Perennial User Terms of Service
Last Updated: October 13, 2022
Welcome to https://app.perennial.finance, a website-hosted user interface, and any associated software or services (collectively the "Interface") provided by Perennial Labs, Inc. (“Perennial”, "we", "our", or "us"). The Interface provides access to a decentralized protocol on the blockchain that allows users to transact certain digital assets through power perpetual contracts (the "Protocol"). The Perennial User Terms of Service is an agreement (“Agreement” or “Terms”) between Perennial, the owner and operator of the Interface, and you (“you”, “your” or “user(s)”), a user of the Interface. Where you enter into this Agreement on behalf of a legal entity or organization you represent and warrant that you have the authority to bind such legal entity or organization to this Agreement.
PLEASE BE AWARE THAT THERE ARE ARBITRATION AND CLASS ACTION PROVISIONS THAT MAY AFFECT YOUR RIGHTS.
You must read this Agreement carefully. By accessing or using the Interface, you signify that you have read, understand, and agree to be bound by this Agreement in its entirety. If you do not agree to these Terms, you are not authorized to access or use the Interface.
OUR INTERFACE IS NOT OFFERED TO PERSONS OR ENTITIES WHO RESIDE IN, ARE CITIZENS OF, ARE LOCATED IN, ARE INCORPORATED IN, OR HAVE A REGISTERED OFFICE IN THE UNITED STATES OF AMERICA (COLLECTIVELY, “US PERSONS”). MOREOVER, OUR INTERFACE IS NOT OFFERED TO PERSONS OR ENTITIES WHO RESIDE IN, ARE CITIZENS OF, ARE LOCATED IN, ARE INCORPORATED IN, OR HAVE A REGISTERED OFFICE IN ANY RESTRICTED TERRITORY, DEFINED BELOW (ANY SUCH PERSON OR ENTITY FROM A RESTRICTED TERRITORY, A “RESTRICTED PERSON”). WE DO NOT MAKE EXCEPTIONS; THEREFORE, IF YOU ARE A US PERSON OR RESTRICTED PERSON DO NOT ATTEMPT TO USE OUR PROTOCOL OR ACCESS OR ATTEMPT TO ACCESS THE INTERFACE. USE OF A VIRTUAL PRIVATE NETWORK (“VPN”) TO CIRCUMVENT THE RESTRICTIONS SET FORTH HEREIN IS PROHIBITED. WE RESERVE THE RIGHT TO RESTRICT ANY USER’S ACCESS TO THE INTERFACE SUBJECT TO ANY RESTRICTIONS WE MAY SET FORTH IN THIS AGREEMENT.
2. Use and Eligibility
As a condition to accessing or using the Interface, you represent, warrant, and covenant to Perennial the following:
if you are entering into these Terms to access the Protocol or, in the future, to access the Protocol, then you are not a US Person;
you are not a resident, national, or agent of Belarus, Burma (Myanmar), Cote D'Ivoire (Ivory Coast), Cuba, Democratic Republic of Congo, Iran, Iraq, Liberia, North Korea, Sudan, Syria, Zimbabwe, or any other country to which the United States, the United Kingdom or the European Union embargoes goods or imposes similar sanctions (collectively, “Restricted Territories” or singularly a “Restricted Territory”);
you are not a member of any sanctions list or equivalent maintained by the United States government, the United Kingdom government, the European Union, or the United Nations (collectively, “Sanctions Lists Persons”);
you do not intend to transact with any Restricted Person or Sanctions List Person;
you only will transfer legally-obtained Digital Assets (defined below) that belong to you (or you are legally authorized to use), when using, transacting, or connecting to the Interface;
you shall maintain the security and confidentiality of your private keys associated with any Blockchain Technology (defined below) address, passwords, and API keys.
