Last Updated: April 18, 2019
2. Scope of Services
The EST LITE Platform provides services (“Services”) designed to facilitate the offering and sale of private securities (the “Offering”) of issuers (“Issuers”). The Services also assist Issuers and investors through the use of EST LITE blockchain protocol and associated functionality in monitoring compliance for secondary trading. This is done through our implementation of the EST LITE blockchain to produce a token that provides permissioned ERC-20 smart contracts that algorithmically enforce transfer restrictions with regard to proposed securities transfers (the “Token”). The Services form only a part of the services required for an Issuer to complete its Offering. In connection with the Offering, the Issuer will enter into an agreement with other third party providers to perform the other functions of the Offering (“Issuer Vendors”), including but not limited to, those that provide (a) services to receive, return, or escrow cryptocurrency or fiat currency for Registered Users (defined below), (b) broker dealer/placement agent services, and (c) services to convert the cryptocurrency into fiat currency. In connection with providing the Services to you, we also engage EST LITE Vendors (as defined below) to provide certain services to us.
3. Account Registration and Communication Preferences
To access and use the Services, you will need to first register for an account (“Account”) to become a registered user (“Registered User”) as per the process described below. The process to become a Registered User includes you providing identification and Offering qualification information. By creating an Account, you agree to (a) provide accurate, current and complete Account information about yourself, and obtain all necessary consents from third parties prior to providing any personal information about such third parties, or otherwise establish a valid legal basis for the provision of such personal information to us under applicable law, (b) maintain and promptly update from time to time as necessary your Account information, (c) maintain the security of your password and accept all risks of unauthorized access to your Account and the information you provide to us, and (d) immediately notify us if you discover or otherwise suspect any security breaches related to the EST LITE Platform, or your Account. You represent that your use of the Services will not involve use in connection with any unlawful or otherwise undesirable activity (as determined by EST LITE in its absolute and sole discretion), including, but not limited to dealing in counterfeit goods, gambling, money laundering, or drug activity. EST LITE will block multiple accounts of the same user. Also, you agree that you will not: (i) create another Account if we’ve disabled one you had unless you have our written permission first, (ii) buy, sell, rent or lease access to your Account or username unless you have our written permission first, (iii) share your Account password with anyone, or (iv) log in or try to log in to access the EST LITE Platform through unauthorized third party applications or clients.
3.1 Before you become a Registered User, EST LITE or its third party vendors (“EST LITE Vendors”) will run identity verification and compliance checks (including without limitation any checks we deem reasonably necessary to assess legal compliance (including the risk of your involvement in money laundering, terrorist financing, fraud, or any other financial crime) pursuant to applicable laws and Issuer requirements for accreditation based on the information provided by you during the user registration process (“Verification Check(s)”). The results of Verification Checks may be used by EST LITE, and as applicable, Issuers and their placement agents, to determine your eligibility to use our Services and participate in an Offering. EST LITE may, but is under no obligation to re-confirm Verification Checks or independently review the results of any Verification Checks performed by third parties, and EST LITE is not liable for any errors therein. You hereby consent and authorize EST LITE to delegate the authorizations you provide to EST LITE to Issuers and their placement agents, as well as EST LITE Vendors, in each case, as EST LITE deems necessary or desirable to provide the Services to you. You agree that the terms and conditions of the Agreement, including any of the other terms, conditions, warranty disclaimers and liability disclaimers incorporated into this Agreement, inure to the benefit of such EST LITE Vendors and they are third party beneficiaries of this Agreement.
3.3 You understand and agree that EST LITE does not control and is not liable for any transactions made using the Wallet or your other accounts. All payment transmissions in connection with the Offering are handled by Issuer Vendors.
3.4 By creating an Account, you also consent to receive electronic communications from EST LITE (e.g., via email or by posting notices to the EST LITE Platform). These communications may include notices about your Account (e.g., password changes and other transactional information) and are part of your relationship with us. For contractual purposes, you (a) consent to receive communications from EST LITE in an electronic form, and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that EST LITE provides to you electronically satisfy any applicable legal requirement (including but not limited to the Uniform Electronic Transactions Act and Electronic Signatures in Global and National Commerce Act), that such communications would satisfy if it were to be in writing. EST LITE reserves the right to provide to you documents in electronic format, collect signatures in electronic format and paper out all electronically signed documents and record your holdings of related securities in hard copy paper format, in the event of a system failure, hack, unrecoverable electronic damage, or other event beyond EST LITE reasonable control.
