Last Updated: 03/23/2021
These Terms of Service (“Terms”) apply to your access to and use of the Services (as defined in Section 2 below) provided by MOSS, a Cayman Islands limited company (“MOSS,” “Company” or “we”). By clicking “I Accept” or by accessing or using our Services, you agree to these Terms, including the mandatory arbitration provision and class action waiver in Section 18. If you do not agree to these Terms, do not use our Services.
You and Company, on behalf of itself and the Nominee defined below, agree as follows:
About Carbon Credits and MCO2 Tokens
As used in these Terms, “carbon credits” are certificates created in accordance with certain regulatory or voluntary carbon credit programs designed to reduce the emission of carbon dioxide (“CO2”). A carbon credit document that a particular company or environmental project (e.g., a project for forest conservation, reforestation, clean energy, biomass, etc.) removed or prevented the emission (pollution) of the equivalent of one ton of CO2 in a given year in accordance with the requirements of a particular carbon credit program. Carbon credits are issued, transferred, and retired (to offset the emission of one ton of CO2) through carbon credit registries.
Company has developed and issued tokenized representations of carbon credits that the Nominee holds (each, a “MCO2 Token”). A MCO2 Token is a “ERC-20” digital token issued by MOSS that operates on the Ethereum blockchain. Through the Platform, users can request that the Nominee retire an amount of carbon credits that corresponds to the user’s retired MCO2 Token balance in accordance with these Terms (“Retirement”). Retirement is addressed further in Section 6 below, and for additional information regarding the process for retiring MCO2 Tokens, please see our FAQs [https://www-staging.moss.earth/faq].
MOSS and the Nominee represent that each MCO2 Token will be backed by an undivided interest in carbon credits as follows:
- MOSS has caused a company under its exclusive control (the “Nominee”) to maintain a duly authorized and valid account or subaccount (the “Segregated Account”) at an internationally-recognized carbon credit registry (a “Registry”) exclusively for the purpose of holding carbon credits underlying MCO2 Tokens and Certificates (as defined in Section 7 below);
- MOSS and the Nominee bear all expenses relating to the Segregated Account and comply with all terms and conditions of the Registry required to permit the Nominee to maintain the Segregated Account and to transfer carbon credits into and retire carbon credits from the Segregated Account;
- Before or contemporaneously with the creation of each MCO2 Token, the Nominee has transferred one carbon credit to the Segregated Account, and will not remove carbon credits from the Segregated Account other than through Retirement, such that, at all times, the total number of MCO2 Tokens and Certificates that are outstanding and not retired will not exceed the number of carbon credits held in the Segregated Account;
- MOSS and the Nominee maintain the Segregated Account and carbon credits therein free and clear of liens, claims, security interests and other encumbrances other than the undivided interests of MCO2 Token and Certificate holders;
- All books and records maintained by MOSS, its affiliates and the Nominee indicate that carbon credits held in the Segregated Account are the property of holders of MCO2 Tokens and Certificates and not subject to the claims of creditors of MOSS, its affiliates or the Nominee; and
- MOSS has full power and authority to enter into these Terms, which are valid and binding obligations of MOSS and, where applicable, the Nominee, that are enforceable directly against MOSS and, where applicable, the Nominee, in accordance with the provisions of these Terms.
This means that for every MCO2 Token issued by MOSS and remaining in circulation, MOSS or a MOSS affiliate will hold on behalf of MCO2 Token users an undivided beneficial interest in one carbon credit in the Segregated Account.
A MCO2 Token can be acquired from certain third-party sellers. For a list of known third party sellers, please see our FAQs [https://www-staging.moss.earth/faq]. Through Company’s website (the “Platform”), users can access their MCO2 Token balances and access the monthly audit reports that verify the amount of carbon credits held by the Nominee in the Segregated Account that correspond to the outstanding MCO2 Token and Certificate supply.
