User Agreement

User Agreement

Last Updated: May 16, 2018

PLEASE READ THIS BITTITAN USER AGREEMENT CAREFULLY. BY ACCESSING OR USING THE BITTITAN SERVICE OFFERINGS DESCRIBED BELOW, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS DESCRIBED IN THIS USER AGREEMENT AND ALL TERMS INCORPORATED BY REFERENCE.

IF YOU ARE A BUSINESS ANYWHERE IN THE WORLD, OR IF YOU ARE A CONSUMER RESIDENT IN THE U.S.A. OR ELSEWHERE IN THE WORLD (EXCEPT IN JURISDICTIONS WHERE APPLICABLE LAW PROHIBITS MANDATORY ARBITRATION), THESE TERMS REQUIRE YOU TO ARBITRATE DISPUTES WITH BITTITAN, LIMIT BITTITAN’S LIABILITY AND THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM BITTITAN. IF YOU ARE A CONSUMER RESIDENT IN THE EUROPEAN UNION (OR OTHER APPLICABLE JURISDICTIONS WHERE APPLICABLE LAW PROHIBITS MANDATORY ARBITRATION), YOU HAVE THE OPTION OF ARBITRATING DISPUTES WITH BITTITAN, PURSUANT TO SECTION 15 BELOW BUT ARE NOT REQUIRED TO DO SO.

This BitTitan User Agreement (“User Agreement”) is an agreement between BitTitan, Inc. (“BitTitan” “we”, “us” or “our”), a company headquartered at 3933 Lake Washington Blvd NE, Suite 200, Kirkland, WA 98033, and you or the entity that you represent (“you” or “your”). This User Agreement applies to your access to and use of the BitTitan Service Offerings (defined below) and incorporates by this reference the Service Specific Terms (“Service Specific Terms”), which supplement this User Agreement. The Service Specific Terms together with the User Agreement and any Policies or other terms incorporated herein by reference are collectively referred to as the “Agreement”.

IF YOU DO NOT AGREE TO ALL OF THE APPLICABLE TERMS AND CONDITIONS IN THIS AGREEMENT, DO NOT USE THE BITTITAN SERVICE OFFERINGS.

This Agreement does not alter in any way the terms or conditions of any other agreement you may have with BitTitan for products or services other than the BitTitan Service Offerings. If you are accessing or, using the BitTitan Service Offerings on behalf of any entity, you represent and warrant that you are authorized to accept this Agreement on such entity's behalf, and that such entity agrees to indemnify and hold harmless you and BitTitan for violations of this Agreement by you, the entity or Authorized Users (defined below).

BitTitan reserves the right to change or modify any of the terms and conditions contained in this Agreement or any policy or guideline of any Service Site (defined below) or BitTitan Service Offerings, including, without limitation, the Service Specific Terms (defined below), at any time and in its sole discretion on a prospective basis. If BitTitan makes changes, BitTitan will provide you with notice, such as by sending an email, providing notice through the Service Site or applicable BitTitan Service Offerings or updating the date at the top of this User Agreement or the applicable policies or guidelines. Your continued use of the Service Sites or applicable BitTitan Service Offerings will confirm your acceptance of such changes. We encourage you to frequently review this Agreement and any other applicable policies and guidelines to ensure you understand the terms and conditions that apply to your use of the Service Sites and BitTitan Service Offerings, including, without limitation, the Service Specific Terms. If you do not agree to the amended Agreement, policies or guidelines, you must stop using the Service Sites and BitTitan Service Offerings.

If you have questions about this Agreement, contact us at support@bittitan.com

  1. DEFINITIONS

Words with their initial letters capitalized and not otherwise defined herein or in the Service Specific Terms will have the meanings set forth in Appendix 1.

  1. TERMS OF USE; SERVICE SPECIFIC TERMS

(a) The BitTitan Terms of Use (“Terms of Use”) apply to your access to and use of any Service Site. BitTitan has the right to terminate or suspend your access to or use of the Service Sites and BitTitan Service Offerings, with or without notice, in the event that you violate the Terms of Use. In case of any discrepancy between this User Agreement and the Terms of Use, this User Agreement shall prevail.

(b) The Service Specific Terms apply to your access to and use of each BitTitan Service Offering. The Service Specific Terms supplement this Agreement and are incorporated herein by this reference. BitTitan has the right to terminate or suspend your access to or use of the BitTitan Service Offerings, with or without notice, in the event that you violate the Service Specific Terms. In case of any discrepancy between this User Agreement and the Service Specific Terms, the Service Specific Terms shall prevail.

  1. ACCEPTABLE USE

Access to and use of the BitTitan Service Offerings is governed by our Acceptable Use Policy, which supplements this Agreement and is incorporated herein by this reference. Failure to comply with our Acceptable Use Policy may result in, among other actions, suspension or termination of your right to access and use the Service Sites and BitTitan Service Offerings.

