END USER LICENSE AND SERVICES AGREEMENT
This End User License and Services Agreement (this “Agreement”) is an agreement between you (“You”) and Sandwich Trading, LLC (“Sandwich”).
BY CLICKING ON THE “ACCEPT” BUTTON BELOW YOU REPRESENT AND AGREE THAT YOU HAVE THE CAPACITY AND AUTHORITY TO BIND YOURSELF OR THE APPLICABLE ENTITY (AS THE CASE MAY BE), TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, UNDERSTAND THEM, AND AGREE TO BE BOUND BY THEM. IF YOU DO NOT AGREE WITH ALL THE TERMS OF THIS AGREEMENT, CLICK THE “REJECT” BUTTON BELOW. PLEASE READ THIS AGREEMENT CAREFULLY AS IT CONTAINS IMPORTANT INFORMATION ABOUT YOUR LEGAL RIGHTS AND OBLIGATIONS. THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION AND NOTICE AND CLASS ACTION WAIVER. PLEASE REFER TO THE “GOVERNING LAW AND ARBITRATION” SECTION FOR MORE DETAILS. BY AGREEING TO THESE TERMS AND CONDITIONS YOU ARE AGREEING THAT, IN MOST CASES, DISPUTES BETWEEN YOU AND SANDWICH WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
1. DEFINITIONS
1.1. “Account” has the meaning set forth in Section 3.2.2.
1.2. “Documentation” means any technical manuals, instructions, user information or manual, training materials and any and all other materials and documentation that may accompany the Platform or that is otherwise provided by Sandwich, and as may be amended or updated from time to time by Sandwich.
1.3. “Export Control Laws” has the meaning set forth in Section 8.1.
1.4. “Platform” means Sandwich’s platform(s) which are made accessible to You in association with and subject to this Agreement, and which consist of Sandwich’s stand-alone computer software (hereinafter, “Platform”).
1.5. “Person” has the meaning set forth in Section 2.2.
1.6. “Privacy Laws” has the meaning set forth in Section 4.1.
1.7. “Privacy Policy” means the Sandwich Trading Privacy Policy found at https://www.sandwichtrading.com/legal/privacy-policy.
1.8. “Proprietary Information” means all information disclosed by Sandwich to You hereunder or otherwise in connection with the Platform or the Services, or Documentation related thereto, excluding however information which is in the public domain, through no action or omission by You.
1.9. “Sandwich” means Sandwich Trading, LLC, a Company organized under the laws of Puerto Rico and with a mailing address of 151 Calle de San Francisco, Suite 200, San Juan, Puerto Rico, 00901.
1.10 “Services” has the meaning as set forth in Section 2.3.
2. LICENSE AND SERVICES
2.1. License. Subject to the terms and conditions of this Agreement, Sandwich hereby grants to You, for the term of this Agreement, a non-exclusive, non-transferable, revocable, non-sublicensable license to utilize the Platform and its related Documentation during the Term, solely by You, in the ordinary course of your internal use and subject to the restrictions contained herein. The Platform shall not be used for any purpose other than as expressly authorized by this Agreement. In particular, but without limitation, You agree that You will not: (i) attempt in any way to reverse engineer the Platform or any software or source code used to operate the Platform; or (ii) develop a competing product or service based upon the Platform. Nothing in this Agreement shall be deemed to grant You, either directly or by implication, estoppel, or otherwise, any license or rights other than those expressly granted in this Section 2.1.
2.2. Rights to Platform. By virtue of this Agreement, You acquire only the right to use the Platform and do not acquire any other rights or ownership interests. All rights, title, and interest in the Platform and any improvements thereto (including without limitation any improvements suggested by You or by Your usage of the Platform), shall at all times remain the property of Sandwich.
2.3. Services. Sandwich shall provide You the following services during the Term, subject to Sandwich’s right to discontinue any of the services in Sandwich’s sole discretion (the “Services”): (i) general instructions on using the Platform and utilizing certain other service providers; (ii) feedback on technical issues based upon logs/algo cache; (iii) diagnosing software, hardware, and network problems related to running the Platform; and (iv) screen-sharing with users in certain instances to address complex issues. For the avoidance of doubt, Sandwich is not responsible for any fees of any kind incurred directly or indirectly by You in the course of utilizing the Platform.
