Terms of Use

These terms of use, together with any documents and additional terms they expressly incorporate by reference, which includes any other terms and conditions or other agreement that dYdX Foundation (“Foundation,” “we,” “us” and “our”) posts publicly or makes available to you or the company or other legal entity you represent (“you” or “your”) (collectively, these “Terms”), are entered into between Foundation and you concerning your use of, and access to, Foundation’s websites and forums, including dydx.community and forums.dydx.community (the “Forum”); web applications; mobile applications; and all associated sites linked thereto by Foundation or its affiliates (collectively with any materials and services available therein, and successor website(s) or application(s) thereto, the “Site”).

Please read these Terms carefully, as these Terms govern your use, rights and obligations as well as our disclaimers and limitations of legal liability in respect of the Site, including, without limitation, (a) the user interface that facilitates access to (i) the governance contracts for the dYdX Layer 2 protocol and (ii) access to the smart contracts for the staking of Digital Assets (as defined below) known as DYDX (“DYDX tokens”) in such smart contracts, and (b) the forum related to governance of the dYdX Layer 2 protocol (such services, collectively, the “Services”). If you do not agree to these Terms, then you must not access or use the Site or the Services.

By clicking “I agree” (or a similar language) to these Terms, acknowledging these Terms by other means, or otherwise accessing or using the Site or the Services, you accept and agree to be bound by and to comply with these Terms, including, without limitation, the mandatory arbitration provision in Section 15. If you do not agree to these Terms, then you must not access or use the Site or the Services.

These Terms do not govern any activity in which you may engage involving cryptocurrencies and other blockchain-based assets (collectively, “Digital Assets”) or otherwise outside of the Site, including any transactions in which you may engage using the dYdX Layer 2 protocol on unaffiliated platforms or websites. We disclaim any and all liability as well as warranty in this regard.

1. MODIFICATIONS TO THESE TERMS

We reserve the right, in our sole discretion, to modify these Terms from time to time. If we make changes, we will provide you with notice of such changes, such as by providing notice through the Services or updating the “Last Updated” date at the top of these Terms. Unless we state otherwise in our notice, all such modifications are effective immediately, and your continued use of the Site and the Services after we provide that notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, then you must stop using the Site and the Services.

2. DECENTRALIZED AND AUTONOMOUS OPERATION OF PROTOCOL AND GOVERNANCE CONTRACTS

You acknowledge and agree that:

• the dYdX Layer 2 protocol (“Protocol”) was developed and deployed by dYdX Trading Inc., not by the Foundation.

• dYdX Trading Inc. is unaffiliated with and independent from the Foundation;

• the Foundation 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 the use of the Protocol and any action or inaction of dYdX Trading Inc.

• the governance contracts for the Protocol (“Governance Contracts”) operate in a fully decentralized and autonomous manner, using the Ethereum protocol.

• the Foundation is neither involved nor in any way responsible for the operation, running or functioning of the Protocol and the Governance Contracts and any of the interactions (no participation whatsoever) between Users and the Protocol and/or Governance Contracts or between Users of the Protocol and/or Governance Contracts.

• the Foundation is not obliged to and that User has no claim against the Foundation for (neither perpetual nor temporary) provision, operation, support, maintenance, or development of the Site and Services, in particular, the Governance Contracts.

3. USE OF SERVICES

3.1 As a condition to accessing or using the Services or the Site, you represent and warrant to the Foundation the following:

• As a condition to accessing or using the Services or the Site, you represent and warrant to the Foundation the following:

• if you are entering into these Terms as an individual, then you are of legal age in the jurisdiction in which you reside and you have the legal capacity to enter into these Terms and be bound by them;

• if you are entering into these Terms as an entity, then you must have the legal authority to accept these Terms on that entity’s behalf, in which case “you” (except as used in this paragraph) will mean that entity;

• if you are entering into these Terms to access smart contracts for staking in such smart contracts of DYDX tokens, or will in the future access such smart contract for such purpose, then you (any following person or entity, a “US Person”): do not reside in; are not a citizen of; are not permanently located in; are not incorporated in; are not headquartered in; and are not majority-owned by a person or entity who resides in, is a citizen of, is permanently located in, is incorporated in; or is headquartered in the United States of America;

