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Last Update: 12 Oct 2022

Terms of Service

Acceptance of These Terms of Service

Thirdwave Systems Inc. (“Thirdwave,” “we,” “us,” or “our”) provides our services (described below) and related content to you through our website(s) located at https://www.thirdwavelabs.com/ (the “Site”) the Site, including any updated or new features, functionality and technology, together with any other website or online service that we operate and that links to these Terms of Service, the “Service”). All access and use of the Service is subject to the terms and conditions contained in these Terms of Service (as amended from time to time, these “Terms of Service”). By accessing, browsing, or otherwise using the Site or any other aspect of the Service, you acknowledge that you have read, understood, and agree to be bound by these Terms of Service. If you do not accept the terms and conditions of these Terms of Service, you will not access, browse, or otherwise use the Service. To the extent that you’ve entered into separate terms with Thirdwave with respect to certain products or services, that separate agreement and not these Terms of Service will govern your use of that product or service. We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these Terms of Service were last revised. You may read a current, effective copy of these Terms of Service by visiting the “Terms of Service” link on the Site. We will also notify you of any material changes, either through the Service user interface, a pop-up notice, email, or through other reasonable means. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms of Service. You should periodically visit this page to review the current Terms of Service so you are aware of any revisions. If you do not agree to abide by these or any future Terms of Service, you will not access, browse, or use (or continue to access, browse, or use) the Service.

PLEASE READ THESE TERMS OF SERVICE CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST THIRDWAVE ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.

Your Privacy: At Thirdwave, we respect the privacy of our users. For more information about how Thirdwave handles your personal information, please see our Privacy Policy, located at http://www.thirdwavelabs.com/privacy-policy (the “Privacy Policy”).

Additional Terms: In addition, when using certain features through the Service, you will be subject to any additional terms applicable to such features that may be posted on or within the Service from time to time. All such terms are hereby incorporated by reference into these Terms of Service.

Definitions: As used in these Terms of Service, the following terms have the meanings set forth below:

● “Blockchain” means a public database that is updated and shared across many computers in a network.

● “dApp” means a decentralized application or program that exists and runs on a Blockchain or decentralized network that can be installed and launched by many users on a decentralized network.

● “Digital Asset” means any digital asset (including a virtual currency or virtual commodity), which is a digital representation of value based on, or built on top of, a Blockchain or decentralized network.

● “Smart Contract” means a program that runs on a Blockchain that constitutes collections of code and data that reside at a specific address on a Blockchain.

● “Wallet” means a third-party wallet, which is an account for holding Digital Assets.

Access and Use of the Service

Service Description: The Service includes Thirdwave services that are not provided pursuant to a separate agreement with Thirdwave, including the Site which may include the free version of Thirdwave’s Insights product and marketplace that enables eligible users to claim offers (“Rewards”), such as playing games. Rewards are subject to the Rewards Terms section below. Certain features of the Site may enable users to interact with Blockchains or dApps and transact using Smart Contracts to obtain or transfer Digital Assets. We do not have custody or control over the Blockchains you are interacting with or Smart Contracts provided by third parties. To use certain features, you must use a compatible Wallet that allows you to engage in transactions on Blockchains.

Interacting with certain Blockchains may require that you pay a fee, such as ‘gas charges’ on the Ethereum network, to perform a transaction. You acknowledge and agree that Thirdwave has no control over any transactions among Blockchain users, the method of payment of any such transactions, or any actual payments of such transactions. Accordingly, you must ensure that you have a sufficient balance of the applicable Digital Assets stored in your Wallet to complete any such transaction on the applicable Blockchain before initiating such transaction.

Your Registration Obligations: You may be required to register with Thirdwave or provide information about yourself (e.g., name, email address, and/or Wallet ID) in order to access and use certain features of the Service. If you choose to register for the Service, you agree to provide and maintain true, accurate, current, and complete information about yourself as prompted by the Service’s registration form. Registration data and certain other information about you are governed by our Privacy Policy.  The Services may not be used by anyone under the age of 18 without the supervision of a parent or legal guardian who agrees to be bound by these Terms of Service. You represent and warrant that you are at least 18 years of age (or the age of legal majority under applicable law), or, if not, that you have reviewed these Terms of Service with your parent or legal guardian and that he or she has agreed to be bound by these Terms of Service.