Carbon credits associated with MCO2 Tokens are issued in compliance with the requirements of an applicable Registry’s carbon credit programs and standards at the time of their registration on such Registry. However, MCO2 Tokens themselves are not, and may never be, recognized as valid carbon credit offsets under the rules or requirements of any regulatory or voluntary carbon credit program by the regulator or administrator of such a program. Subject to the provisions of these Terms, a MCO2 Token is intended to be used solely by users to demonstrate a user’s commitment to a positive environmental impact upon the retirement of a MCO2 Token, and correspondingly, the resulting retirement of the underlying carbon credit, for that user’s own purposes.
Overview and Scope
These Terms govern the services (the “Services”) that Company makes available to Platform users, including use or access to the Platform, the ability to retire a MCO2 Token, and obtain related services through the Platform. All references to Services in these Terms include MCO2 Tokens unless otherwise specified.
Your use of our Services is subject to these Terms and Company’s obligations under these Terms are conditional on you complying with its provisions. You understand that any violation of these Terms may result in potential consequences, including the possible loss or forfeiture of MCO2 Tokens. You understand and agree that you may only retire a MCO2 Token and their corresponding beneficial interest in a carbon credit directly with Company, and may not do so independently with any of the carbon credit registries associated with your MCO2 Token.
You understand that sending a MCO2 Token to another address automatically transfers and assigns to the owner of that address (a “Holder”), and any subsequent Holder, the right to retire that MCO2 Token, so long as the Holder is eligible to, and does, register a Platform Account.
- You must be at least 18 years of age to use our Services. If you use our Services on behalf of another person or entity, (i) all references to “you” throughout these Terms will include that person or entity; (ii) you represent that you are authorized to accept these Terms on that person’s or entity’s behalf; and (iii) in the event you or the person or entity violates these Terms, the person or entity agrees to be responsible to us.
- You may not access or use our Services if you are a “Prohibited Person”, meaning that:
- you have been suspended from using our Services;
- under the applicable law of the jurisdiction(s) in which you reside or conduct business, you are prohibited from using the Services or do not have the requisite licenses or other governmental authorizations to use the Services;
- you are located in a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country;
- you are listed on any U.S. government list of prohibited or restricted parties, or on any sanctions lists adopted by the United Nations and the European Union to such extent such sanctions are extended by the UK Government to its Overseas Territories, as such lists may be amended from time to time; or
- your use of the Services breaches any other agreement to which you are a party.
User Platform Accounts and Account Security
- You need to register for an account on the Platform (a “Platform Account”) to access some or all of our Services, including to retire or detokenize your MCO2 Token on the Platform. If you register for a Platform account, you must provide accurate account information and promptly update this information if it changes. You are responsible for the activities that occur in connection with your Platform Account and must maintain the security of your Platform Account. You are prohibited from sharing your password or other log-in credentials with any other person. Promptly notify Company if you discover or suspect that someone has accessed your Platform Account without your permission.
- Company can terminate or suspend your Platform Account at any time at our discretion. We are not responsible for any loss or harm related to your inability to access or use the Services. You may not bring a claim against us for suspending or terminating your or another person’s Platform Account, and you agree you will not bring such a claim. If you try to bring such a claim, you are responsible for the damages caused, including attorneys’ fees and costs.
- You agree that your Platform Account is not transferable and that in the event of your death, incapacity or unavailability, Company may terminate any rights to your Platform Account.
MCO2 Token Holder Requirements
This Section 5 only applies if you acquire a MCO2 Token, regardless of your manner of acquisition or whether you access or use any of our Services other than the MCO2 Token or register for a Platform Account.
- You understand that you alone are responsible for independently researching whether acquiring a MCO2 Token is appropriate for you, and you are aware that there is considerable volatility in the carbon credit market and there are risks inherent in owning carbon credits. You further understand that you must make your own decision on whether to acquire, sell, retire or otherwise transact in MCO2 Tokens without direction from Company, and Company does not guarantee that MCO2 Tokens will have any resale market or maintain any particular price.
- Your acquisition of a MCO2 Token is subject to the terms and conditions of your agreement with such a third-party seller and Company is not a party to any such agreement.
