Kigo Terms & Conditions
We may amend or modify these Terms at any time by posting the revised terms on the Kigo Site and/or providing a copy to you (an “Amended Terms”). The Amended Terms shall be effective as of the time it is posted but will not apply retroactively. Your continued use of the Services after the posting of an Amended Agreement constitutes your acceptance of such Amended Terms. If you do not agree with any such modification, your sole and exclusive remedy is to terminate your use of the Services and close your Account.
Capitalized terms used in these Terms, but not defined in place, have the meanings given to them in this Section 1. As used in these Terms:
“Account”means the Kigo account registered by you through the Services, and through which you can access your Wallet.
“Account Information” is defined in Section 2.3.
“Content” is defined in Section 7.1.
“Digital Asset” means any digital asset (including a virtual currency or virtual commodity) that is issued or transferred using distributed ledger or blockchain technology, such as Ethereum, Polygon or Bitcoin, and includes NFTs.
“Digital Asset Transaction” is defined in Section 5.1
“Disputes” is defined in Section 10.1.
“Indemnified Parties” is defined in Section 091.
“Payment Card” means a credit card, debit card or other payment card.
“NFT” means a non-fungible token or similar digital item implemented on a blockchain, which uses smart contracts to link to or otherwise be associated with certain content or data, or which are otherwise generated from a smart contract
“Rewards” means rewards points, loyalty points or other rewards, including Digital Assets, that may be earned or obtained through the Services
“User Credentials” is defined in Section 2.5
“Wallet” is defined in Section 3.1
2. Account Registration.
- 2.1 Eligibility. You represent and warrant to us that you are at least 18 years old, that you are capable of entering into a legally binding agreement, and that you reside in the United States. Your right to use your Account, Wallet, and the Services is conditioned upon your acceptance and compliance with these Terms. If you do not agree to be bound by these Terms, you are not authorized to use your Account, Wallet, or the Services, and you agree to immediately discontinue any access to or use of your Account, Wallet, and the Services. The Kigo Site is not available to and the Services are not being offered to non-U.S. residents
- 2.2 Registration To use the Services, you must register an Account. By registering or using an Account you agree and represent that you have created your Account solely for use by yourself, and you will not use your Account for or on behalf of any third-party. You are solely and fully responsible for all activity that occurs under your Account. We may, in our sole discretion, refuse to open an Account for you, suspend or terminate your Account, suspend or terminate the sending and receiving of Digital Assets from or to your account, or suspend or terminate the acquisition or trading of Digital Assets in your Account
- 2.5 Account Security. You are responsible for maintaining security and control of any and all electronic devices, log-in credentials, passwords, hints, personal identification numbers, and any other information you use to access your Account, Wallet, the Kigo Site, or the Services (the “User Credentials”). Any loss or compromise of the foregoing information and/or your Account Information may result in unauthorized access to your Account by third-parties and the loss or theft of any Digital Assets held in your Account and any associated accounts. We assume no responsibility for any loss that you sustain due to compromise of your User Credentials, and you agree that we shall have the right to assume that you have authorized each transaction that occurs using your User Credentials. You agree to cooperate with us during the investigation of any suspected unauthorized access to or use of your Account or the Services using your User Credentials. You agree to provide us with accurate and current information throughout the investigation. You agree to perform any tasks we reasonably require to manage or report a security breach or fraud. You are responsible for keeping your email address, telephone number and other Account Information up to date in your Account profile, and for ensuring that any emails we send to you are permitted by any spam or other email blocker implemented by you or your email service provider, so that you can receive any notices or alerts that we send you. We assume no responsibility for your failure to follow or act on any notices or alerts that we send to you. IN THE EVENT YOU BELIEVE YOUR ACCOUNT OR USER CREDENTIALS HAVE BEEN COMPROMISED, CONTACT KIGO SUPPORT IMMEDIATELY AT SUPPORT@KIGO.IO.