Rewards Terms: For each Qualifying Event (as defined below), Thirdwave will grant you certain Rewards for taking certain actions, subject to these Terms of Service (the “Rewards Program”). Participation in the Rewards Program and the opportunity to receive Rewards are offered at the sole discretion of Thirdwave and subject to your compliance with these Terms of Service and any other applicable terms or agreements. Thirdwave reserves the right to change or discontinue the Rewards Program and any feature of the Services, at any time, with or without notice. In order to qualify for Rewards, you must comply with these Terms of Service and complete the following actions ((i) through (iii) collectively, a “Qualifying Event”): (i) connect a compatible Wallet, (ii) provide any information reasonably requested by Thirdwave, and (iii) complete the actions described in the terms and conditions applicable to each Reward offer (such terms and conditions form part of these Terms of Service). For avoidance of doubt, Thirdwave is only responsible for Rewards offers that Thirdwave makes to you and is not responsible for offers made by third parties. You may only earn one Reward per Reward offer. Thirdwave makes no guarantees about the value of any Rewards, including Digital Assets, and the value may be zero and/or may fluctuate over time. You may be taxed on your receipt of Rewards depending on the tax laws of federal, state, and local jurisdictions. You will be solely responsible for any and all tax liability arising out of the consideration received in connection with the Rewards Program.  We may need to collect certain identifying information from you in order to fulfill our tax reporting obligations, and in the event you are unable or unwilling to provide such information, you may forfeit your Rewards. If Thirdwave has any reason to suspect fraudulent activity is associated with your Rewards activity, Thirdwave reserves the right to delay or withhold redemption of Rewards, or seek that you return such Rewards.

Member Account, Password and Security: You are responsible for maintaining the confidentiality of your password and account details, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify Thirdwave of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. Thirdwave will not be liable for any loss or damage arising from your failure to comply with this paragraph.

By using your Wallet in connection with the Service, you agree that you are using that Wallet under the terms and conditions of the applicable provider of the Wallet. Wallets are not operated by, maintained by, or affiliated with Thirdwave, and we do not have custody or control over the contents of your Wallet and have no ability to retrieve or transfer its contents. Thirdwave accepts no responsibility for, or liability to you, in connection with your use of a Wallet and makes no representations or warranties regarding how the Service will operate with any specific Wallet. You are solely responsible for maintaining the security of your Wallet.

Modifications to Service: Thirdwave reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Thirdwave will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.

General Practices Regarding Use and Storage: You acknowledge that Thirdwave may establish general practices and limits concerning use of the Service, including the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on Thirdwave’s or its third-party service providers’ servers on your behalf. You agree that Thirdwave has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Service. You acknowledge that Thirdwave reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Thirdwave reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.

Conditions of Access and Use

User Conduct: You may use the Service only for lawful purposes and in accordance with these Terms of Service. You are solely responsible for all code, video, images, information, data, text, software, music, sound, photographs, graphics, messages, and other materials (“content”) that you make available to Thirdwave, including by uploading, posting, publishing, or displaying (hereinafter, “upload(ing)”) via the Service or by emailing or otherwise making available to other users of the Service (collectively, “User Content”). The following are examples of the kinds of content and/or uses that are illegal or prohibited by Thirdwave. Though it is not under any obligation to do so, Thirdwave reserves the right to investigate and take appropriate legal action against anyone who, in Thirdwave’s sole discretion, violates this provision, including removing the offending content from the Service, suspending or terminating the account of such violators, and reporting the violator to law enforcement authorities. You agree to not use the Service to:

1. email or otherwise upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful, discriminatory, or otherwise objectionable; or (vii) in the sole judgment of Thirdwave, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose Thirdwave or its users to any harm or liability of any type;

2. interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies, or regulations of networks connected to the Service;

3. violate any applicable local, state, national, or international law, or any regulations having the force of law;

4. impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;

5. solicit personal information from anyone under the age of 18;

6. harvest or collect email addresses or other contact information of other users from the Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;

7. advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;

8. further or promote any criminal activity or enterprise or provide instructional information about illegal activities;

9. obtain or attempt to access or otherwise obtain any content or information through any means not intentionally made available or provided for through the Service;

10. circumvent, remove, alter, deactivate, degrade, or thwart any of the content protections in or geographic restrictions on any content (including Service Content (as defined below)) available on or through the Service, including through the use of virtual private networks; or

11. engage in or use any data mining, robots, scraping, or similar data gathering or extraction methods. If you are blocked by Thirdwave from accessing the Service (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address or virtual private network).