2.4. Prohibited Activities. Without Sandwich’s express prior written consent in each case, You will not and will not direct nor allow any third party to: (i) transfer, assign, rent, lease, distribute, loan, export, or provide further permission to use the Platform to any person, individual, entity or co-worker (collectively “Person”); (ii) engage in rental, timesharing, service bureau, subscription, hosting, or outsourcing of the Platform, or allow any Person to use the Platform; (iii) copy the Platform, in whole or in part; (iv) decipher, reverse translate, decompile, disassemble or otherwise reverse engineer the Platform or attempt to reconstruct or discover any source code or underlying ideas or algorithms or file formats or programming or interoperability interfaces of the Platform by any means whatsoever or otherwise reduce the Platform into human-readable form; (v) except as otherwise permitted, under this Agreement, modify the Platform or incorporate any portion of the Platform into any other platform or create a derivative work of any portion of the Platform; (vi) breach the security of the Platform or perform any form of scanning, scraping, probing, robotic navigating, bulk extracting or hacking of the Platform; (vii) interfere with, circumvent, manipulate, impair or disrupt the operation, or the functionality of the Platform; (viii) perform any activities which may enable features or functionalities of the Platform that are otherwise disabled, inaccessible or undocumented in the Documentation; (ix) use the Platform other than as detailed in the Documentation or otherwise authorized by Sandwich in writing; (x) use the Platform for any commercial use; (xi) violate any laws, regulations, contracts or other third-party rights, including but not limited to intellectual property rights, in connection with your use of the Platform; (xii) use the Platform for any unlawful purpose including, but not limited to, money laundering, terrorist financing, and fraud; or (xiii) use the Platform beyond the subscription scope or create, set-up or design any hardware, Platform or system which alters, exceeds, or breaches such scope.
2.5. Compliance with Laws. You represent and warrant to Sandwich that You will not use or allow the use of the Platform or any portion thereof in violation of applicable laws or regulations (including without limitation Export Control Laws and Privacy Laws). Furthermore, by using the Platform, You agree to be bound to the terms of this Agreement.
2.6. Indemnification. You will indemnify and hold Sandwich harmless from and against claims, losses, costs (including reasonable attorneys’ fees) or liabilities, arising in connection with (i) Your use of the Platform; and (ii) Your breach of Your obligations, representations and warranties in this Agreement. Sandwich reserves the right, at Your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify Sandwich, and You agree to cooperate with Sandwich’s defense of these claims. You agree not to settle any matter without the prior written consent of Sandwich. Sandwich will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
2.7. Platform Access. To use the Platform, You need compatible hardware, software, Internet access (fees may apply) and other applicable technology. The Platform’s performance may be affected by these factors. The jurisdiction from where you access the Platform may impose additional restrictions on your use of the Platform, which is beyond the control of Sandwich, and access or use of the Platform is not guaranteed. From time to time, Your access and use of the Platform may be interrupted for any of several reasons, including, without limitation, updates, repairs or maintenance of the Platform or any other actions that Sandwich, in its sole discretion may elect to take. Sandwich may be required by a government authority to request additional information or documents from You as a user. In that case, Sandwich, in its sole discretion, may elect to disable your Account permanently or temporarily.
3. SERVICE TERMS
3.1. Service Description.
3.1.1 Sandwich is a technology platform that is self-hosted by the user. The Platform aggregates information from several digital asset exchanges and provides a dashboard to users who can see market fluctuations in the cryptocurrency space. Additionally, the Platform allows users to view their portfolios across multiple cryptocurrency exchanges and facilitates the execution of trading instructions that are wholly determined and input by the user. These orders are, per user instructions, sent to external exchanges’ API. Sandwich takes no custody of any user assets. The custodial and exchange/client relationship exists between the client and applicable exchange. The self-hosted nature of the product means that You will be solely responsible for the operational security and safety of Your computer systems. Sandwich provides software to permit users to absorb market data across multiple exchanges and execute trading instructions in a more efficient manner.