• you are not a resident, national, or agent of the Crimea region, Cuba, Iran, North Korea, Syria, or any other country to which the United States, the United Kingdom or the European Union embargoes goods or imposes similar sanctions (collectively, “Restricted Territories”);

• you are not a member of any sanctions list or equivalent maintained by the United States government, the United Kingdom government, the European Union, or the United Nations (collectively, “Sanctions Lists Persons”);

• you do not intend to transact with any Restricted Person or Sanctions List Person;

• you do not, and will not, use VPN software or any other privacy or anonymization tools or techniques to circumvent, or attempt to circumvent, any restrictions that apply to use or access of the Site or the Services; and

• your use of or access to the Services is not (a) prohibited by and does not otherwise violate or assist you to violate any domestic or foreign law, rule, statute, regulation, by-law, order, protocol, code, decree, or another directive, requirement, or guideline, published or in force that applies to or is otherwise intended to govern or regulate any person, property, transaction, activity, event or other matter, including any rule, order, judgment, directive or other requirement or guideline issued by any domestic or foreign federal, provincial or state, municipal, local or other governmental, regulatory, judicial or administrative authority having jurisdiction over the Foundation, you, the Site or the Services, or as otherwise duly enacted, enforceable by law, the common law or equity (collectively, “Applicable Laws”); or (b) contribute to or facilitate any illegal activity.

3.2 As a condition to accessing or using the Services or the Site, you acknowledge, understand, and agree to the following:

• from time to time the Site and the Services may be inaccessible or inoperable for any reason, including, without limitation: (a) equipment malfunctions; (b) periodic maintenance procedures or repairs that the Foundation or any of its suppliers or contractors may undertake from time to time; (c) causes beyond the Foundation’s control or that the Foundation could not reasonably foresee; (d) disruptions and temporary or permanent unavailability of underlying blockchain infrastructure; or (e) unavailability of third-party service providers or external partners for any reason;

• we reserve the right to disable or modify access to the Site and the Services at any time in the event of any breach of these Terms, including, without limitation, if we reasonably believe any of your representations and warranties may be untrue or inaccurate, and we will not be liable to you for any losses or damages you may suffer as a result of or in connection with the Site or the Services being inaccessible to you at any time or for any reason;

• the Site and the Services may evolve, which means the Foundation may apply changes, replace, or discontinue (temporarily or permanently) the Services at any time in its sole discretion;

• the information provided on the Site does not represent an offer, a solicitation of an offer, or any advice regarding, or recommendation to enter into, a transaction with the Foundation;

• The Foundation does not act as an agent for you or any other user of the Site or the Services;

• you are solely responsible for your use of and access to the Services, including, without limitation, all of your transfers and receipts of Digital Assets;

• to the fullest not prohibited by Applicable Law, 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, you hereby irrevocably disclaim, waive, and eliminate those duties and liabilities;

• you are solely responsible for reporting and paying any taxes incurred in connection with your use of the Services; and

• we have no control over, or liability for, the delivery, quality, safety, legality, or any other aspect of any Digital Assets that you may transfer to or from a third party, and we are not responsible for ensuring that an entity with whom you transact completes the transaction or is authorized to do so (or repays any amounts it may be required to repay to you), and if you experience a problem with any transactions in Digital Assets using the Services, then you bear the entire risk.

3.3 As a condition to accessing or using the Services or the Site, you covenant to the Foundation the following:

• in connection with interacting with the Governance Contracts, you only will stake legally-obtained DYDX tokens that belong to you;

• you will obey all Applicable Laws in connection with using the Services, and you will not use the Site or the Services if the laws of your country, or any other Applicable Law, prohibit you from doing so;

• you do not intend to cause or assist with the distribution of DYDX tokens from the community treasury to holders of DYDX tokens;

• any DYDX tokens you use in connection with the Services are either owned by you or you are validly authorized to carry out actions using such DYDX tokens; and

• in addition to complying with all restrictions, prohibitions, and other provisions of these Terms, you will (a) ensure that, at all times, all information that you provide on the Site and during your use of the Services is current, complete, and accurate; (b) maintain the security and confidentiality of your private keys associated with your public Ethereum address, passwords, API keys and other related credentials; (c) not sell DYDX tokens to a US Person; and (d) if you are a US Person, not seek to acquire DYDX tokens using the Services or otherwise.