  1. DATA

(a) As between BitTitan and You, You retain all right, title and interest in and to any Client Data. Except as provided in this Section 8, BitTitan obtains no rights under this Agreement from You to the Client Data, including any related Intellectual Property Rights.

(b) BitTitan reserves the right to: (i) disclose Client Data to You, its service providers and where required by applicable law or court order; (ii) disclose Aggregated Data to third parties; and (iii) store Client Data in the United States and other countries.

(c) You hereby grant to BitTitan a perpetual, nonexclusive license to collect, use, store, maintain, make Client Data available to third parties as authorized by the Purpose.

(i) By using MigrationWiz or any Service, You consent, on behalf of Yourself, Your Clients, all Client Personnel (as applicable) and Customer Personnel (as applicable), to have and all Client Data and MigrationWiz Data (including personal information) transferred to and processed in the United States or any other country in which BitTitan operates, where You, Clients, Client Personnel and Customer Personnel may have fewer rights than under local law.

(ii) You will provide all legally required notices to ensure that You and BitTitan may collect, use and disclose Client Data in accordance with the terms of this Agreement without violating any applicable laws, including by providing notice of a privacy policy to Clients that accurately describes how You collect, use and disclose information (including Client Data and MigrationWiz Data) from Clients, Client Personnel and Customer Personnel, as applicable. Without limiting the generality of the foregoing, You will ensure that Your privacy policy discloses that information (including Client Data and MigrationWiz Data) from Clients, Client Personnel and Customer Personnel may be shared with BitTitan. Your privacy policy will apply to all of Your interactions with Clients, Client Personnel and Customer Personnel.

(d) As between BitTitan and You, BitTitan owns all right, title, and interest in and to all MigrationWiz Data. Refer to BitTitan’s Privacy Policy for information about how BitTitan collects, uses and discloses information from or about You, Clients, Client Personnel or Customer Personnel.

(e) To the extent any Client Data includes personal data received from the European Union ("EU Data"), You will be deemed a data controller of such EU Data and BitTitan will be deemed a data processor of such EU Data. BitTitan will only use Client Data for the Purpose and as otherwise authorized under this Agreement. BitTitan will provide at least the same level of protection for EU Data as is required by the relevant principles of the EU-U.S. Privacy Shield Principles established by the European Commission and the United States Department of Commerce ("Principles"). If BitTitan determines that it can no longer provide this level of protection, BitTitan will notify You of this determination, and will cooperate with Your reasonable requests regarding the discontinuance or remediation of further processing of EU Data under this Agreement.

  1. PRIVACY POLICY

Please refer to our Privacy Policy for information about how BitTitan collects, uses and discloses information from its users. By using the BitTitan Service Offerings, you consent to have your data (including personal information) transferred to and processed in the United States or any other country in which BitTitan operates, where you may have fewer rights than under local law.

  1. ELIGIBILITY AND BITTITAN SERVICE OFFERINGS ACCOUNT

(a) Eligibility. You must be at least 18 years old or the age of majority in your jurisdiction of residence to access or use the BitTitan Service Offerings. You represent and warrant that you are not: (i) a resident of any country subject to a United States embargo or other similar United States export restrictions, including Iran, Libya or Syria; (ii) on the United States Treasury Department's list of Specifically Designated Nationals; (iii) on the United States Department of Commerce's Denied Persons List or Entity List; or (iv) on any other United States export control list.

(b) Registration. In order to access and use the BitTitan Service Offerings, you will need to register for an account ("Services Account") on the Services Sites and accept this Agreement. You agree to: (i) provide accurate, truthful, current and complete information when creating a Services Account; and (ii) maintain and promptly update your Services Account information. Your login password should be chosen carefully and not contain any personal or other information that may be easily guessed by anyone else.

(c) Services Code; Protection of Your Services Account. Your login credentials, will allow you to use and access the BitTitan Service Offerings. You agree to: (i) maintain the security of your Services Account by not sharing your login credentials or your Services Code with others and restricting access to your Services Account; (ii) promptly notify BitTitan if you discover or otherwise suspect any security breaches related to the BitTitan Service Offerings, including if your login credentials or Services Code have been compromised; and (iii) take sole responsibility for all activities that occur under your Services Account and accept all risks of unauthorized access. Any distribution by you of your login credentials or your Services Code may result in termination of your access to the BitTitan Service Offerings.

  1. BITTITAN SERVICE OFFERINGS

(a) Not for Resale. Except to customers for whom you are providing professional services as permitted by the applicable Service License, you may not resell or otherwise transfer or distribute any Service Licenses under this Agreement.

