Cibola Interface
Terms of Service
Welcome to the Cibola Interface, a website-hosted user interface (the “Interface”) provided by Cibola Foundation, a Cayman Islands company (“Company”, “we”, “our”, or “us”), which Interface provides access to the decentralized Cibola DeFi protocol on the BlockSimple blockchain (the “Protocol”). Sivo Orion Limited, a British Virgin Islands entity, is the token issuer for the Protocol (“Issuer”). Sivo Yield Administrator LLC, a Delaware entity, acts as the sole borrower under the Protocol (“Borrower”).
The Protocol enables users of the Interface (“you”, “your”) to lend assets (which may be in the form of cryptographic tokens such as USDC or ETH or fiat currency such as U.S. dollars or Euros) to Borrower (“Loans”). You will earn interest on your Loans at interest rates that will be algorithmically derived by the Protocol based on supply and demand, as further described below and here. Loans are used by Borrower or its affiliates to fund lending products that are offered via our Debt-as-a-Service product or other Sivo offerings or operations of the Company and its affiliates. (collectively, “DaaS”).
These Terms of Service (this “Agreement”) constitutes a binding agreement between you and us regarding your access to and use of the Interface and the Protocol. Our affiliates, including, but not limited to, Issuer and Borrower, are third-party beneficiaries of all of your obligations under this Agreement. Accordingly, we urge you to read this Agreement carefully. By accessing or using the Interface or the Protocol, signify that you have read, understand, and agree to be bound by this Agreement in its entirety. If you do not agree, you are not authorized to access or use the Interface or the Protocol.
This Agreement incorporates our Privacy Policy (our “Privacy Policy”) by reference, which Privacy Policy is deemed to be a part of this Agreement.
THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION THAT, AS FURTHER SET FORTH IN THE “GOVERNING LAW AND BINDING ARBITRATION” SECTION BELOW, REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, SUBJECT TO CERTAIN EXCEPTIONS SPECIFIED IN THAT SECTION, UNLESS YOU ELECT TO OPT OUT OF THE ARBITRATION PROVISION BEFORE THE DEADLINE SPECIFIED IN THAT SECTION. TO THE EXTENT THAT THE ARBITRATION PROVISION APPLIES, YOU WILL NOT BE ALLOWED TO BRING ANY CLAIMS RELATING TO THE INTERFACE, THE PROTOCOL OR THIS AGREEMENT IN COURT OR TO PARTICIPATE IN ANY JURY TRIALS OR ANY OTHER COURT PROCEEDINGS OR CLASS ACTIONS OF ANY KIND THAT RELATE IN ANY WAY TO THE INTERFACE, THE PROTOCOL OR THIS AGREEMENT.
1. Investment Pools and Interest
The Interface will enable you to select among investment pools into which your Loans will be deposited (“Pools”), each of which may have a distinct risk/reward profile. Interest will be paid in the type of assets that you Loaned in accordance with the interest rate calculation found here.
2. Modification of this Agreement
We reserve the right, in our sole discretion, from time to time to modify this Agreement or the terms referenced in Section 1 above regarding the calculation of interest (the “Interest Terms”). We will promptly notify you of any amendment to this Agreement (including but not limited to the Interest Terms) as provided herein and/or by posting the modified version of this Agreement or Interest Terms at https://www.cibola.finance/terms (collectively, the “Notice of Amendment”), and the
amendment will be effective with respect to any Loans that you make via the Protocol after the date of the Notice of Amendment. If you made any Loans via the Protocol that have not been repaid when we send the Notice of Amendment, the amendment will be effective with respect to those Loans and any interest accrued or accruing thereon unless you provide all required notices and take any other acts that are required to effect the prompt withdrawal of that Loaned amount in full within three (3) business days of the date we sent the Notice of Amendment.
We may be required or choose to provide certain communications including the Notice of Amendment to you in written form. By agreeing to this Agreement, you consent to the delivery of those communications in electronic form, including e-mail or other electronic message. You further agree that all terms and conditions, disclosures, or agreements provided by Company electronically satisfy any legal requirement such communications would satisfy if they were provided in non-electronic writing. You waive any rights to require an original, wet, non-electronic signature, to the extent that such waiver is not prohibited under applicable law.
