Effective May 18, 2018
These Terms are an agreement between you and Lone Wolf Investments, Inc., which operates the website www.BitIRA.com, and its affiliates (collectively, “BitIRA,” the “Company,” “we,” “us,” or “our”) and governs your use of the website made available at www.BitIRA.com and its associated webpages and mobile applications (collectively, the “Site”), including all communications and interactions with BitIRA through or facilitated by the Site.
In the event you sign a Customer Agreement with BitIRA and there is an inconsistency between the Customer Agreement and these Terms, the Customer Agreement you execute (as amended, if appropriate, pursuant to the procedure specified in the Customer Agreement for amendment of the Customer Agreement) shall control and govern.
These Terms are also for the express benefit of BitIRA’s representatives, officers, shareholders, subsidiaries, employees, and agents (including service providers). If and to the extent an action of any kind is brought against any such person on account of the Site or any communications and interactions with BitIRA through or facilitated by the Site, such persons shall have all of the protections afforded by these Terms, including the dispute resolution procedure.
Both you and the Company agree, with the limited exceptions noted below, to resolve all disputes between you and the Company through BINDING INDIVIDUAL ARBITRATION as further provided below. BINDING INDIVIDUAL ARBITRATION MEANS THAT YOU AND THE COMPANY ARE EACH WAIVING THE RIGHT TO A JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION.
With respect to your use of the Site, these Terms may be amended by us from time to time at our sole discretion. Please periodically review the controlling, online version of these Terms. By continuing to use the Site subsequent to the Company making available an amended version of these Terms, you thereby acknowledge, agree and consent to such amendment.
You represent that: (1) you are at least 18 years of age; (2) you are of legal capacity to form a binding contract; and (3) you are not a person barred from receiving services under the laws of the United States or other applicable jurisdictions.
YOUR USE OF THE SITE
You may access portions of this Site without registering. However, you may be required to register with and sign into the Site to access all of its features. You are responsible for maintaining the confidentiality of your username, password, and other information used to register and sign into the Site, and you are fully responsible for all activities that occur under this username and password. Please immediately notify us of any unauthorized use of your account or any other breach of security by contacting us at email@example.com. If you interact with us or with affiliated or third-party service providers, you agree that all information that you provide will be accurate, complete, and current.
This Site may be linked to other websites. You acknowledge and agree that the Company is not responsible for the availability of such external websites, and does not endorse and is not responsible or liable for any content, advertising, products and/or other materials on or available from such websites. The Company makes no warranties or representations of any kind as to the accuracy, currency, or completeness of any information contained in such websites and shall have no liability for any damages or injuries of any kind arising from such content or information. You further acknowledge and agree that the Company 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 website. Inclusion of any third party link does not imply an endorsement or recommendation by the Company.
We reserve the right at any time to modify or discontinue, temporarily or permanently, this Site or any part thereof with or without notice. You agree that the Company shall not be liable to you or to any third party for any modification, suspension or discontinuance of this Site or any part thereof.
PRICING INFORMATION, PORTFOLIO VALUATION, AND TRANSACTION HISTORY DISCLAIMERS
BitIRA does not make a market in any digital, virtual, or crypto currency (as those terms are customarily understood in the financial services industry), such as Bitcoin, Ethereum, Ripple, Bitcoin Cash, Litecoin, and Ethereum Classic (without limitation, “Digital Currency”).
Pricing data (and resulting portfolio valuation and performance data) displayed on the Site are provided by or based on information provided by one or more exchanges, may be delayed or otherwise not up to date, may be incorrect, and there is no guarantee that any amount of Digital Currency can be purchased or liquidated for the price indicated. No price is guaranteed until the transaction is settled on the exchange settling the transaction. Valuation and performance data exclusive of custodial, wallet provider and BitIRA transaction fees.
BitIRA will make commercially reasonable efforts to ensure that transaction history information, including associated portfolio holdings, are all accurately displayed on the Site (via BitIRA’s portal feature), but BitIRA does not guarantee the accuracy of such information.