(b) Authorized Users. You are responsible for any access or use of the BitTitan Service Offerings by Authorized Users. "Authorized Users" include your customers, employees, independent contractors, agents, or consultants who you authorize to access and use your Services Account or any BitTitan Service Offerings in accordance with the applicable Service License or for whom you provide professional services in connection with the BitTitan Services Offerings. Further, you will ensure that all Authorized Users comply with your obligations under this Agreement (including, without limitation, compliance with the Policies). For this Agreement, the acts or omissions of any of your Authorized Users are considered your acts or omissions.

(c) User Representations and Warranties. By accessing or using the BitTitan Service Offerings, you represent and warrant that: (i) you have the right and authority to access and use the BitTitan Service Offerings to interact with or perform any services for Authorized Users relating to or using User Materials; (ii) your access or use of the BitTitan Service Offerings will not violate any agreement or obligation between you and a third party or cause BitTitan to be in violation of any agreement between BitTitan and a third party; (iii) your access or use of the BitTitan Service Offerings will not violate any applicable law, ordinance or regulation or cause BitTitan to be in violation of any applicable law, ordinance or regulation; and (iv) the User Materials do not now and will not in the future infringe, misappropriate or violate any Intellectual Property Rights of a third party.

(d) Support. Basic support for all BitTitan Service Offerings and service levels applicable certain BitTitan Service Offerings are described in the applicable Service Specific Terms. Please see our Community Site for details regarding additional support or service level offerings.

  1. TERMS OF SALE

(a) Fees. Unless otherwise agreed in writing (including an email describing specific pricing or discounts initiated by BitTitan), you will pay BitTitan the fees, compensation and other amounts for each Service License ("Fees") as set forth on the applicable Service Site or through the applicable BitTitan Service Offering in advance of your use of the BitTitan Service Offerings. All Fees for the BitTitan Service Offerings under this Agreement are denominated in United States Dollars and you shall pay all such amounts in lawful currency of the United States. BitTitan may modify the Fees at any time upon notice to you, which notice shall be communicated either through a posting on the applicable Service Site, through the applicable BitTitan Service Offering or via e-mail; provided, however, that if BitTitan changes the Fees associated with a monthly or annual subscription, it will provide you with at least 30 days’ advance notice of such change. If you do not accept the change, you should terminate your Service License by following the instructions in the Service Specific Terms.

(b) Payment Options. Only valid credits cards or other payment methods acceptable to BitTitan may be used. By submitting an order to purchase one or more Service Licenses, you authorize BitTitan, or its designated payment processor, to charge the Fees and to process and store such payment information and any other related personal information for the purpose of charging the Fees. If the card or other payment method cannot be verified, is invalid or is otherwise not acceptable, your access to and use of the BitTitan Service Offerings may be suspended or cancelled automatically.

(c) Cancellations and Refunds. If you purchased or acquired a Service License from BitTitan, then there are no cancellations or refunds, except as provided in this Agreement or as required by law. To the fullest extent permitted by applicable law, BitTitan reserves the right to refuse or cancel purchases or attempted purchases at any time and in its sole discretion.

(d) Billing Statements. BitTitan will provide you with a billing statement for your purchase of any Service License or Service Licenses ("Billing Statement") in electronic form.

(e) Taxes. Unless otherwise stated, the Fees do not include any taxes, customs, duties, fees or other charges assessed or imposed by any governmental authority other than taxes imposed on or measured by BitTitan's net income. You will pay or reimburse BitTitan for all such taxes and charges imposed on any party with respect to any BitTitan Service Offerings or measured by any amount payable to BitTitan under this Agreement upon demand or provide certificates or other evidence of exemption. You will defend, indemnify and hold harmless BitTitan and the BitTitan Parties from and against any claim related to your tax obligations or your failure to collect or remit any applicable taxes.

  1. INDEMNIFICATION

(a) Indemnification. You will defend, indemnify and hold harmless BitTitan and the BitTitan Parties from and against any third party claims, suits or actions and any resulting damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys' fees) arising out of or related to: (i) unauthorized use of the Service Sites or the BitTitan Service Offerings by you or any Authorized Users; (ii) violation of any terms of this Agreement by you or any of your Authorized Users; (iii) violation or non-compliance with applicable law related to your access or use of the BitTitan Service Offerings; or (iv) any alleged or actual infringement, violation, or misappropriation of any Intellectual Property Rights, by you, your agents or representatives, or by Authorized Users related to any User Materials.