3.2. Service Usage.
3.2.1 Agreement to Terms. In order to access and use the Platform, you must agree to the terms of this Agreement and all the documents referred to herein.
3.2.2 Account Creation. In order to use certain features of the Platform, you must register for an account (“Account”) and provide certain information as prompted by the account registration form. You must be at least 18 years old to create an Account and use the Platform. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; and (b) You will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by sending Sandwich an email at: support@sandwichtrading.com. Sandwich reserves the right to suspend or terminate your Account for any reason in its sole discretion. You are responsible for maintaining the confidentiality of Your Account login information and are fully responsible for all activities that occur under Your Account. You agree to immediately notify Sandwich of any unauthorized use, or suspected unauthorized use of Your Account or any other breach of security. Sandwich cannot and will not be liable for any loss or damage arising from Your failure to comply with the above requirements.
3.2.3 Purchasing Credits and Taxes. After You have agreed to the terms of this Agreement, you will be provided access to the Platform. Your ability to conduct transactions through the Platform corresponds to the number of credits (“Credits”) that You purchase through the Platform in Your Account. You will be able to purchase Credits via the Platform that can then be utilized to conduct transactions. You shall be solely responsible for the payment of any and all taxes arising, or that may arise, out of Your use of the Platform, including, but not limited to, any sales, use, access and/or business taxes, excluding taxes based on the income of Sandwich.
3.2.4 Advanced Credits. Sandwich, in its discretion, may allow you to conduct transactions on the Platform without adequate Credits in Your Account. In that case, You will receive an invoice on a monthly basis through a notification on the Platform and/or via email. You will have one month to remit payment for those Credits and if You fail to do so, then Your access to the Platform will be suspended until the invoice is paid in full.
3.2.5 Processing Payments. Sandwich may use third party processors to process payments for Credits via the Platform. In that case, You will be directed via the Platform to an external third party service provider. You understand that by leaving the Platform to execute a Credit payment, the terms of the Privacy Policy will not apply to that third party’s website or service, and You shall be subjected to the policies and practices of that third party. Additionally, Sandwich, in its sole discretion, may allow for payments by other mechanisms, such as directly from You. In the event that You make payments via any other mechanism, by doing so You are agreeing to the terms of completing such payments.
3.2.6 Suspension or Termination for Non-Payment. If Sandwich has not received payment for any Credits for use of the Platform, and without prejudice to any other rights and remedies of Sandwich, Sandwich may, without incurring any liability, and with or without notice to You, deny Your ability to process transactions using the Platform. Sandwich shall be under no obligation to provide any or all of the Platform research or transaction capabilities until You secure Credits for the use of the Platform.
3.2.7 Information Captured. In order to facilitate payment for use of the Platform, Sandwich captures the following information when You use the Platform: (i) identification marking an order (an “Order ID”), (ii) the exchange to which the Order ID is associated; (iii) the type of instrument traded (e.g. swap / future / spot); (iv) whether the account utilized is a live account or testnet account; (v) trade date times; (vi) the notional value in US Dollars; and (vii) the rate used to convert to US Dollars. To promote privacy, the notional value is calculated through the Platform on Your system without sending the instrument or the direction of trade (whether buy or sell) to the Sandwich server. When you sign into Your Account, Sandwich stores information that it determines is required to operate the Platform, including a hardware fingerprint. Personally identifiable and/or sensitive information is one-way hashed.
3.3. Service Disclaimers
3.3.1 No Investment Advice or Brokerage. For the avoidance of doubt, Sandwich 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 by Sandwich on the Platform, any Sandwich website or through any other method does not constitute investment advice, financial advice, trading advice, tax advice or any other form of advice, and You should not treat any such information as such. Sandwich does not recommend that any asset, whether digital or otherwise, should be bought, earned, sold, or held by You. Sandwich will not be held responsible for the decisions You make to buy, sell, or hold any assets, digital or otherwise.
3.3.2 No Custody. Sandwich does not broker trades on Your behalf and does not take custody of any assets or property owned by You. All transactions undertaken on the Platform are executed automatically, based on the parameters of Your order instructions and in accordance with posted trade execution procedures.