No investment advice: All materials on the Service are for informational purposes only. For the avoidance of doubt, Thirdwave does not provide investment, tax, or legal advice, and 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. The information provided on the Service does not constitute investment advice, financial advice, trading advice, or any other sort of advice, and you should not treat any of the Site’s content as such. Thirdwave does not recommend that any Digital Asset should be bought, earned, sold, or held by you. Thirdwave will not be held responsible for the decisions you make to buy, sell, or hold Digital Assets based on the information provided by Thirdwave.  

Competitors: No employee, independent contractor, agent, or affiliate of any company competing with Thirdwave is permitted to view, access, or use any portion of the Service without express written permission from Thirdwave. By viewing, using, or accessing the Service, you represent and warrant that you are not a competitor of Thirdwave or any of its affiliates, or acting on behalf of a competitor of Thirdwave in using or accessing the Service.

Marketplace; Mobile Services; Geographic Restrictions

Marketplace. The Service may be used to facilitate the purchase, sale, or use of services or merchandise (such as dApps) through the Service from other persons not affiliated with Thirdwave (“Seller(s)”). All matters concerning the merchandise and services desired from a Seller, including but not limited to purchase terms, payment terms, warranties, guarantees, maintenance and delivery, are solely between you and the Seller. Thirdwave makes no warranties or representations whatsoever with regard to any goods or services provided by Sellers. You will not consider Thirdwave, nor will Thirdwave be construed as, a party to such transactions, whether or not Thirdwave may have received some form of revenue or other remuneration in connection with the transaction or be liable for any costs or damages arising out of, either directly or indirectly, vou or any other person involved or related to the transaction.

Mobile Services: The Service may include certain services that are available via a mobile device, including (i) the ability to upload content to the Service via a mobile device, (ii) the ability to browse the Service and the Site from a mobile device, and (iii) the ability to access certain features and content through Mobile Apps (collectively, the “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates, and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that we may communicate with you regarding Thirdwave and other entities by SMS, MMS, text message, or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Thirdwave account information to ensure that your messages are not sent to the person that acquires your old number.

Intellectual Property Rights

The Service and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by Thirdwave, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.

We permit you to use the Service in accordance with these Terms of Service for your personal, non-commercial use only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on our Service, except as follows:

● Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.

● You may store files that are automatically cached by your Web browser for display enhancement purposes.

● You may print or download one copy of a reasonable number of pages of the Site for your own personal, non-commercial use and not for further reproduction, publication, or distribution.

You must not:

● Modify copies of any materials from this site.

● Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from this site.

● Otherwise violate these Terms of Service.

You must not access or use for any commercial purposes any part of the Service or any services or materials available through the Service.

If you print, copy, modify, download, or otherwise use or provide any other person with access to any part of the Service in breach of the Terms of Service, your right to use the Service will stop immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title, or interest in or to the Service or any content on the Service is transferred to you, and all rights not expressly granted are reserved by Thirdwave. Any use of the Service not expressly permitted by these Terms of Service is a breach of these Terms of Service and may violate copyright, trademark, and other laws.

Trademarks: The Thirdwave name and logo, and all related names, logos, product and service names, designs, and slogans are trademarks of Thirdwave or its affiliates or licensors. You must not use such marks without the prior written permission of Thirdwave. All other names, logos, product and service names, designs, and slogans on the Service are the trademarks of their respective owners. All goodwill generated from the use of Thirdwave Trademarks will inure to our exclusive benefit.

Third-Party Material: Under no circumstances will Thirdwave be liable in any way for any content or materials of any third parties (including users), including for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that Thirdwave does not pre-screen content, but that Thirdwave and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service. Without limiting the foregoing, Thirdwave and its designees will have the right to remove any content that violates these Terms of Service or is deemed by Thirdwave, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.