(b) Procedure. You will provide BitTitan prompt written notice of any assistance you may reasonably request to help you defend any claim subject to Section 8(a). You will pay or reimburse all of the costs and expenses reasonably incurred by BitTitan in connection with any such assistance. You will not have any right to settle any claim without BitTitan's written consent, if such settlement contains a stipulation to or admission or acknowledgement of, any wrongdoing (whether in contract, tort or otherwise) on part of BitTitan or otherwise requires BitTitan to take or refrain from taking any material actions (such as the payment of fees). BitTitan will have the right to approve the counsel you select for defense of any claim, which approval will not be unreasonably withheld. Further, BitTitan may, at its option and expense, participate in or assume control of the defense and settlement of any claim at any time.

(c) BitTitan Parties. Each of the BitTitan Parties is an intended third party beneficiary under Section 6(c) and this Section 8 and consequently has the right to assert and enforce Section 6(c) and this Section 8 directly against you on its own behalf. BitTitan, however, has no obligation to assert or enforce Section 6(c) or this Section 8 on behalf of any of the BitTitan Parties.

  1. DISCLAIMER

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE SITES AND THE BITTITAN SERVICE OFFERINGS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BITTITAN DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE BITTITAN SERVICE OFFERINGS AND THE SERVICE SITES, INCLUDING THE INFORMATION, CONTENT AND MATERIALS CONTAINED THEREIN. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BITTITAN DOES NOT REPRESENT OR WARRANT THAT THE BITTITAN SERVICE OFFERINGS OR THE SERVICE SITES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. WHILE BITTITAN ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF THE BITTITAN SERVICE OFFERINGS AND THE SERVICE SITES SAFE, BITTITAN CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE BITTITAN SERVICE OFFERINGS OR SERVICE SITES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES.

WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU ACKNOWLEDGE THAT USER MATERIALS MAY BECOME IRRETRIEVABLY LOST OR CORRUPTED OR TEMPORARILY UNAVAILABLE DUE TO A VARIETY OF CAUSES, INCLUDING BUT NOT LIMITED TO, HARDWARE OR SOFTWARE FAILURES, PROTOCOL CHANGES BY E-MAIL ACCOUNT PROVIDERS, INTENTIONAL DATA BLOCKAGES BY E-MAIL ACCOUNT PROVIDERS, INTERNET OUTAGES, ACTS OF GOD OR OTHER DISASTERS, SCHEDULED OR UNSCHEDULED MAINTENANCE, OR OTHER CAUSES EITHER WITHIN OR OUTSIDE BITTITAN'S CONTROL. YOU ARE SOLELY RESPONSIBLE FOR VERIFYING THAT ANY USER MATERIALS OR DATA YOU MIGRATE THROUGH THE BITTITAN SERVICE OFFERINGS HAVE BEEN ACCURATELY REPRODUCED AT THEIR NEW DESTINATION.

SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS, SO SOME OR ALL OF THE DISCLAIMERS IN THIS SECTION MAY NOT APPLY TO YOU.

  1. LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL BITTITAN NOR ANY OF THE BITTITAN PARTIES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE BITTITAN SERVICE OFFERINGS OR THE SERVICE SITES, INCLUDING THE INFORMATION, CONTENT AND MATERIALS CONTAINED THEREIN, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY YOU ON ANY INFORMATION OBTAINED FROM BITTITAN, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR E-MAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO BITTITAN'S RECORDS, PROGRAMS, BITITAN SERVICE OFFERINGS OR THE SERVICE SITES.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF BITTITAN OR ANY OF THE BITTITAN PARTIES, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE LESSER OF (A) THE AMOUNTS YOU HAVE PAID TO BITTITAN, IF ANY, DURING THE 30 DAYS PRIOR TO THE DATE OF THE EVENT GIVING RISE TO LIABILITY OR (B) $100. EACH OF THE BITTITAN PARTIES IS AN INTENDED THIRD PARTY BENEFICIARY UNDER THIS SECTION 10 AND CONSEQUENTLY HAS THE RIGHT TO ASSERT AND ENFORCE THIS SECTION 10 DIRECTLY AGAINST YOU ON ITS OWN BEHALF. BITTITAN, HOWEVER, HAS NO OBLIGATION TO ASSERT OR ENFORCE THIS SECTION 10 ON BEHALF OF ANY OF THE BITTITAN PARTIES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NOTHING IN THESE TERMS EXCLUDES OR LIMITS BITTITAN’S LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE OR FOR FRAUD.

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY IN CONTRACTS WITH CONSUMERS, SO SOME OR ALL OF THESE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.

  1. ARBITRATION

PLEASE READ THE FOLLOWING SECTION CAREFULLY because IT REQUIRES YOU TO arbitrate certain disputes WITH BITTITAN AND IT may LIMIT THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM BITTITAN (NO CLASS ARBITRATIONS, CLASS ACTIONS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS).