3.3.3 No Licenses or Registrations. Sandwich is not registered or licensed with any regulator or government authority in any jurisdiction.
3.3.4 Acknowledgement of Risk. As with any asset, the value of digital assets can increase or decrease and there can be a substantial risk that You lose money buying, selling, holding, or investing in digital assets. You should consult your financial advisor and legal and tax professionals regarding Your specific situation and financial condition and carefully consider whether trading or holding digital assets is suitable for You.
4. YOUR DATA SECURITY AND PRIVACY RESPONSIBILITIES; LICENSE TO YOUR DATA
4.1. Privacy Laws. Certain portions of the Platform analyze and/or access data which may be Your data (“Your Data”). Therefore, the use of the Platform may be subject to data protection or privacy laws or regulations in certain jurisdictions (“Privacy Laws”). You are solely responsible for ensuring that Your use of the Platform is in accordance with all Privacy Laws.
4.2. Data Usage & Retention. You agree that Sandwich may use and maintain Your Data according to the Privacy Policy and the terms of this Agreement, as part of Your use of the Platform. Sandwich may access or store Order IDs and email information in multiple countries, including in countries outside of Your own country, in accordance with any and all applicable laws regarding data privacy and security within and across the countries in which Sandwich stores Your personal information.
4.3. License to Use Your Data. You grant to Sandwich a non-exclusive, non-transferable, fully paid, irrevocable worldwide license to use all Your Data and related information in connection with Sandwich’s performance of this Agreement including any and all related Services and other obligations hereunder as well as in connection with Sandwich’s use of Your Data on an anonymized basis without restriction. Sandwich acknowledges that ownership of and title in and to all intellectual property rights in Your Data is and shall remain exclusively with You.
5. INTELLECTUAL PROPERTY AND CONFIDENTIALITY
5.1. Proprietary Notices. You will not (and will not direct nor allow any third party to) remove any proprietary notices from the Platform.
5.2. Proprietary Information. You will hold Sandwich’s Proprietary Information in strict confidence and shall take all reasonable precautions to protect Sandwich’s Proprietary Information including the precautions that You use to protect Your own proprietary information, and in no event shall you utilize less than a reasonable standard of care. You further agree not to disclose Sandwich’s Proprietary Information to any Person. You shall use Sandwich’s Proprietary Information solely for utilizing the Platform in accordance with this Agreement and in no other manner. You shall promptly notify Sandwich if You become aware of any breach of these confidentiality obligations. Your obligations under this Agreement not to disclose Proprietary Information does not apply to information that: (i) is already known to You at the time of disclosure and was not obtained, directly or indirectly, from Sandwich; (ii) is independently developed by You without reference to or use of the Proprietary Information; (iii) is obtained by You from another source without a breach of any obligation of confidentiality owed by that source to Sandwich; or (iv) is or becomes part of the public domain through no wrongful act by You or any party that obtained the information from You. If You are served with a subpoena or other legal process, court, or governmental request or order requiring disclosure, or are otherwise required by law or regulation to disclose, any Proprietary Information, You shall, unless prohibited by law, promptly notify Sandwich of that fact and cooperate fully (at Sandwich’s expense) with Sandwich and its legal counsel in opposing, seeking a protective order, seeking to limit, or appealing the subpoena, legal process, request, order, or requirement to the extent deemed appropriate by Sandwich. You may comply with the subpoena or other legal process or requirement after complying with the foregoing sentence, but only to the extent necessary for compliance.
5.3. Intellectual Property Ownership. You acknowledge and agree that ownership of and title in and to all intellectual property rights, including patent, trademark, service mark, copyright, and trade secret rights, in the Platform and the Services including any related modifications, customizations and/or derivatives thereof, as well as any deliverable, product or tangible results, if applicable, developed or provided by or on behalf of Sandwich to You, including any program or other application that is designed to integrate, customize and be used with or in combination with the Platform, are and shall be owned exclusively by Sandwich (collectively “Sandwich IP”). You do not acquire any interest, right, or title in the Sandwich IP or to any work product associated with the Sandwich IP, the Services and/or the Platform. Nothing in this Agreement shall constitute or be considered as constituting a transfer or sale or any similar action of any of Sandwich’s intellectual property rights or any part thereof to You. If you submit to Sandwich any creative ideas, suggestions, inventions or other information, such submission shall be the property of Sandwich. Such submissions shall not be subject to any obligation of confidentiality on Sandwich’s part and Sandwich shall not be liable for any use or disclosure of the submission. Sandwich shall be entitled to unrestricted use of the submission for any purpose whatsoever, commercial or otherwise, without compensation to You or any other person.
