KEYGEN LABS, INC.
Martian App Terms of Service
**Last Updated: 2nd Feb 2023
IMPORTANT NOTICE REGARDING ARBITRATION FOR U.S. CUSTOMERS: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND MARTIAN THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 18 (DISPUTE RESOLUTION) BELOW FOR DETAILS REGARDING ARBITRATION.
1. Agreement to Terms
By clicking “I Agree” or by accessing or using the Services (or any portion thereof), you hereby agree to be bound by these Terms. If you don’t agree to be bound by these Terms, you may not access or use the Services.
3. Changes to Terms or Services
We may modify the Terms at any time at our sole discretion. If we do so, we’ll let you know by posting the modified Terms or providing you a notice through the App, and/or through other methods of communication which we deem reasonable. If you continue to use the Services after we have posted modified Terms, it means that you accept and agree to the changes. If you do not agree to be bound by the changes, you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
4. Who May Use the Services
YOU MAY USE THE SERVICES ONLY IF YOU ARE 18 YEARS OR OLDER AND CAPABLE OF FORMING A BINDING CONTRACT WITH MARTIAN, AND NOT OTHERWISE BARRED FROM USING THE SERVICES UNDER APPLICABLE LAW. By agreeing to these, Terms you represent and warrant to us that you are: (i) at least eighteen (18) years old; (ii) that you have not previously been suspended, removed or deactivated from the Services; (iii) that your registration and use of the Services is in compliance with any and all applicable laws and regulations.
b. Wallet and Account Creation
To use the App, you will need to create a password (“Password”). You will also need to create a new blockchain wallet on a supported blockchain via the App or import an existing blockchain wallet (a “Wallet”). You may create or import more than one Wallet.
When you create a Wallet using the App, the App will generate a twelve-word secret phrase (“Secret Phrase”), which is a series of randomly-generated words that can be used to access the Wallet. To import an existing Wallet, you will need to input the Secret Phrase associated with that Wallet. You should save your Secret Phrase(s) in a safe place that only you can access.
You may also create separate subaccounts within your Wallet (each, an “Account”), each with its own separate private key and public address. The private keys for your Wallet and individual Account(s) will not be stored by the App or by Martian. The App will also store on your device an encrypted copy of your private keys, which you can decrypt using the Password (or with your device’s biometric authentication, if enabled).
The Password, private keys, and Secret Phrases (together, your “Wallet Credentials”) are highly sensitive and should be kept confidential. You are solely responsible for safeguarding your Wallet Credentials and you should not share them with any third party. Further, you are solely responsible for all activities that occur through or in connection with your Wallet, or are otherwise attributable to your Wallet Credentials, whether or not you know about them. You acknowledge and agree that Martian does not have access to your Wallet or Wallet Credentials and is not responsible or liable to you for any transactions conducted using your Wallet.
5. Receiving Rewards
Upon successful installation of the App, you may be eligible to receive rewards in the form of collectibles and/or tokens. To successfully claim these rewards, you will need to link one of your Accounts to your Twitter account and you agree to allow Martian to: register and transfer the reward to the Twitter- linked Account on your behalf at the time of installation. You acknowledge and agree that there is no monetary value associated with any rewards you may receive from Martian as a result of installing or interacting with the App and any rewards you receive cannot be redeemed for cash, digital assets, or any other form of value from Martian at any time.
6. Recovery Procedure
Martian does not store your Wallet Credentials and cannot decrypt or re-generate your private key. However, you can use the App to re-generate your private keys using your Recovery Phrase. Your personal device may store your Wallet Credentials in an encrypted manner, but we do not have access to these details. Notwithstanding anything to the contrary under these Terms, you acknowledge that Martian does not have access to your Wallet or the digital assets therein and is not responsible in any way for the security of your Wallet or any digital assets or transactions therein or therethrough, and MARTIAN HEREBY DISCLAIMS ANY AND ALL LIABILITY AND RESPONSIBILITY FOR OR IN CONNECTION WITH YOUR WALLET, THE SERVICES, THE RECOVERY PROCEDURE DESCRIBED HEREIN, OR ANY DIGITAL ASSETS OR TRANSACTIONS THEREON OR THERETHROUGH, AND YOU AGREE TO HOLD MARTIAN HARMLESS FROM AND IN CONNECTION WITH ANY SUCH LIABILITY OR RESPONSIBILITY.