- 2.6 Closing Your Account. You may close your Account and terminate your relationship with us without cost by contacting Kigo support at firstname.lastname@example.org , but you will remain liable for all obligations related to your Account even after your Account is closed. You are responsible for transferring any Digital Assets in your Wallet to another blockchain address prior to closing your Account, and such transfers may incur transaction fees, which will be communicated to you. At launch, the Kigo Site will not offer self-directed transfer capabilities. Your ability to transfer Digital Assets to a blockchain address outside of the Kigo Site will be limited and we make no promise or guarantee that Digital Assets will be able to be transferred outside of the Kigo Site. If you choose to close your Account and any Digital Assets remain, you will lose all access to such Digital Assets. We intend to fully comply with applicable state unclaimed property laws. If we have no record of you accessing the Services for three years and we are unable to contact you using the information you provided, applicable law may require us deliver any Digital Assets in your Wallet to the applicable state or jurisdiction as unclaimed property.
3. Wallet and Digital Assets; No Investment Advice.
- 3.1 Wallet Services As part of your Account, we will provide you with a wallet established on the Kigo Site (“Wallet”). The Wallet will allow you to hold, store, receive and use Digital Assets within the Kigo Site. Future releases of the Kigo Site may enable transfers of Digital Assets. Because Digital Assets are stored on the Kigo Site, ownership of any Digital Assets in your Wallet will not be reflected or included in the applicable blockchain.
- 3.2 Supported Digital Assets We have the right, in our sole discretion, to determine the types of and specific Digital Assets available to you through the Services. Kigo does not endorse any Digital Assets in any way and has not reviewed or approved of the contents of any Digital Asset, including any claims about rarity, uniqueness, intellectual property ownership, or value. If the Kigo Site displays information about the rarity of a Digital Asset, it is merely an estimation and may change, especially if minting is ongoing. Digital Assets and any associated benefits or functionality are controlled by the creators of such Digital Assets and Kigo does not guarantee that any such advertised or claimed benefits or functionality will be available to you. We may add or remove any Digital Asset from the Services at any time, for any reason and without notice. If you do not transfer such Digital Asset to another blockchain address before we terminate support for such Digital Asset, then we may, in our discretion, remove such Digital Asset from your Account. We do not own or control the underlying software protocols which govern the operation of Digital Assets. We assume no responsibility for the operation of the underlying protocols and do not guarantee the functionality or security of network operations or of any Digital Assets. The underlying protocols may be subject to sudden changes in operating rules, which are known as “forks”. These changes may materially adversely affect the availability, value, functionality, and/or the name of the Digital Asset you store in your Wallet. In the event of any such operational change, we reserve the right to take such steps as we determine is necessary to protect the security and safety of Digital Assets available on the Kigo Site, including without limitation, temporarily suspending operations for the impacted Digital Assets. We will endeavor to provide you notice of our response to any material operating change. You acknowledge that such changes are outside of our control and may occur without notice to us. By using your Account, your Wallet and the Services, you acknowledge and accept the risks of operating changes to Digital Asset protocols, including forks, and agree that we are not responsible for any such changes or any losses you may experience as a result of such changes. You further acknowledge and accept that we have no responsibility to support new Digital Asset forks or operating changes for supported Digital Assets.
- 3.3 NO INVESTMENT ADVICE. YOU ARE SOLELY RESPONSIBLE FOR DETERMINING WHETHER ANY DIGITAL ASSET IS APPROPRIATE FOR YOU. WE MAY PROVIDE EDUCATIONAL INFORMATION ABOUT DIGITAL ASSETS IN ORDER TO ASSIST YOU IN LEARNING MORE ABOUT DIGITAL ASSETS. INFORMATION MAY INCLUDE, BUT IS NOT LIMITED TO, BLOG POSTS, ARTICLES, LINKS TO THIRD-PARTY CONTENT, NEWS FEEDS, TUTORIALS, AND VIDEOS. THIS INFORMATION IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE INVESTMENT ADVICE, TAX ADVICE, FINANCIAL ADVICE, TRADING ADVICE, OR ANY OTHER SORT OF ADVICE, AND YOU SHOULD NOT TREAT ANY OF THE CONTENT PROVIDED THROUGH THE KIGO SITE AS SUCH. WE DO NOT RECOMMEND THAT ANY DIGITAL ASSET SHOULD BE BOUGHT, EARNED, SOLD, OR HELD BY YOU. WE SHALL NOT BE RESPONSIBLE FOR THE DECISIONS YOU MAKE TO BUY, TRANSFER, OR HOLD DIGITAL ASSETS, INCLUDING THOSE BASED ON ANY INFORMATION PROVIDED BY US.
