If you are a California resident, you waive the benefits and protections of California Civil Code § 1542, which provides: "[a] general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party."
These Terms shall be construed and enforced in accordance with the laws of the state of California applicable to contracts entered into and performed in California by residents thereof; provided that all provisions hereof related to arbitration shall be governed by and construed in accordance with the Federal Arbitration Act (U.S. Code Title 9).
PLEASE READ THIS "MANDATORY ARBITRATION" PROVISION VERY CAREFULLY. IT LIMITS YOUR RIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND APTOOLS, SUBJECT TO THE TERMS AND OPT-OUT OPTION SET FORTH BELOW.
You and APTOOLS agree that any and all past, present and future disputes, claims, or causes of action arising out of or relating to your use of any of the Site or the Services, this Agreement, or any other controversies or disputes between you and APTOOLS (including, without limitation, disputes regarding the effectiveness, scope, validity or enforceability of this agreement to arbitrate) (collectively, "Dispute(s)"), shall be determined by arbitration, unless (A) your Country of Residence does not allow this arbitration agreement; (B) you opt out as provided below; or (C) your Dispute is subject to an exception to this agreement to arbitrate set forth below. You and APTOOLS further agree that any arbitration pursuant to this Section shall not proceed as a class, group or representative action. The award of the arbitrator may be entered in any court having jurisdiction.
"Country of Residence" for purposes of this agreement to arbitrate means the country in which you hold citizenship or legal permanent residence, as well as any country from which you regularly access and use the APTOOLS Services. If more than one country meets that definition for you, then your country of citizenship or legal permanent residence shall be your Country of Residence, and if you have more than one country of citizenship or legal permanent residence, it shall be the country with which you most closely are associated by permanent or most frequent residence.
APTOOLS wants to address your concerns without the need for a formal legal dispute. Before filing a claim against APTOOLS, you agree to try to resolve the Dispute informally by contacting APTOOLS at [email protected] to notify APTOOLS of the actual or potential Dispute. Similarly, APTOOLS will undertake reasonable efforts to contact you to notify you of any actual or potential dispute to resolve any claim we may possess informally before taking any formal action. The party that provides the notice of the actual or potential Dispute (the "Notifying Party") will include in that notice (a "Notice of Dispute") the name of User, the Notifying Party's contact information for any communications relating to such Dispute (including for the Notifying Party's legal counsel if it is represented by counsel in connection with such Dispute), and sufficient details regarding such Dispute to enable the other party (the "Notified Party") to understand the basis of and evaluate the concerns raised. If the Notified Party responds within ten (10) business days after receiving the Notice of Dispute that it is ready and willing to engage in good faith discussions in an effort to resolve the Dispute informally, then each party shall promptly participate in such discussions in good faith.
If, notwithstanding the Notifying Party's compliance with all of its obligations under the preceding paragraph, a Dispute is not resolved within 30 days after the Notice of Dispute is sent (or if the Notified Party fails to respond to the Notice of Dispute within ten (10) business days), the Notifying Party may initiate an arbitration proceeding as described below. If either party purports to initiate arbitration without first providing a Notice of Dispute and otherwise complying with all of its obligations under the preceding paragraph, then, notwithstanding any other provision of this Agreement, the arbitrator(s) will promptly dismiss the claim with prejudice and will award the other party all of its costs and expenses (including, without limitation, reasonable attorneys' fees) incurred in connection with such Dispute.
We both agree to arbitrate (unless you opt out as described below). You and APTOOLS each agrees to resolve any Disputes that are not resolved informally as described above through final and binding arbitration as discussed herein, except as set forth under "Exceptions to Agreement To Arbitrate" below.
If you do not wish to be subject to this agreement to arbitrate, you may opt out of this arbitration provision by sending a written notice to APTOOLS at [email protected] within thirty (30) days of first accepting this Agreement. You must date the written notice, and include your first and last name, address, and a clear statement that you do not wish to resolve disputes with APTOOLS through arbitration. If no written notice is submitted by the 30-day deadline, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except with regard to the exceptions set forth below. By opting out of the agreement to arbitrate, you will not be precluded from using the APTOOLS Service, but you and APTOOLS will not permitted to invoke the mutual agreement to arbitrate to resolve Disputes under the terms otherwise provided herein.
You and APTOOLS agree that the American Arbitration Association ("_ AAA ") will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes in effect at the time arbitration is sought ("AAA Rules"). Those rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a general Demand for Arbitration.) Arbitration will proceed on an individual basis and will be handled by a sole arbitrator. The single arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA's roster of arbitrators. If the parties are unable to agree upon an arbitrator within fourteen (14) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules. The arbitrator shall be authorized to award any remedies, including injunctive relief, that would be available to you hereunder in an individual lawsuit. Notwithstanding any language to the contrary in this paragraph, if a party seeks injunctive relief that would significantly impact other APTOOLS users as reasonably determined by either party, the parties agree that such arbitration will proceed on an individual basis but will be handled by a panel of three (3) arbitrators. Each party shall select one arbitrator, and the two party-selected arbitrators shall select the third, who shall serve as chair of the arbitral panel. That chairperson shall be a retired judge or an attorney licensed to practice law and with experience arbitrating or mediating disputes. In the event of disagreement as to whether the threshold for a three-arbitrator panel has been met, the sole arbitrator appointed in accordance with this Section shall make that determination. If the arbitrator determines a three-person panel is appropriate, the arbitrator may – if selected by either party or as the chair by the two party-selected arbitrators – participate in the arbitral panel. Except as and to the extent otherwise may be required by law, the arbitration proceeding and any award shall be confidential.