3.5 You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy. We may also send you promotional communications via email, including, but not limited to, newsletters, special offers, surveys and other news and information we think will be of interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided therein.
3.6 You must provide all equipment and software necessary to access the EST LITE Platform and Services. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the EST LITE Platform or Services.
3.7 Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account (other than the securities associated with such Account), and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of EST LITE.
4.1 Unless otherwise indicated in writing by us, the EST LITE Platform and all content and other materials contained therein, including, without limitation, the EST LITE logo and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, “EST LITE Content”) are the proprietary property of EST LITE or our affiliates, licensors or users, as applicable.
4.2 Notwithstanding anything to the contrary in this Agreement, the EST LITE Platform and EST LITE Content thereon may include software components provided by EST LITE or its affiliates or a third party that are subject to separate license terms, in which case those license terms will govern such software components.
4.3 The EST LITE logo and any EST LITE product or service names, logos or slogans (“EST LITE Marks”) that may appear on the EST LITE Platform are trademarks of EST LITE or our affiliates and may not be copied, imitated or used, in whole or in part, without our prior written permission. You may not use any metatags or other “hidden text” utilizing “ EST LITE” or any other name, trademark or product or service name of EST LITE or our affiliates without our prior written permission. In addition, the look and feel of the EST LITE Platform, including, without limitation, all page headers, custom graphics, button icons and scripts, constitute the service mark, trademark or trade dress of EST LITE and may not be copied, imitated or used, in whole or in part, without our prior written permission. All trademarks or logos other than EST LITE Marks mentioned on the EST LITE Platform are the property of their respective owners and may not be copied, imitated or used, in whole or in part, without the permission of the applicable trademark holder. Reference to any products, services, processes or other information by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by Harbor.
5. Authorized Access and Use of the EST LITE Platform and Content
5.1 You are hereby granted a limited, non-exclusive, non-transferable, non-sublicensable license to access and use the EST LITE Platform and the EST LITE Content thereon (collectively, “EST LITE Properties”) for the sole purpose of using the Services for your personal or internal business purposes. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit EST LITE Properties or any portion of EST LITE Properties, except as authorized by us, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo or trade name, or other EST LITE Properties (including images, text, page layout or form), (c) you shall not use any metatags or other “hidden text” using EST LITE’s name or trademarks, (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of EST LITE Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law, (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the EST LITE Platform (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the EST LITE Platform for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials), (f) you shall not access EST LITE Properties in order to build a similar or competitive website, application or service, (g) except as expressly stated herein, no part of EST LITE Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in EST LITE Properties. Any future release, update or other addition to EST LITE Properties shall be subject to the Agreement. EST LITE, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of Harbor Properties terminates the licenses granted by EST LITE pursuant to the Agreement.
5.2 EST LITE may require you to provide additional information and documents at the request of any governmental authority or for the purposes of Verification Checks, compliance with any applicable law or regulation, including laws related to laundering of funds that represent the proceeds of crime, or for counteracting financing of terrorism. EST LITE may also require you to provide additional information and documents in cases where it has reasons to believe that: (a) your Account is being used for money laundering or for any other illegal or suspicious activity, (b) you have concealed or reported false identification information or other details, (c) 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 “State Sponsor of Terrorism” or you are listed on any U.S. Government list of prohibited or restricted parties, (d) trades effected via your Account were affected in breach of this Agreement, or (e) your use of the Services violates applicable laws and regulations. In such cases, EST LITE in its sole discretion, may suspend your transactions until such additional information and documents are reviewed by EST LITE and accepted as satisfying the requirements of applicable law. If you do not provide complete and accurate information and documents in response to such a request, EST LITE may refuse to provide its Services to you. Please be aware that providing false or inaccurate information or engaging in illegal activities may result in you being prosecuted for violation of securities laws or any other applicable laws. Different jurisdictions have different laws and regulations with respect to investing in securities. You are responsible and liable at all times for any compliance obligations that you may be subject to in accordance with applicable laws and regulations in your home country or state.
