1. Acceptance of terms
Except for Section 13, providing for binding arbitration and waiver of class action rights, Payburner reserves the right, at its sole discretion, to modify or replace the Terms at any time. The most current version of these Terms will be posted on our Site. You shall be responsible for reviewing and becoming familiar with any such modifications. Use of the Services by you after any modification to the Terms constitutes your acceptance of the Terms as modified.
You hereby represent and warrant that you are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in these Terms and to abide by and comply with these Terms.
Payburner is a global platform and by accessing the Content or Services, you are representing and warranting that you are of the legal age of majority in your jurisdiction as is required to access such Services and Content and enter into arrangements as provided by the Services. You further represent that you are otherwise legally permitted to use the service in your jurisdiction including owning cryptographic tokens of value, and interacting with the Services or Content in any way. You further represent you are responsible for ensuring compliance with the laws of your jurisdiction and acknowledge that Payburner is not liable for your compliance with such laws.
In addition, you represent to us that you and your financial institutions, or any party that owns or controls you or your financial institutions, are (1) not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the United Nations Security Council, the U.S. Government (e.g., the Specially Designated Nationals List and Foreign Sanctions Evaders List of the U.S. Department of Treasury and the Entity List of the U.S. Department of Commerce), the European Union or its Member States, or other applicable government authority and (2) not located in any country to which the United States has embargoed goods or has otherwise applied any sanctions.
4. Account Password and Security
When setting up an account within Payburner, you will be responsible for keeping your own account secrets, which may be a twelve-word seed phrase, an account file, or other locally stored secret information. Payburner encrypts this information locally with a password you provide, that we never send to our servers. You agree to (a) never use the same password for Payburner that you have ever used outside of this service, (b) keep your secret information and password confidential and do not share them with anyone else and (c) immediately notify Payburner of any unauthorized use of your account or breach of security. Payburner cannot and will not be liable for any loss or damage arising from your failure to comply with this section.
5. DISCLAIMERS; RISKS
5.1. Warranty disclaimer
You expressly understand and agree that your use of the Services is at your sole risk. The Services (including the Site, the App and the Content) are provided on an “as is” and “as available” basis, without warranties of any kind, either express or implied, including, without limitation, implied warranties of merchantability, fitness for a particular purpose or non-infringement. You acknowledge that Payburner has no control over, and no duty to take any action regarding: which users gain access to or use the Services; what effects the Content may have on you; how you may interpret or use the Content; or what actions you may take as a result of having been exposed to the Content. You release Payburner from all liability for you having acquired or not acquired Content through the Services. Payburner makes no representations concerning any Content contained in or accessed through the Services, and Payburner will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Services.
We do not represent or warrant that access to the Services will be continuous, uninterrupted, timely or secure. You acknowledge and accept that the Services (a) may contain bugs, errors and defects, (b) may function improperly or be subject to periods of downtime and unavailability, (c) may result in total or partial loss or corruption of data and (d) may be modified at any time, including through the release of subsequent versions, all with or without notice to you.
You acknowledge that Payburner is not responsible for transferring, safeguarding, or maintaining your private keys or any digital currency associated therewith. If you lose, mishandle or have stolen associated digital currency private keys, you acknowledge that you may not be able to recover associated digital currency, and that Payburner is not responsible for such loss. You acknowledge that Payburner is not responsible for any loss, damage or liability arising from your failure to comply with the terms hereunder.
5.2 Sophistication and Risk of Cryptographic Systems
By utilizing the Services or interacting with the Content or platform in any way, you represent that you understand the inherent risks associated with cryptographic systems; and warrant that you have an understanding of the usage and intricacies of native cryptographic tokens such as XRP and blockchain-based software systems.
5.3 Risk of Regulatory Actions in One or More Jurisdictions
Payburner and any supported cryptographic token and blockchain could be impacted by one or more regulatory inquiries or regulatory action, which could impede or limit the ability of Payburner to continue to develop, or which could impede or limit your ability to access or use the Services or the underlying blockchain network.