(a) Binding Arbitration; Disputes; Small ClaimsBitTitan’s goal is to resolve claims fairly and quickly. Accordingly, subject to Section 11(b) below, for any Dispute between you and BitTitan, you and BitTitan will each waive any right to a jury trial, or the right to have any Dispute resolved in any court, and instead accept the use of final and binding arbitration (which is the referral of a Dispute to one or more impartial persons for a final and binding determination); provided, however, that subject to Section 11(b) below, you have the right to litigate any Dispute in small claims court, if all the requirements of the small claims court, including any limitations on jurisdiction and the amount at issue in the Dispute, are satisfied. You will bring a Dispute through arbitration in King County, Washington or, if you reside in the U.S., in small claims court only in your county of residence or King County, Washington.

(b) Exceptions to Binding Arbitration and Small Claims. You and BitTitan agree that the following Disputes are not subject to the above provisions concerning informal negotiations, small claims and binding arbitration: (i) IP Disputes; and (ii) any claim for injunctive relief.

(c) No Class Arbitrations, Class Actions or Representative Actions. You and BitTitan agree that any Dispute is personal to you and BitTitan, and that any Dispute shall only be resolved through individual arbitration and shall not be brought as a class arbitration, a class action, or any other representative proceeding. You and BitTitan agree that there will be no class arbitration or an arbitration where a person brings a Dispute as a representative of any other person or persons. Further, you and BitTitan agree that a Dispute cannot be brought as a class or other type of representative action, whether inside or outside of arbitration, or on behalf of any other person or persons.

(d) Federal Arbitration Act. You and BitTitan agree that this Agreement affects interstate commerce and that the enforceability of Section 11 shall be governed by, construed, and enforced, both substantively and procedurally, by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”) to the maximum extent permitted by applicable law.

(e) Confidentiality. The arbitrator, BitTitan, and you shall maintain the confidentiality of any proceedings, including but not limited to, any and all information gathered, prepared, and presented for purposes of the arbitration or related to the Dispute(s) therein. The arbitrator shall have the authority to make appropriate rulings to safeguard that confidentiality, unless the law provides to the contrary.

(f) Process. For any Dispute between you and BitTitan, you and BitTitan will first attempt to negotiate any Dispute informally for 30 days before initiating or seeking to compel any arbitration or to resolve any claim in court. Such informal negotiations commence upon written notice from one party to the other (“Notice”). The Notice to BitTitan must be sent by certified mail addressed to: Legal Counsel, 218 Main Street, #719, Kirkland, Washington 98033. Your Notice must (i) include your name, residence address, and the email address and/or mobile telephone number associated with your Services Account; (ii) describe the nature and basis of the claim; and (iii) set forth the specific relief sought. The Notice from BitTitan will be sent to the email address and/or other applicable contact details associated with your Services Account and will describe items (ii) and (iii) above. If you and BitTitan cannot reach an agreement to resolve the claim within 30 days after such Notice is received, then either party may, as appropriate and in accordance with this Section 11, commence an arbitration proceeding or file a claim in court in accordance with this Section 11. You and BitTitan agree that any arbitration or court proceeding must be commenced or filed within one year of a Dispute arising; otherwise, the Dispute is permanently barred. In the event that you and BitTitan cannot resolve a Dispute and you do not pursue your claims through court, you or BitTitan shall promptly submit the Dispute to binding arbitration at the office of the Judicial Arbitration and Mediation Services (“JAMS”). In the event JAMS declines or is unable to administer the arbitration, you and BitTitan will use an arbitration forum or arbitrator that you and BitTitan mutually agree upon. If, after making a reasonable effort, you and BitTitan are not able to agree upon an arbitration forum or arbitrator, JAMS or a court having proper jurisdiction will appoint an arbitration forum or arbitrator. The arbitration will be conducted in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”) then in effect. The arbitrator shall issue a standard form of award. If you are an individual, you and BitTitan each shall bear your own costs and fees of such arbitration; provided that your costs of initiating the arbitration shall be limited to $500, and BitTitan shall pay the remainder of costs payable to JAMS of initiating the arbitration (but not any ongoing costs of maintaining the arbitration).The JAMS Rules and other information about JAMS and arbitration are readily available at http://www.jamsadr.com/rules-streamlined-arbitration/ or by calling 1-800-352-5267. The JAMS Rules, including JAMS Rule 8(b) are hereby incorporated by reference. By agreeing to this Agreement, you either (1) acknowledge that you have read and understand the JAMS Rules or (2) waive reading the JAMS Rules and waive any claim that the JAMS Rules are unfair in any way. You and BitTitan agree that this Agreement governs the arbitration, and that the applicable JAMS Rules shall be subject to changes in procedures that JAMS may make from time to time.

(g) Appeals. The state or federal courts in King County, Washington have exclusive jurisdiction over any appeals of an arbitration award and over any suit between the parties not subject to arbitration. Other than class procedures and remedies discussed above, the arbitrator has the authority to grant any remedy that would otherwise be available in court.