The EST LITE Platform may contain links to third-party websites (“Non EST LITE Websites”) and applications (“Non EST LITE Applications”). The EST LITE Platform may also provide services to you by integrating with the products and services of Non EST LITE Websites and Non EST LITE Applications. When you click on a link to a Non EST LITE Website or Non EST LITE Application, we will not warn you that you have left the EST LITE Platform and are subject to the Agreement and conditions (including privacy policies) of another website or destination. Such Non EST LITE Websites and Non EST LITE Applications and are not under the control of EST LITE. EST LITE is not responsible for any Non EST LITE Websites or Non EST LITE Applications. EST LITE provides these Non EST LITE Websites and Non EST LITE Applications only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Non EST LITE Websites or Non EST LITE Applications, or their products or services. You use all links in Non EST LITE Websites, and Non EST LITE Applications at your own risk. When you leave the EST LITE Platform, our Agreement and policies no longer govern. You should review applicable agreement and policies, including privacy and data gathering practices, of any Non EST LITE Websites or Non EST LITE Applications, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
7. User Conduct and Feedback
7.1 You agree that you will not violate any law, contract, intellectual property or other third party right, and that you are solely responsible for your conduct, while accessing or using the EST LITE Platform or using the Service. You agree that you will abide by this Agreement and will not: take any action or make available any content on or through EST LITE Properties that: (a) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity, (b) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane, (c) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail, (d) involves commercial activities and/or sales without EST LITE’s prior written consent, (e) impersonates any person or entity, including any employee or representative of EST LITE or EST LITE’s customers, (f) interferes with or attempt to interfere with the proper functioning of EST LITE Properties or uses of the EST LITE Properties in any way not expressly permitted by the Agreement, or (g) attempts to engage in or engage in, any potentially harmful acts that are directed against EST LITE Properties, including but not limited to violating or attempting to violate any security features of EST LITE Properties, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in EST LITE Properties, introducing viruses, worms, or similar harmful code into EST LITE Properties, or interfering or attempting to interfere with use of EST LITE Properties by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” EST LITE Properties.
7.2 You agree that submission of any ideas, suggestions, documents, and/or proposals to EST LITE through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that EST LITE has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to EST LITE a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, reformat, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the EST LITE Platform.
8. Purchase Flow
The securities associated with any Offering in which you participate will be governed by the terms and conditions set forth in the applicable investment documents related to the specific offering provided to you. You may need to complete several steps to purchase securities in the Offering including, but not limited to, (i) completing EST LITE’s user registration process, which includes you providing identification and qualification information to the EST LITE Platform, (ii) entering into Offering agreements with the Issuer, (iii) funding one or more deposits into escrow in fiat currency or a specified cryptocurrency to reserve or maintain an allocation in the Offering, if required by the Issuer, (iv) confirming an intention to move forward with participation in the Offering at the closing, if required by the Issuer; (v) transferring the remaining purchase price amount beyond the deposit amounts, if any, to the Issuer at the closing of the Offering, (vi) creating a digital asset wallet with a third party identified by EST LITE, and (vii) providing other information to EST LITE or Issuer or taking other action as requested throughout the Offering process.
Certain actions that you are required to take to participate in the Offering must be done within short time periods, so it is critical that you stay actively engaged with EST LITE and the Issuer with respect to the Offering until the Offering is completed. This includes, but is not limited to, regularly checking the email address provided by you or logging on to the EST LITE Platform for periodic communications from the Issuer or EST LITE requiring you to take certain follow-up actions on a time sensitive basis. Failure to do so may result in the full loss of your deposits, denial of your participation in the Offering or any subsequent offering on the EST LITE Platform and/or other adverse consequences that may be reasonably imposed.