User Content: You represent and warrant that you own all right, title and interest in and to such User Content, including all copyrights and rights of publicity contained therein. You hereby grant Thirdwave and its affiliated companies, successors, and assigns a non-exclusive, worldwide, royalty-free, fully paid-up, transferable, sublicensable (directly and indirectly through multiple tiers), perpetual, and irrevocable license to copy, display, upload, perform, distribute, store, modify, and otherwise use your User Content in connection with the operation of the Service and the promotion, advertising or marketing of the foregoing in any form, medium or technology now known or later developed. You assume all risk associated with your User Content and the transmission of your User Content, and you have sole responsibility for the accuracy, quality, legality and appropriateness of your User Content.

You hereby authorize Thirdwave and its third-party service providers to derive statistical and usage data relating to your use of the Service (“Usage Data”). We may use Usage Data for any purpose in accordance with applicable law and our Privacy Policy. Any questions, comments, suggestions, ideas, feedback, reviews, or other information about the Service (“Submissions”), provided by you to Thirdwave are non-confidential and Thirdwave will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment, attribution, or compensation to you.

You acknowledge and agree that Thirdwave may preserve User Content and may also disclose User Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws, or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Thirdwave, its users, or the public. You understand that the technical processing and transmission of the Service, including your User Content, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.

Copyright Complaints: Thirdwave respects the intellectual property of others, and we ask our users to do the same. If you believe that in good faith that your work has been reproduced or is accessible on the Service in a way that constitutes copyright infringement, you should notify Thirdwave of your infringement claim in accordance with the procedure set forth below.

Thirdwave will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to legal@thirdwavelabs.com (Subject line: “DMCA Takedown Request”).

To be effective, the notification must be in writing and contain the following information:

● a physical or electronic signature of a person authorized to act on behalf of the owner of the copyright or other intellectual property interest that is allegedly infringed;

● identification of the copyrighted work or other intellectual property that you claim has been infringed, or, if multiple copyrighted works or other intellectual property are covered by a single notification, a representative list of such works or other intellectual property;

● identification of the content that is claimed to be infringing or to be the subject of infringing activity, and where the content that you claim is infringing is located on the Service, with enough detail that we may find it on the Service;

● your address, telephone number, and email address;

● a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; and

● a statement by you that the information in your notice is accurate and, under penalty of perjury, that you are the copyright or intellectual property owner or are authorized to act on the behalf of the owner of the copyright or intellectual property that is allegedly infringed.

Our designated agent is:

Designated Agent: Thirdwave Systems Inc

1111B S Governors Ave

#6184

Dover, DE 19904

Phone: (302) 365-0656

Email: admin@thirdwavelabs.com

Upon receipt of a notice of alleged infringement (or any statement in conformance with 17 U.S.C. § 512(c)(3)), we will expeditiously remove or disable access to the allegedly infringing content. Our policy is to terminate the privileges of users who repeatedly infringe copyright. Please note that United States law provides significant penalties for falsely submitting a notice of copyright infringement.

Repeat Infringer Policy: In accordance with the DMCA and other applicable law, Thirdwave has adopted a policy of terminating, in appropriate circumstances and at Thirdwave’s sole discretion, the accounts of users who are deemed to be repeat infringers. Thirdwave may also at its sole discretion limit access to the Service and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

Geographic Restrictions: Thirdwave is headquartered in the United States, and the Service is for use by persons in the United States. We make no claims that the Service or any of its content is accessible or appropriate outside of the United States. Access to the Service may not be legal by certain persons or in certain countries. If you access or use the Service from outside of the United States, you do so at your own risk.

Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction. Software available in connection with the Service and the transmission of applicable data, if any, is subject to United States export controls. No technology or software underlying the Service may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws.

Third-Party Services

Third-Party Services. The Service may contain links to third-party websites (“Third-Party Websites”), applications (“Third-Party Applications”) and advertisements for third parties (“Third-Party Ads”). When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Ad (collectively, “Third-Party Services”), we will not warn you that you have left the Service, and Third-Party Services are subject to the terms and conditions (including privacy policies) of third parties. Such Third-Party Services are not under the control of Thirdwave, and Thirdwave is not responsible for any Third-Party Services. Thirdwave provides these Third- Party Services only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Services, or any product or service provided in connection therewith. You use all links in Third-Party Services at your own risk. When you leave our Service, these Terms of Service and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Services, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.