your access to the Interface is not (a) prohibited by and does not otherwise violate or assist you to violate any domestic or foreign law, rule, statute, regulation, by-law, order, protocol, code, decree, or another directive, requirement, or guideline, published or in force that applies to or is otherwise intended to govern or regulate any person, property, transaction, activity, event or other matter, including any rule, order, judgment, directive or other requirement or guideline issued by any domestic or foreign federal, provincial or state, municipal, local or other governmental, regulatory, judicial or administrative authority having jurisdiction over Perennial, you, the Interface or Protocol, or as otherwise duly enacted, enforceable by law, the common law or equity (collectively, “Applicable Laws”); and (b) contributing to or facilitating any illegal activity;
you will obey all Applicable Laws in connection with using the Interface, and you will not use the Interface or Protocol if any Applicable Laws prohibit you from doing so;
you understand the inherent risks associated with Blockchain Technology, the Protocol, and the Interface, which may result in the loss of some or all of your Digital Assets;
you have sufficient knowledge, market sophistication, professional advice, and experience to make your evaluation of the merits and risks of any transaction conducted in connection with the Interface, Protocol, or any Digital Asset;
you accept all consequences of using the Interface, including the risk that you may lose access to your Digital Assets indefinitely;
you are solely responsible for evaluating and understanding any risks related to any transactions involving the Interface, Protocol, and your Digital Assets including, but not limited to, long or short positions using the Protocol; and
you do not, and will not, use VPN software or any other privacy or anonymization tools or techniques to circumvent, or attempt to circumvent, any restrictions that apply to the Interface.
You represent and warrant that you are at least the age of majority in your jurisdiction (e.g., eighteen years old) and have the full right, power, and authority to enter into and comply with the terms and conditions of this Agreement on behalf of yourself or any company or legal entity for which you may access or use the Interface.
We care about your privacy. Please note that when you use the Interface, you are interacting with Blockchain Technology, which provides transparency into your transactions. Perennial does not control and is not responsible for any information you make public on Blockchain Technology by either using the Interface or accessing the Protocol.
We use the Digital wallet address that you use to connect with the Interface to detect, prevent, and mitigate financial crime and other illicit or harmful activities on the Interface. For these purposes, we may share the Digital wallet address we collect with blockchain analytics providers. We share information with these service providers only so that they can help us promote the safety, security, and integrity of the Interface. We do not retain the information we collect any longer than necessary for these purposes.
5. Prohibited Activity
You may not use the Interface to engage in the following categories of activity set forth below or any activities that we determine in our sole discretion may harm us or a third party (“Prohibited Uses”). The Prohibited Uses include but are not limited to:
Any activity that violates any relevant and applicable anti-money laundering and anti-terrorist financing laws and sanctions programs, such as, without limitation, the Bank Secrecy Act and the U.S. Department of Treasury’s Office of Foreign Asset Controls (“Financing Laws”). By using the Interface, you agree that we must comply with Applicable Law including any Financing Laws, which may require us to, upon request by government agencies, take certain actions or provide information which we deem necessary, which may not be in your best interests.
Any transactions involving items that infringe or violate any copyright, trademark, right of publicity or privacy or any other proprietary right under Applicable Law, including but not limited to, sales, distribution, or access to counterfeit software, or other licensed materials without the appropriate authorization from the rights holder; use of Perennial’s Intellectual Property (defined below) without express consent from Perennial.
Any activity that seeks to interfere with or compromise the integrity, security, or proper functioning of the Interface or computer, server, network, personal device, or other information technology system, including, but not limited to, the deployment of viruses; denial-of-service attacks; use of any robot, spider, crawler, scraper or other automated means to extract or export data collected through the Interface; and conduct that imposes, or may impose, an unreasonable or disproportionately large load on our infrastructure.
Any activity that seeks to defraud us or any other person or entity, including, but not limited to, providing any false, inaccurate, or misleading information in order to unlawfully obtain the property of another, or any action that implies an untrue endorsement by or affiliation with Perennial.
Any activity that violates any Applicable Law including but not limited to laws or regulations concerning the integrity of trading markets such as manipulative tactics like spoofing or wash trading.
Any use of the Interface to stalk, harass, bully, or harm another individual, or use of the Interface in any way that is defamatory, obscene, invasive, threatening, or harassing.
After connecting your Digital Wallet (defined below) and complying with all obligations as set forth within this Agreement, we may grant you a fully revocable right to access and use the Interface in accordance with this Agreement and any additional instructions. Your access and use of the Interface is limited to yourself, and where you are an organization or entity any persons authorized by your organization or entity, you may not transfer or assign your access to any third parties. All rights not explicitly granted are reserved for Perennial. Your access to use our Interface may be suspended or terminated, If you breach any of these access provisions or at our discretion. Additionally, we may revoke your access to our Interface if we believe that your actions may harm us, our business interests, or any third party rights. Failure by us to revoke your access does not act as a waiver of your conduct. Nothing in this Agreement obligates us to provide you any access or use of the Interface.