During the process of participating in the Offering, you as a Registered User may receive Confidential Information of EST LITE or Issuer. During the term of this Agreement and at all times thereafter, you will (a) hold all Confidential Information in strict trust and confidence, (b) refrain from using or permitting others to use Confidential Information in any manner or for any purpose not expressly permitted or required by this Agreement, (c) refrain from disclosing or permitting others to disclose any Confidential Information to any third party without obtaining EST LITE’s express prior written consent on a case-by-case basis. “Confidential Information” means any and all information related to EST LITE, EST LITE’s business (including trade secrets, technical information, business strategies, marketing plans, customer and supplier lists, investment information, financial data, and proprietary information of third parties provided to EST LITE in confidence) that is labeled or identified as “confidential” or “proprietary”, Issuers or their Offerings, or that you otherwise know, or would reasonably be expected to know is confidential.
To the fullest extent permitted by applicable law, you agree to indemnify, defend and hold harmless EST LITE, and our respective past, present and future employees, officers, directors, consultants, equity holders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors and assigns (individually and collectively, the “EST LITE Parties”), from and against all actual or alleged third party claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses (including, without limitation, attorneys’ fees and expenses) and costs (including, without limitation, court costs, costs of settlement and costs of pursuing indemnification and insurance), of every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise (collectively, “Claims”), including, but not limited to, damages to property or personal injury, that are caused by, arise out of or are related to (a) your use or misuse of the EST LITE Platform, including without limitation, the associated Services and EST LITE Properties, (b) your violation of this Agreement and any other online agreements, investor documents, disclosure obligations, applicable laws and regulations, (c) your violation of the rights of a third party, including but not limited to Issuers or investors of securities, or (d) your negligence or willful misconduct arising out of relating to the Offering, including the Services, provided that you may not settle any Claim against EST LITE unless such settlement completely and forever releases EST LITE from all liability with respect to such Claim or unless EST LITE consents to such settlement, and further provided that EST LITE will have the right, at its option, to defend itself against any such Claim or to participate in the defense thereof by counsel of its own choice. THIS INDEMNITY IS IN ADDITION TO, AND NOT IN LIEU OF, ANY OTHER INDEMNITIES SET FORTH IN A WRITTEN AGREEMENT BETWEEN YOU AND EST LITE.
EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY EST LITE, THE EST LITE PLATFORM AND ASSOCIATED SERVICES, AS WELL AS THE EST LITE CONTENT CONTAINED THEREIN, AND TOKENS CREATED THROUGH THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. EST LITE (AND EST LITE VENDORS) MAKE NO WARRANTY THAT THE EST LITE PLATFORM OR ANY ASSOCIATED SERVICES: (A) WILL MEET YOUR REQUIREMENTS, (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR (C) WILL BE ACCURATE, RELIABLE, COMPLETE, LEGAL, OR SAFE. EST LITE DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE EST LITE PLATFORM AND ANY EST LITE CONTENT CONTAINED THEREIN.
EST LITE WILL NOT BE LIABLE FOR ANY LOSS OF ANY KIND FROM ANY ACTION TAKEN OR TAKEN IN RELIANCE ON MATERIAL OR INFORMATION, CONTAINED ON THE EST LITE PLATFORM. WHILE EST LITE ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF THE EST LITE PLATFORM AND EST LITE CONTENT THEREON SAFE, EST LITE CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE EST LITE PLATFORM, ITS ASSOCIATED SERVICES, EST LITE CONTENT, ANY TOKENS CREATED THROUGH THE SERVICES OR OUR INFORMATION TECHNOLOGY SYSTEMS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE CANNOT GUARANTEE THE SECURITY OF ANY DATA THAT YOU DISCLOSE ONLINE. YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET AND WILL NOT HOLD US RESPONSIBLE FOR ANY BREACH OF SECURITY UNLESS IT IS DUE TO OUR GROSS NEGLIGENCE.