You and APTOOLS further agree that the arbitration will be held in the English language in San Francisco, California, or, if you so elect, all proceedings can be conducted via videoconference, telephonically or via other remote electronic means. If APTOOLS elects arbitration, APTOOLS shall pay all of the AAA filing costs and administrative fees (other than hearing fees). If you elect arbitration, filing costs and administrative fees (other than hearing fees) shall be paid in accordance with the AAA Rules, or in accordance with countervailing law if contrary to the AAA Rules. However, if the value of the relief sought is $10,000 or less, at your request, APTOOLS will pay all filing, administration, and arbitrator fees associated with the arbitration, unless the arbitrator(s) finds that either the substance of your claim or the relief sought was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). In such circumstances, fees will be determined in accordance with the AAA Rules. Each party shall bear the expense of its own attorneys' fees, except as otherwise provided herein or required by law.
You and APTOOLS agree that the arbitration of any Dispute shall proceed on an individual basis, and neither you nor APTOOLS may bring a claim as a part of a class, group, collective, coordinated, consolidated or mass arbitration (each, a "Collective Arbitration"). Without limiting the generality of the foregoing, a claim to resolve any Dispute against APTOOLS will be deemed a Collective Arbitration if (i) two (2) or more similar claims for arbitration are filed concurrently by or on behalf of one or more claimants; and (ii) counsel for the claimants are the same, share fees or coordinate across the arbitrations. "Concurrently" for purposes of this provision means that both arbitrations are pending (filed but not yet resolved) at the same time.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER YOU NOR APTOOLS SHALL BE ENTITLED TO CONSOLIDATE, JOIN OR COORDINATE DISPUTES BY OR AGAINST OTHER INDIVIDUALS OR ENTITIES, OR ARBITRATE OR LITIGATE ANY DISPUTE IN A REPRESENTATIVE CAPACITY, INCLUDING AS A REPRESENTATIVE MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. IN CONNECTION WITH ANY DISPUTE (AS DEFINED ABOVE), ANY AND ALL SUCH RIGHTS ARE HEREBY EXPRESSLY AND UNCONDITIONALLY WAIVED. Without limiting the foregoing, any challenge to the validity of this paragraph shall be determined exclusively by the arbitrator.
Notwithstanding your and APTOOLS's agreement to arbitrate Disputes, either you or APTOOLS retain the following rights:
You and APTOOLS retain the right (A) to bring an individual action in small claims process in the courts of your Country of Residence; and (B) to seek provisional relief in aid of arbitration in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights. Further, this agreement to arbitrate does not deprive you of the protection of the mandatory provisions of the consumer protection laws in your Country of Residence; you shall retain any such rights and this agreement to arbitrate shall be construed accordingly.
Except as otherwise required by applicable law or provided in this Agreement, in the event that the agreement to arbitrate is found not to apply to you or your Dispute, you and APTOOLS agree that any judicial proceeding may only be brought in a court of competent jurisdiction in California, United States. Both you and APTOOLS consent to venue and personal jurisdiction there; provided that either party may seek provisional relief in aid of arbitration to enforce its intellectual property rights as provided above or bring an action to confirm an arbitral award in any court having jurisdiction.
This agreement to arbitrate shall survive the termination or expiration of this Agreement. With the exception of the provisions of this agreement to arbitrate that prohibit Collective Arbitration, if a court decides that any part of this agreement to arbitrate is invalid or unenforceable, then the remaining portions of this agreement to arbitrate shall nevertheless remain valid and in force. In the event that a court finds the prohibition of Collective Arbitration to be invalid or unenforceable, then the entirety of this agreement to arbitrate shall be deemed void (but no provisions of this Agreement unrelated to arbitration shall be void), and any remaining Dispute must be litigated in court pursuant to the preceding paragraph.
Any notices or other communications provided by us under these Terms, including those regarding modifications to these Terms, will be given by posting to the Services and/or through other electronic communication. You agree and consent to receive electronically all communications, agreements, documents, notices and disclosures that we provide in connection with your Account and/or your use of the Services.
Our failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of APTOOLS. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
These Terms are written in English (U.S.). Any translated version is provided solely for your convenience. To the extent any translated version of our Terms conflicts with the English version, the English version controls.
If you have any questions about these Terms or the Services, please contact us at