7. Digital Wallet
In order to access the Protocol through the Interface you may be required to connect a digital wallet that is hosted by you or a third party (“Digital Wallet”) that contains digital assets (“Digital Assets”) legally owned by you. You are solely responsible for any transactions or transmissions that occur with your Digital Wallet. You agree to notify Perennial immediately of any unauthorized use or other breach of security of your Digital Wallet. Perennial will not be liable for any losses you incur as a result of someone else using your Digital Wallet. However, you could be held liable for losses incurred by Perennial or another party due to someone else using your Digital Wallet. Any Digital Wallets connected to the Interface are non-custodial, meaning that Perennial does not control your Digital Wallet and has no access to your private encryption keys. Under no circumstances should you attempt to use your Digital Wallet to store or transact any non-supported Digital Assets. Perennial assumes no responsibility or liability in connection with any usage of your Digital Wallet with the Interface or Protocol, and you are solely responsible for your use of your Digital Wallet, including transfers of Digital Assets.
8. No Professional Advice or Fiduciary Duties
All information accessible through the Interface is for informational purposes only and should not be construed as investment, tax, or legal advice. You should not take, or refrain from taking, any action based on any information contained within the Interface or any other information that we make available at any time, including, without limitation, blog posts, articles, links to third-party content, discord content, news feeds, tutorials, tweets, and videos. Before you make any financial, legal, or other decisions involving the Interface, you should seek independent professional advice from an individual who is licensed and qualified in the area for which such advice would be appropriate. We are not your broker, intermediary, agent or advisor and have no fiduciary relationship or obligation with you when you use the Interface or Protocol. We have no liability for any of your activities or decisions made while using the Interface. This Agreement is not intended to, and does not, create or impose any fiduciary duties on us. To the fullest extent permitted by law, you acknowledge and agree that we owe no fiduciary duties or liabilities to you or any other party, and that to the extent any such duties or liabilities may exist at law or in equity, those duties and liabilities are hereby irrevocably disclaimed, waived, and eliminated. You further agree that the only duties and obligations that we owe you are those set out expressly in this Agreement.
Use of the Interface, in particular for transactions involving Digital Assets, are highly volatile, experimental, and may carry financial risk. All transaction decisions are made solely by you. We accept no responsibility whatsoever for, and will in no circumstances be liable to you in connection with, your use of the Interface for performing Digital Asset transactions through the Protocol, including but not limited to you entering into any long short positions or trading Digital Assets. The Interface attempts to provide up-to-date information for all Digital Assets listed; however, due to the nature of Digital Assets some information may be out of date or inaccurate. As you control your own Digital Wallet you are solely responsible for verifying any information regarding the Digital Assets, the Interface, and the Protocol. No representation is made as to the accuracy, completeness, or appropriateness for any particular purpose of any information distributed via the Interface or otherwise encountered when using the Interface. We are not liable to you for any inaccurately quoted information including but not limited to Digital Asset rates or pricing rates for any Digital Assets. Our Interface cannot control the timing of any transactions, transaction times are based on your Digital Assets and the Blockchain Technology selected, and we are not liable or responsible for any delays or any issues due to untimeliness of any transactions initiated through the Interface. Use of the Interface is at your sole risk and liability.
The developed Protocol is built through smart contracts and subject to the operating procedures of any underlying Blockchain Technology. Your use and access to the Protocol is at your sole risk and liability. You understand that the Protocol remains under development, which creates technological, trading, and other risks when using the Interface. These risks include, but are not limited to, delays or losses in trades, withdrawals, and Digital Assets. You agree that these risks may materially impact your transactions while using the Interface, which could result in the loss of the transaction or a complete loss of your Digital Assets. As the Protocol and Blockchain Technology supporting the Protocol are constantly under development we cannot guarantee or otherwise ensure full security, fidelity, operation, accuracy, or completeness of the Protocol. You acknowledge that the Protocol is subject to flaws and that you are solely responsible for evaluating any code provided in the Protocol, and you represent and warrant that you have the skill and ability to evaluate and understand the risks of the Protocol. You are solely responsible for your use and access to the Protocol which may be accessed via the Interface or through other means as permitted by any Blockchain Technology.