5.4 Risk of Weaknesses or Exploits in the Field of Cryptography
You acknowledge and understand that Cryptography is a progressing field. Advances in code cracking or technical advances such as the development of quantum computers may present risks to cryptocurrencies and Services of Content, which could result in the theft or loss of your cryptographic tokens or property. To the extent possible, Payburner intends to update the protocol underlying Services to account for any advances in cryptography and to incorporate additional security measures, but does not guarantee or otherwise represent full security of the system. By using the Services or accessing Content, you acknowledge these inherent risks.
5.5 Volatility of Cryptocurrencies
You understand that XRP and other blockchain technologies and associated cryptographic tokens are highly volatile due to many factors including but not limited to adoption, speculation, technology and security risks. You also acknowledge that the cost of transacting on such technologies is variable and may increase at any time causing impact to any activities taking place on the blockchain network. You acknowledge these risks and agree that Payburner cannot be held liable for such fluctuations or increased costs.
5.6 Application Security
You further acknowledge that blockchain applications are code subject to flaws and acknowledge that you are solely responsible for evaluating any code provided by the Services or Content and the trustworthiness of any third-party websites, products, smart-contracts, or Content you access or use through the Services. You further expressly acknowledge and represent that blockchain applications can be written maliciously or negligently, that Payburner cannot be held liable for your interaction with such applications and that such applications may cause the loss of property or even identity. This warning and others later provided by Payburner in no way evidence or represent an on-going duty to alert you to all of the potential risks of utilizing the Services or Content.
5.7 Affiliated Services and Third Party Services
Service Providers may charge you a fee for use of, or access to, such Additional Services. You acknowledge that Payburner may earn fees from Service Providers in connection with your use of such Additional Services.
You agree that Payburner and its affiliates are not in any way associated with the owner or operator of any Third Party Services or responsible or liable for the software and services offered by them or for anything in connection with such Third Party Services. Payburner does not endorse or approve and makes no warranties, representations or undertakings relating to the software, service or content of any Third Party Services.
In addition, Payburner disclaims liability for any loss, damage and any other consequence resulting directly or indirectly from or relating to your use or access of Third Party Services or any information that you may provide or any transaction conducted with or through the Third Party Services or the failure of any information, software or services posted or offered by such Service Providers or any error, omission or misrepresentation by such Service Providers or any computer virus arising from or system failure associated with the Third Party Services.
In the event of any inconsistency between the terms herein and the terms of the Additional Services, the terms herein will prevail.
You agree to release and to indemnify, defend and hold harmless Payburner and its parents, subsidiaries, affiliates and agencies, as well as the officers, directors, employees, shareholders and representatives of any of the foregoing entities, from and against any and all losses, liabilities, expenses, damages, costs (including attorneys’ fees and court costs) claims or actions of any kind whatsoever arising or resulting from your use of the Services, your violation of these Terms, and any of your acts or omissions that implicate publicity rights, defamation or invasion of privacy. Payburner reserves the right, at its own expense, to assume exclusive defense and control of any matter otherwise subject to indemnification by you and, in such case, you agree to cooperate with Payburner in the defense of such matter.