5.4. Remedies. You acknowledge that the unauthorized disclosure of Sandwich’s Proprietary Information or breach of Sandwich’s intellectual property rights would cause irreparable harm and significant injury to Sandwich which would be difficult to ascertain. Accordingly, notwithstanding any other provision of this Agreement, You agree that Sandwich shall be entitled to equitable relief, including injunctive relief, without the posting of any bond, in addition to all other remedies provided under this Agreement or available at law. Furthermore, You shall indemnify Sandwich against any loss and expense (including attorneys’ fees) arising due to such unauthorized disclosure of Sandwich’s Proprietary Information or breach of Sandwich’s intellectual property rights.
6. WARRANTY
6.1. Information and Data. You are solely responsible for the selection and design of Your business controls and information technology systems, adequate protection and backup of all data (including Your Data), and the implementation of the same within Your organization, including as they relate to Your access and use of the Platform or the Services. Sandwich does not guarantee that the information accessed by or produced with the Platform will be accurate or complete. You acknowledge that performance of the Platform may be affected by any number of factors, including without limitation, technical failure of the Platform, the acts or omissions of third parties and other causes reasonably beyond the control of Sandwich.
6.2. NO WARRANTY, DISCLAIMERS. SANDWICH PROVIDES THE PLATFORM AND THE SERVICES TO YOU “AS IS”, AND YOUR USE OF THE PLATFORM IS AT YOUR OWN RISK. SANDWICH DOES NOT MAKE AND HEREBY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, TO ANY PERSON, WITH RESPECT TO THE PLATFORM AND/OR ANY SERVICES AND/OR ANY RELATED DOCUMENTATION AND/OR SUBSCRIPTIONS, LICENSES, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE OF THE PLATFORM, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS AND TITLE, SATISFACTORY QUALITY, AND SUITABILITY. SANDWICH ALSO MAKES NO WARRANTY REGARDING NON-INTERRUPTION OF USE OR FREEDOM FROM BUGS, VIRUSES NON-INTRUSION DUE TO HACKING OR OTHER SIMILAR MEANS OF UNAUTHORIZED ACCESS OR THAT THE PLATFORM WILL BE ERROR-FREE. SANDWICH CANNOT GUARANTEE THE SECURITY OF ANY DATA THAT YOU DISCLOSE ONLINE OR THE SECURITY OF YOUR SYSTEMS WHILE YOU ARE UTILIZING THE PLATFORM AND/OR THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR OBTAINED FROM SANDWICH OR THROUGH THE SERVICES OR THE PLATFORM, WILL CREATE ANY WARRANTY OR REPRESENTATION NOT EXPRESSLY MADE HEREIN. YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE THROUGH THE PLATFORM AND OVER THE INTERNET AND YOU HEREBY RELEASE SANDWICH FROM ANY AND ALL LIABILITY TO YOU FOR ANY LOSS OR LIABILITY RELATING TO SUCH INFORMATION OR ACCESSING THE PLATFORM, INCLUDING BUT NOT LIMITED TO A SECURITY BREACH, IN ANY WAY. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THE ABOVE EXCLUSION OF IMPLIED WARRANTIES MAY NOT APPLY TO YOU. YOU AGREE THAT UNLESS REQUIRED BY APPLICABLE LAW, SANDWICH HAS NO RESPONSIBILITY TO CONTINUE MAKING THE SERVICES OR THE PLATFORM AVAILABLE TO YOU, AND SANDWICH WILL NOT BE LIABLE TO YOU IF CONTENT, INCLUDING CREATED OR PURCHASED CONTENT, BECOMES UNAVAILABLE OR INACCESSIBLE OR IF YOUR SYSTEM IS BREACHED AS A RESULT OF UTILIZING THE PLATFORM OR THE SERVICES.