11. Blockchain Technology
Please be aware that the underlying technology that makes blockchain based networks, cryptographic systems, and smart contracts available (collectively “Blockchain Technology”) can be used, copied, modified, and distributed by third parties. Perennial does not control or operate the Blockchain Technology, and we assume no responsibility for the operation, functionality, or security of the Blockchain Technology. Blockchain Technology is subject to change that is out of our control, which could materially affect the Interface, the Protocol, and the value, functionality, availability, and use of any Digital Assets. It is your responsibility to make yourself aware of upcoming operating changes, and you must carefully consider publicly available information in determining whether to continue to use the Interface, transact with any Protocols using your Digital Assets, or otherwise interact with the Blockchain Technology through the Interface. Blockchain Technology is currently under development, and this creates uncertainty relating to Digital Assets and transactions through the Interface. You acknowledge and accept the risks of using your Digital Assets with our Interface that relies on Blockchain Technology and agree that Perennial is not responsible for any changes to any Blockchain Technology that may cause you to experience a complete loss of value or access to your Digital Assets. Such changes may include, but are not limited, to forks, rollbacks, changes to operating rules, breaches of security, and outages.
12. Fees and Costs
Where you use the Interface, including the Protocol, you may be required to pay a fee where necessary, including but not limited to any third party fees. You are solely responsible for paying all fees, and we are not liable to you for any delays in any transactions where you have failed to pay any fees. Although we attempt to provide accurate fee information, this information reflects our estimate of fees. Such fees may vary from the actual fees that you pay to use the Protocol through the Interface and/or the gas fees required for your Digital Assets.
Any transaction involving the Digital Assets through the Interface is only completed upon confirmation through the Blockchain Technology, and we are not liable for any incomplete transactions or delays. You shall be required to maintain an adequate amount of Digital Assets to consume as gas (“Gas”) within your Digital Wallet to process any requested transactions. Where you fail to maintain adequate Gas amounts you understand that you will be unable to partake in any transactions using your Digital Wallet. We shall not be responsible for any delay in any transactions due to inadequate Gas within your Digital Wallet. Please be aware that any Gas used cannot be returned and all Gas consumption or charges are subject to the Blockchain Technology.
Due to the nature of Blockchain Technology you understand and agree that using the Interface including interacting with any Protocols may be irreversible and you solely undertake this risk when using the Interface. As we do not control your Digital Wallet we cannot reverse any transactions that occur using your Digital Wallet.
15. Interface Availability and Modification
We do not guarantee that the Interface will always be available, work, or be accessible at any particular time. Specifically, we do not guarantee any uptime or specific availability of the Interface. You agree and acknowledge that the Interface uses remote access and may not always be either 100% reliable or available. We reserve the right to alter, modify, update, or remove the Interface or any portions thereof, at any time at our discretion. We reserve the right to discontinue previously offered features or functionality at our sole discretion and without prior notice. We are not liable to you or to any third party for any modification, suspension, or discontinuance of any feature or component of any portion of the Interface. We reserve the right to determine the timing and content of software updates, which may be automatically updated without notice to you. We may conduct such modifications to our Interface for security, intellectual property, legal reasons, or various other reasons at our discretion, and we are not required to explain such modifications or provide you access to previous versions of our Interface. Nothing in this section obligates us to take measures to update the Interface for security, legal, or other purposes.
16. Third Parties
We are not a party to any agreements that you may enter with any third party. Perennial EXPRESSLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR ANY DAMAGE, LOSS, OR INJURY ARISING OUT OF YOUR INTERACTIONS WITH THIRD PARTIES, INCLUDING ANY THIRD PARTY CONTENT (DEFINED BELOW), AND ANY LOSS OR INJURY ARISING OUT OF ANY ACT OR OMISSION OF ANY THIRD PARTY OR ANY THIRD PARTY CONTENT. Perennial is not liable for the acts, errors, omissions, representations, warranties, breaches, negligence, misconduct of any third party or for any personal injuries, death, property damage, or other damages (including lost profits, or expenses resulting from any agreements or interactions with third parties.
17. Third Party Content
Through the Interface, third party information may be accessed, and you may be able to interact with third parties (“Third Party Content”). Perennial does not introduce, endorse, or recommend any third parties or any third party’s Third Party Content to you or vice versa. Any opinions, advice, or information expressed by any third party are those of the individual/organization, and they do not reflect the opinions of Perennial. Perennial does not direct, is not an employer of, has no control over, makes no representations, and does not guarantee the quality, safety or legality of any third party or any Third Party Content. Please be aware that any Third Party Content posted may not be truthful, accurate, or up-to-date.
We may terminate your access to the Interface, Protocol or this Agreement with you if we determine that: (1) you have violated any Applicable Laws while using our Interface; (2) if you have violated this Agreement or any other of our policies; or (3) if we believe that any of your actions may harm Perennial or a third party, at our sole decision or discretion. Please be aware that upon termination of your access to the Interface, portions of our Interface may be immediately disabled. Where termination has occurred, portions of this Agreement shall survive and remain in full force as stated in the “Survival” section of this Agreement.