3. Eligibility; Account
To access or use the Interface or the Protocol, you must be an accredited investor (as defined below) if you are based in the United States, and you must in any event be able to form a legally binding contract with us. Accordingly, you represent that you are at least the age of majority in the jurisdiction in which you reside (if you are an individual) and have the full right, power, and authority to enter into and comply with the terms and conditions of this Agreement on behalf of yourself and any company or legal entity for which you may access or use the Interface or the Protocol. You further represent that you are not a citizen, resident, or member of any jurisdiction or group that is subject to economic sanctions by the United States, or where your use of the Interface or Protocol would be illegal or otherwise violate any applicable law. You further represent that your access and use of the Interface and Protocol will fully comply with all applicable laws and regulations, and that you will not access or use the Interface or the Protocol to conduct, promote, or otherwise facilitate any illegal activity.
To access or use the Interface or Protocol, you must open an account with us (a “Protocol Account”). To open a Protocol Account, you will be required to submit an application that includes information regarding yourself, including personal and financial information (“Your Information”). We have the right to use and share Your Information as reasonably necessary to consider your application and operate the Interface and the Protocol, and otherwise as contemplated in our Privacy Policy. We reserve the right to reject your application to open a Protocol Account or, if we accept that application, to subsequently terminate your Protocol Account at any time, for any reason, in our sole discretion, subject to applicable law.
To access the Interface or some of the resources it offers, you may be asked to utilize certain Web3 applications, such as MetaMask or another crypto-asset wallet capable of interacting with your web browser (“Web3 Applications”).
If you utilize a Web3 Applications that relies on a username, password, private key, or any other piece of information as part of its security procedures, you must treat such information as confidential, and you must not disclose that information to any other person or entity. You also acknowledge that any identity linked to your Web3 Applications is personal to you and agree not to provide any other person with access to such identity while using this Interface or portions of it using your Web3 Applications. You also agree to ensure that you will lock or otherwise prevent your Web3 Applications from unauthorized use on this Interface at the end of each session. You should use particular caution when accessing the Interface from a public or shared computer so that others are not able to view or record your password, private key, or other personal information.
We have the right to disable any identity associated with any Web3 Applications (such as that represented by a public address) on the Interface or to block any IP address from accessing the Interface at any time in our sole discretion for any or no reason, including if, in our opinion, you or that identity has violated any provision of this Agreement.
It is a condition of your right to use the Interface or Protocol that you only operate such Web3 Applications with a private key(s) that you created or that you have the direct, explicit permission of the party who created the relevant private key(s) to so use. You agree that all information you provide to interact with the Interface or otherwise, including, but not limited to, through the use of any interactive features on the Interface, is governed by our Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.
4. Proprietary Rights
We own all intellectual property and other rights in the Interface and its contents, including (but not limited to) software, text, images, trademarks, service marks, copyrights, patents, and designs. Unless expressly authorized by us, you may not copy, modify, adapt, rent, license, sell, publish, distribute, or otherwise permit any third party to access or use the Interface or any of its contents. Provided that you are eligible and we accept your application to open a Protocol Account, you are hereby granted a single, personal, limited license to access and use the Interface for so long as your Protocol Account remains active. This license is non-exclusive, non-transferable, and freely revocable by us at any time without notice or cause. Use of the Interface or its contents for any purpose not expressly permitted by this Agreement is strictly prohibited.
5. Prohibited Activity
You agree not to engage in, or attempt to engage in, any of the following categories of prohibited activity in relation to your access and use of the Interface or the Protocol:
- Intellectual Property Infringement. Activity that infringes on or violates any copyright, trademark, service mark, patent, right of publicity, right of privacy, or other proprietary or intellectual property rights under the law.
- Cyberattack. Activity that seeks to interfere with or compromise the integrity, security, or proper functioning of any computer, server, network, personal device, or other information technology system, including (but not limited to) the deployment of viruses and denial of service attacks.
- Fraud and Misrepresentation. Activity that seeks to defraud us or any other person or entity, including (but not limited to) providing any false, inaccurate, or misleading information in order to unlawfully obtain the property of another or to access the Protocol.
- Market Manipulation. Activity that violates any applicable law, rule, or regulation concerning the integrity of trading markets, including (but not limited to) the manipulative tactics commonly known as spoofing and wash trading.