- You are responsible for complying with applicable law when transacting with MCO2 Tokens. You agree that Company is not responsible for determining whether or which laws may apply to your transactions involving MCO2 Tokens, including tax, securities, commodities, derivatives, financial regulatory, environmental, energy or other laws and regulations. You are solely responsible for reporting and paying any taxes arising from your use of the Services, including any accurate reporting of the tax or legal status of MCO2 Tokens in your jurisdiction. You are also solely responsible for any reporting, registration or licensing requirements that may apply to you arising from your use of the Services, including any reporting, registration or licensing required under other laws and regulations in your jurisdiction.
- You acknowledge that retiring a MCO2 Token is designed to prevent the emission of the equivalent of one ton of CO2 (via the corresponding retirement of an underlying carbon credit) but that holding or otherwise transacting in a MCO2 Token on its own does not prevent or reduce CO2 emissions. Accordingly, you agree and covenant that you will only make a statement or claim regarding a MCO2 Token’s CO2 emissions prevention or reduction following your retirement of that MCO2 Token, and you will not make any untrue, misleading or deceptive statements or claims regarding the same.
- You acknowledge and agree that: (i) MCO2 Tokens are intended solely for your own use; (ii) MCO2 Tokens are not, and there is no assurance that MCO2 Tokens will be, recognized as valid carbon credit offsets under the rules or requirements of any regulatory or voluntary carbon credit program by the regulator or administrator of such a program; and (iii) MCO2 Tokens are “as is” and contain no express or implied warranties and any such warranties are hereby disclaimed, including warranties of merchantability, fitness for a particular purpose; title and non-infringement, or any other warranty implied by local law.
- You acknowledge that Company relies on a Registry or other independent third party to verify that the carbon credits in the Segregated Accounts are in compliance with a Registry’s program or standards requirements at the time such carbon credits were created or registered on the Registry and you agree Company has no obligation to you or other Holders to monitor or verify the compliance of carbon credits with a Registry’s program or standards requirements.
- You represent and warrant that you are not a Prohibited Person.
- You understand and acknowledge that Company is not subject to supervision or regulation by any governmental or regulatory authority in the Cayman Islands or elsewhere. Accordingly, no governmental or regulatory authority in the Cayman Islands or elsewhere has passed or will pass upon the contents of these Terms or the merits of using the Platform or purchasing MC02 Tokens, nor have these Terms been filed with, or reviewed by, any governmental or regulatory authority in the Cayman Islands or elsewhere.
- All Holders of MCO2 Tokens, regardless of the manner of acquisition, are subject to these Terms, including the eligibility requirements set forth in Section 3, the retirement provisions set forth in Section 6 and the prohibited conduct requirements set forth in Section 8.
MCO2 Token Retirement
- Our Services allow you to retire a MCO2 Token through your Platform Account. Your ability to retire a MCO2 Token is conditional on (i) your possession of a corresponding amount of MCO2 Token in an Ethereum wallet address associated with a registered Platform Account, (ii) no violation of these Terms, and (iii) no action, pending or otherwise, by a regulator, law enforcement or a court of competent jurisdiction that would restrict retirement.
- Sending a MCO2 Token to another Ethereum wallet address automatically transfers and assigns to that Holder, and any subsequent Holder, the right to retire that MCO2 Token so long as the Holder is eligible to, and does, register a Platform Account. Company reserves the right to “blacklist” certain Ethereum wallet addresses that it determines, in its sole discretion, are associated with illegal activity or activity that otherwise violates these Terms (“Blacklisted Addresses”). If you send a MCO2 Token to a Blacklisted Address, or receive a MCO2 Token from a Blacklisted Address, Company may freeze such MCO2 Token and take steps to close your Platform Account. In certain circumstances, Company may deem it necessary to report such suspected illegal activity to applicable law enforcement agencies and you may forfeit any rights associated with your MCO2 Token, including the ability to retire it.
- You may not retire a MCO2 Token in a manner that violates these Terms, or for which you do not have all the rights necessary to do so. In addition to the requirements in Section 8 below, you represent and warrant that your retirement of a MCO2 Token, and our retirement of a corresponding amount of carbon credits as permitted by these Terms, will not violate any rights of or cause injury to any person or entity. Company may delete or remove your Platform Account at any time and with or without notice if Company suspects a violation of these Terms.