All pricing and other information (including portfolio valuation and performance data) on the Site is provided on an “as is” basis for your personal information only, no representations are made as to the accuracy of such information, and you agree not to rely upon such information for any purpose. If you want up to date and complete pricing information for your Digital Currency holdings, or in connection with a potential purchase, including any associated BitIRA, Custodian, and Wallet Provider fees or costs, please contact a BitIRA sales specialist for assistance. All transactions must be verbally confirmed, are subject to BitIRA’s Customer Transaction Agreement, and additional documentation confirming the transaction will need to be executed before a transaction will be processed.
BitIRA (a) expressly disclaims the accuracy, adequacy, or completeness of any pricing or valuation or performance data displayed and (b) shall not be liable for any errors, omissions or other defects in, delays or interruptions in such data, or for any actions taken in reliance thereon. BitIRA shall not be liable for any damages relating to your use of the information provided on the Site.
BITIRA PORTAL FEATURE
BitIRA’s interactive portal provides a feature whereby existing customers may initiate the process for purchasing or selling Digital Currencies. Please note that all transactions must be processed through a BitIRA sales specialist and that no purchase or sale is confirmed, or price guaranteed, until the transaction is settled by the exchange pursuant to the processes outlined in BitIRA’s Customer Transaction Agreement. Any proposed transaction is subject to all of the exceptions and restrictions set forth in the Customer Transaction Agreement, including those sections addressing the possibility of order denial. This feature permits a customer to apprise BitIRA of his or her desire to proceed with a transaction, but it is not binding. A BitIRA sales specialist will contact the customer to process the transaction. BitIRA is not responsible for any intervening market movements. Please feel free to contact BitIRA directly at (800) 299-1567 to further expedite the processing and other handling of your transaction. BitIRA is not responsible for any intervening market movement. Please note that BitIRA only operates and processes transactions during normal business hours (Pacific time).
Investment Risk. In BitIRA’s opinion, Digital Currencies are a highly speculative investment. Digital Currencies are a relatively new asset and they are not backed by a sovereign government or nation. Digital Currencies, like fiat currencies in general, are not backed by a physical asset and, with exceptions, have no physical, easily transferrable form. Currently at least, Digital Currencies depend entirely on the public’s willingness to accept the currency as a medium of exchange, and, unlike the U.S. dollar, there is no legal requirement that any provider of goods or services accept Digital Currencies as legal tender. Further, the regulatory framework is unsettled and evolving, and technological advances and developments in Digital Currency mining, competing alternatives, and other variables that might affect the market for such Digital Currencies are unpredictable.
Financial Sophistication/Risk Tolerance. In BitIRA’s opinion, anyone considering purchasing Digital Currency should have the financial flexibility and resources, and the risk tolerance, to lose the entire investment.
Digital Currency Alternatives, Percentage of Holdings, and Hold Periods. BitIRA does not offer any opinion as to which Digital Currency(ies) to purchase, in what amount, and for how long a customer should hold such Digital Currency. Nor does BitIRA offer any opinion as to what percentage, if any, of a customer’s portfolio should be devoted to alternative and highly speculative investments like Digital Currency.
No Investment, Tax, Financial Planning, or Retirement Advice. You acknowledge and agree that (a) BitIRA is not an investment specialist, tax specialist, financial planner (certified or otherwise), or retirement advisor, and (b) BitIRA does not provide investment advice, tax advice, financial planning services, or retirement planning or retirement-specific advice.
No Fiduciary, Broker, or Agency Relationship. You understand and acknowledge that BitIRA is a for-profit retail seller of Digital Currencies. BitIRA does not mine Digital Currencies or otherwise contribute to their creation or the expansion of the Digital Currency supply available for sale. BitIRA facilitates the purchase of Digital Currency, nothing more, and charges a fee for the service it provides (based on the transaction value). No fiduciary relationship, broker dealer relationship, principal agent relationship or other special relationship exists between BitIRA and its customers.
Commissioned Sales Representatives. You understand and acknowledge that BitIRA’s sales representatives are commissioned salespersons i.e., their salary is based, at least in part, on the amount of Digital Currency they sell. BitIRA’s sales representatives are not licensed and their knowledge regarding the intricacies of Digital Currency investing varies.