(h) Severability. You and BitTitan agree that if any term, clause or provision of Section 11 is found illegal, unconscionable or unenforceable, that term, clause or provision shall be severed and the remainder of this Section 11 shall be given full force and effect.

As limited by the FAA, this Agreement, and the applicable JAMS Rules, including JAMS Rule 8(b), the arbitrator will have the exclusive power and jurisdiction to make all procedural and substantive decisions concerning the Dispute; provided, however, that this power does not include the power to conduct a class arbitration or a representative action, which is prohibited by this Agreement (as stated above). The arbitrator may only conduct an individual arbitration, and may not consolidate more than one person’s claims and may not preside over any form of representative or class proceeding, or any proceeding on behalf of or involving more than one person or persons.

  1. SUSPENSION AND TERMINATION

(a) Suspension and Termination Right. You may terminate this Agreement by ceasing to access and use the BitTitan Service Offerings. Without limiting its rights in Section 2 and subject to any applicable limitations in the Service Specific Terms, BitTitan reserves the right, without notice and in its sole discretion, to temporarily suspend or terminate your right to access or use the Service Sites or BitTitan Service Offerings if BitTitan determines, in its sole discretion, that you or any of your Authorized Users fail to comply with any applicable BitTitan terms or policies or use the Service Sites or BitTitan Service Offerings in a way that (i) poses a security risk to the Service Sites or BitTitan Service Offerings or any third party, (ii) may adversely impact the BitTitan Service Offerings or the systems or user materials of other BitTitan customers, (iii) may subject any of the BitTitan Parties, BitTitan's affiliates, or any third party to liability, or (iv) may be fraudulent (collectively, “Unauthorized Activity”). If, in BitTitan's determination, the suspension might be indefinite and/or BitTitan has elected to terminate your access to or use of the BitTitan Service Offerings, BitTitan will use commercially reasonable efforts to notify you through the Service Sites or BitTitan Service Offerings. Unless otherwise provided in the applicable Service Specific Terms, you acknowledge that if your access to or use of the BitTitan Service Offerings is suspended or terminated, you may no longer have access to the User Materials through the BitTitan Service Offerings. Without limiting the foregoing or any of its other rights in this Agreement, BitTitan may modify or terminate a BitTitan Service Offerings if its Agreement with any applicable Third Party Service Provider is terminated or expires, and in any country or jurisdiction where there is any current or future government, quasi-government, regulatory or other legal requirement or obligation that: (1) subjects or may subject BitTitan or its subcontractors to any regulation or requirement not generally applicable to businesses operating there, (2) presents or may present a hardship for BitTitan or its subcontractors to continue operating the BitTitan Service Offerings, and/or (3) causes BitTitan to believe these terms conflict with any such requirement or obligation.

(b) Effect of Termination. In the event of any termination, your rights under this Agreement will immediately terminate. If BitTitan terminates this Agreement for your breach of the terms of this Agreement or Unauthorized Activity (collectively, “Cause”), or if you terminate the Agreement, you will not be eligible for any refund. If BitTitan terminates this Agreement other than for Cause, BitTitan will refund any Fees that have been paid by you directly to BitTitan, not any third party, for any Service License that has not been initiated prior to such termination. If you purchased or otherwise acquired a Service License from an Authorized Distributor of BitTitan, then if BitTitan terminates this Agreement other than for Cause you should look to such Authorized Distributor of BitTitan for any refund.

(c) Survival. The respective rights and obligations of the parties under Sections 4, 6-11, 12(b), 12(c) and 13 shall survive any termination or expiration of this Agreement

  1. MISCELLANEOUS

(a) Independent Contractors. The parties and their respective personnel are and shall be independent contractors and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.

(b) Subcontractors. BitTitan may use subcontractors to provide the Licensed Services on its behalf. Any such subcontractors will be permitted to obtain the Data only to deliver the Licensed Services for which BitTitan has obtained such subcontractor. BitTitan will remain responsible for its subcontractors’ compliance with BitTitan’s obligations in these Online Services Terms.

(c) Communications.  You agree by entering into this Agreement a business relationship is established from which BitTitan may from time to time use electronic communications for various purposes, including but not limited to promoting new or existing products and services to you and individuals within your organization.

(d) Assignment. You may not assign this Agreement or any right, interest or benefit under this Agreement without prior written consent of BitTitan. Any attempted assignment in violation of the foregoing will be void. Subject to the foregoing, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by any permitted assignee.

(e) Severability. If any term, clause or provision of this Agreement shall be deemed unlawful, void or for any reason unenforceable, then that term, clause or provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.

(f) Nonwaiver. Any failure by either party to insist upon or enforce performance by you of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement or otherwise by law will not be construed as a waiver or relinquishment of any right to assert or rely upon the provision, right or remedy in that or any other instance; rather, the provision, right or remedy will be and shall remain in full force and effect.