4. ETHEREUM NETWORK FEES

In connection with your use of the Services, you are required to pay all fees necessary for interacting with the Ethereum blockchain, including “gas” costs. Although we attempt to provide accurate Ethereum network fee information, this information reflects our estimates of fees, which may vary from the actual fees paid to use the Services and interact with the Ethereum blockchain. All other information made viewable on the Site referencing annual percentage rates or yields or number of DYDX that may be received are estimates and may differ from actual rates, yields or numbers received.

5. NO PROFESSIONAL ADVICE OR FIDUCIARY DUTIES

All information provided in connection with your access and use of the Site and the Services 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 on the Site or any other information that we make available at any time, including, without limitation, blog posts, articles, links to third-party content, discord content, news feeds, tutorials, tweets, and videos. Before you make any financial, legal, or other decisions involving the Services, you should seek independent professional advice from an individual who is licensed and qualified in the area for which such advice would be appropriate. These Terms are not intended to, and do not, create or impose any fiduciary duties on us. You further agree that the only duties and obligations that we owe you are those set out expressly in these Terms.

6. PROHIBITED ACTIVITY

You may not use the Services to engage in the categories of activity set forth below (“Prohibited Uses”). The specific activities set forth below are representative, but not exhaustive, of Prohibited Uses. If you are uncertain as to whether or not your use of the Services involves a Prohibited Use or have other questions about how these requirements apply to you, then please contact us at legal@dydx.foundation. By using the Site or Services, you confirm that you will not use the Site or Services to do any of the following:

• violate any Applicable Laws including, without limitation, any relevant and applicable anti-money laundering and anti-terrorist financing laws and sanctions programs, such as, without limitation, the Bank Secrecy Act and the U.S. Department of Treasury’s Office of Foreign Asset Controls;

• engage in transactions involving items that infringe or violate any copyright, trademark, right of publicity or privacy or any other proprietary right under Applicable Law, including but not limited to, sales, distribution, or access to counterfeit music, movies, software, or other licensed materials without the appropriate authorization from the rights holder;

• engage in using the Governance Contracts in any way that results in the distribution of DYDX tokens in the community treasury to holders of the DYDX tokens;

• use the Foundation’s intellectual property, name, or logo, including the Foundation’s trade or service marks, without express consent from the Foundation or in a manner that otherwise harms the Foundation; any action that implies an untrue endorsement by or affiliation with the Foundation;

• use the Services in any manner that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying the Services, or that could damage, disable, overburden, or impair the functioning of the Site or the Services in any manner;

• circumvent any content-filtering techniques, security measures or access controls that the Foundation employs on the Site, including, without limitation, through the use of a VPN;

• use any robot, spider, crawler, scraper, or other automated means or interface not provided by us, to access the Services or to extract data, or introduce any malware, virus, Trojan horse, worm, logic bomb, drop-dead device, backdoor, shutdown mechanism or other harmful material into the Site or the Services;

• provide false, inaccurate, or misleading information while using the Site or the Services or engage in activity that operates to defraud the Foundation, other users of the Services, or any other person;

• use or access the Site or Services to transmit or exchange Digital Assets that are the direct or indirect proceeds of any criminal or fraudulent activity, including, without limitation, terrorism or tax evasion;

• use the Site in any way that is, in our sole discretion, libelous, defamatory, profane, obscene, pornographic, sexually explicit, indecent, lewd, vulgar, suggestive, harassing, stalking, hateful, threatening, offensive, discriminatory, bigoted, abusive, inflammatory, fraudulent, deceptive, or otherwise objectionable or likely or intended to incite, threaten, facilitate, promote, or encourage hate, racial intolerance, or violent acts against others;

• use the Site or the Services from a jurisdiction that we have, in our sole discretion, determined is a jurisdiction where the use of the Site or the Services is prohibited;

• harass, abuse, or harm of another person or entity, including the Foundation’s employees and service providers;

• impersonate another user of the Services or otherwise misrepresent yourself; or

• encourage, induce or assist any third party, or yourself attempt, to engage in any of the activities prohibited under this Section 5 or any other provision of these Terms.

7. CONTENT

You hereby grant to us a royalty-free, fully paid-up, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, copy, modify, create derivative works of, display, perform, publish and distribute, in any form, medium, or manner, any content that is available to other users as a result of your use of the Site or the Services (collectively, “Your Content”), including, without limitation, for promoting the Foundation, its affiliates, the Services or the Site. You represent and warrant that (a) you own Your Content or have the right to grant the rights and licenses in these Terms; and (b) Your Content and our use of Your Content, as licensed herein, does not and will not violate, misappropriate or infringe on any third party’s rights.