Past Performance No Guarantee of Future Returns. You acknowledge and agree that historical performance is no guarantee of future results.
Returns Not Guaranteed. You acknowledge and agree that BitIRA has made, and can make, no guarantee or representation that anyone purchasing Digital Currency will make a profit when that person liquidates any Digital Currency purchased from BitIRA.
Assumption of the Risk; Decision to Purchase or Sell Is Customer’s Alone. Customers purchasing or liquidating Digital Currency assume the risk of all purchase and sale decisions, and such customers acknowledge and agree that all such decisions are based on such customer’s own research, prudence and judgment. BitIRA makes no guarantee or representation regarding any customer’s ability to profit from any transaction or the tax implications of any transaction.
Legality of Holding Digital Currency in an Individual Retirement Account. BitIRA is not a legal or tax professional and does not provide legal or tax advice. It is BitIRA’s understanding that Digital Currencies may be held in an individual retirement account, but if you have any questions regarding the legal rules applicable to individual retirement accounts, including which assets may be held in such an account, you should contact a legal or tax advisor. BitIRA makes no representation or warranty that purchasing Digital Currency for placement in an individual retirement account complies with government regulations or statutes or that current rules and statutes (or the interpretation of existing rules and statutes) will not change.
Volatility. You acknowledge and agree that the success of an investment in Digital Currency is dependent in part upon extrinsic economic forces including supply, demand, international monetary conditions, inflation or the expectation of inflation, confidence (or any lack thereof) in the security or technological foundation of the Digital Currency, the emergence of additional alternative currencies, market acceptance, and an evolving and unpredictable regulatory framework. The impact of these forces on the value of Digital Currencies, or any particular Digital Currency, cannot be predicted. You acknowledge and agree that Digital Currency markets can be volatile.
OUR INTELLECTUAL PROPERTY
The Company and our associated logos and names, if any, are our trademarks and/or service marks. Other trademarks, service marks, names, and logos used on or through the Site, such as trademarks, service marks, names, or logos associated with third party organizations, are the trademarks, service marks, or logos of their respective owners. You are granted no right or license with respect to any of the foregoing trademarks, service marks, or logos.
Certain materials available on or through the Site are our Works (i.e., content we own, authored, created, purchased, or licensed). Our Works may be protected by copyright, trademark, patent, trade secret, and/or other laws, and we reserve and retain all rights in our Works and the Site. We hereby grant you a royalty-free, limited, revocable, non-sublicensable, and non-exclusive license to access our Works solely for your personal use in connection with using the Site. You may not otherwise reproduce, distribute, communicate to the public, make available, adapt, publicly perform, link to, or publicly display the Works or any adaptations thereof unless expressly set forth herein.
CONTENT YOU SUBMIT
You and other users may be able to upload, post, create, make available, send, share, communicate, transmit, or submit (“Submit”) data, information, comments, ideas, or other types of content (collectively, “Web Content”) to or through the Site and other websites linked to on the Site. You understand that all content Submitted by users of the Site (“User Web Content”) is the sole responsibility of the person from whom such content originated. We do not make any guarantee whatsoever related to User Web Content. Under no circumstances will we be liable or responsible in any way for any claim related to User Web Content.
You retain ownership of any intellectual property contained in your User Web Content. However, you grant us a royalty-free, irrevocable, transferrable, sublicensable, and non-exclusive perpetual license throughout the universe for use in any and all media whether now known or hereafter devised to use and exploit (including without limitation by reproduction, distribution, public display, adaptation, communication to the public, and/or public performance) any and all User Web Content that you Submit to or through the Site. You also waive to the fullest extent permitted by law any and all claims against us related to moral rights in the User Web Content. In no circumstances will we be liable to you for any exploitation of any User Web Content that you Submit. You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish and exploit User Web Content that you Submit.
You also grant other users of the Site a non-exclusive, royalty free license to access your User Web Content via the Site consistent with the terms herein and to engage in any reproductions, public performances, communications to the public, distributions, or public displays necessary to do so.