- To retire a carbon credit that corresponds to a MCO2 Token, a MCO2 Token must be irrevocably sent to a particular Ethereum wallet address selected by Company that disables all future transaction and transfer functions associated with the MCO2 Token, which is designated as the “retirement address.” Although Company uses the Ethereum blockchain and the retirement address to track MCO2 Token balances and retire underlying carbon credits from the Segregated Accounts, we assume no obligation to screen, monitor, recognize, or otherwise acknowledge MCO2 Token transactions on the Ethereum blockchain involving the retirement address or other MCO2 Token transaction activity on the Ethereum blockchain that does not take place through a Platform Account.
- If you retire a MCO2 Token in accordance with this Section 6, Nominee will take all actions necessary to retire one carbon credit from the Segregated Account, such that, under the terms and conditions of the Registry, such carbon credit may no longer be transferred to or claimed by anyone. Nominee may retire carbon credits underlying MCO2 Token Retirements in the aggregate or on a periodic basis, provided, however, that Nominee will retire a carbon credit no later than 30 days from the date your MCO2 Token is sent to the retirement address.
MCO2 Token Detokenization
- You may request to convert a MCO2 Token into a non-tokenized certificate (“MCO2 Certificate”) through your Platform Account (“detokenization”). Your ability to request detokenization is conditional on (i) your possession of a corresponding amount of MCO2 Token in an Ethereum wallet address associated with a registered Platform Account, (ii) no violation of these Terms, and (iii) no action, pending or otherwise, by a regulator, law enforcement or a court of competent jurisdiction that would restrict detokenization.
- To detokenize a MCO2 Token: (i) you must notify Company via your Platform Account, and (ii) a MCO2 Token must be irrevocably sent to a particular Ethereum wallet address selected by Company that disables all future transaction and transfer functions associated with the MCO2 Token, which is designated as the “detokenization address.” In lieu of the detokenized MCO2 Token you will receive a non-transferable digital certificate that is backed by a beneficial interest in a carbon credit held by the Nominee as provided in Section 1 above.
- We reserve the right to impose additional terms and conditions to the detokenization process, which will be communicated to you at the time of requested detokenization.
You are solely responsible for your conduct while using or accessing our Services. While using or accessing our Services, you will not:
- Violate any applicable law, contract, intellectual property right or other third-party right or commit a tort;
- Use our Services or for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms;
- Attempt to circumvent any geographic or jurisdiction-limiting techniques we employ;
- Use or attempt to use another user’s Platform Account without authorization from that user and Company;
- Impersonate or act on behalf or any person or entity or otherwise misrepresent your affiliation with a person or entity;
- Sell, resell or use our Services for commercial purposes, unless such sale, resale or use is agreed in writing with us (provided, however, that such prohibition is not intended to restrict the sale, resale or use of MCO2 Tokens by MCO2 Token Holders in the ordinary course, as otherwise permitted under these Terms);
- Purport to represent, act on behalf of, or bind Company, unless agreed in writing with us.
- Copy, reproduce, distribute, publicly perform or publicly display all or portion of our Services, except as expressly permitted by us or our licensors;
- Modify our Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Services;
- Use our Services other than for their intended purpose and in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services in any manner;
- Reverse engineer any aspect of our Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Services;
- Use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract data from our Services;
- Develop or use any applications that interact with our Services without our prior written consent;
- Use our Services for benchmarking purposes or for the purpose of developing a competitive product;
- Manipulate, or attempt to manipulate, our Services in any way;
- Make any false, misleading or untrue statement of a material fact about Company, Services, or MCO2 Tokens (including the manner of acquisition, prices or other material information related to MCO2 Tokens), or omit any material fact from a statement that is necessary to make the statement, in light of the circumstances under which it was made, not misleading.