- Any Other Unlawful Conduct. Activity that violates any applicable law, rule, or regulation of the United States or another relevant jurisdiction, including (but not limited to) the restrictions and regulatory requirements imposed by U.S. law.
6. No Professional Advice
All information provided by the Interface is for informational purposes only and should not be construed as professional advice. You should not take, or refrain from taking, any action based on any information contained in the Interface. Before you make any financial, legal, or other decisions involving the Interface, you should seek independent professional advice from an individual who is licensed and qualified in the area for which such advice would be appropriate.
7. No Fiduciary Duties
This Agreement is not intended to, and does not, create or impose any fiduciary duties on us or any of our affiliates. To the fullest extent permitted by law, you acknowledge and agree that we owe no fiduciary duties or liabilities to you or any other party, and that to the extent any such duties or liabilities may exist at law or in equity, those duties and liabilities are hereby irrevocably disclaimed, waived, and eliminated. You further agree that the only duties and obligations that we owe you are those set out expressly in this Agreement.
8. Compliance Obligations
The Interface is operated from Singapore. The Interface may not be available or appropriate for use in other jurisdictions. By accessing or using the Interface, you agree that you are solely and entirely responsible for compliance with all laws and regulations that may apply to you. You may not use the Interface if you are a citizen, resident, or member of any jurisdiction or group that is subject to economic sanctions followed by the British Virgin Islands, or if your use of the Interface would be illegal or otherwise violate any applicable law. The Interface and all of its contents are solely directed to individuals, companies, and other entities located in jurisdictions where permitted by applicable law.
9. NO WARRANTIES
THE INTERFACE AND THE PROTOCOL ARE EACH PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ANY REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING (BUT NOT LIMITED TO) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE INTERFACE AND THE PROTOCOL IS AT YOUR OWN RISK. WE DO NOT REPRESENT OR WARRANT THAT ACCESS TO THE INTERFACE WILL BE CONTINUOUS, UNINTERRUPTED, TIMELY, OR SECURE; THAT THE INFORMATION CONTAINED IN THE INTERFACE WILL BE ACCURATE, RELIABLE, COMPLETE, OR CURRENT; OR THAT THE INTERFACE OR THE PROTOCOL WILL BE FREE FROM ERRORS, DEFECTS, VIRUSES, OR OTHER HARMFUL ELEMENTS. NO ADVICE, INFORMATION, OR STATEMENT THAT WE MAKE SHOULD BE TREATED AS CREATING ANY WARRANTY CONCERNING THE INTERFACE OR THE PROTOCOL. WE DO NOT ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY ADVERTISEMENTS, OFFERS, OR STATEMENTS MADE BY THIRD PARTIES CONCERNING THE INTERFACE OR THE PROTOCOL OR OTHERWISE.
Some jurisdictions do not permit the disclaimer of implied warranties or limitations on how long an implied warranty lasts; therefore, some of the provisions of this paragraph may not apply to you. In that event, the duration of any implied warranty that is not effectively disclaimed will be limited to the longer of: (i) thirty (30) days from the date that you first accept this Agreement and (ii) the shortest period allowed under applicable law.
10. Assumption of Risk
Lending creates risk, including the potential loss of the entire amount of your Loan and of any interest accrued thereon. Further, by accessing and using the Interface, you represent that you understand the inherent risks associated with using cryptographic and blockchain-based systems, and that you have a working knowledge of the usage and intricacies of digital assets such as bitcoin (BTC), ether (ETH), and other digital tokens such as those following the Ethereum Token Standard (ERC-20). You further understand that the markets for these digital assets are highly volatile due to factors including (but not limited to) adoption, speculation, technology, security, and regulation. You acknowledge that the cost and speed of transacting with cryptographic and blockchain-based systems such as Ethereum are variable and may increase dramatically at any time. You further acknowledge the risk that your digital assets may lose some or all of their value while they are Loaned to the Protocol. You further acknowledge that we are not responsible for any of these variables or risks, and cannot be held liable for any resulting losses that you experience while accessing or using the Interface or the Protocol. Accordingly, you understand and agree to assume full responsibility for all of the risks of accessing and using the Interface and interacting with the Protocol.