By submitting to us any comment or testimonial, you grant to us and our designees, successors, assigns and licensees the irrevocable, royalty-free right to publish, disseminate, and use your name and likeness, as well as your comment or testimonial, without further notice or consideration, in perpetuity, throughout the world, in all media and media now known or hereafter invented.
The Company has no obligation of confidentiality, express or implied, with respect to any User Web Content that you Submit to us through the Site or through the Internet by email or otherwise, such as any questions, comments, suggestions, or the like. The Company shall be entitled to use, exploit, or disclose (or choose not to use, exploit, or disclose) such User Web Content at our sole and absolute discretion without any obligation to you whatsoever (i.e., you will not be entitled to any compensation or reimbursement of any kind from us under any circumstances whatsoever). The Company shall be free to use any ideas, concepts, know-how or techniques contained in any communication from you to the Company for any purpose whatsoever, including but not limited to, developing, manufacturing and marketing products, without further authorization from you and without any compensation to you.
PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT FOR USER CONTENT AND LINKS
We have adopted a policy, in compliance with the Digital Millennium Copyright Act (“DMCA”), to enable, at our sole discretion, the expeditious removal of infringing material and the termination of repeat infringers’ accounts. If you have a good faith belief that your copyright is being infringed by any Content accessible on or through the Site, please send a notice of claimed infringement, including the information listed below, to our Designated Copyright Agent at:
By mail: BitIRA, Attn: Copyright Agent, 3500 W. Olive Ave., Suite 730, Burbank, CA 91505
By email: firstname.lastname@example.org
By fax: (800) 299-1596, Attention to Copyright Agent.
To be effective, the notice of claimed infringement must include the following required contents:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works are covered by a single notification, a representative list of such works;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity that is to be removed, or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material (providing specific URLs is the best way to help us locate the Content quickly);
- Information reasonably sufficient to permit us to contact the complaining party, such as the address, telephone, fax, and/or an email address at which the complaining party may be contacted;
- A statement that the complaining party has a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Please note that information provided in this legal notice may be forwarded to the person who provided the allegedly infringing Content.
To leave a message for the Company’s Designated Agent by phone please call (800) 299-1567.
PROCEDURE FOR MAKING OTHER COMPLAINTS
If you believe that your rights, or the rights of a third party, are being violated in any way by any Content accessible on or through the Site, please contact us at email@example.com. Where appropriate, we will work to prevent unlawful activity from taking place on or through the Site.
PROHIBITED CONDUCT/REPRESENTATIONS AND WARRANTIES
You represent and warrant that you will not use the Site to:
- Violate any law (including without limitation laws related to torts, contracts, patents, trademarks, trade secrets, copyrights, defamation, obscenity, rights of publicity, or other rights) or encourage or provide instructions to another to do so;
- Act in a manner that negatively affects other users’ ability to use the Site, including without limitation by engaging in conduct that is harmful, threatening, abusive, inflammatory, intimidating, violent or encouraging of violence, harassing, stalking, invasive of another’s privacy, or racially, ethnically, or otherwise objectionable;
- Submit any User Web Content containing unsolicited or unauthorized advertising, promotional materials, spam, junk mail, chain letters, pyramid schemes, or any other form of unauthorized solicitation;
- Submit any User Web Content containing sweepstakes, contests, or lotteries, or otherwise related to gambling;
- Submit any User Web Content containing copyrighted materials, or materials protected by other intellectual property laws, that you do not own;
- Submit any User Web Content for which you have not obtained all necessary written permissions and releases;
- Misrepresent any fact (including without limitation your identity);
- Submit any User Web Content that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, including by engaging in any denial of service attack or similar conduct;
- Exceed your authorized access to any portion of the Site;
- Collect or store personal data about anyone;
- Modify without permission any part of the Site;
- Obtain or attempt to access or otherwise obtain any Content or information through any means not intentionally made available or provided for through the Site;
- Exploit errors in design, features which are not documented and/or bugs to gain access that would otherwise not be available;
- Use any robot, spider, scraper, or other automated means to access the Site for any purpose;
- Take any action that imposes, or may impose an unreasonable or disproportionately large load on our infrastructure; or
- Interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site, or bypass any measures we may use to prevent or restrict access to the Site.