EST LITE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSS AND TAKE NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO YOU FOR, ANY DAMAGES ARISING FROM ANY DECISIONS OR ACTIONS MADE BY YOU BASED ON THE EST LITE CONTENT OR INFORMATION ON EST LITE PROPERTIES OR THROUGH USE OF CRYPTOCURRENCY OR TOKENS INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (A) USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, INCORRECT CRYPTOCURRENCY WALLET ADDRESSES, BANK WIRE INFORMATION OR MISTYPED ADDRESSES; (B) SERVER FAILURE OR DATA LOSS, (C) CORRUPTED WALLET FILES, (D) UNAUTHORIZED ACCESS TO APPLICATIONS, (E) ACTS, OMISSIONS OR ERRORS BY ANY ISSUER, ISSUER VENDORS OR EST LITE VENDORS, (F) ANY UNAUTHORIZED THIRD PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF CYBER ATTACK AGAINST THE EST LITE PLATFORM, ANY ASSOCIATED SERVICES, INCLUDING THE TOKENS.
TOKENS EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE CORRESPONDING BLOCKCHAIN. ANY TRANSFER OF TITLE THAT MIGHT OCCUR IN ANY TOKENS OCCURS ON THE DECENTRALIZED LEDGER WITHIN THE BLOCKCHAIN.
12. No Investment or Financial Advice
12.1 EST LITE’s role in the Offering is limited to providing the Services. EST LITE is neither a broker-dealer, nor national securities exchange, alternative trading system, or other regulated securities market. In the future, EST LITE may operate with an affiliated broker dealer (“Broker Dealer Affiliate”) but this Agreement solely applies to EST LITE and not to any Broker Dealer Affiliates.
12.2 EST LITE is not an issuer of securities. By providing its Services to you as a Registered User or Issuer, EST LITE is not endorsing or recommending the Issuer’s securities, or the services of any broker or dealer. No aspect of the EST LITE Platform is designed or intended to provide financial, legal, tax or investment advice or recommendations. You are solely responsible for determining whether any investment, investment strategy or related transaction is appropriate for you based on your personal investment objectives, financial circumstances and risk tolerance. You should consult your legal or tax professional about your investment goals. The availability of the EST LITE Platform does not constitute an offer or an invitation to purchase securities in any jurisdiction in which such offer or invitation is not authorized or to any person to whom it is unlawful to make such offer or invitation. Users must inform themselves about such restrictions and are solely responsible for complying with the same.
12.3 EST LITE is not responsible for sustained casualties due to vulnerability or any kind of failure, abnormal behavior of software (e.g., wallet, smart contract), blockchains or any other features of cryptocurrency or the Tokens. EST LITE is not responsible for casualties due to late report by developers or representatives (or no report at all) of any issues with the blockchain supporting cryptocurrency including forks, technical node issues or any other issues that result in losses or damages.
12.4 Nothing in this Agreement shall exclude or limit liability of either party for fraud, death or bodily injury caused by negligence, violation of laws, or any other activity that cannot be limited or excluded by legitimate means.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN CONTRACTS WITH CONSUMERS, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
13. Assumption of Risk in Blockchain Services
You accept and acknowledge:
14. Limitation of Liability; Release
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL EST LITE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE EST LITE PLATFORM OR ANY ASSOCIATED SERVICES, TOKENS, EST LITE PRODUCTS, THIRD PARTY WEBSITES AND EST LITE CONTENT, OR FOR ANY DAMAGES RELATED TO LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, OR LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE AND EVEN IF EST LITE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE EST LITE PLATFORM, PRODUCTS, SERVICES, CONTENT OR THIRD PARTY WEBSITES AND PRODUCTS ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING THEREFROM.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF EST LITE ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, THE ACCESS TO AND USE OF THE EST LITE PLATFORM, CONTENT, TOKENS OR ANY ASSOCIATED SERVICES OF THE EST LITE PLATFORM EXCEED $500.
THE FOREGOING LIMITATIONS OF LIABILITY SHALL NOT APPLY TO LIABILITY OF EST LITE FOR DEATH OR PERSONAL INJURY CAUSED BY AN EMPLOYEE OR EST LITE’S NEGLIGENCE OR INTENTIONAL MISCONDUCT.
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. Some jurisdictions also limit disclaimers or limitations of liability for personal injury from consumer products, so this limitation may not apply to personal injury claims.