(g) Third Party Rights. Except as specifically provided in Sections 8 and 10, this Agreement is for the benefit of, and will be enforceable by, the parties only. Except as specifically provided in Sections 8 and 10, this Agreement is not intended to confer any right or benefit on any third party (including, but not limited to, any BitTitan Parties). Except as specifically provided in Sections 8 and 10, no action may be commenced or prosecuted against a party by any third party claiming as a third-party beneficiary of this Agreement or any of the transactions contemplated by this Agreement.

(h) Force Majeure. If the performance of any part of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either party, that party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes. This paragraph will not apply to any payment obligation of a party.

(i) Venue; Limitations Period. If for any reason a Dispute (as defined in Section 11 above) in any way proceeds in court rather than in arbitration, regardless of whether the Dispute is an action, counterclaim or any other court proceeding, you and BitTitan agree that the state or federal courts in King County, Washington have exclusive jurisdiction. and that any such Dispute must be commenced or filed within one year of arising; otherwise, it is permanently barred. This does not affect your statutory rights.

(j) Governing Law. Except as expressly stated otherwise, this Agreement shall be governed by, and will be construed under, the laws of the United States of America and the law of the State of Washington, without regard to choice of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.

(k) Entire Agreement. This User Agreement together with all applicable Service Specific Terms, Terms of Use, Acceptable Use Policy, Trademark Usage Guidelines, all restrictions described on any Services Site, and any other policy or terms incorporated by reference into this User Agreement, constitute the complete and exclusive statement of all mutual understandings between the parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written. In the event of any conflict between this User Agreement and any Service Specific Terms, Acceptable Use Policy, Trademark Usage Guidelines or other restrictions, policies or terms, the applicable Service Specific Terms, Acceptable Use Policy, Trademark Usage Guidelines or other restrictions, policies or terms will control except to the extent that this User Agreement expressly states its intent to control over any Service Specific Terms, Acceptable Use Policy, Trademark Usage Guidelines or other restrictions, policies or terms. In the event of a conflict between this User Agreement and the Terms of Use, this Agreement will control. You acknowledge that no statement made orally or via email by or on behalf of BitTitan shall modify this User Agreement in any way; nor shall you rely on any such statements purporting to modify this User Agreement.

  1. ADDITIONAL TERMS FOR USERS IN AUSTRALIA

IF YOU HAVE PURCHASED A COUPON CODE OR SERVICE LICENSE FROM TELSTRA, THE TELSTRA TERMS WILL APPLY IN LIEU OF THIS AGREEMENT.

(a) Compliance with the Privacy Act. In the event you have access to personal information relating to third parties in connection with the use of the BitTitan Service Offerings, you will comply with the Privacy Act 1988 (Cth) in relation to any personal information handled by you, including by providing or obtaining any notifications or consents required by law to disclose personal information to and for BitTitan to collect that personal information.

(b) No granting of Security Interests. You must not create or permit to exist a Security Interest (defined below) over any of your rights to any Service Licenses or BitTitan Service Offerings, any of the Service Licenses or BitTitan Service Offerings or any modifications to, or enhancements, updates or new releases of, the Service Licenses or BitTitan Service Offerings. “Security Interest” means: (A) a PPS Security Interest; (B) any other mortgage, pledge, lien or charge; or (C) any other interest or arrangement of any kind that in substance secures the payment of money or the performance of an obligation, or that gives a creditor priority over unsecured creditors in relation to any property. “PPS Security Interest” means a security interest that is subject to the Personal Property Securities Act 2009 (Cth).

(c) Consumer Guarantees. The Australian Consumer Law (as embodied in Schedule 2 to the Competition and Consumer Act 2010 (Cth)) (“ACL”) may require that certain guarantees must be given by us to you in relation to the supply by us of goods or services to you (each, a “Consumer Guarantee”). If the goods or services supplied by us to you are not of a kind ordinarily acquired for personal, domestic or household use or consumption, except in the case of a failure by us to comply with a Consumer Guarantee under any of sections 51, 52 or 53 of the ACL, our liability for failure to comply with a Consumer Guarantee to you is limited to the supply of the services again or the payment of the cost to you of having the services supplied again, and you agree and acknowledge that it is fair and reasonable, in all the circumstances, for our liability to be limited as set out in this Section.