7.1 In connection with your use of the Site and the Services, including Your Content, you shall not:

• violate or encourage others to violate the terms of use of Commonwealth Labs Inc. or any other party that hosts the Forum;

• use or try to use another’s account on the Forum without that account holder’s specific permission;

• buy, sell, or otherwise trade in user names or other unique identifiers on the Forum;

• send advertisements, chain letters, or other solicitations through the Forum, or use the Forum to gather addresses or other personal data for commercial mailing lists or databases;

• use the Forum to send e-mails to distribution lists, newsgroups, or group mail aliases;

• falsely imply that you are affiliated with or endorsed by the Foundation or any other party;

• remove any marks showing proprietary ownership from materials you download from the Forum;

• show any part of the Forum on other websites that is not an entirely accurate representation of the Forum and its content;

• disable, avoid, or circumvent any security or access restrictions of the Forum;

• strain infrastructure of the Forum with an unreasonable volume of requests, or requests designed to impose an unreasonable load on information systems underlying the Forum;

• provide false, inaccurate, or misleading information while using the Site or the Services or engage in activity that operates to defraud the Foundation, other users of the Services, or any other person or entity;

• use the Site in any way that is, as determined in our sole discretion, libelous, defamatory, profane, obscene, pornographic, sexually explicit, indecent, lewd, vulgar, suggestive, harassing, stalking, hateful, threatening, offensive, discriminatory, bigoted, abusive, inflammatory, fraudulent, deceptive, or otherwise objectionable or likely or intended to incite, threaten, facilitate, promote, or encourage hate, racial intolerance, or violent acts against others;

• harass, abuse, or harm of another person or entity, including employees and consultants of the Foundation and service providers;

• impersonate another user of the Services or otherwise misrepresent yourself; or

• encourage, induce or assist any third party, or yourself attempt, to engage in any of the activities prohibited under this Section 6 or any other provision of these Terms.

8. PROPRIETARY RIGHTS

8.1 The source code of the Site, the Services (other than the Forum) and the Governance Contracts is governed by the most recent version of the open-source license commonly known as the “Apache License, Version 2.0” and any other applicable licensing terms for the Site and the Services in these Terms (collectively, the “Foundation License”). You acknowledge that the Site or the Services may use, incorporate or link to certain open-source components and that your use of the Site or Services is subject to, and you will comply with any, applicable open-source licenses that govern any such open-source components (collectively, “Open-Source Licenses”). Without limiting the generality of the foregoing, you may not (a) resell, lease, lend, share, distribute, or otherwise permit any third party to use the Site or the Services; (b) use the Site or the Services for time-sharing or service bureau purposes; or (c) otherwise use the Site or the Services in a manner that violates the Foundation License or any other Open-Source Licenses.

8.2 Excluding the open-source software described in Section 7.1 or third-party software that the Site or the Services incorporates, as between you and the Foundation, the Foundation owns the Site and the Services, including all technology, content, and other materials used, displayed, or provided on the Site or in connection with the Services (including all intellectual property rights subsisting therein), and hereby grants you a limited, revocable, transferable, license to access and use those portions of the Site and the Services that are proprietary to the Foundation.

8.3 Any of the Foundation’s product or service names, logos, and other marks used on the Site or as a part of the Services, including the Foundation’s name and logo are trademarks owned by the Foundation, its affiliates, or its applicable licensors. You may not copy, imitate, or use them without the prior written consent of the Foundation or the applicable licensors, and these Terms do not grant you any rights in those trademarks. You may not remove, obscure, or alter any legal notices displayed in or along with the Services.

9. LINKS

The Site and/or Services provide, or third parties may provide, links to other World Wide Web or accessible sites, applications, or resources. You acknowledge and agree that (a) the Foundation 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 Company 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, including the Protocol and any action or inaction of dYdX Trading Inc.