7. Limitation on Liability
YOU ACKNOWLEDGE AND AGREE THAT YOU ASSUME FULL RESPONSIBILITY FOR YOUR USE OF THE SITE, THE APP AND THE SERVICES. YOU ACKNOWLEDGE AND AGREE THAT ANY INFORMATION YOU SEND OR RECEIVE DURING YOUR USE OF THE SITE, THE APP AND THE SERVICES MAY NOT BE SECURE AND MAY BE INTERCEPTED OR LATER ACQUIRED BY UNAUTHORIZED PARTIES. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SITE, THE APP AND THE SERVICES IS AT YOUR OWN RISK. RECOGNIZING SUCH, YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PAYBURNER NOR ITS SUPPLIERS OR LICENSORS WILL BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR OTHER DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER TANGIBLE OR INTANGIBLE LOSSES OR ANY OTHER DAMAGES BASED ON CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY (EVEN IF PAYBURNER HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM THE SITE, THE APP OR SERVICES; THE USE OR THE INABILITY TO USE THE SITE, THE APP OR THE SERVICES; UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE, THE APP OR THE SERVICES; ANY ACTIONS WE TAKE OR FAIL TO TAKE AS A RESULT OF COMMUNICATIONS YOU SEND TO US; HUMAN ERRORS; TECHNICAL MALFUNCTIONS; FAILURES, INCLUDING PUBLIC UTILITY OR TELEPHONE OUTAGES; OMISSIONS, INTERRUPTIONS, LATENCY, DELETIONS OR DEFECTS OF ANY DEVICE OR NETWORK, PROVIDERS, OR SOFTWARE (INCLUDING, BUT NOT LIMITED TO, THOSE THAT DO NOT PERMIT PARTICIPATION IN THE SERVICES); ANY INJURY OR DAMAGE TO COMPUTER EQUIPMENT; INABILITY TO FULLY ACCESS THE SITE, THE APP OR THE SERVICES OR ANY OTHER WEBSITE; THEFT, TAMPERING, DESTRUCTION, OR UNAUTHORIZED ACCESS TO, IMAGES OR OTHER CONTENT OF ANY KIND; DATA THAT IS PROCESSED LATE OR INCORRECTLY OR IS INCOMPLETE OR LOST; TYPOGRAPHICAL, PRINTING OR OTHER ERRORS, OR ANY COMBINATION THEREOF; OR ANY OTHER MATTER RELATING TO THE SITE, THE APP OR ANY OTHER ASPECT OF THE SERVICES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
8. Intellectual Property
8.1 Our Proprietary Rights
All title, ownership and intellectual property rights in and to the Services are owned by Payburner or its licensors. You acknowledge and agree that the Services contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Except as expressly authorized by Payburner, you agree not to copy, modify, rent, lease, loan, sell, distribute, perform, display or create derivative works based on the Site, the App or the Services, in whole or in part.
8.2 Limited License
We grant you limited, non-exclusive, revocable permission to make use of the Site, the App and the Services (collectively, “Access”). This Access shall remain in effect until and unless terminated by you or us. You promise and agree that you will not redistribute or transfer the Services.
The Payburner software application, including without limitation the Site, the App and the Services, are not sold or transferred to you, and Payburner and its licensors retain ownership of all copies of the software applications even after installation on your personal computers, mobile handsets, tablets, wearable devices, speakers and/or other devices (“Devices”).
All Payburner trademarks, service marks, trade names, logos, domain names, and any other features of the Payburner brand (“Payburner Brand Features”) are the sole property of Payburner or its licensors. The Terms do not grant you any rights to use any Payburner Brand Features whether for commercial or non-commercial use.
You agree to abide by our user guidelines and not to use the Services or any part thereof in any manner not expressly permitted by the Terms. Except for the rights expressly granted to you in the Terms, Payburner grants no right, title, or interest to you in the Site, the App or the Services.
Third party software (for example, open source software libraries) included in the Services are made available to you under the relevant third party software library’s license terms.
Notwithstanding anything herein to the contrary, nothing in the Terms entitles you to copy, modify, fork, merge, combine with another program or create a derivative work of the Services, including without limitation the Site and the App.
The Services provide, or third parties may provide, links to other World Wide Web or accessible sites, applications or resources. Because Payburner has no control over such sites, applications and resources, you acknowledge and agree that Payburner is not responsible for the availability of such external sites, applications or resources, and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that Payburner shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
10. Termination and Suspension
Payburner may terminate or suspend all or part of the Services and your Payburner access immediately, without prior notice or liability, if you breach any of the terms or conditions of the Terms. Upon termination of your access, your right to use the Services will immediately cease.