- Send, distribute or post spam, unsolicited or bulk commercial electronic communications, chain letters, or pyramid schemes;
- Bypass or ignore instructions contained in our robots.txt file; or
- Engage in any harassing, threatening, intimidating, predatory or stalking conduct.
- Enforcement of this Section 8 is solely at Company’s discretion, and failure to enforce this section in some instances does not constitute a waiver of Company’s right to enforce it in other instances. In addition, this Section 8 does not create any private right of action on the part of any third party or any reasonable expectation that the Services will not contain any content that is prohibited by such rules.
Ownership; Limited Licenses
- The Services, including the Platform, text, graphics, images, photographs, videos, illustrations and other content contained therein, are owned by Company or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Services are reserved by us or our licensors.
- Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services (other than MCO2 Tokens), for your own personal, noncommercial use.
- If you acquire a MCO2 Token in accordance with Section 5, and subject to your compliance with these Terms, you are hereby granted a limited, exclusive, nontransferable, non-sublicensable, revocable license to retire such MCO2 Token solely for the purpose of claiming the consumption of carbon credits for your own personal use.
- Without limiting the foregoing provisions in this Section 9, you will not, directly or indirectly: (i) modify or create derivative works of the Services in whole or in part; (ii) rent, lease, lend, sell, advertise, assign, encumber, or otherwise commercially use the Services; (iii) remove any proprietary notices from the Services; or (iv) use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
- Any use of the Services other than as specifically authorized herein, without Company’s prior written permission is strictly prohibited and will immediately terminate the license(s) granted herein and violate our intellectual property rights.
MOSS and MCO2 and our logos, our product or service names, our slogans and the look and feel of the Services are trademarks of Company and may not be copied, imitated or used, in whole or in part, without Company’s prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Services are the property of their respective owners. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by us.
You may voluntarily post, submit or otherwise communicate to Company any questions, comments, suggestions, ideas, original or creative materials or other information about Company or our Services (collectively, “Feedback”). You understand that Company may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including to develop, copy, publish, or improve the Feedback in Company’s sole discretion. You understand that Company may treat Feedback as nonconfidential.
Company may provide information about third-party products, services, activities or events, or Company may allow third parties to make their content and information available on or through the Services (collectively, “Third-Party Content”). Company provides Third-Party Content as a service to those interested in such content. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party. Company does not control or endorse, and makes no representations or warranties regarding, any Third-Party Content, and your access to and use of such Third-Party Content is at your own risk.
To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless Company, and our past, present and future employees, officers, directors, contractors, consultants, equity holders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates (including the Nominee), agents, representatives, predecessors, successors and assigns (individually and collectively, the “Company Parties”) from and against any losses, liabilities, claims, demands, actions, damages, expenses or costs (“Claims”) arising out of or related to (a) your access to or use of the Services, including any MCO2 Tokens; (b) your Feedback; (c) your violation of these Terms; (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct, actions or inactions, in connection with the Services. You agree to promptly notify Company Parties of any third-party Claims, cooperate with Company Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including attorneys’ fees). You also agree that the Company Parties will have control of the defense or settlement, at Company’s sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Company or the other Company Parties.
Your use of our Services is at your sole risk. Except as otherwise provided in a writing by us, our Services and any content therein are provided “as is” and “as available” without warranties of any kind, either express or implied, including implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, Company does not represent or warrant that our Services are accurate, complete, reliable, current or error-free. While Company attempts to make your use of our Services and any content therein safe, we cannot and do not represent or warrant that our Services or servers are free of malware, viruses or other harmful components. You assume the entire risk as to the quality and performance of the Services.
Some jurisdictions do not allow the exclusion of certain warranties or disclaimer of implied terms in contracts with consumers, so some or all of the exclusions of warranties and disclaimers in this Section 14 may not apply to you.
Limitation of Liability; Claims Only Against MOSS
- To the fullest extent permitted by applicable law, Company and the other Company Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, misrepresentation, strict liability, warranty (including warranty of fitness for a particular purpose), or otherwise—for any indirect, consequential, exemplary, incidental, punitive or special damages or lost profits, even if Company or the other Company Parties have been advised of the possibility of such damages, provided, however, that nothing in these Terms shall limit or exclude Company’s liability (i) for death or personal injury caused by Company’s negligence, (ii) for fraud, (iii) for any breach of Company’s obligations implied by applicable compulsory national laws or (iv) any liability which cannot be excluded by law.