15. Modifications to the EST LITE Platform
We reserve the right in our sole discretion to modify, suspend or discontinue, temporarily or permanently, the EST LITE Platform (or any features or parts thereof) or suspend or discontinue the Services at any time, with or without cause, and without liability therefor. If we make material changes to this Agreement, we will provide notice of such changes, such as by sending an email notification, providing notice through the EST LITE Platform or updating the “Last Updated” date at the beginning of this Agreement. By continuing to access or use the EST LITE Platform, you confirm your acceptance of the revised Agreement and all of the terms incorporated therein by reference. We encourage you to review the Agreement frequently to ensure that you understand the terms and conditions that apply when you access or use the EST LITE Platform. If you do not agree to the revised Agreement, you may not access or use the EST LITE Platform.
16.Dispute Resolution; Arbitration (“Arbitration Agreement”)
Please read the following Arbitration Agreement in this Section carefully. It requires Users to arbitrate disputes with EST LITE and limits the manner in which such users can seek relief from us.
16.1 Applicability of Arbitration Agreement. Users agree that any dispute or claim relating in any way to their access or use of the EST LITE Platform, to any products sold or distributed through the EST LITE Platform, or to any aspect of their relationship with EST LITE, will be resolved by binding arbitration, rather than in court, except that (a) the user may assert claims in small claims court if your claims qualify; and (b) the user or EST LITE may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement. Any award of the arbitrator shall be final and binding on the parties.
IF YOU AGREE TO ARBITRATION WITH EST LITE, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST EST LITE ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST EST LITE IN AN ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS AGREEMENT, INCLUDING THIS ARBITRATION AGREEMENT.
16.2 Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and EST LITE. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
16.3 Waiver of Jury Trial. YOU AND EST LITE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and EST LITE are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 16.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
16.4 Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A OR COLLECTIVE CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Notwithstanding anything to the contrary herein, (a) representative action for public injunctive relief may be arbitrated on a class basis and (b) in the event that the foregoing sentence is deemed invalid or unenforceable with respect to a particular class or dispute for recovery of damages, neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court as set forth in Section 17.
16.5 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: EST GROWMORE AGENTE DE VALORES S.A. MERCEDES 1120, MONTEVIDEO, URUGUAY, within 30 days after first becoming subject to this Arbitration Agreement. You may also submit your decision to email@example.com . Your notice must include your name and address, the email address you used to set up your account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
16.6 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Harbor.
17. Governing Law and Venue
This Agreement, including your access to and use of the Services made available on the EST LITE Platform shall be governed by and construed and enforced in accordance with the laws of Uruguay, (without regard to conflict of law rules or principles of Uruguay, 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, shall be resolved in federal courts of Uruguay.
Notwithstanding anything contained in this Agreement, we reserve the right, without notice and in our sole discretion, to terminate your right to access or use the EST LITE Platform and the associated Services at any time and for any or no reason, and you acknowledge and agree that we shall have no liability or obligation to you in such event, to the fullest extent permitted by applicable law. Prior to closing your Account, any Tokens associated with your Account must be sold to a third party in accordance with the terms of the applicable Tokens. If you have not transferred your Tokens, once your Account is closed, we will not be responsible or liable for any Tokens in your Wallet. In the event that you terminate your Account, after participating in an Offering but prior to closing of a sale of securities, this will be deemed as your withdrawal from the Offering and we will report it to authorities as required by law.
If any term, clause or provision of this Agreement is held invalid or unenforceable, then that term, clause or provision will be severable from this Agreement and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of this Agreement.
The following sections will survive the expiration or termination of this Agreement and the termination of your Account: all defined terms and Sections 2, 3, 4, 5.2, 8, 9, 10, 11, 12.3, 12.4, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22 and 23.
The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without EST LITE’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
This Agreement constitutes the entire agreement between you and EST LITE relating to your access to and use of the EST LITE Platform. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of EST LITE prior, concurrent or subsequent circumstance, and EST LITE’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. Except as otherwise provided herein, this Agreement is intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.