We appreciate feedback, comments, ideas, proposals, and suggestions for improvements to the Services (“Feedback”). If you choose to submit Feedback, you agree that we are free to use it without any restriction or compensation to you, and 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 freely and without restriction use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
8. Content Ownership
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 Services; and (ii) “User Content” means any Content that you make available through the Services. 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.
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, Martian and its licensors exclusively own all rights, title, and interest in and to the App, Services, Content (excluding User Content) and any other services or applications supplied by us to you under this Agreement, including all associated intellectual property rights (“Martian Rights”).
You acknowledge that the Martian Rights 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 Martian Rights.
9. 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 the User Content or any part thereof does not infringe the intellectual property rights or any other rights of any third party.
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.
10. Rights and Terms for Apps.
If you comply with these Terms, Martian grants to you a limited non-exclusive, non-transferable license, with no right to sublicense, to download and install the App on your personal computers, mobile handsets, tablets, wearable devices, and/or other devices and to run the App solely for your own personal non-commercial purposes.
Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend, or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App (unless applicable law permits, despite this limitation); or (iv) make the functionality of the App available to one or more third parties through any means.
Our Fees. 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 native swap functionality. We reserve the right to change those fees in our sole discretion with notice. We will disclose the amount of fees we will charge you for the applicable Service at the time that you access the Service.
Martian charges a flat 0.85% transaction fee on swaps happening natively inside the App. Our native integration is with Hippo Labs, which executes these swaps and receives a portion of the total transaction fee. In connection with the native swap feature, you understand and agree that swap rates and prices are estimates only, dependent on variable factors such as network congestion and gas fees, and that they may change at any time. Accordingly, the prices or swap rates provided via the Services, including on the native swap interface, are estimates only and may be inaccurate. Martian may not be held liable for, and you hereby forever release Martian from, any losses or other liabilities arising from an inaccurate estimate of fees provided in connection with any use of the Services.
Third-Party Fees. Through the App, you may be able to access services provided by third parties (“Third-Party Services”). You may incur fees imposed by third parties if you use Third-Party Services. For example, you may be charged fees by the blockchain-based applications that you may access via the App. You may also be charged fees by third parties if you elect to link the App to a third-party exchange or other platform for facilitating digital asset transactions. Fees for Third-Party Services are not charged by Martian and are not paid to Martian. Although we will attempt to provide accurate fee information, any such information reflects our estimate of fees, which may differ from the fees actually paid, based on variable factors such as network congestion and gas fees.
12. General Restrictions and Martian’s Enforcement Rights
You agree not to do any of the following:
- Breach these Terms or any other agreement between you and Martian;
- Use, display, mirror, or frame the Services or any individual element within the Services, Martian’s name, any Martian trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Martian’s express written consent;
- Access, tamper with, or use non-public areas of the Services, Martian’s computer systems, or the technical delivery systems of Martian’s providers;
- Attempt to probe, scan or test the vulnerability of any Martian system or network or breach any security or authentication measures;
- Access, use, or attempt to access or use another user’s Wallet;
- Provide any false, inaccurate, or misleading information;
- Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Martian or any of Martian’s providers or any other third party (including another user) to protect the Services;
- Attempt to access or search the Services or download content from the Services using any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Martian or other generally available third-party web browsers;
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
- Use any meta tags or other hidden text or metadata utilizing a Martian trademark, logo URL, or product name without Martian’s express written consent;
- Use the Services, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services to send altered, deceptive, or false source-identifying information;
- Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;
- Interfere with, or attempt to interfere with, the access of any user, host, or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
- Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
- Impersonate or misrepresent your affiliation with any person or entity;
- Violate any applicable law or regulation;
- Encourage or enable any other individual to do any of the foregoing; or
- Engage or assist in any activity that violates any law, statute, ordinance, regulation, or sanctions program, or any activity that involves the proceeds of any unlawful activity (including but not limited to money laundering, terrorist financing, or deliberately engaging in activities designed to adversely affect the performance of the Services).