You agree to indemnify and hold the Company and its representatives, officers, shareholders, subsidiaries, affiliates, employees, and agents harmless from any and all third party claims, demands, actions, suits, losses, obligations, liabilities, judgments, proceedings, damages, expenses and costs (including reasonable attorneys’ fees and expenses), based upon or relating to any act or omission on your part (or anyone acting on your behalf). You hereby agree that we shall have the sole right and obligation to control the legal defense against any such claims, demands, or litigation, including the right to select counsel of our choice and to compromise or settle any such claims, demands, or litigation.
DISCLAIMER OF WARRANTIES
YOU USE THIS SITE AT YOUR SOLE RISK. THIS SITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY DISCLAIMS ALL WARRANTIES OF ANY KIND RELATED TO THE SITE AND CONTENT OBTAINED THROUGH THIS SITE, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED: (1) THAT THIS SITE WILL MEET YOUR REQUIREMENTS; (2) THAT THE QUALITY OF ANY CONTENT OBTAINED BY YOU THROUGH THE SITE WILL MEET YOUR EXPECTATIONS; (3) THAT THE OPERATION OF THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR THAT ANY DEFECTS WILL BE CORRECTED; OR (4) THAT THE SITE, OUR SERVERS, OR COMMUNICATIONS SENT FROM US WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM YOUR USE OF THIS SITE.
NO AGENT, EMPLOYEE, OR REPRESENTATIVE OF OURS HAS ANY AUTHORITY TO BIND US TO ANY AFFIRMATION, REPRESENTATION, OR WARRANTY RELATING TO OUR PRODUCTS OTHER THAN AS SPECIFICALLY PROVIDED HEREIN OR IN OUR CUSTOMER AGREEMENT.
LIMITATION OF LIABILITY
THE COMPANY SHALL NOT BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE AND CONSEQUENTIAL DAMAGES ARISING FROM THE USE OF, OR THE INABILITY TO USE, THIS SITE OR FROM ANY INFORMATION, CONTENT OR MATERIALS INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THIS SITE, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS FOUNDED UPON CONTRACT, INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, TORT, NEGLIGENCE, OR OTHER GROUNDS. THIS LIMITATION DOES NOT, HOWEVER, EXTEND TO DIRECT OR CONSEQUENTIAL DAMAGES FOR PERSONAL PHYSICAL INJURY. YOU AGREE NOT TO FILE ANY LAWSUIT OR PROCEEDING INCONSISTENT WITH THE FOREGOING LIABILITY LIMITATIONS.
SOME JURISDICTIONS MAY NOT PERMIT CERTAIN LIMITATIONS OF LIABILITY OR DAMAGES. IF ANY COURT DETERMINES THE LAW OF SUCH A JURISDICTION APPLIES, OUR LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
If you have a dispute with one or more users of the Site, or with any party who provides advertising or third-party services, on, or through the Site, or with any party who provides a website linked to on the Site, you release the Company from claims, demands, and damages (incidental, indirect, punitive, statutory, exemplary, expectation, special or consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute. If you have a dispute with any third party in any way pertaining to our products or services, you release the Company from claims, demands, and damages (incidental, indirect, punitive, statutory, exemplary, expectation, special or consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute. You also waive California Civil Code § 1542 which says:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
You also waive any and all benefits and rights that would otherwise accrue to you by reason of the provisions of any federal or state statute or principle of common law of any state of the United States, or any political entity or nation, province or local law or regulation that may govern this release, which statute, regulation, law or principle provides in substance something similar to California Civil Code § 1542. You agree not to file any action or lawsuit inconsistent with the foregoing release.
DISPUTES AND DISPUTE RESOLUTION
BINDING ARBITRATION AGREEMENT AND CLASS WAIVER DISCLOSURE
Both You and the Company agree, with the limited exceptions noted below, to resolve all disputes between You and the Company through BINDING INDIVIDUAL ARBITRATION as further provided below. BINDING INDIVIDUAL ARBITRATION MEANS THAT YOU AND THE COMPANY ARE EACH WAIVING THE RIGHT TO A JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION.