Depending on the Applicable Laws of your jurisdiction you may be required to pay taxes related to your usage of the Interface. You agree that you are solely liable for any taxes related to your use of the Interface, any Digital Asset transactions, or activity involving your Digital Wallet. We shall not be liable for any taxes incurred by you under any Applicable Laws.
20. Fraudulent Transactions
If we believe that you have participated in a fraudulent transaction we will pursue our claims against you to the fullest extent allowed by law and we reserve the right to take any action necessary regarding any fraudulent transactions. In the event that we believe that a user has completed a fraudulent transaction, we will forward your information to the applicable law enforcement agency, which may result in civil or criminal penalties.
21. Intellectual Property
The name “Perennial”, “Perennial Labs”, “Perennial Labs, Inc.”, the Perennial logo, any associated software, and the trademarks, marks, and logos contained therein, are owned by or licensed to Perennial or its licensors. The Protocol is comprised entirely of open source or source-available software running on the public Ethereum blockchain. This intellectual property is available under the terms of our copyright licenses and our trademark guidelines. You agree to not engage in the unauthorized use, access, copying, or distribution of the intellectual property, unless we have given you express written permission. All rights not expressly granted are hereby reserved for Perennial and its licensors.
22. Assumption of Risk
Transacting Digital Assets or using Blockchain Technology involves significant risks and potential for financial losses which may result in the theft or loss of some or all of your Digital Assets. Such risks include without limitation the following: - the Digital Assets and the Blockchain Technology are constantly under development making your Digital Assets vulnerable to hacking, breaches in security, flaws, errors, bugs, failures, loss, theft, and fraud (whether due to Perennial or otherwise); - Digital Assets may fail to operate, lose all value, or be changed in a manner including without limitation a fork or rollback of the underlying Blockchain Technology; - the Digital Assets may decrease in value or lose all of its value due to various factors including discovery of wrongful conduct, market manipulation, changes to the underlying Digital Asset or Blockchain Technology. Such factors could cause transaction costs to increase which may impact your use of the Interface; - suspension or cessation of support for an Digital Assets by Blockchain Technology service providers may result in a total loss or inability to transfer or access any Digital Assets; and - Digital Assets may lose value or functionality due to governmental action, laws, or regulation as there is uncertainty to the legal status and categorization of Digital Assets. Such actions could result in the loss of access to the Interface. You hereby assume and agree that Perennial will have no responsibility or liability for such risks. You hereby irrevocably waive, release, and discharge any and all claims, whether known or unknown to you, against Perennial, its affiliates and their respective shareholders, members, directors, officers, employees, contractors, agents, and representatives related to any of the risks set forth herein. You accept the risk of all use of the Digital Assets and are responsible for conducting your own independent analysis of the risks specific to the Digital Assets. You should not acquire any Digital Assets unless you have sufficient financial resources and can afford to lose all value of the Digital Assets.
23. Limitation of Liability
IN NO EVENT SHALL Perennial, ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AFFILIATES, OR AGENTS, BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT Perennial IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In jurisdictions that allow a limitation on liability, you agree that our liability is no more than the amount you paid in the past six months in any fees (excluding Gas) to access the Interface or one-hundred US dollars (USD$100.00), whichever is greater. The limitations of damages set forth above are fundamental elements of the basis of the bargain between Perennial and you. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages. So the above limitation or exclusion may not apply to you, and you may also have other legal rights that vary between jurisdictions. Specifically, in those jurisdictions not allowed, we do not disclaim liability for: (a) personal injury caused by Perennial’s negligence or that of any of its officers, employees, contractors, or agents; (b) fraudulent misrepresentation; or (c) any liability which it is not lawful to exclude either now or in the future. You agree that the exclusions and limitation of liability set out in this Agreement are reasonable. If you do not believe they are reasonable, please do not use our Interface.
You expressly agree that you assume all risks in connection with your access and use of the Interface or your interaction with the Protocol, whether such risks are set forth in this Agreement or otherwise. YOU EXPRESSLY WAIVE AND RELEASE US FROM ANY AND ALL LIABILITY, CLAIMS, OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO YOUR USE OF THE INTERFACE OR PROTOCOL OR ANY RISKS ARISING FROM SUCH USE. YOU RELEASE Perennial AND ITS DIRECTORS, OFFICERS, EMPLOYEES AND ASSIGNS FROM ANY AND ALL CLAIMS, DEMANDS, OR DAMAGES (ACTUAL, DIRECT, OR CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY DISPUTE WITH ANOTHER USER, THE INTERFACE, PROTOCOL, OR OTHER THIRD PARTY.