U.S. residents are prohibited from using the App for any staking activities. If you are a U.S. resident, you agree that you will not attempt to use the App in connection with any staking activities and that Martian has the right to block you from using or accessing such services through the App. For purposes of this provision, “staking” refers to the activity of locking digital assets in wallet for the purpose of validating transactions on a given blockchain or providing liquidity.
Although we have no obligation to monitor any User Content, we have absolute discretion to review, monitor, or 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. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
You agree to comply with all applicable U.S. and non-U.S. export control and trade sanctions laws. Without limiting the foregoing, you may not download the App or use the Services: (i) if you are in, under the control of, or a national or resident of Cuba, Iran, North Korea, Syria, or the Crimea, Donetsk People’s Republic, and Luhansk People’s Republic regions of Ukraine, or any other country or region subject to a U.S. embargo; (ii) you are listed on any sanctions asset blocking list or export denial list maintained by the U.S., EU, UK, Canada, and UN, such as the Specially Designated Nationals and Blocked Persons List (“SDN List”) administered by the US Department of Treasury’s Office of Foreign Assets Control (“OFAC”) or the Entity List administered by the US Department of Commerce’s Bureau of Industry and Security; or (iii) to conduct any transaction with any person located in a country or region subject to U.S. economic sanctions or that is on the SDN List or other list enforced by OFAC.
13. Third Party Materials
The Services may contain links to third-party services, Dapps, or information (“Third Party Materials”). The Services may enable you to access Dapps by navigating away from the App to the Dapp or by enabling a native frontend software link within the Services. When using Third Party Materials, you understand that you are at no time transferring your assets to us. We provide access to Third Party Materials only as a convenience, do not have control over their content, do not warrant or endorse, and are not responsible or liable for the availability or legitimacy of, the content, products or services on or accessible from those Third Party Materials (including any related websites, resources, or links displayed therein). Certain Services we provide may rely on Third Party Materials, including third-party information used to identify the recipient of a transaction you execute through your Wallet.of any Third Party Materials (including linking the Wallet to any third-party account) may be subject to such third party’s terms, conditions, restrictions, and privacy policies, solely between you and such third party.
We make no warranties or representations, express or implied, about Third Party Materials, the third parties they are owned and operated by, the information contained on them, or the suitability of their products or services. You acknowledge and assume sole responsibility for and assume all risk arising from your use of any Third-Party Materials, including third-party websites, applications, or resources, and the use of any Service that relies on Third Party Materials. Your use of any Third Party Materials (including linking the Wallet to any third-party account) may be subject to such third party’s terms, conditions, restrictions, and privacy policies, solely between you and such third party.
We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you. Upon any termination, discontinuation or cancellation of Services: all rights and/or licenses granted to you under these Terms shall immediately cease and terminate and you shall forthwith cease the use and/or access of the Services (including the App) and Content thereon in any way whatsoever. Notwithstanding the foregoing, the following provisions will survive: Sections 7 (Feedback), 8 (Content Ownership), 9 (Rights in User Content Granted by You), 11 (Fees), 12 (General Restrictions and Martian’s Enforcement Rights), 14 (Termination), 15 (Warranty Disclaimers), 16 (Indemnity), 17 (Limitation of Liability), 18 (Governing Law and Forum Choice), 19 (Dispute Resolution), and 20 (General Terms). Following cancellation of your Account, Martian has no responsibility to maintain any of your data on your behalf.
15. Warranty Disclaimers
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE APP AND SERVICES AND OUR CONTENT IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. THE APP AND SERVICES AND OUR CONTENT 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, MARTIAN SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, AND/OR NON- INFRINGEMENT. MARTIAN DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT ACCESS TO THE APP AND SERVICES OR ANY OF THE MATERIALS OR CONTENT CONTAINED THEREIN WILL BE CONTINUOUS, UNINTERRUPTED, TIMELY, OR ERROR-FREE, OR THAT CONTENT WILL BE ACCURATE, RELIABLE, TRUTHFUL, OR COMPLETE.