Assumption of Risk

You accept and acknowledge:

● We do not control the Blockchains that you are interacting with and we do not control certain Smart Contracts and protocols that may be integral to your ability to complete transactions on Blockchains. Additionally, Blockchain transactions are irreversible and we have no ability to reverse any transactions on the Blockchain.

● Any third-party Smart Contracts you interact with are entirely your own responsibility and liability, and that Thirdwave is not party to such Smart Contracts; and

● There are risks associated with using Internet, Digital Assets, and Blockchain-based products, including, but not limited to, the risk associated with hardware, software, and Internet connections, the risk of malicious actors, fluctuations in the value of Digital Assets, and the risk that third parties may obtain unauthorized access to your Wallet. You accept such risks and acknowledge that Thirdwave will not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience when using the Service or any Blockchain network, however caused.

Indemnification

You agree to defend, indemnify, and hold harmless Thirdwave, its affiliates, and its and their respective officers, employees, directors, service providers, licensors, and agents (collectively, the “Thirdwave Parties”) from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind, and injury (including death) arising out of or relating to your use of the Service, any User Content, your connection to the Service, your violation of these Terms of Service, or your violation of any rights of another. Thirdwave will use reasonable efforts to provide notice to you of any such claim, suit, or proceeding. Notwithstanding the foregoing, Thirdwave reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section, and you agree to cooperate with any reasonable requests assisting Thirdwave’s defense of such matter. You may not settle or compromise any claim against the Thirdwave Parties without Thirdwave’s written consent.

Disclaimer of Warranties

YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE THIRDWAVE PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND

NON-INFRINGEMENT. THE THIRDWAVE PARTIES MAKE NO WARRANTY THAT (A) THE SERVICE WILL MEET YOUR REQUIREMENTS; (B) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (C) THE INFORMATION OR RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE; OR (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.

Limitation of Liability

PLEASE READ THIS ‘LIMITATION OF LIABILITY’ SECTION CAREFULLY SINCE IT LIMITS THE LIABILITY OF THIRDWAVE TO YOU. THIS SECTION ONLY APPLIES UP TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. NOTHING HEREIN IS INTENDED TO LIMIT ANY RIGHTS YOU MAY HAVE WHICH MAY NOT BE LAWFULLY LIMITED. BY ACCESSING OR USING THE SERVICE, YOU REPRESENT THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO THESE TERMS OF SERVICE, INCLUDING THIS SECTION. YOU ARE GIVING UP SUBSTANTIAL LEGAL RIGHTS BY AGREEING TO THESE TERMS OF SERVICE.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE THIRDWAVE PARTIES WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING DAMAGES FOR LOSS OF GOODWILL, USE, OR DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE THIRDWAVE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, RESULTING FROM: (A) THE USE OR THE INABILITY TO USE THE SERVICE; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (E) ANY OTHER MATTER RELATING TO THE SERVICE.

IN NO EVENT WILL THE THIRDWAVE PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID THIRDWAVE IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).

SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.

IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION WILL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.

Dispute Resolution By Binding Arbitration

PLEASE READ THIS SECTION (SOMETIMES REFERRED TO HEREIN AS THE “ARBITRATION AGREEMENT”) CAREFULLY AS IT AFFECTS YOUR RIGHTS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.

(a) Applicability of Arbitration Agreement: All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with these Terms of Service or the use of any product or service provided by us that cannot be resolved informally shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement, except that (1) you and Thirdwave may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or Thirdwave 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). Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and Thirdwave, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under these Terms of Service.

(b) Notice Requirement and Informal Dispute Resolution: Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Thirdwave should be sent to legal@thirdwavelabs.com. After the Notice is received, you and Thirdwave may attempt to resolve the claim or dispute informally. If you and Thirdwave do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.

(c) Arbitration Rules: The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.

You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

(d) Authority of Arbitrator: The arbitrator shall have exclusive authority to (i) determine the scope and enforceability of this Arbitration Agreement and (ii) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion 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 Thirdwave. 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 these Terms of Service (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.

(e) Waiver of Jury Trial: YOU AND THIRDWAVE 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 Thirdwave are instead electing that all disputes, claims, or requests for relief (each, a “Request”) shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section (a) above (Applicability of Arbitration Agreement) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms of Service 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.