10. MODIFICATION, SUSPENSION, AND TERMINATION

We may, at our sole discretion, from time to time and with or without prior notice to you, modify, suspend or disable (temporarily or permanently) the Site and the Services, in whole or in part, for any reason whatsoever. Upon termination of your access, your right to access or use the Site or the Services will immediately cease. We will not be liable for any losses suffered by you resulting from any modification to any Services or from any modification, suspension, or termination, for any reason, of your access to all or any portion of the Site or the Services. The following sections of these Terms will survive any termination of your access to the Site or the Services, regardless of the reasons for its expiration or termination, in addition to any other provision which by law or by its nature should survive: Sections 7 through 17.

11. RISKS

11.1 By utilizing the Services or interacting with the Site in any way, you represent and warrant that you understand the inherent risks associated with cryptographic systems and blockchain-based networks; Digital Assets, including the usage and intricacies of native Digital Assets, like ether (ETH); smart contract-based tokens, such as those that follow the Ethereum Token Standard (https://github.com/ethereum/EIPs/issues/20); and systems that interact with blockchain-based networks. The Foundation does not own or control any of the underlying software through which blockchain networks are formed. In general, the software underlying blockchain networks, including the Ethereum blockchain, is open source, such that anyone can use, copy, modify, and distribute it. By using the Services, you acknowledge and agree (a) that the Foundation is not responsible for the operation of the software and networks underlying the Services, (b) that there exists no guarantee of the functionality, security, or availability of that software and networks, and (c) that the underlying networks are subject to sudden changes in operating rules, such as those commonly referred to as “forks,” which may materially affect the Services. Blockchain networks use public/private key cryptography. You alone are responsible for securing your private key(s). We do not have access to your private key(s). Losing control of your private key(s) will permanently and irreversibly deny you access to Digital Assets on the Ethereum blockchain or other blockchain-based network. Neither the Foundation nor any other person or entity will be able to retrieve or protect your Digital Assets. If your private key(s) are lost, then you will not be able to transfer your Digital Assets to any other blockchain address or wallet. If this occurs, then you will not be able to realize any value or utility from the Digital Assets that you may hold.

11.2 The Services and your Digital Assets could be impacted by one or more regulatory inquiries or regulatory actions, which could impede or limit the ability of the Foundation to continue to make available its proprietary software and, thus, could impede or limit your ability to access or use the Services.

11.3 You acknowledge and understand that cryptography is a progressing field with advances in code cracking or other technical advancements, such as the development of quantum computers, which may present risks to Digital Assets and the smart contract to which the Services facilitate access, and could result in the theft or loss of your Digital Assets. We are unable to update Foundation-developed smart contracts to which the Services provide access for any advances in cryptography or to incorporate additional security measures necessary to address risks presented from technological advancements; thus, there can be no guarantee regarding the full security of smart contracts to which the Services facilitate access.

11.4 You understand that the Ethereum blockchain remains under development, which creates technological and security risks when using the Services to facilitate access to smart contracts in addition to uncertainty relating to Digital Assets and transactions therein. You acknowledge that the cost of transacting on the Ethereum blockchain is variable and may increase at any time causing impact to any activities taking place on the Ethereum blockchain, which may result in price fluctuations or increased costs when using the Services.

11.5 You acknowledge that the Services are subject to flaws and that you are solely responsible for evaluating any code provided by the Services or Site. This warning and others the Foundation provides in these Terms in no way evidence or represent an on-going duty to alert you to all of the potential risks of utilizing the Services or accessing the Site.

11.6 Although we intend to provide accurate and timely information on the Site and during your use of the Services, the Site and other information available when using the Services may not always be entirely accurate, complete, or current and may also include technical inaccuracies or typographical errors. To continue to provide you with as complete and accurate information as possible, information may be changed or updated from time to time without notice, including, without limitation, information regarding our policies. Accordingly, you should verify all information before relying on it, and all decisions based on information contained on the Site or as part of the Services are your sole responsibility.

11.7 Any reference to a type of Digital Asset on the Site or otherwise during the use of the Services does not indicate our approval or disapproval of the technology on which the Digital Asset relies, and should not be used as a substitute for your understanding of the risks specific to each type of Digital Asset.

11.8 Transactions entered into in connection with the Services are irreversible, final and there are no refunds. You acknowledge and agree that you will access and use the Site and the Services at your own risk. By using the Services, you represent and warrant that you have been, are, and will be solely responsible for making your independent appraisal and investigations into the risks of a given transaction. You represent that you have sufficient knowledge, market sophistication, professional advice, and experience to make your evaluation of the merits and risks of any transaction conducted in connection with the Services or any Digital Asset. You accept all consequences of using the Services, including the risk that you may lose access to your Digital Assets indefinitely. All transaction decisions are made solely by you.