ADDITIONALLY, NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, MARTIAN HEREBY DISCLAIMS ANY AND ALL LIABILITY AND RESPONSIBILITY FOR OR IN CONNECTION WITH YOUR HANDLING, MISHANDLING, DISCLOSURE (INCLUDING UNAUTHORIZED DISCLOSURE), USE, OR MISUSE, OF ANY WALLET CREDENTIALS (INCLUDING ANY UNAUTHORIZED ACCESS TO SUCH DETAILS ON YOUR PERSONAL DEVICE).
THE WALLET IS A SELF-CUSTODIAL WALLET THAT HELPS YOU INTERACT WITH THE BLOCKCHAIN ON YOUR OWN BEHALF; MARTIAN DOES NOT HAVE THE ABILITY TO EFFECTUATE OR BLOCK ANY TRANSACTION THEREIN. MARTIAN DOES NOT HAVE ACCESS TO YOUR WALLET CREDENTIALS, YOUR FUNDS, OR ANY DIGITAL ASSETS WITHIN YOUR WALLET, WHICH ARE YOUR SOLE RESPONSIBILITY.
THE SERVICES RELY ON OR INTERACT WITH EMERGING TECHNOLOGIES. YOUR USE OF THE SERVICES IS SUBJECT TO RISK THROUGH YOUR POTENTIAL MISUSE OF YOUR LOGIN CREDENTIALS, THE INHERENT VOLATILITY AND UNPREDICTABILITY IN THE VALUE OF MANY DIGITAL ASSETS, AND THE IRREVERSIBILITY OF BLOCKCHAIN-BASED TRANSACTIONS, AMONG OTHERS. BY USING THE SERVICES, YOU ACKNOWLEDGE AND ACCEPT THE RISKS OF ENGAGING IN DIGITAL ASSET TRANSACTIONS AND REPRESENT THAT YOU ARE FINANCIALY AND TECHNICALLY SOPHISTICATED ENOUGH TO UNDERSTAND THESE RISKS.
Martian is a software developer and does not operate a digital asset exchange or offer other financial services related to the transfer of digital assets. All transactions between users are peer-to-peer transactions conducted through self-custodial wallets, authorized and executed directly by users through smart contracts. Neither Martian nor the App receives or takes possession of any user’s digital assets for transfer to any third party.
You will indemnify and hold harmless Martian and its officers, directors, employees and agents, 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 or in any way connected with: (i) your access to or use of the App, Services, your Wallet(s), or Content; (ii) your User Content; (iii) Third Party Materials; (iv) any use of your Wallet Credentials; or (v) your violation of these Terms.
17. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER MARTIAN NOR ITS SERVICE PROVIDERS (INCLUDING THOSE INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE APP AND SERVICES) WILL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOSS OF FUNDS OR DIGITAL ASSETS, FAILURE TO OBTAIN ACCOUNT ACCESS, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT MARTIAN OR ITS SERVICE PROVIDERS HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
TO THE MAXIMUM EXTENT PERMITTED BY THE LAW OF THE APPLICABLE JURISDICTION, IN NO EVENT WILL MARTIAN’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE AMOUNTS YOU HAVE PAID TO MARTIAN FOR USE OF THE SERVICES OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO MARTIAN, AS APPLICABLE.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN MARTIAN AND YOU.
18. Governing Law and Forum Choice.
These Terms and any action related thereto will be governed by the laws of the State of California, without regard to its conflict of laws provisions. The parties expressly consent to personal and exclusive jurisdiction in the state and federal courts located in San Francisco, California, and you and Martian each waive any objection to jurisdiction and venue in such courts.
19. Dispute Resolution
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE, EXCEPT AS PROVIDED BELOW, IT REQUIRES USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES RATHER THAN JURY OR OTHER COURT PROCEEDINGS, OR CLASS OR REPRESENTATIVE ACTIONS OF ANY KIND.