  1. ADDITIONAL TERMS FOR USERS IN THE EUROPEAN UNION

If you are a consumer purchasing the BitTitan Service Offering in the European Union through BitTitan directly, you have the legal right to cancel the Service Offering within 14 days of your purchase without giving any reason. To exercise the legal right to cancel, you must inform us by a clear statement using the contact details provided at the beginning of this Agreement. BitTitan will reimburse you the cost of the Service Offering within 14 days. However, please note that if you have used the Service Offering during the 14 day cancellation period, BitTitan will deduct from the reimbursement an amount which is in proportion to the benefit which you received prior to cancelling the Service Offering (which may be up to the full value of the contract). If you purchased or otherwise acquired a Service License from an Authorized Distributor of BitTitan, you will need to exercise your cancellation rights against the Authorized Distributor and not BitTitan.

 

APPENDIX 1 DEFINITIONS

Unless otherwise defined in the Agreement or the Service Specific Terms, words used in the Agreement with their initial letters capitalized will have the following meanings:

"Authorized Distributor" means a third party authorized by BitTitan to provide, supply, resell or distribute BitTitan Service Offerings.

"BitTitan Content" means any content or data supplied by BitTitan for inclusion on any Services Site.

"BitTitan Materials" means the BitTitan Content, BitTitan Marks, BitTitan Technology and Documentation.

"BitTitan Parties" means BitTitan's affiliates, independent contractors, service providers, suppliers, partners, resellers, distributors and consultants, and its and their respective directors, officers, employees and agents.

"BitTitan Service Offerings" means the Archive Services, Deployment Services, Encryption Services, MigrationWiz Services and UserActivation Services (each as defined in the Service Specific Terms) or other web-based services made available by BitTitan from time to time.

"Configuration Data" means the configuration data (including source email; source user name; source password; destination email; destination user name; and destination password) of Authorized Users related to the applicable BitTitan Service Offerings. Configuration Data includes Deployment Configuration Data used in connection with DeploymentPro Services, Archive Configuration Data used in connection with Archive Services, Encryption Configuration Data used in connection with Encryption Services and Activation Configuration Data used in connection with UserActivation Services (each of the foregoing as defined in the Service Specific Terms).

"Coupon Code" means a discount or download code redeemable for a Services License.

"Data" means any data pertaining to Customer or any Authorized User generated or collected by BitTitan in providing the BitTitan Service Offerings, including Configuration Data, Archive Data, Deployment Data and Migration Data (each of the foregoing as defined in the Service Specific Terms).

"Dispute" as used in Section 11 means any dispute, cause of action, claim, or controversy arising out of or in any way related to BitTitan, this Agreement, the subject matter of this Agreement, or access to and use of the BitTitan Service Offerings and User Materials, including but not limited to personal injury disputes and disputes that involve third parties (such as developers of User Materials), and any IP Dispute.

"Documentation" means any online documentation, policies, FAQs, security procedures, or other reference materials made available by BitTitan.

"Effective Date" means the date that Customer agrees to this Licensed Service Addendum.

"IP Dispute" means any dispute, cause of action, claim, or controversy relating to your or BitTitan's Intellectual Property Rights.

"Intellectual Property Rights" means any patent, copyright, trademark, trade secret, trade dress, mask work, moral right, right of attribution or integrity, right to privacy, personality or publicity or other proprietary or intellectual property rights.

"Policies" means the Acceptable Use Policy, the Privacy Policy, Trademark Usage Guidelines, any terms, conditions, descriptions, or restrictions applicable to a BitTitan Service Offering and described on any Services Site, and any other policy or terms incorporated by reference into this Agreement. Policies do not include whitepapers, marketing materials, community blogs or support boards, security commentary or other such materials on or referenced on any Services Site.

"Service License" means the license to use a particular BitTitan Service Offering described in the Service Specific Terms for each BitTitan Service Offering.

"System Requirements" means the minimum system and other requirements specified in the Documentation and required for use and access to the BitTitan Service Offerings or Service Sites.

"Services Site" means the Web sites found at www.bittitan.com and other related or successor sites controlled by BitTitan.

"Service Specific Terms" means the terms and conditions specific to any BitTitan Service Offerings found at www.bittitan.com/legal/service-specific-terms as may be updated from time to time.

"Third Party Content" means any content supplied to BitTitan by a third party for inclusion on any Services Site or as part of any BitTitan Service Offering.

"Third Party Service Provider" means a third party engaged by BitTitan to provide (a) development, hosting and maintenance services with respect to any Services Site or BitTitan Service Offering, or (b) other cloud service offerings (which may include cloud service offerings made available by BitTitan under this Agreement as BitTitan Service Offerings).

"Trademark Usage Guidelines" means BitTitan's guidelines and requirements for use of BitTitan's trademarks, trade dress, logos, slogans and other identifiers.

"User Materials" means the content of any data or materials that you or your Authorized Users provide to the BitTitan Service Offerings, including, without limitation, information, emails, contacts, calendars and tasks, libraries, documents, public folders, archive and backup files and other files or folders that you or an Authorized User submit, provide or make available in connection with the BitTitan Service Offerings.