THE VALUE OF DIGITAL ASSETS IS SUBJECTIVE, HIGHLY VOLATILE AND CAN RAPIDLY INCREASE OR DECREASE WITH NO WARNING. THERE IS A RISK OF SUBSTANTIAL OR TOTAL LOSS IN PURCHASING, HOLDING OR SELLING DIGITAL ASSETS. WHILE THE VOLATILITY OF DIGITAL ASSETS IS HIGH AND VARIES SIGNIFICANTLY, CHANGES AND ADVANCES IN TECHNOLOGY, FRAUD, THEFT AND CYBER-ATTACKS AND REGULATORY CHANGES, AMONG OTHERS, MAY INCREASE VOLATILITY FURTHER. IN ADDITION, DIGITAL ASSETS LACK THE HISTORICAL TRACK RECORD OF OTHER COLLECTIBLES OR CURRENCIES OR COMMODITIES SUCH AS GOLD THAT COULD GUIDE IF CURRENT LEVELS OF VOLATILITY ARE TYPICAL OR ATYPICAL. IN ADDITION, THE REGULATORY REGIME GOVERNING BLOCKCHAIN TECHNOLOGIES, NFTS, CRYPTOCURRENCY, AND OTHER CRYPTO-BASED ITEMS IS UNCERTAIN, AND NEW REGULATIONS OR POLICIES MAY MATERIALLY ADVERSELY AFFECT OUR SERVICES TO YOU AND THE UTILITY OF NFTS AND OTHER DIGITAL ASSETS.
YOU SHOULD CONSULT YOUR FINANCIAL ADVISOR, LEGAL OR TAX PROFESSIONAL REGARDING YOUR SPECIFIC SITUATION AND FINANCIAL CONDITION AND CAREFULLY CONSIDER WHETHER HOLDING DIGITAL ASSETS IS SUITABLE FOR YOU.
4. Third-Party Custodial Services; Ownership and Control.
- 4.1 Digital Asset Custody and Title All Digital Assets held in your Digital Asset Wallet are held by Kigo or its Service Providers, as described in further detail below:
- 4.1.1. Ownership Upon your receipt of a Digital Asset on the Kigo Site, you become the owner of such Digital Asset and Kigo disclaims any ownership interest in such Digital Asset; however, until such time as a Digital Asset is transferred by you off the Kigo Site, Kigo or its Service Providers will be reflected as the owner on the applicable blockchain. By using the Kigo Site and our Services, you agree that Kigo is not obligated to support transfers of Digital Assets off the Kigo Site. As the owner or licensee of Digital Assets in your Wallet, you bear all risk of loss of such Digital Assets. Neither Kigo nor its Service Providers shall have any liability for Digital Asset fluctuations or loss. Except as required by law, or except as provided in these Terms, we will not sell, transfer, loan, or otherwise dispose of Digital Assets in your Wallet unless instructed by you.
- 4.1.2. Control Except as required by law, or except as provided in these Terms, you control the Digital Assets held in your Wallet. At any time, subject to outages, downtime, and other applicable policies, you may withdraw your Digital Assets by sending it to a different blockchain address. Kigo or its Service Providers shall retain control over electronic private keys associated with blockchain addresses operated by it, including the blockchain addresses that hold your Digital Assets until such time as you withdraw or sell such Digital Assets
- 4.1.3. Digital Assets Not Segregated. Kigo or its Service Providers, as the custodian for all Digital Assets, may use shared blockchain addresses, controlled by Kigo or such Service Provider, to hold Digital Assets on behalf of you. Although Kigo or its Service Providers will maintain separate ledgers for Accounts, neither Kigo nor its Service Providers shall have no obligation to segregate by blockchain address Digital Assets owned by you from Digital Assets owned by other customers
- 4.2 Additional Agreements From time to time, as a condition of your use of the Services, you may be required to establish direct relationship with one or more of our Service Providers by entering into one or more agreements with them (each, a “Service Provider Agreement”, and collectively, the “Service Provider Agreements”). In addition to these Terms, your use of the Services, Account and Wallet will be subject to the terms of any such Service Provider Agreements
- 4.3 Unclaimed Property. If Digital Assets are in your Account, and we have no record of you accessing the Services for three years and we are unable to contact you using the information you provided, applicable law may require us deliver any such assets to the applicable state or jurisdiction as unclaimed property
5. Digital Assets Transfers.
The Kigo Site does not support the sale of any Digital Assets. If you have elected to receive a Digital Asset reward, such election is irrevocable. At launch, the Kigo Site will not offer self-directed transfer capabilities, and your ability to transfer Digital Assets to a blockchain address outside of the Kigo Site will be limited. We make no promise or guarantee that Digital Assets will be able to be transferred outside of the Kigo Site. To the extent that transfers of Digital Assets are supported by the Kigo Site, such transfers may incur transaction fees, which we will communicate to you.