You and Martian agree that any dispute between you and Martian arising out of or relating to these Terms, the App, or the Services, (each a “Dispute”) will be governed by the arbitration procedure outlined this Section (the “Arbitration Agreement”).
a. Governing Law
The Arbitration Agreement evidences a transaction in interstate commerce and thus the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”) will govern the interpretation and enforcement of this section. If the FAA is found not to apply to any issue that arises under this section or the enforcement of the Arbitration Agreement, then that issue will be resolved under the laws of the State of California.
b. Informal Resolution of Disputes
You and Martian must first attempt to resolve any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, “Disputes”) informally. Accordingly, neither you nor Martian may start a formal arbitration proceeding without providing notice of the Dispute in writing. Your notice must be provided via email to [legal@ martianwallet.xyz ]. If the parties cannot resolve the Dispute within sixty (60) days after receipt of notice, either party may initiate arbitration proceedings in accordance with the terms of this Section 19.
c. Mandatory Arbitration
We each agree that any Dispute will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding, except as set forth under Exceptions below. You and Martian agree that the FAA governs the interpretation and enforcement of these Terms, and that you and Martian are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
As limited exceptions to Section 19© (Mandatory Arbitration) above: (i) we may each seek to resolve a Dispute in small claims court if it qualifies and is brought and maintained as an individual action; and (ii) we each retain the right to seek injunctive or other equitable relief from a court, including to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights.
e. Conducting Arbitration and Arbitration Rules
The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written demand for Arbitration to AAA and give notice. You can send a copy of the completed form to [firstname.lastname@example.org]. Martian will send you a copy by [email]. The AAA provides a form Demand for Arbitration at www.adr.org.
The AAA will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes then in effect. Arbitration will be handled by a single arbitrator in accordance with those rules. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve any dispute about the interpretation, validity, applicability, or enforceability of this Arbitration Agreement.
You may choose to have arbitration conducted solely on the basis of documents submitted to the arbitrator, via a telephone hearing, by an in-person hearing in the county of your residence, or as otherwise mutually agreed to by the parties.
f. Arbitration Costs
Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules, and we won’t seek to recover the administration and arbitrator fees we are responsible for paying, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration, we will pay all of our attorneys’ fees and costs and we won’t seek to recover them from you. If you prevail in arbitration, you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law. of all filing, administration and arbitrator fees will be governed by the AAA Rules, and we won’t seek to recover the administration and arbitrator fees we are responsible for paying, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration, we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
g. Injunctive and Declaratory Relief
Except as provided in Section 19(d) (Exceptions) above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the extent that you or we prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
h. Class Action Waiver
** YOU AND MARTIAN ACKNOWLEDGE AND AGREE THAT EACH ARE WAIVING THE RIGHT TO A TRIAL BY JURY. THE PARTIES FURTHER AGREE THAT ANY ARBITRATION SHALL BE CONDUCTED IN THEIR INDIVIDUAL CAPACITIES AND NOT AS A CLASS ACTION OR OTHER REPRESENTATIVE ACTION, AND THE PARTIES EXPRESSLY WAIVE THEIR RIGHT TO FILE A CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS. YOU AND MARTIAN MAY NOT BE PLAINTIFFS OR CLASS MEMBERS IN ANY PURPORTED CLASS, COLLECTIVE, CONSOLIDATED, OR REPRESENTATIVE ACTION, AND MAY EACH BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY**. Further, if the parties’ Dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Section 19 (Dispute Resolution) shall be null and void.
i. Arbitrator’s Decision
The arbitrator’s decision shall be written and binding on the parties and may be entered as a judgment in any court of competent jurisdiction. A party that prevails in arbitration will be entitled to an award of attorney’s fees and expenses to the extent provided under applicable law.
With the exception of any of the provisions in Section 19(g) (Class Action Waiver) above, if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
20. General Terms
These Terms constitute the entire and exclusive understanding and agreement between Martian and you regarding the App and Services, and these Terms supersede and replace all prior oral or written understandings or agreements between Martian and you regarding the App and Services. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise, without Martian’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Martian may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by Martian under these Terms will be given: (i) via email; or (ii) by posting to the Services. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.
Martian’s 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 Martian. 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.
21. Contact Information
If you have any questions about these Terms or the Services, please contact Martian at email@example.com.