11. Third-Party Resources and Promotions
The Interface may contain references or links to third-party resources, including (but not limited to) information, materials, products, or services, that we do not own or control. In addition, third parties may offer promotions related to your access and use of the Interface. We do not endorse or assume any responsibility for any such resources or promotions. If you access any such resources or participate in any such promotions, you do so at your own risk, and you understand that this Agreement does not apply to your dealings or relationships with any third parties (except to the extent provided above regarding our affiliates). You expressly relieve us of any and all liability arising from your use of any such resources or participation in any such promotions.
12. Sanctioned Countries Prohibition
The Interface is not available in Belarus, Burundi, Central African Republic, Cuba, Iran, Libya, North Korea, Somalia, Sudan, Syria, Zimbabwe, Russia or any other country to which the United States, United Kingdom, United Nations, or the European Union embargoes goods or imposes similar sanctions. The Interface is not available in any other jurisdiction in which Sivo chooses not to offer or is prohibited from offering the Interface. Due to the dynamic nature of regulatory requirements and interpretations in the market, Cibola reserves the right to update the list of prohibited jurisdictions and reject opening the Interface accounts that Cibola determines would be unable to be accepted for regulatory or policy reasons in Cibola’s sole and absolute discretion.
13. Accredited Investor Requirement
Subject to the fact that the Interface is not available in any jurisdiction where not permitted and agreed upon, we may require you to provide information to verify accredited investor status in order to participate in the Interface if required by the jurisdiction in which you reside or are formed.
To open a Protocol Account, you must be an “accredited investor” as such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended (the “Securities Act”) if you reside in or are formed under the laws of and based in the United States. Before accepting your application to open a Protocol Account, we may request additional documentation to seek to reasonably verify your eligibility, including your status as an accredited investor. Protocol Accounts have not been registered with the U.S. Securities and Exchange Commission or any other authority. By opening a Protocol Account, you are certifying that you are eligible and an “accredited investor” (if you reside in or are formed under the laws of the United States) and are in any event permitted under applicable law to engage in lending activities. You represent and warrant that (i) you have such knowledge and experience in financial and business matters that enable you to evaluate the merits and risks of loaning your funds to us as contemplated in this Agreement and (ii) you are able to incur a complete loss of the total amount placed in any Protocol Account without impairing your financial condition. In addition, in evaluating the merits and risks of your Loan, you have and will rely upon the advice of your own legal counsel, tax advisors, and investment advisors.
14. Tax
It is your responsibility to determine what, if any, taxes apply to the payments you make or receive, and to collect, report, and remit the correct tax to the appropriate tax authority. Cibola will make any tax withholdings or filings that it is required by law to make, but Cibola is not responsible for determining whether taxes apply to your transaction, or for collecting, reporting, or remitting any taxes arising from any transaction. You agree that Cibola is not responsible for determining whether or which taxes may apply to your transactions. You are solely responsible for reporting and paying any taxes arising from your lending activities.
15. RELEASE OF CLAIMS
YOU EXPRESSLY AGREE THAT YOU ASSUME ALL RISKS IN CONNECTION WITH YOUR ACCESS AND USE OF THE INTERFACE AND YOUR INTERACTION WITH THE PROTOCOL. YOU FURTHER EXPRESSLY WAIVE AND RELEASE US FROM ANY AND ALL LIABILITY, CLAIMS, CAUSES OF ACTION, OR DAMAGES ARISING FROM OR IN ANY WAY RELATING TO YOUR USE OF THE INTERFACE AND YOUR INTERACTION WITH THE PROTOCOL, OTHER THAN ANY LIABILITY SOLELY FOR DIRECT DAMAGES DIRECTLY AND PROXIMATELY CAUSED BY OUR BREACH OF THIS AGREEMENT. YOU ACKNOWLEDGE THAT CALIFORNIA CIVIL CODE § 1542 PROVIDES: “[A] GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” YOU IRREVOCABLY WAIVE THE BENEFITS AND PROTECTIONS OF SUCH § 1542 OR OF ANY SIMILAR PROVISION OF LAW THAT MAY BE IN FORCE IN THE JURISDICTION IN WHICH YOU RESIDE OR ARE BASED.