(f) Waiver of Class or Other Non-Individualized Relief: ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE 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. If a decision is issued stating that applicable law precludes enforcement of any of this section’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of California. All other disputes, claims, or requests for relief shall be arbitrated.

(g) 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 legal@thirdwavelabs.com within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Thirdwave username (if any), the email address you used to set up your Thirdwave 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 these Terms of Service 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.

(h) Severability: Except as provided in section (f) of this Arbitration Agreement (Waiver of Class or Other Non Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.

(i) Batch Arbitration: To increase the efficiency of administration and resolution of arbitrations, you and Thirdwave agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against Thirdwave by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), JAMS shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).

All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise JAMS, and JAMS shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Thirdwave.

You and Thirdwave agree to cooperate in good faith with JAMS to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.

This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.

(j) Survival of Agreement: This Arbitration Agreement will survive the termination of your relationship with Thirdwave.

(k) Modification: Notwithstanding any provision in these Terms of Service to the contrary, we agree that if Thirdwave makes any future material change to this Arbitration Agreement, we will notify you. Your continued use of the Service, including the acceptance of products and services offered on the Site following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes.

Termination

You agree that Thirdwave, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including for lack of use or if Thirdwave believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the Service, may be referred to appropriate law enforcement authorities. Thirdwave may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of these Terms of Service may be effected without prior notice, and acknowledge and agree that Thirdwave may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Thirdwave will not be liable to you or any third party for any termination of your access to the Service.

User Disputes

You agree that you are solely responsible for your interactions with any other user in connection with the Service, and Thirdwave will have no liability or responsibility with respect thereto. Thirdwave reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Service.

General

These Terms of Service (together with the terms incorporated by reference herein) constitute the entire agreement between you and Thirdwave governing your access and use of the Service, and supersede any prior agreements between you and Thirdwave with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use Third-Party Services, third-party content or third-party software. These Terms of Service will be governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Thirdwave submit to the personal and exclusive jurisdiction of the state and federal courts located within San Francisco, California. The failure of Thirdwave to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of these Terms of Service and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to these Terms of Service to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign these Terms of Service without the prior written consent of Thirdwave, but Thirdwave may assign or transfer these Terms of Service, in whole or in part, without restriction. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. As used in these Terms of Service, the words “include” and “including,” and variations thereof, will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words “without limitation.” Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Service. Thirdwave will not be held responsible in any way or be in default hereunder by reason of any failure or delay in the performance of its obligations where such failure or delay is due to civil disturbances, riot, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or unavailability of electrical power, network access or equipment, or any other circumstances or causes beyond Thirdwave’s reasonable control.

Notice for California Users

Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted (a) via email at dca@dca.ca.gov; (b) in writing at: Department of Consumer Affairs, Consumer Information Division, 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834; or (c) by telephone at (800) 952-5210 or (800) 326-2297 (TDD). Sacramento-area consumers may call (916) 445-1254 or (916) 928-1227 (TDD). You may contact us at legal@thirdwavelabs.com.

U.S. Government Restricted Rights

The Service is made available to the U.S. government with “RESTRICTED RIGHTS.” Use, duplication, or disclosure by the U.S. government is subject to the restrictions contained in 48 CFR 52.227-19 and 48 CFR 252.227-7013 et seq. or its successor. Access or use of the Service (including any technology or software underlying the Service) by the U.S. government constitutes acknowledgement of our proprietary rights in the Service (including any technology or software underlying the Service).

Advertising Terms

1. General. These advertising terms are in addition to Thirdwave's general website terms of service located at https://www.thirdwavelabs.com/terms-of-service, which are incorporated by reference. These advertising terms are applicable to advertisers (“Advertisers” or “you”) with which Thirdwave may enter into insertion orders related to advertising campaigns. Insertion orders signed by Advertiser and Thirdwave (each, a “Party”, and the signed order, an “Insertion Order”) will detail the terms of the applicable advertising campaigns.