Both You and the Company waive the right to bring any controversy, claim or dispute arising out of or relating in any way to Your use of the Site as a class, consolidated, representative, collective, or private attorney general action, or to participate in a class, consolidated, representative, collective, or private attorney general action regarding any such claim brought by anyone else. (This waiver, which is discussed further below, is generally referred to herein as the class action waiver.)
Use of this Site and any controversy, claim or dispute arising out of or relating in any way to your use of the Site shall be governed by the laws of the State of California without respect to its choice (or conflict) of laws rules. Notwithstanding the immediately preceding sentence or anything else herein to the contrary, the requirement to arbitrate claims on an individual basis, and the arbitration provisions set forth herein in general, shall be governed by and interpreted in accordance with the Federal Arbitration Act.
Jurisdiction and venue for any dispute shall be in Los Angeles, California. Each party submits to personal jurisdiction and venue in that forum for any and all purposes. If this paragraph would render any other paragraph or provision of these Terms unenforceable, then jurisdiction and venue shall instead be in your home county of residence.
AGREEMENT TO PRE-ARBITRATION NOTIFICATION
These Terms provide for final, binding arbitration of all disputed claims (discussed immediately below). The Company and You agree, however, that it would be advantageous to discuss and hopefully resolve any disputes before arbitration proceedings or any other proceedings authorized herein are initiated. In the event of a dispute, the claimant (whether You or the Company) shall send a letter to the other side briefly summarizing the claim and the request for relief. If the Company is the claimant, the letter shall be sent to whatever address is on file for You. If You are the claimant, the letter shall be sent to BitIRA, Attn: Compliance Department, 3500 W. Olive Ave., Suite 730, Burbank, CA 91505. If the dispute is not resolved within 60 days after the letter is sent, the claimant may proceed to initiate arbitration proceedings or any other proceedings authorized herein.
AGREEMENT TO ARBITRATE CLAIMS
Except to the limited extent noted below, use of this Site and any controversy, claim or dispute arising out of or relating in any way to your use of the Site shall be resolved by final and binding arbitration.
Disputes Under $25,000
If the amount in dispute is less than $25,000, the arbitration shall take place in Los Angeles County, California in accordance with the Commercial Arbitration Rules and the Consumer-Related Disputes Supplementary Procedures of the American Arbitration Association. Unless either party or the arbitrator requests a hearing, the parties will submit their arguments and evidence to the arbitrator in writing. The arbitrator will make an award based only on the documents. This is called a Desk Arbitration. If any party makes a written request for a hearing within ten days after the American Arbitration Association acknowledges receipt of a claimant’s demand for arbitration (or the arbitrator requests a hearing), the parties shall participate in a telephone hearing. In no event shall the parties be required to travel to Los Angeles to participate in the arbitration.
If you decide to commence arbitration, the provider will require to you to pay a filing fee (which, at the time these Terms were posted, is currently $200). If your filing fee is more than $200, the Company will reimburse you for any excess fee promptly after it receives notice of your arbitration. If the arbitrator ultimately rules in your favor, the Company will also reimburse you for the $200 base fee. Finally, you may request from the arbitrator a waiver of this fee on the ground that you cannot afford it. If the arbitrator concludes that a waiver is appropriate – using the same standards that would apply if you sought waiver from the Los Angeles Superior Court – then the Company will promptly reimburse the fee after it receives notice of the arbitrator’s waiver decision. The Company will pay all of the arbitrator’s fees for hearing the matter, provided the amount claimed in your demand is less than $25,000.
If the arbitrator rules in your favor in any respect on the merits of your claim and issues you an award that is greater than the value of the Company’s last written settlement offer made before an arbitrator was selected (or greater than zero if no offer was made), then the Company will pay you the amount of the award or $5,000, whichever is greater (in addition to reimbursing you for the base fee).