- The total liability of Company and the other Company Parties for any claim arising out of or relating to these Terms or our Services, regardless of the form of the action, is limited to the lesser of $100 or the amount paid to Company by you to use our Services.
- Except for the representations of the Nominee in Sections 1, 6 and 7 of these Terms, your sole and exclusive recourse for any obligation, liability, dispute, breach or other claim arising under these Terms or the provision of the Services (whether in contract or in tort, in law or in equity, or granted by statute) shall be only against MOSS and not any other MOSS affiliate, MOSS subsidiary or other Company Party. If you are an MCO2 Token Holder that requires additional information regarding the Nominee in connection with these Terms, please contact us at [email protected] to request such information.
- The limitations set forth in this Section 15 will not limit or exclude liability for the gross negligence, fraud or intentional misconduct of Company or the other Company Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.
To the fullest extent permitted by applicable law, you release Company and the other Company Parties from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including claims of negligence), arising out of or related to (a) disputes between you and other users of the Services; (b) disputes between you and third parties involving MCO2 Tokens; and (c) the acts or omissions of third parties. You expressly waive any rights you may have under California Civil Code § 1542 as well as any other statute or common law principles that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
Transfer and Processing Data
In order for us to provide our Services, you agree that we may process, transfer and store information about you in the United States and other countries, where you may not have the same rights and protections as you do under local law.
Dispute Resolution; Binding Arbitration
Please read the following section carefully because it contains additional provisions applicable only to individuals located, resident, or domiciled in the United States. If you are located, resident, or domiciled in the United States, this section requires you to arbitrate certain disputes and claims with Company or the Nominee and limits the manner in which you can seek relief from us or the Nominee, unless you opt out of arbitration by following the instructions set forth below. No class or representative actions or arbitrations are allowed under this arbitration provision. In addition, arbitration precludes you from suing in court or having a jury trial.
- No Representative Actions. You and Company, on behalf of itself and the Nominee, agree that any dispute arising out of or related to these Terms or our Services is personal to you and Company, or personal to you and the Nominee, and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action or any other type of representative proceeding.
- Arbitration of Disputes. Except for (i) small claims disputes in which you or Company seeks to bring an individual action in small claims court located in the county of your billing address or (ii) disputes in which you or Company, or the Nominee, seeks injunctive or other equitable relief (x) to enforce this dispute resolution clause or (y) for the alleged infringement or misappropriation of intellectual property, including copyrights, trademarks, trade names, logos, trade secrets or patents, you, Company and the Nominee waive your rights to a jury trial and to have any other dispute arising out of or related to these Terms or our Services, including claims related to privacy and data security, (collectively, “Disputes”) resolved in court. Instead, for any Dispute that you have against Company or the Nominee you agree to first contact Company and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to Company by email at [email protected] or by certified mail addressed to Rua Gumercindo Saraiva, 54, sala 4. São Paulo/SP. 01449-070. Brazil. The Notice must (I) include your name, residence address, email address, and telephone number; (II) describe the nature and basis of the Dispute; and (III) set forth the specific relief sought. Our notice to you, on behalf of ourselves or the Nominee, will be similar in form to that described above. If you and Company, or you and Nominee, cannot reach an agreement to resolve the Dispute within thirty (30) days after such Notice is received, then either party may submit the Dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court. All Disputes submitted to JAMS will be resolved through confidential, binding arbitration before one arbitrator. Arbitration proceedings will be held in [New York, New York] unless you are a consumer, in which case you may elect to hold the arbitration in your county of residence. For purposes of this Section 18, a “consumer” means a person using the Services for personal, family or household purposes. You and Company, on behalf of itself and the Nominee, agree that Disputes will be held in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”). The most recent version of the JAMS Rules are available on the JAMS website and are hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason.