11.9 We must comply with Applicable Laws, which may require us to, upon request by government agencies, take certain actions or provide information, which may not be in your best interests.

11.10 You hereby assume, and agree that the Foundation will have no responsibility or liability for, the risks set forth in this Section 10. You hereby irrevocably waive, release and discharge all claims, whether known or unknown to you, against the Foundation, its affiliates, and their respective shareholders, members, council, directors, officers, employees, agents, and representatives, suppliers, and contractors related to any of the risks set forth in this Section 10.

12. INDEMNIFICATION

You will defend, indemnify, and hold harmless the Foundation, its affiliates, and its and its affiliates’ respective stockholders, members, council, directors, officers, managers, employees, attorneys, agents, representatives, suppliers, and contractors (collectively, “Indemnified Parties”) from any claim, demand, lawsuit, action, proceeding, investigation, liability, damage, loss, cost or expense, including without limitation reasonable attorneys’ fees, arising out of or relating to (a) your use of, or conduct in connection with, the Site or the Services; (b) Digital Assets associated with your Ethereum address; (c) any feedback or user content you provide to the Foundation, if any, concerning the Site or the Services; (d) your violation of these Terms; or (e) your infringement or misappropriation of the rights of any other person or entity. If you are obligated to indemnify any Indemnified Party, the Foundation (or, at its discretion, the applicable Indemnified Party) will have the right, in its sole discretion, to control any action or proceeding and to determine whether the Foundation wishes to settle, and if so, on what terms, and you agree to corporate with the Foundation in the defense.

13. DISCLOSURES; DISCLAIMERS

The Foundation is a developer of open-source software. The Foundation has no oversight, involvement, or control concerning your transactions facilitated by use of the Services. All transactions between users of the Foundation-developed open-source software are executed peer-to-peer or peer-to-contract directly between the users’ Ethereum addresses through a smart contract.

To the maximum extent permitted under Applicable Law, the Site and the Services (and any of their content or functionality) provided by or on behalf of us are provided on an “AS IS” and “AS AVAILABLE” basis, and we expressly disclaim, and you hereby waive, any representations, conditions or warranties of any kind, whether express or implied, legal, statutory or otherwise, or arising from statute, otherwise in law, course of dealing, or usage of trade, including, without limitation, the implied or legal warranties and conditions of merchantability, merchantable quality, quality or fitness for a particular purpose, title, security, availability, reliability, accuracy, quiet enjoyment and non-infringement of third party rights. Without limiting the foregoing, we do not represent or warrant that the Site or the Services (including any data relating thereto) will be uninterrupted, available at any particular time, or error-free. Further, we do not warrant that errors in the Site or the Service are correctable or will be correctable.

You acknowledge that your data, if any, on the Site may become irretrievably lost or corrupted or temporarily unavailable due to a variety of causes, and agree that, to the maximum extent permitted under Applicable Law, we will not be liable for any loss or damage caused by denial-of-service attacks, software failures, viruses or other technologically harmful materials (including those which may infect your computer equipment), protocol changes by third-party providers, Internet outages, force majeure events or other disasters, scheduled or unscheduled maintenance, or other causes either within or outside our control.

The disclaimer of implied warranties contained herein may not apply if and to the extent such warranties cannot be excluded or limited under the Applicable Law of the jurisdiction in which you reside.

14. EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES

In no event shall the Foundation, its affiliates, its suppliers and contractors, and its and its affiliates’, suppliers’ and contractors’ respective stockholders, members, directors, officers, managers, employees, attorneys, agents, representatives, suppliers, and contractors (collectively, the “Risk Limited Parties”) be liable for any incidental, indirect, special, punitive, consequential or similar damages or liabilities whatsoever (including, without limitation, damages for loss of fiat, assets, data, information, revenue, opportunities, use, goodwill, profits or other business or financial benefit) arising out of or in connection with the Site and the Services, any execution or settlement of a transaction, any performance or non-performance of the Services, your Digital Assets or any other product, service or other item provided by or on behalf of the Foundation, whether under contract, tort (including negligence), civil liability, statute, strict liability, breach of warranties, or under any other theory of liability, and whether or not we have been advised of, knew of or should have known of the possibility of such damages and notwithstanding any failure of the essential purpose of these Terms or any limited remedy hereunder nor is the Foundation in any way responsible for the execution or settlement of transactions between users of the Foundation-developed open-source software.