Disputes Where $25,000 Or More Is Claimed
If the amount in dispute is equal to or greater than $25,000, the dispute will be decided exclusively by final and binding arbitration before a single arbitrator in Los Angeles, California. The arbitration shall be administered by JAMS pursuant to its comprehensive arbitration rules and procedures. These rules may be found at https://www.jamsadr.com/adr-rules-procedures. Notwithstanding the immediately preceding sentence, if the JAMS Rules or any applicable JAMS Minimum Standards require it, or the Arbitrator concludes that it would be a financial or other hardship for You to participate in an arbitration in Los Angeles, the Arbitrator has the authority to hold the hearing, or any part thereof, in the county where You live or to permit You to attend via videoconference, Skype, Facetime, telephonic or similar virtual participation. Subject to the JAMS rules, including the Minimum Standards of Fairness, if applicable, the fees of the arbitration, together with other expenses of the arbitration incurred or approved by the arbitrator, shall be divided equally between the parties.
Procedures Applicable Regardless Of Amount At Issue
This arbitration agreement is subject to the Federal Arbitration Act and is enforceable pursuant to its terms on a self-executing basis. Either party may seek enforcement of this provision in any court of competent jurisdiction.
The arbitrator shall determine any and all challenges to the arbitrability of a claim. The arbitral award shall be judicially enforceable. Any court of competent jurisdiction may, and upon request shall, enter judgment on the arbitral award. Either party may seek confirmation (judgment on the award) and/or enforcement in any court of competent jurisdiction.
Both You and the Company waive the right to bring any claim covered by this dispute resolution provision as a class, consolidated, representative, collective, or private attorney general action, or to participate in a class, consolidated, representative, collective, or private attorney general action regarding any claim covered by this dispute resolution provision brought by anyone else.
Notwithstanding any provision in the applicable arbitration rules or procedures to the contrary, the arbitrator shall not have the authority or any jurisdiction to hear the arbitration as a class, consolidated, representative, or private attorney general action or to consolidate, join, or otherwise combine the claims of different persons into one proceeding.
If a proposed class, consolidated, representative, collective, or private attorney general action arbitration is initiated notwithstanding the above prohibition and it is finally determined by the arbitrator (or a court of competent jurisdiction) that the waiver of such joined proceedings specified herein is not enforceable, then the entirety of this Dispute Resolution procedure shall be null and void.
SMALL CLAIMS PROCEDURE ALTERNATIVE
Notwithstanding the foregoing binding arbitration procedure, either party may bring an individual action in small claims court (provided the claim otherwise qualifies for such program) as an alternative to proceeding with arbitration.
NOTICE FOR CALIFORNIA USERS
To the extent California Civil Code Section 1789.3 is deemed to apply to BitIRA’s operations, please note the following: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210.
Absent execution of a Customer Agreement with BitIRA, these Terms constitute the entire agreement between you and the Company and govern Your use of this Site.
These Terms and the rights, benefits and obligations contained herein are fully assignable by us and will be binding upon and inure to the benefit of our successors and assigns.
No party, nor any of the parties’ respective attorneys, shall be deemed the drafter of this agreement for purposes of interpreting any provision hereof in any judicial or other proceeding that may arise between the parties.
Except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to this agreement. For the purpose of clarity, the Company’s representatives, officers, shareholders, subsidiaries, affiliates, employees, and agents are intended third-party beneficiaries.
Any failure of the Company to exercise or enforce any right or provision of these Terms shall not constitute a waiver or relinquishment to any extent of such right or provision. Any waiver of any right or provision of these Terms must be in writing.
With the exception of any findings as to the enforceability of the waiver of joined proceedings, which is addressed specifically above, if any other provision of these Terms is found by a court of competent jurisdiction to be invalid, the court should nevertheless endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms shall remain in full force and effect.
The headings in these Terms are for convenience only and have no legal or contractual effect.
We may terminate or amend these Terms for any or no reason at any time by notifying you through a notice on the Site, by email, or by any other method of communication. Any such termination will be without prejudice to our rights, remedies, claims, or defenses hereunder.
“Include,” “Includes,” “Including,” “include,” “includes,” and “including” herein mean including without limitation.