16. Indemnity
You agree to hold harmless, release, defend, and indemnify us, our affiliates and our and our affiliates’ respective officers, directors, employees, contractors and agents from and against all claims, damages, obligations, losses, liabilities, costs, and expenses (collectively, “Losses”) arising from: (a) your access and use of the Interface or Protocol; (b) your violation of any term or condition of this Agreement, the right of any third party, or any other applicable law, rule, or regulation relating in any way to your use of the Interface or the Protocol; and (c) any other party’s access and use of the Interface or Protocol with your assistance or using any device or account that you own or control; provided that you will not be liable under this paragraph for any Losses to the extent solely attributable to our breach of this Agreement, gross negligence or violation of law.
17. Disclaimer and Notice Regarding Securities Law
The information and materials provided herein are for informational purposes only and do not constitute an offer to sell, a solicitation to buy, or a recommendation for any securities or investment products. Company and its affiliates expressly disclaim any representation or warranty, whether express or implied, that the contents of this communication are accurate, complete, or current. Company (and Company affiliates’) product(s) mentioned herein have not been registered with the U.S. Securities and Exchange Commission (“SEC”) or any other regulatory authority. The products and services offered by Company and its affiliates do not involve or include the issuance, sale, or offering of securities. Company and its affiliates do not engage in any activities related to securities, such as stocks, bonds, or investment contracts. The information provided by Company and its affiliates on their respective websites, in their respective marketing materials, or through any other means is solely for informational purposes and should not be construed as an invitation, inducement, or solicitation to buy or invest in any securities. Company and its affiliates do not operate as a financial institution or investment advisor, and nothing within our offerings should be considered as financial or investment advice. Company and its affiliates are financial technology companies and not a bank. By using our products and services, you acknowledge and agree that we bear no responsibility for any investment decisions or actions taken by users based on our materials or communications.
18. No Advisory Relationship
You acknowledge and agree that any Loan pursuant to this Agreement is an at arms-length transaction between you and Borrower. In connection with this Agreement, neither Borrower nor any affiliate thereof is acting as your agent or fiduciary. Neither Borrower nor any affiliate thereof assumes any advisory or fiduciary responsibility to you. Borrower has not provided you with any legal, accounting, regulatory or tax advice with respect to your Loan or otherwise. You have consulted with your own legal, accounting, regulatory and tax advisors to the extent you have deemed appropriate.
19. OFAC
By entering into this Agreement, the parties involved hereby represent and warrant that they are not, and shall not engage in any transaction with, any person or entity that is currently on the U.S. Department of the Treasury's Office of Foreign Assets Control (“OFAC”) list of Specially Designated Nationals and Blocked Persons, or is otherwise subject to any economic sanctions imposed by the U.S. government. The parties further agree to comply with all applicable laws and regulations, including but not limited to OFAC sanctions, and acknowledge that any violation of such laws may result in the termination of this Agreement or your Protocol Account and could lead to civil or criminal penalties. Each party also agrees to promptly notify the other party in writing if they become aware of any change in their status with respect to OFAC compliance during the term of this Agreement or your Protocol Account. The parties acknowledge that compliance with OFAC regulations is an essential condition of this Agreement and that failure to comply may result in severe consequences for both parties.
20. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL WE, OUR AFFILIATES OR ANY OF OUR OR AFFILIATES’ RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS OR AGENTS (THE “COMPANY PARTIES”) BE LIABLE TO YOU FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING (BUT NOT LIMITED TO) DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE PROPERTY, ARISING UNDER THIS AGREEMENT OR OTHERWISE OUT OF OR RELATING TO ANY ACCESS OR USE OF THE INTERFACE OR PROTOCOL, NOR WILL WE BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE INTERFACE OR THE PROTOCOL OR THE INFORMATION CONTAINED THEREIN. THE COMPANY PARTIES ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY: (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (B) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER RESULTING FROM ANY ACCESS OR USE OF THE INTERFACE OR THE PROTOCOL; (C) UNAUTHORIZED ACCESS OR USE OF ANY SECURE SERVER OR DATABASE IN OUR CONTROL, OR THE USE OF ANY INFORMATION OR DATA STORED THEREIN; (D) INTERRUPTION OR CESSATION OF FUNCTION RELATED TO THE INTERFACE OR PROTOCOL; (E) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE INTERFACE; (F) ERRORS OR OMISSIONS IN, OR LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF, ANY CONTENT MADE AVAILABLE THROUGH THE INTERFACE; AND (G) THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. THIS LIMITATION OF LIABILITY APPLIES REGARDLESS OF WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, AND EVEN IF THE COMPANY PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF CERTAIN LIABILITIES AND DAMAGES. ACCORDINGLY, SOME OF THE DISCLAIMERS AND LIMITATIONS SET FORTH IN THIS AGREEMENT MAY NOT APPLY TO YOU. THIS LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
21. Arbitration
Please read this provision very carefully. It limits your rights in the event of a dispute between you and us.