6.3. Basis of Bargain. You recognize and agree that the warranty disclaimers and liability and remedy limitations in this Agreement, including without limitation, in this Warranty Section, have been bargained for and form the basis of this Agreement and that they have been taken into account and reflected in determining the consideration to be given by You under this Agreement and in the decision to enter into this Agreement.
7. LIMITATION OF LIABILITY
IN NO EVENT SHALL SANDWICH BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR RELIANCE DAMAGES, LOSSES OR EXPENSES (INCLUDING WITHOUT LIMITATION LOSS OF PROFIT, LOSS OF REVENUE, LOSS OF BUSINESS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR LOSS OF USE OR DATA) RELATING TO OR ARISING OUT OF THIS AGREEMENT, THE PLATFORM, OR ANY SANDWICH RELATED SERVICES HOWEVER CAUSED, AND WHETHER BASED ON CONTRACT, TORT, EQUITY OR ANY OTHER THEORY OF LIABILITY WHATSOEVER, EVEN IF SANDWICH WAS NOTIFIED OR OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES OR EXPENSES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTIONS, SANDWICH'S LIABILITY SHALL BE LIMITED TO THE EXTENT SUCH LIMITATION IS PERMITTED BY LAW. THE TOTAL AND AGGREGATE LIABILITY OF SANDWICH, TAKEN AS A WHOLE, FOR ANY AND ALL CLAIMS RELATED TO THIS AGREEMENT REGARDLESS OF THE CAUSE OF ACTION, SHALL NOT EXCEED AN AMOUNT GREATER THAN THE CONSIDERATION ACTUALLY PAID BY YOU TO SANDWICH DURING THE TWELVE MONTHS PRIOR TO THE SPECIFIC INCIDENT GIVING RISE TO A CLAIM AGAINST SANDWICH. SANDWICH DOES NOT REPRESENT OR GUARANTEE THAT THE SERVICES AND/OR THE PLATFORM WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND YOU HEREBY RELEASE SANDWICH FROM ANY LIABILITY RELATING THERETO. YOU SHALL BE RESPONSIBLE FOR BACKING UP YOUR OWN SYSTEM, INCLUDING ANY CONTENT ACQUIRED OR CREATED THROUGH THE SERVICES OR THE PLATFORM. SANDWICH IS NOT RESPONSIBLE FOR DATA CHARGES YOU MAY INCUR IN CONNECTION WITH YOUR USE OF THE SERVICES AND THE PLATFORM.
8. EXPORT CONTROL
8.1. Export Control Laws. You acknowledge that the Platform and any use thereof may be subject to applicable export control and trade laws and regulations, including those of the United States (“Export Control Laws”). You will not use, convey, export, or re-export, either directly or indirectly, the Platform (or any part thereof) by any way or to any destination restricted or prohibited by Export Control Laws, without first obtaining any and all necessary licenses from the government of the applicable country that imposes the Export Control Laws.
8.2. Prohibited Persons. You represent and undertake that You are not an individual or an entity which is: (i) located in, under the control of, or a national or resident of Cuba, North Korea, Iran, Syria, Lebanon or Sudan; or (ii) listed under the United States Treasury Department’s Office of Foreign Asset Control list of “specially designated nationals and blocked persons,” the United States Commerce Department’s “denied parties list”, the United States Commerce Department’s “BIS Entity List” or such other applicable lists. If You utilize the Platform, You also represent that You shall not provide services to any Person which falls within subsections (i) or (ii) above.
9. TERM AND TERMINATION
9.1. Term. This Agreement is effective from the day of its acceptance by You and shall remain effective until terminated in accordance with the provisions of this Section 9.1 (the “Term”). You and Sandwich may each terminate this Agreement immediately upon notice to the other party for any reason or no reason. Notwithstanding anything to the contrary in this Agreement, Sandwich expressly reserves the right to terminate this Agreement at any time, with or without notice, for any reason and You acknowledge and agree that Sandwich shall have no liability or obligation to You in such event and that You will not be entitled to a refund of any amounts that You have already paid to Sandwich. Upon termination of this Agreement, the Services shall terminate and You shall cease any and all access and use of the Platform, and You shall return to Sandwich the Platform, all Documentation and any copies thereof or related materials in Your possession, and, upon request, certify to Sandwich Your compliance with the provisions of the same.