IF SUPPORTED BY THE KIGO SITE IN THE FUTURE, ANY TRANSFERS OF DIGITAL ASSETS ARE AT YOUR SOLE RISK. IF YOU TRANSFER DIGITAL ASSETS FROM YOUR WALLET TO A THIRD-PARTY, SUCH TRANSFERS WILL BE EXECUTED BY KIGO OR ITS SERVICE PROVIDERS AT YOUR INSTRUCTION. YOU ARE SOLELY RESPONSIBLE FOR VERIFYING ALL TRANSACTION INFORMATION PRIOR TO SUBMITTING INSTRUCTIONS TO US. TRANSFERS CANNOT BE REVERSED ONCE INITIATED. WE DO NOT CONTROL THE DIGITAL ASSET NETWORK AND MAKE NO GUARANTEES THAT A TRANSFER WILL BE CONFIRMED BY THE NETWORK. IF YOU BELIEVE YOU DID NOT AUTHORIZE A PARTICULAR TRANSACTION OR THAT A TRANSACTION WAS INCORRECT, CONTACT KIGO SUPPORT IMMEDIATELY AT SUPPORT@KIGO.IO. REPORTING AN UNAUTHORIZED TRANSACTION DOES NOT GUARANTEE THAT WE WILL BE ABLE TO REVERSE OR REIMBURSE YOU FOR THE TRANSACTION.
- 6.1 Fees Fees In the event Kigo charges fees for using features of the site, a description of the fees you will be charged, if any, will be communicated to you. By using Kigo Services you agree to pay all such fees. We reserve the right to adjust pricing and fees and any applicable waivers at any time. You are responsible for paying any additional fees charged by your financial service provider(s), if or when applicable.
- 6.2 Account It is your responsibility to determine what taxes, if any, arise from your transactions under these Terms. You are solely responsible for reporting and paying any applicable taxes arising from transactions using Services. You understand that we will report information with respect to your transactions, payments, transfers, or distributions made by or to you with respect to your activities using Services to a tax or governmental authority to the extent such reporting is required by applicable law. We will also withhold taxes applicable to your transactions or to payments or distributions made or deemed made to you to the extent such withholding is required by applicable law. From time to time, we may ask you for tax documentation or certification of your taxpayer status as required by applicable law, and any failure by you to comply with this request in the time frame identified may result in withholding and/or remission of taxes to a tax authority as required by applicable law. You should conduct your own due diligence and consult your own tax advisors before making any decisions with respect to Digital Assets
7. Access and Use
- 7.1 Provision of Access. All content included in or made available through the Services, Kigo Site or any related content, materials and information such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software (excluding Digital Assets) (collectively, the “Content”) is the property of Kigo, its Service Providers or its or their respective affiliates or content providers and protected by United States and international copyright laws. We grant you a limited, nonexclusive, nontransferable license, subject to the terms of these Terms, to access and use the Services, Kigo Site, and Content solely for purposes approved by us from time to time. Any other use of the Services, Kigo Site or Content is expressly prohibited and all other right, title, and interest in the Services, Kigo Site or Content is exclusively the property of Kigo and its licensors
- 7.2 Use Restrictions. You agree that you will not use the Services, Kigo Site, Account or Content for any purposes beyond the scope of the access granted in these Terms. You further agree you will not, and you shall not direct or permit any third-party to, copy, transmit, distribute, sell, license, reverse engineer, modify, publish, or participate in the transfer or sale of, create derivative works from, or in any other way exploit any of the Content, in whole or in part without our prior written consent
- 7.3 Reservation of Rights. Except for the limited license to access the Services identified in Section 7.1, you acknowledge and agree that nothing contained in these Terms shall be construed as granting or conferring, by implication, estoppel or otherwise, any right, title, or interest to any intellectual property, including any (a) inventions (whether patentable or not in any country), patents, patent applications, invention disclosures, improvements, trade secrets, proprietary information, know how, information, or technical data, (b) copyright protected works, copyright registrations, mask works, mask work registrations or applications in the United States or any foreign country, (c) trademarks, trademark registrations, service marks, logos or applications therefor in the United States or any foreign country, (d) trade secrets, or (e) any other tangible or intangible proprietary rights anywhere in the world.