You and we agree that any and all past, present and future disputes, controversies, claims, or causes of action arising out of or relating to the Interface, the Protocol, your Loan, us or our affiliates, or arising out of or relating to this Agreement, our Privacy Policy or your Protocol Account (if any), and any other controversies or disputes between you and us or any of our affiliates (including disputes regarding the effectiveness, scope, validity or enforceability of this agreement to arbitrate) (collectively, “Dispute(s)”), shall be determined by arbitration, unless (A) your Country of Residence does not allow this arbitration agreement; (B) you opt out as provided below; or (C) your Dispute is subject to an exception to this agreement to arbitrate set forth below. You and we further agree that any arbitration pursuant to this section shall not proceed as a class, group or representative action. The award of the arbitrator may be entered in any court having jurisdiction.
“Country of Residence” for purposes of this agreement to arbitrate means the country in which you hold citizenship or legal permanent residence (if you are an individual) or under the laws of which you are formed (if you are an entity); provided that if you have more than one country of citizenship or legal permanent residence, it shall be the country in which the address that you provided for KYC purposes is located.
We want to address your concerns without the need for a formal dispute resolution process. Before filing a Dispute against us or any of our affiliates, you agree to try to resolve the Dispute informally by contacting us in writing at 2261 Market Street #4175, San Francisco CA, 94114, or via e-mail at legal@cibola.finance, to notify us of the actual or potential Dispute. Similarly, we will undertake reasonable efforts to contact you to notify you of any actual or potential Dispute to resolve any related claim we or our affiliates may possess informally before taking any formal action in connection with such Dispute. The party that provides the notice of the actual or potential Dispute (the “Notifying Party”) will include in that notice (a “Notice of Dispute”) your name (to the extent known), the Notifying Party’s contact information for any communications relating to such Dispute (including for the Notifying Party’s legal counsel if it is represented by counsel in connection with such Dispute), and sufficient details regarding such Dispute to enable the other party (the “Notified Party”) to understand the basis of and evaluate the concerns raised in such Dispute. If the Notified Party responds within ten (10) business days after receiving the Notice of Dispute that it is ready and willing to engage in good faith discussions in an effort to resolve the Dispute informally, then each party shall promptly participate in such discussions in good faith.
If, notwithstanding the Notifying Party’s compliance with all of its obligations under the preceding paragraph, a Dispute is not resolved within 30 days after the Notice of Dispute is sent (or if the Notified Party fails to respond to the Notice of Dispute within ten (10) business days), the Notifying Party may initiate an arbitration proceeding as described below. If either party purports to initiate arbitration without first providing a Notice of Dispute and otherwise complying with all of its obligations under the preceding paragraph, then, notwithstanding any other provision of this Agreement, the arbitrator(s) will promptly dismiss the claim with prejudice and will award the other party all of its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such Dispute.
Unless you opt out of this agreement to arbitrate as provided below, you and we each agree to resolve any Disputes that are not resolved informally as described above through final and binding arbitration as discussed herein, subject to the exceptions set forth below.
If you do not wish to be subject to this agreement to arbitrate, you may opt out of this arbitration provision by sending a written notice to us at 2261 Market Street #4175, San Francisco CA, 94114, or via e-mail at legal@cibola.finance, within thirty (30) days of the first time you accept this Agreement (or any prior version of this Agreement) or, if earlier, your first use of the Interface or the Protocol. You must date the notice and include your first and last name, address, and a clear statement that you do not wish to resolve disputes with us through arbitration. If no notice is submitted in the manner described above by the 30-day deadline, you will have irrevocably waived your right to litigate any Dispute except with regard to the exceptions set forth below. By opting out of the agreement to arbitrate, you will not be precluded from using the Interface or the Protocol, but you and we will not be permitted to invoke the mutual agreement to arbitrate to resolve Disputes under the terms otherwise provided herein.