9.2. Survival. The following Sections shall survive termination or expiration of this Agreement: Sections 1, 2.6, 5, 6, 7, 8, 9, 10 and 11.
10. GOVERNING LAW AND ARBITRATION
10.1 Governing Law. The laws of the State of New York shall govern this Agreement as though this Agreement was entered into, and was to be entirely performed within, the State of New York. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sales of Goods, the application of which is expressly excluded nor will it be governed by the Uniform Computer Information Transactions Act (UCITA) as adopted by any state.
10.2 Arbitration. You agree that any dispute, claim, or controversy arising in connection with or relating in any way to this Agreement, Your use of the Services and/or the Platform will be determined solely by mandatory binding individual (not class) arbitration administered in the County of New York, State of New York by the American Arbitration Association under its Commercial Arbitration Rules. You agree that the arbitrator, and not any federal, state or local court or agency, shall have the exclusive power and authority to resolve all disputes and to rule on the arbitrator’s jurisdiction, including any objections related thereto of any nature whatsoever. There will be no judge or jury in the arbitration proceeding and court review of an arbitration award is limited. The arbitrator must follow this Agreement and can award the same damages and relief as a court (including attorney fees), except that the arbitrator may not award any relief, including declaratory or injunctive relief, benefiting anyone other than the parties to the arbitration. This arbitration provision will survive termination of this Agreement. YOU AND SANDWICH AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. You and Sandwich further agree that the fees and expenses of the arbitration proceeding will be shared equally between You and Sandwich. Unless both You and Sandwich agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court. Notwithstanding the foregoing, You and Sandwich may seek injunctive or equitable relief in a state or federal court sitting in the County of New York, State of New York, if a claim arises that relates to the enforcement of intellectual property rights or confidentiality obligations. For those disputes brought in state or federal court, You and Sandwich agree to submit to the personal and exclusive jurisdiction of the courts located within the County of New York. You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of Your decision to opt out to the following address: Support@SandwichTrading.com. The notice must be sent within 30 days of Your first use of the Platform; otherwise You shall be bound to arbitrate disputes in accordance with the terms of this Agreement. If You opt out of these arbitration provisions, Sandwich also will not be bound by them.
10.3 YOU AND SANDWICH EACH HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION (I) ARISING UNDER THIS AGREEMENT OR (II) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY, OR OTHERWISE. YOU AND SANDWICH EACH HEREBY AGREE AND CONSENT THAT ANY SUCH CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION SHALL BE DECIDED BY BINDING ARBITRATION.
11. MISCELLANEOUS
11.1 Assignment. You may not assign Your rights or obligations under this Agreement without the prior written consent of Sandwich. Sandwich may assign this Agreement or its rights and obligations hereunder without any prior consent from You.
11.2 Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, that provision of this Agreement will be enforced to the maximum extent permissible so as to affect the original intent of this Agreement, and the remainder of the provisions of this Agreement shall remain in full force and effect.
11.3 Entire Agreement. This Agreement, the Privacy Policy, Sandwich’s Terms and Conditions and any other agreements accessed in relation to the Platform and/or the Services, and any documentation referenced herein, set forth the entire understanding and agreement between You and Sandwich regarding the subject matter hereof.
11.4 Communication Preferences. Sandwich may notify You with respect to the Platform and the Services by sending you electronic communications. By accessing the Platform, You consent to receive electronic communications from Sandwich. These communications may include notices about Your Account. Sandwich may also send you promotional communications. You are not required to receive this content as a condition of using the Platform. With the possible limited exception of certain important messages about the Platform or administrative matters, You may opt out of these communications by following the unsubscribe instructions provided.
11.5 Third-Party Beneficiaries. This Agreement is intended for the sole benefit of You and Sandwich and is not intended to confer third-party beneficiary rights upon any other person or entity.