- 7.4 Accessibility The Services can only be accessed by using the Kigo Site. You acknowledge and agree that at times the Services may be inaccessible or inoperable for any reason whatsoever, including, without limitation: (a) equipment malfunctions, (b) periodic maintenance procedures or repairs which we may undertake from time to time without notice to you, or (c) causes which are beyond our control or which are not reasonably foreseeable. In addition, access to Services may become degraded or inaccessible during times of significant volatility or volume. We do not represent that the Kigo Site or other Services will be available without interruption and we do not guarantee that any order will be executed, accepted, recorded, or remain open. We shall not be liable for any losses resulting from or arising out of delays in processing transactions, inability to execute transactions, or lack of timely response from us. We shall not have any liability, whatsoever, for any damage or interruptions caused by any computer viruses or other malicious code that may affect your computer or other equipment, or any phishing, spoofing or other attack. You should also be aware that SMS (i.e., text messages) and email services are vulnerable to spoofing and phishing attacks and you should use care in reviewing messages purporting to originate from us. Always log into your Account through the Kigo Site to review any transactions or required actions if you have any uncertainty regarding the authenticity of any communication or notice.
- 7.5 Suspension, Termination, and Cancellation.
- 7.5.1. Suspension and Termination We may suspend, restrict, or terminate your access to any or all of the Services, the Kigo Site, and/or deactivate or cancel your Account, with immediate effect for any reason at our sole discretion and are under no obligation to disclose the details of its decision to take such action with you. You acknowledge that our decision to take certain actions, including limiting access to, suspending, or closing your account for any reason in our sole discretion, may be based on confidential criteria that are essential to our risk management and security protocols. You agree that we are under no obligation to disclose the details of our risk management and security procedures to you.
- 7.5.2. Transfer If we close your Account, we will notify you using the information you provided to us. You may close your Account at any time by contacting Kigo support at email@example.com. You will not be charged for canceling your Account, although you will be required to pay any outstanding amounts owed to us, if any. You authorize us to cancel or suspend any pending transactions at the time of cancellation. Following Account closure, provided that all amounts you owe us have been paid in full, we will authorize the transfer of any Digital Assets in your Account to a supported personal wallet outside of the Kigo Site unless we determine such transfer is otherwise prohibited: (a) under applicable law; or (b) by a facially valid subpoena or court order. You will be responsible for, and we may condition any such transfers upon your payment in full of, any transaction fees applicable to such transfer. If we have no record of you accessing the Services for several years and we are unable to contact you using the information you provided, applicable law may require us deliver any remaining Digital Assets to the applicable state or jurisdiction as unclaimed property.
- 7.6 Kigo Site Accuracy Although we intend to provide accurate and timely information on the Kigo Site, the Kigo Site (including, without limitation, content made available on the site) may not always be entirely accurate, complete or current and may also include technical inaccuracies or typographical errors. Information may also be changed or updated from time to time without notice, including without limitation information regarding our policies, products and services. As a convenience to you, we may provide hyperlinks to web sites operated by third-parties and other information provided by third-parties, including historical price and other data related to Digital Assets, and links you may use to make purchases. When you select these hyperlinks, you will be leaving the Kigo Site. Because we have no control over these sites or their content, we are not responsible for the availability of such external sites or their content, and we do not adopt, endorse and shall not be responsible or liable for any such sites or content, including advertising, products or other materials, on or available through such sites or resources.
8. Intellectual Property Rights; DMCA.
- 8.1 DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), applicable to Internet service providers. If you have an intellectual property rights-related complaint about any material on the Service, you may contact our Designated Agent at the following address:
DANNY S. KRISTAL, GENERAL COUNSEL
KIGO, LLC 2561 W Territorial Rd , St Paul, MN 55114
- 8.2 Reporting Claims of Copyright Infringement We take claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from the Kigo Site infringe your copyright, you may request removal of those materials (or access to them) from the Kigo Site by submitting written notification to our copyright agent designated below. In accordance with the Online Copyright Infringement Liability Limitation Act of the DMCA, the written notice (the “DMCA Notice”) must include substantially the following
- - Your physical or electronic signature.
- - Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Kigo Site, a representative list of such works
- - Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address)
- - Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address)
- - A statement that the information in the written notice is accurate.
- - A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner
If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective.
Please be aware that if you knowingly materially misrepresent that material or activity on the Kigo Site is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under the DMCA.
- 8.3 DMCA Counter Notification If you believe that material you posted on the Kigo Site was removed or access to it was disabled by mistake or misidentification, you may file a counter notification with us (a “Counter Notice”) by submitting written notification to our copyright agent designated above. Pursuant to the DMCA, the Counter Notice must include substantially the following
- - Your physical or electronic signature.
- - An identification of the material that has been removed or to which access has been disabled and the locationat which the material appeared before it was removed or access disabled
- - Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address)
- - A statement under penalty of perjury by you that you have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled
- - A statement that you will consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or if you reside outside the United States for any judicial district in which the Kigo Site may be found) and that you will accept service from the person (or an agent of that person) who provided the Kigo Site with the complaint at issue
- 8.4 Repeat Infringers It is our policy in appropriate circumstances to disable and/or terminate the accounts of users who are repeat infringers.
9. Indemnification and Limitation of Liability.
- 9.1 Indemnification. You agree to indemnify and hold Kigo, its affiliates, and Service Providers, and each of its or their respective directors, managers, officers, owners, agents, co-branders or other partners, employees, information providers, licensors, licensees, consultants, contractors and other representatives (collectively “Indemnified Parties”) harmless from any and all claims, demands, investigations, causes of action, damages, debts, liabilities, including reasonable attorney’s fees arising out of or related to: (a) your use, including the use by anyone using your User Credentials, of your Account, the Services or your Wallet, (b) any breach or non-compliance by you or anyone using your User Credentials, of any of these Terms; (c) your, or anyone using your User Credentials, violation of law, regulation or other legal requirement; or (d) any dispute or litigation caused by your, or anyone using your User Credentials, actions or omissions. We will use commercially reasonable efforts to notify you of any such claims that are subject to your indemnification obligation.
- 9.2 Repayment. If you redeemed Rewards from your Account that we subsequently reverse, you will be solely responsible to us for the repayment of the cash-value of the Rewards. We may, but are not required to, apply future earned Rewards against such obligation or require you to repay the amount of any such credited Rewards from your Account. In the event you fail to pay us such amount, we reserve the right to take all legal action necessary to collect such amount from you.
- 9.3 Limitation of Liability; No Warranty.
IN NO EVENT SHALL KIGO, ITS AFFILIATES AND SERVICE PROVIDERS, OR ANY OF THEIR RESPECTIVE DIRECTORS, MANAGERS, OFFICERS, OWNERS, AGENTS, CO-BRANDERS OR OTHER PARTNERS, EMPLOYEES, INFORMATION PROVIDERS, LICENSORS, LICENSEES, CONSULTANTS, CONTRACTORS OR OTHER REPRESENTATIVES, BE LIABLE FOR ANY LOST PROFITS, LOSS OF GOODWILL OR REPUTATION, LOSS OF DATA, DIMINUTION IN VALUE OR BUSINESS OPPORTUNITY, ANY LOSS, DAMAGE, CORRUPTION OR BREACH OF DATA OR ANY OTHER INTANGIBLE PROPERTY OR ANY OTHER SPECIAL, INCIDENTAL, INDIRECT, INTANGIBLE, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH ANY USE OF THE KIGO SITE OR THE SERVICES, OR THESE TERMS, EVEN IF WE HAVE BEEN ADVISED OF OR KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE, EXCEPT TO THE EXTENT