You and we agree that the American Arbitration Association (“AAA”) will administer the arbitration under its Commercial Arbitration Rules in effect at the time arbitration is sought (“AAA Rules”). Those rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a general Demand for Arbitration.) Arbitration will proceed on an individual basis and will be handled by a sole arbitrator. The single arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within fourteen (14) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules. The arbitrator(s) shall be authorized to award any remedies, including injunctive relief, that would be available in an individual lawsuit, other than remedies that you effectively waived pursuant to this Agreement. Notwithstanding any language to the contrary in this paragraph, if a party seeks injunctive relief that would significantly impact other of our customers or users, as reasonably determined by either party, the parties agree that such arbitration will proceed on an individual basis but will be handled by a panel of three (3) arbitrators. In that event, each party shall select one arbitrator, and the two party-selected arbitrators shall select the third, who shall serve as chair of the arbitral panel. That chairperson shall be a retired judge or an attorney licensed to practice law with experience arbitrating or mediating disputes. In the event of disagreement as to whether the threshold for a three-arbitrator panel has been met, the sole arbitrator appointed in accordance with this section shall make that determination. If the arbitrator determines a three-person panel is appropriate, the arbitrator may – if selected by either party or as the chair by the two party-selected arbitrators – participate in the arbitral panel. Except as may be and to the extent otherwise required by law, the arbitration proceeding and any award shall be confidential.
You and we further agree that the arbitration will be held in the English language in Wilmington, Delaware or, if you so elect, all proceedings can be conducted via videoconference, telephonically or via other remote electronic means. Each party shall bear the expense of its own attorneys' fees, except as otherwise provided herein or required by law.
Regardless of the rules of a given arbitration forum, you and we agree that the arbitration of any Dispute shall proceed on an individual basis, and neither you nor we may bring a claim as a part of a class, group, collective, coordinated, consolidated or mass arbitration (each, a “Collective Arbitration”). Without limiting the generality of the foregoing, a claim to resolve any Dispute against us will be deemed a Collective Arbitration if (i) two (2) or more similar claims for arbitration are filed or pending concurrently; and (ii) counsel for the claimants are the same, share fees or coordinate across the arbitrations.
To the maximum extent permitted by applicable law, neither you nor we shall be entitled to consolidate, join or coordinate disputes by or against other individuals or entities with any Disputes, or to arbitrate or litigate any Dispute in a representative capacity, including as a representative member of a class or in a private attorney general capacity. In connection with any Dispute, any and all such rights are hereby expressly and unconditionally waived. Without limiting the foregoing, any challenge to the validity of this paragraph or otherwise relating to the prohibition of Collective Arbitration shall be determined exclusively by the arbitrator.
Notwithstanding the agreement between you and us to arbitrate Disputes, you and we each retain the following rights:
If your Country of Residence is the United States, you and we retain the right (A) to bring an individual action in small claims court; and (B) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. If your Country of Residence is not the United States, you and we may assert claims, if they qualify, through the small claims process in the courts of your Country of Residence. Further, as applicable, this agreement to arbitrate does not deprive you of the protection of the mandatory provisions of the consumer protection laws in your Country of Residence; you shall retain any such rights and this agreement to arbitrate shall be construed accordingly.Except as otherwise required by applicable law or provided in this Agreement, in the event that the agreement to arbitrate is found not to apply to you or your Dispute, you and we agree that any judicial proceeding may only be brought in a court of competent jurisdiction in the state of Delaware. Both you and we consent to venue and personal jurisdiction in any such court. Notwithstanding the foregoing, either party may bring any action to enforce its intellectual property rights or confirm an arbitral award in any court or administrative agency having jurisdiction.
This agreement to arbitrate shall survive the termination or expiration of this Agreement. With the exception of the provisions of this agreement to arbitrate that prohibit Collective Arbitration, if a court decides that any part of this agreement to arbitrate is invalid or unenforceable, then the remaining portions of this agreement to arbitrate shall nevertheless remain valid and in force. If a court finds the prohibition of Collective Arbitration to be invalid or unenforceable, then the entirety of this agreement to arbitrate shall be deemed void (but no provisions of this Agreement not specifically related to arbitration shall be void), and any remaining Dispute must be litigated in court pursuant to the preceding paragraph.
22. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the state of British Virgin Islands applicable to contracts entered into and performed in British Virgin Islands by residents thereof; provided that all provisions hereof related to arbitration shall be governed by and construed in accordance with the Federal Arbitration Act (U.S. Code Title 9).
23. No Waiver
If you breach this Agreement and we do not immediately respond, or we do not respond at all, we will still be entitled to all rights and remedies at any later date, or in any other situation, where you breach this Agreement. No failure to act or delay in acting by us will be deemed to be a waiver of any type.
24. Assignment
You may not assign, sub-license or otherwise transfer any of your rights under this Agreement. We may assign this Agreement at any time, in our sole and absolute discretion, without notice.
25. Enforceability
Except as provided above with respect to the provisions of this Agreement prohibiting Collective Arbitration, if any provision of this Agreement is held to be invalid, ineffective or unenforceable by a court of competent jurisdiction or arbitrator, the remaining provisions of this Agreement will remain valid, effective and enforceable.
26. Feedback
We welcome questions, comments and other feedback about this Agreement, the Interface, the Protocol or any related information, tools or services that we or our affiliates provide, including ideas, proposals, suggestions or other materials (“Feedback”). However, you acknowledge and agree that we will treat all Feedback as non-confidential, and you hereby grant us a nonexclusive, worldwide, perpetual, irrevocable, royalty-free, fully-paid-up license to create derivative works based upon any of your Feedback and to reproduce, publicly display, publicly perform, use, commercialize, disclose, import and distribute such Feedback and derivative works in any way and for any purpose, and to assign or otherwise transfer such license or otherwise authorize others to do any of the foregoing, without notice or obligation to you. You further acknowledge and agree that your provision of Feedback is gratuitous, unsolicited and without restrictions, and does not place us under any fiduciary or other obligation.
27. Entire Agreement
This Agreement (including any documents incorporated into this Agreement by reference) constitutes the entire agreement between you and us regarding the Interface, the Protocol and your Loans. If there exists any prior agreement, whether oral or written, regarding any of the foregoing, that prior agreement is replaced by this Agreement.Without limiting the generality of the foregoing, you acknowledge that we or our affiliates provide the DaaS product and other products or services (“Other Services”), subject to other terms of services (“Other Terms”). This Agreement is separate and apart from any Other Terms. Accordingly, such Other Terms (including any additional documents or materials referenced therein) do not relate to the Interface or the Protocol, and this Agreement does not relate to the Other Services.
28. Important Note to New Jersey Consumers
If you are a consumer residing in New Jersey, the following provisions of this Agreement do not apply to you (and do not limit any rights that you may have) to the extent that they are unenforceable under New Jersey law: (a) the disclaimer of liabilityfor any indirect, incidental, consequential, special, exemplary or punitive damages of any kind (for example, to the extent unenforceable under the New Jersey Punitive Damages Act, New Jersey Products Liability Act, New Jersey Uniform Commercial Code and New Jersey Consumer Fraud Act); (b) the limitations of liability for lost profits or loss or misuse of any data (for example, to the extent unenforceable under the New Jersey Identity Theft Protection Act and New Jersey Consumer Fraud Act); (c) application of the limitations of liability to the recovery of damages that arise under contract and tort, including negligence, strict liability or any other theory (for example, to the extent such damages are recoverable by a consumer under New Jersey law, including the New Jersey Products Liability Act); (d) the requirement that you indemnify us and the other indemnified parties (for example, to the extent the scope of such indemnity is prohibited under New Jersey law); and (e) the governing law provision (for example, to the extent that your rights as a consumer residing in New Jersey are required to be governed by New Jersey law).
29. Notices
We may send you notices relating to this Agreement or otherwise relating to any Protocol Account, the Interface, the Protocol, your use of any of the foregoing or your Loan by email to the email address specified on your Protocol Account profile. 1 You will be deemed to have received any notice that we send to the email address on that profile and any such notice will be fully effective as of the time that it is sent for all purposes of this Agreement. You are responsible for ensuring that such email address is up to date, that any spam blocker or similar filter is set to allow delivery of all emails from us and that you promptly read all emails from us that are delivered to that address.