- You and Company, on behalf of itself and the Nominee, agree that these Terms affect interstate commerce and that the enforceability of this Section 18 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Dispute and to grant any remedy that would otherwise be available in court. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
- The arbitration will allow for the discovery or exchange of non-privileged information relevant to the Dispute. The arbitrator, Company, the Registered Account Holder and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including information gathered, prepared and presented for purposes of the arbitration or related to the Dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.
- You and Company, on behalf of itself and the Nominee, agree that for any arbitration you initiate, you will pay the filing fee (up to a maximum of $250 if you are a consumer), and Company or the Nominee will pay the remaining JAMS fees and costs. For any arbitration initiated by Company or the Nominee, Company or the Nominee will pay all JAMS fees and costs. You and Company, on behalf of itself and the Nominee, agree that the state or federal courts of the State of [New York] and the United States sitting in [New York, New York] have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
- Any Dispute must be filed within one year after the relevant claim arose; otherwise, the Dispute is permanently barred, which means that you and Company or the Registered Account Holder will not have the right to assert the claim.
- You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section 18 by sending a written notice to Company by email at [email protected] or by certified mail addressed to Rua Gumercindo Saraiva, 54, sala 4. São Paulo/SP. 01449-070. Brazil. In order to be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 17.
- If any portion of this Section 18 is found to be unenforceable or unlawful for any reason, (i) the unenforceable or unlawful provision shall be severed from these Terms; (ii) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 18 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 18; and (iii) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 18 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 18 will be enforceable.
Governing Law and Venue
Any dispute arising from these Terms and your use of the Services will be governed by and construed and enforced in accordance with the laws of the Cayman Islands, without regard to conflict of law rules or principles (whether of the Cayman Islands or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the courts of the Cayman Islands.
Modifying and Terminating our Services
We reserve the right to modify our Services or to suspend or stop providing all or portions of our Services at any time. You also have the right to stop using our Services at any time. We are not responsible for any loss or harm related to your inability to access or use our Services. If we discontinue providing all or portions of the Services, Company will, where reasonably possible, give you advance notice.
Additional Terms and Amendments
- We may supply different or additional terms in relation to some of our Services, and those different or additional terms become part of your agreement with us if you use those Services. If there is a conflict between these Terms and the additional terms, the additional terms will control for that conflict.
- We may make changes to these Terms from time to time. If we make changes, Company will provide you with notice of such changes, such as by sending an email, providing a notice through our Services or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of our Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using our Services.
- If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.
- Upon termination of your Platform Account or our relationship with you under these Terms for any other reason, all rights and obligations of the parties that by their nature are continuing will survive such termination.
Assignment and Third-Party Holders
You may not assign your rights and obligations under these Terms without our express written consent. You may not transfer or assign these Terms or any rights or obligations hereunder, by operation of law or otherwise and any such attempted assignment shall be void, subject to the following exception. Sending a MCO2 Token to an address will automatically transfer and assign to that Holder, and any subsequent Holder, the right to retire that MCO2 Token so long as the Holder is eligible to, and does, register a Platform Account.
Each Holder is subject to all provisions of these Terms as if they are a user that has registered for a Platform Account including, but not limited to, the requirements to not transact with Blacklisted Addresses and not engage in Prohibited Conduct.
We reserve the right to freely assign these Terms and the rights and obligations of these Terms to any third party at any time without notice or consent. If you object to such transfer or assignment, you may stop using our Services and terminate these Terms by contacting Company to close your Platform Account.
- The failure of Company to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. These Terms reflect the entire agreement between the parties relating to the subject matter hereof and supersede all prior agreements, representations, statements and understandings of the parties, whether express or implied. The section titles in these Terms are for convenience only and have no legal or contractual effect. Use of the word “including” will be interpreted to mean “including without limitation.” Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. You agree that communications and transactions between us may be conducted electronically.
- Our failure to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. We will not be liable for any delay or failure to perform any obligation under these Terms where the delay or failure results from any cause beyond our reasonable control. Your access to or use of the Services does not create any form of partnership, joint venture or any other similar relationship between you and us.