OF A FINAL DETERMINATION THAT SUCH DAMAGES WERE A RESULT OF OUR GROSS NEGLIGENCE, FRAUD, WILLFUL MISCONDUCT OR INTENTIONAL VIOLATION OF LAW. IN NO EVENT SHALL KIGO, ITS AFFILIATES AND SERVICE PROVIDERS, OR ANY OF THEIR RESPECTIVE DIRECTORS, MANAGERS, OFFICERS, OWNERS, AGENTS, CO-BRANDERS OR OTHER PARTNERS, EMPLOYEES, INFORMATION PROVIDERS, LICENSORS, LICENSEES, CONSULTANTS, CONTRACTORS OR OTHER REPRESENTATIVES, BE LIABLE FOR ANY AMOUNT GREATER THATHE GREATER OF THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING KIGO DURING THE TWELVE (12) MONTHS PRECEDING YOUR CLAIM OR $100.00. AT THE TIME OF THE EVENT OR CIRCUMSTANCE GIVING RISE TO YOUR CLAIM. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU
THE 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, KIGO SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR NON-INFRINGEMENT. KIGO DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT ACCESS TO THE KIGO SITE, ANY PART OF THE SERVICES, OR ANY OF THE MATERIALS CONTAINED THEREIN, WILL BE CONTINUOUS, UNINTERRUPTED, TIMELY, OR ERROR-FREE. KIGO DOES NOT GUARANTEE THAT ANY ORDER WILL BE EXECUTED, ACCEPTED, RECORDED OR REMAIN OPEN. EXCEPT FOR THE EXPRESS STATEMENTS SET FORTH IN THESE TERMS, YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU HAVE NOT RELIED UPON ANY OTHER STATEMENT OR UNDERSTANDING, WHETHER WRITTEN OR ORAL, WITH RESPECT TO YOUR USE AND ACCESS OF THE SERVICES AND KIGO SITE. WITHOUT LIMITING THE FOREGOING, YOU HEREBY UNDERSTAND AND AGREE THAT KIGO WILL NOT BE LIABLE FOR ANY LOSSES OR DAMAGES ARISING OUT OF OR RELATING TO: (A) ANY INACCURACY, DEFECT OR OMISSION OF DIGITAL ASSET PRICE DATA, OR ANY ERROR, DELAY OR INTERRUPTION IN THE TRANSMISSION OF SUCH DATA; (B) VIRUSES OR OTHER MALICIOUS SOFTWARE OBTAINED BY ACCESSING THE KIGO SITE, SOFTWARE, SYSTEMS OPERATED BY KIGO OR ON OUR BEHALF OR ANY OF THE SERVICES OR ANY WEBSITE OR SERVICE LINKED TO THE KIGO SITE; (C) GLITCHES, BUGS, ERRORS, OR INACCURACIES OF ANY KIND IN THE KIGO SITE, SOFTWARE, SYSTEMS OPERATED BY US OR ON OUR BEHALF OR ANY OF THE SERVICES; OR (D) A SUSPENSION OR OTHER ACTION TAKEN WITH RESPECT TO YOUR ACCOUNT.
WITHOUT LIMITING THE OTHER LIMITATIONS SET FORTH IN THESE TERMS, KIGO IS AND ITS SERVICE PROVIDERS ARE NOT AGENTS OF ANY MERCHANT. MERCHANTS OPERATE INDEPENDENTLY OF AND ARE NOT UNDER OUR CONTROL. ACCORDINGLY, WE DO NOT REPRESENT OR WARRANT, OR GIVE ANY ASSURANCES THAT ANY THIRD-PARTY WILL PROVIDE REWARDS FOR ANY PARTICULAR TRANSACTION, SUPPORT ADVERTISED OR CLAIMED FUNCTIONALITY OF A DIGITAL ASSET. FURTHER, YOUR PARTICIPATION IN OFFERS OR PROMOTIONS OF, OR CORRESPONDENCE WITH, ANY MERCHANT OR OTHER THIRD-PARTY IS SOLELY BETWEEN YOU AND THAT PERSON. WE DO NOT ASSUME ANY LIABILITY, OBLIGATION OR RESPONSIBILITY FOR ANY PART OF ANY SUCH CORRESPONDENCE, OFFER OR PROMOTION, INCLUDING WITHOUT LIMITATION THE WITHDRAWAL OR MODIFICATION OF ANY SUCH OFFER OR PROMOTION.
10. Dispute Resolution; Waiver of Jury Trial.
- 10.1 Indemnification. Arbitration; No Class Actions. Any controversy or claim arising out of or relating to these Terms, or the breach thereof, the Services, Kigo Site, your Account or your Wallet (“Disputes”) shall be exclusively settled by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, you or Kigo may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and you or Kigo may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). You and Kigo agree to arbitrate solely on an individual basis, and that these Terms do not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. The arbitral tribunal may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. In the event the prohibition on class arbitration set forth in this Section 10.1 is deemed invalid or unenforceable, then the remaining portions of the arbitration agreement will remain in force. You shall have the right to opt-out of this agreement to arbitrate and the class action waiver set forth in this Section 10.1 by providing written notice of your intention to do so to within thirty (30) days of the execution of these Terms (i.e. the date you register your Account). Witten notice must be sent to firstname.lastname@example.org. Any opt-out request postmarked after that date will not be effective, and you will continue to be bound by the terms of this Section 10.1.