2.          Restrictions; Right of Refusal. Thirdwave may, in its sole good faith discretion, refuse to assist in a particular campaign requested by Advertiser under any Insertion Order if: (i) it does not comply with Thirdwave's guidelines; (ii) it believes in good faith that the provision or publishing of such campaign violates any applicable law, rule, or regulation (including without limitation any federal advertising regulations such as the Truth in Advertising regulations and/or the CAN-SPAM Act); and/or (iii) it believes in good faith that such ad or campaign does not comply with reasonable moral standards promulgated by Thirdwave and/or society in general. Advertiser shall be solely responsible for a requested campaign’s compliance with all applicable advertising or other laws, laws, rules and regulations with respect to the collection, use, and sharing of information gathered from consumers.

3.          Confidentiality. During the term of the applicable Insertion Order  and for five (5) years after the termination or expiration of the final Insertion Order, neither Party shall make use of the other's Confidential Information (as hereinafter defined) for purposes other than the performance of its obligations under the Insertion Order and these advertising terms. Each Party shall protect the other Party's Confidential Information by using the same degree of care as it uses to protect its own information of a like nature, but no less than a reasonable degree of care. The receiving Party shall only disclose the Confidential Information to its employees, consultants and subcontractors who have a need to know such Confidential Information in order to perform its obligations under the Insertion Order and these advertising terms. "Confidential Information" shall mean all information of either Party not generally available to the public which is provided to the receiving Party by the disclosing Party or which the receiving Party has access to or discovers in the performance of the Insertion Order and these advertising terms, including but without limitation, all information relating to a Party's products, business and operations including, but not limited to, business plans, financial records, customers, suppliers, vendors, products, costs, sources, strategies, inventions, procedures, forecasts, sales materials and data, technical advice or knowledge, contractual agreements, pricing, product specifications, trade secrets, procedures, distribution methods, inventories, marketing strategies, algorithms, designs, drawings, work sheets, blueprints, manufacturing processes, computer programs and systems and know-how or other intellectual property of a Party and its affiliates that may be at any time furnished, communicated or delivered by a Party to the other Party, whether in oral, tangible, electronic or other form. All Confidential Information shall remain the property of the disclosing Party. Confidential Information shall not include any information that: (a) was rightfully known to a party prior to disclosure by the other party; (b) is rightfully obtained by a Party from a third Party; (c) is made available by the disclosing Party to the public without restrictions; (d) is disclosed by a Party with prior written permission of the other Party; (e) is independently developed or learned by the recipient Party through legitimate means; (f) is disclosed by the disclosing Party to a third party without a duty of confidentiality on the third party; or (g) is disclosed pursuant to any applicable laws, regulations, or order of a court of competent jurisdiction, or by the recipient in defense of a claim against the recipient. Each Party will provide reasonable prior notice to the other, unless prohibited by applicable law, if it is required to disclose any of the other Party's Confidential Information under operation of law, and such disclosure shall not constitute a breach of the Insertion Order or these advertising terms.  

4.          Mutual Warranty Disclaimer; Limitation of Liability. To the maximum extent permitted by law, neither Party makes any warranties to the other Party, and each Party disclaims all warranties, oral or written, express, implied or statutory, with respect to its performance under the Insertion Order and these advertising terms, fitness for a particular purpose, non-infringement, and any implied warranties. Except for breaches covered by Section 2 or 3 of these advertising terms, the liability of each Party with respect to all Insertion Orders and these advertising terms under any contract, tort, strict liability or other legal or equitable theory, whether or not advised of the possibility of such damages (a) excludes all special, indirect, incidental, exemplary, punitive, reliance or consequential damages; and (b) is otherwise limited in aggregate to the amount of fees paid by Advertiser to Thirdwave in the preceding 12 months.

5.      Miscellaneous.  Governing Law. The laws of the State of California will govern this Agreement, without reference to its conflict of law provisions, and any suit or action will be in the courts located in San Francisco, California.  Notices. Unless otherwise stated in the Insertion Order and these Advertising terms, all notices will be given by email to the email address listed in the Insertion Order. Entire Agreement. The Insertion Order, these advertising terms, online terms of service, and any NDA represents the entire understanding of the parties, supersedes any prior or contemporaneous understandings, and may not be modified except in a writing signed by both Parties. Independent Contractors. Each Party is entering each Insertion Order and these advertising terms as an independent contractor. Neither Party will have any power or authority to bind the other Party.  

Questions? Concerns? Suggestions?

Please contact us at legal@thirdwavelabs.com to report any violations of these Terms of Service or to pose any questions regarding these Terms of Service or the Service.

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