15. LIMITATION OF LIABILITY

In no event shall the Foundation’s aggregate liability (together with its affiliates, including its and its affiliates’ respective stockholders, members, directors, managers, officers, employees, attorneys, agents, representatives, suppliers, or contractors) arising out of or in connection with the Site and the Services (and any of their content and functionality), any performance or nonperformance of the Services, your Digital Assets, or any other product, service or other item provided by or on behalf of the Foundation, whether under contract, tort (including negligence), civil liability, statute, strict liability or other theory of liability exceed $100.

16. DISPUTE RESOLUTION AND ARBITRATION

Please read the following section carefully because it requires you to arbitrate certain disputes and claims with the Foundation and limits how you can seek relief from the Foundation. You and the Foundation agree that any dispute arising out of or related to these Terms or the Services is personal to you and the Foundation and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action, or any other type of representative proceeding.

Any dispute, controversy or claim arising out of, or in relation to, these Terms, including the validity, breach, or termination thereof, shall be resolved by arbitration in accordance with Swiss Rules for International Arbitration of the Swiss Arbitration Centre in force on the date on which the Notice of Arbitration (the “Rules”). The number of arbitrators shall be three. The seat of the arbitration shall be Zug, Switzerland. The arbitration proceedings shall be conducted in English. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.

17. GOVERNING LAW

The interpretation and enforcement of these Terms, and any dispute related to these Terms, the Site or the Services, will be governed by and construed and enforced under the laws of Switzerland, without regard to conflict of law rules or principles that would cause the application of the laws of any other jurisdiction. The United Nations Convention for the International Sales of Goods is excluded. You agree that we may initiate a proceeding related to the enforcement or validity of our intellectual property rights in any court having jurisdiction. For any other proceeding that is not subject to arbitration under these Terms, the courts located in the canton of Zug, Switzerland will have exclusive jurisdiction. You waive any objection to venue in any such courts.

18. GENERAL INFORMATION

18.1 Please refer to our privacy policy, which is incorporated herein by reference and available at https://dydx.foundation/privacy, for information about how we collect, use, share and otherwise process information about you.

18.2 You consent to receive all communications, agreements, documents, receipts, notices, and disclosures electronically (collectively, our “Communications”) that we provide in connection with these Terms or any Services. You agree that we may provide our Communications to you by posting them on the Site or by emailing them to you at the email address you provide in connection with using the Services, if any. You should maintain copies of our Communications by printing a paper copy or saving an electronic copy. You may also contact us with questions, complaints, or claims concerning the Services at legal@dydx.community.

18.3 Any right or remedy of the Foundation set forth in these Terms is in addition to, and not in lieu of, any other right or remedy whether described in these Terms, under Applicable Law, at law, or in equity. The failure or delay of the Foundation in exercising any right, power, or privilege under these Terms shall not operate as a waiver thereof.

18.4 The invalidity or unenforceability of any of these Terms shall not affect the validity or enforceability of any other of these Terms, all of which shall remain in full force and effect.

18.5 We will have no responsibility or liability for any failure or delay in performance of the Site or any of the Services, or any loss or damage that you may incur, due to any circumstance or event beyond our control, including without limitation any flood, extraordinary weather conditions, earthquake, or other act of God, fire, war, insurrection, riot, labor dispute, accident, action of government, communications, power failure, or equipment or software malfunction.

18.6 You may not assign or transfer any right to use the Site or the Services, or any of your rights or obligations under these Terms, without our express prior written consent, including by operation of law or in connection with any change of control. We may assign or transfer any or all of our rights or obligations under these Terms, in whole or in part, without notice or obtaining your consent or approval.

18.7 Headings of sections are for convenience only and shall not be used to limit or construe such sections.

18.8 These Terms contain the entire agreement between you and the Foundation, and supersede all prior and contemporaneous understandings between the parties regarding the Site and the Services.

18.9 In the event of any conflict between these Terms and any other agreement you may have with us, these Terms will control unless the other agreement specifically identifies these Terms and declares that the other agreement supersedes these Terms.

18.10 You agree that, except as otherwise expressly provided in this Agreement, there shall be no third-party beneficiaries to the Agreement other than the Indemnified Parties