- 10.2 YOU AND KIGO AGREES TO WAIVE THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY OF ANY DISPUTES BY ANY OF THEM AGAINST THE OTHER OR ANY AFFILIATE OF SUCH OTHER PARTY, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE. EACH PARTY AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THESE TERMS
- 11.1 Governing Law. These Terms and any and all Disputes shall be controlled, construed and enforced in accordance with the laws of the State of Minnesota regardless of its choice of law provisions
- 11.3 GContravention and Invalidity The invalidity or unenforceability of any particular provision of these Terms shall not affect the other provisions herein, and these Terms shall be construed in all respects as if such invalid or unenforceable provision were omitted. Further, if any provision is held to be overbroad as written, that provision should be considered to be amended to narrow its application to the extent necessary to make the provision enforceable according to applicable law and enforced as amended.
- 11.4 No Waiver Nothing in these Terms shall be construed to waive rights that cannot be waived under applicable laws. No waiver, express or implied, by Kigo of a default by you under these Terms shall constitute a waiver of any subsequent default nor shall a waiver, express or implied, made by Kigo of a default by you under these Terms have any impact on Kigo’s ability to enforce these Terms to the fullest extent permitted by law.
- 11.5 Assignment. You shall not transfer or assign these Terms or any of your rights or licenses granted hereunder without prior written consent of Kigo. Kigo may assign these Terms and any of our rights hereunder without restriction. In the event that Kigo is acquired by or merged with a third-party (including through a sale of substantially all of its assets), we reserve the right, in any of these circumstances, to transfer or assign the information we have collected from you as part of such merger, acquisition, sale, or other change of control. Any attempted transfer or assignment by you in violation hereof shall be null and void. Subject to the foregoing, this these Terms shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
- 11.6 Headings. The headings of these Terms are for the purpose of reference only and shall not in any way limit or affect the meaning or interpretation of any of the terms hereof.
- 11.7 Force Majeure. We shall not be liable for damages for any delay, interruption, or failure in the performance of Services or with respect to these Terms which result directly or indirectly from any cause or condition beyond our reasonable control, including but not limited to acts of God, fire, flood, war, government regulations by direction or request, acts of civil or military authorities, market volatility, pandemic, accident, terrorist activities, labor trouble, interruption in telecommunications or Internet services or network provider services, failure of equipment and/or software, other catastrophe or any other occurrence which is beyond our reasonable control and shall not affect the validity and enforceability of any remaining provisions
- 11.8 Survival. All provisions of these Terms which by their nature extend beyond the expiration or termination of these Terms, including, without limitation, sections pertaining to suspension or termination, Account cancellation, debts owed to Kigo, general use of the Kigo Site, disputes with us, and general provisions, shall survive the termination or expiration of these Terms
- 11.9 Electronic Communications. You agree and consent to receive electronically all communications, agreements, documents, notices and disclosures (collectively, “Communications”) that we provide in connection with your Account(s) and your use of Services. These Communications include without limitation: these Terms and policies you agree to, including updates to these agreements or policies; Account details, history, transaction receipts, confirmations, and any other Account or transaction information; legal, regulatory, and tax disclosures or statements we may be required to make available to you; and responses to claims or customer support inquiries filed in connection with your Account. We will provide these Communications to you by posting them on the Kigo Site, emailing them to you at the primary email address listed in your profile, communicating to you via instant chat, and/or through other electronic communication such as text message or mobile push notification
- 11.10 Changes to Services: Discontinuation Kigo reserves the right, from time to time and in its sole discretion, to modify, improve, suspend or discontinue any or all of the Services at any time. You agree that we may transfer you to a product or service that is reasonably similar to the discontinued or changed product or service, to the extent such product or service exists. We are not required to provide you with notice of any such changes, suspension, discontinuation, or transfer related to a product, service, or feature, to the extent required or applicable.
- 11.11 Relationship of the Parties Kigo is an independent contractor for all purposes. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between you and Kigo, and you shall not have authority to contract for or bind Kigo in any manner whatsoever.