The following provisions of the Terms survive any termination of these Terms: INDEMNITY; WARRANTY DISCLAIMERS; LIMITATION ON LIABILITY; OUR PROPRIETARY RIGHTS; LINKS; TERMINATION; NO THIRD PARTY BENEFICIARIES; BINDING ARBITRATION AND CLASS ACTION WAIVER; GENERAL INFORMATION.
11. No Third Party Beneficiaries
You agree that, except as otherwise expressly provided in these Terms, there shall be no third party beneficiaries to the Terms.
12. Notice and Procedure For Making Claims of Copyright Infringement
If you believe that your copyright or the copyright of a person on whose behalf you are authorized to act has been infringed, please provide Payburner's Copyright Agent a written Notice containing the following information:
Payburner's Copyright Agent can be reached at:
Attention: Payburner Copyright
4204 Dubhe Court
Concord, CA 94521
13. Binding Arbitration and Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT
13.1 Initial Dispute Resolution
The parties shall use their best efforts to engage directly to settle any dispute, claim, question, or disagreement and engage in good faith negotiations which shall be a condition to either party initiating a lawsuit or arbitration.
13.2 Binding Arbitration
If the parties do not reach an agreed upon solution within a period of 30 days from the time informal dispute resolution under the Initial Dispute Resolution provision begins, then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to these Terms (including their formation, performance and breach), the parties’ relationship with each other and/or your use of the Services shall be finally settled by binding arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules and the supplementary procedures for consumer related disputes of the American Arbitration Association (the “AAA”), excluding any rules or procedures governing or permitting class actions.
The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, including, but not limited to any claim that all or any part of these Terms are void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
Binding arbitration shall take place in New York. You agree to submit to the personal jurisdiction of any federal or state court in New York County, New York, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
13.4 Class Action Waiver
The parties further agree that any arbitration shall be conducted in their individual capacities only 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 PAYBURNER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
13.5 Exception - Litigation of Intellectual Property and Small Claims Court Claims
Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring an action in state or federal court to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
13.6 30-Day Right to Opt Out
You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt-out to the following address: Payburner, 4204 Dubhe Court, Concord, CA 94521 and via email at email@example.com. The notice must be sent within 30 days of January 1, 2020 or your first use of the Services, whichever is later, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt-out of these arbitration provisions, Payburner also will not be bound by them.
13.7 Changes to this Section
Payburner will provide 60-days’ notice of any changes to this section. Changes will become effective on the 60th day, and will apply prospectively only to any claims arising after the 60th day.
For any dispute not subject to arbitration you and Payburner agree to submit to the personal and exclusive jurisdiction of, and venue in, the federal and state courts located in New York, New York. You further agree to accept service of process by mail, and hereby waive any and all jurisdictional and venue defenses otherwise available.
The Terms and the relationship between you and Payburner shall be governed by the laws of the State of New York without regard to conflict of law provisions.
14. GENERAL INFORMATION
14.1 Entire Agreement
These Terms (and any additional terms, rules and conditions of participation that Payburner may post on the Services) constitute the entire agreement between you and Payburner with respect to the Services and supersedes any prior agreements, oral or written, between you and Payburner. In the event of a conflict between these Terms and the additional terms, rules and conditions of participation, the latter will prevail over the Terms to the extent of the conflict.
14.2 Waiver and Severability of Terms
The failure of Payburner to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision. If any provision of the Terms is found by an arbitrator or court of competent jurisdiction to be invalid, the parties nevertheless agree that the arbitrator or court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect.
14.3 Statute of Limitations
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Services or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
14.4 Section Titles
The section titles in the Terms are for convenience only and have no legal or contractual effect.
Users with questions, complaints or claims with respect to the Services may contact us using the relevant contact information set forth above.