You agree to release, defend, indemnify, and hold Perennial and its affiliates and subsidiaries, and their officers, directors, employees, contractors, and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your breach of this Agreement; (ii) your improper use of the Perennial Interface or Protocol; (iii) your interaction with any other user or other third party including without limitation any injuries, losses or damages of any kind arising in connection with or as a result of such interaction; and (iv) your breach of any Applicable Laws, regulations or third-party rights. You agree that this indemnity extends to requiring you to pay for our reasonable attorneys’ fees, court costs, and disbursements. In the event of a claim such as one described in this paragraph, we may elect to settle with the party/parties making the claim and you shall be liable for the damages as though we had proceeded with a trial.
26. No Warranties
The Interface is provided "AS IS", "AS AVAILABLE" and "WITH ALL FAULTS" BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER Perennial, NOR ANY OF THEIR EMPLOYEES, CONTRACTORS, MANAGERS, OFFICERS, ASSIGNS OR AGENTS MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED. In addition, we disclaim all warranties, express or implied, including, but not limited to, the warranties of merchantability, fitness for a particular purpose, non-infringement, title, custom, trade, quiet enjoyment, lost profits, system integration and freedom from computer virus. The inclusion of any Digital Assets on this Interface does not constitute any endorsement or recommendation by Perennial. Perennial does not warrant that your use of the Interface or Protocol is lawful in any particular jurisdiction, and Perennial specifically disclaims any such warranties.
27. Choice of Law
This Agreement shall be governed by the laws in force in the state of California.
Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Perennial and limits how you can seek relief from Perennial. Also, Perennial arbitration precludes you from suing in court or having a jury trial. You and Perennial agree that any dispute arising out of or related to this Agreement (“Dispute”), including, but not limited to, the validity, construction, and performance of this Agreement, shall be governed by and under the laws of the state of California, without giving effect to conflict of laws principles thereof.
28.1 Informal Resolution
For any dispute or claim that you have against Perennial, before seeking mediation, arbitration, or any other form of legal relief, you agree to first contact Perennial and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to Perennial by email at [email protected] The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the claim; and (c) set forth the specific relief sought. Our Notice to you will be similar in form to that described above. Where we receive or send such a Notice, you and Perennial shall attempt in good faith to resolve such claims in an informal manner.The parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision.
28.2 Binding Arbitration
If you and Perennial cannot reach an agreement to resolve the claim within thirty (30) days after such Notice is received, then either party may submit the dispute to binding arbitration administered by JAMS (“Binding Arbitration” or “Arbitration”). If there is a dispute about whether this arbitration provision can be enforced or applies to the Dispute, you and Perennial agree that the arbitrator will decide that issue. However, any claim that all or part of the Class Action Waiver is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. You and Perennial agree that arbitration under this Agreement will substantially and procedurally be governed by the Federal Arbitration Act, 9 U.S.C. §1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. The arbitration will be administered by JAMS before one (1) arbitrator. Arbitration proceedings will be held in San Francisco, California in English, under the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”). The most recent version of the JAMS Rules may be found at https://www.jamsadr.com/ and are hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason. The arbitrator's award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction. The location of the arbitration shall be San Francisco, CA or a location agreed upon by the parties. Where a Dispute does not exceed $15,000 such Dispute shall be arbitrated solely via pleadings and documents. Both parties agree that they shall solely be responsible for paying for any fees related to any arbitration resolution. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class action proceedings or otherwise. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Interface, Protocol, or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever banned. In the event that the law does not permit the above-mentioned dispute to be resolved through arbitration, you agree that any actions shall be brought solely in a court of competent jurisdiction located within or otherwise nearest to San Francisco, CA .
You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted this Agreement by notifying us with a communication labeled “Arbitration Opt Out” to [email protected] or by mail at Perennial, Inc. 548 Market St. Suite 69611, San Francisco, CA 94104. In order to be effective, the opt out notice must include your full name, any identifying information, and must clearly indicate your intent to opt out of binding arbitration. If you have decided to opt out of Binding Arbitration, all Disputes shall be heard in a court of competent jurisdiction located in San Francisco County, CA.
28.4 Exceptions to Arbitration
User agrees that all Disputes shall be arbitrated, except for as provided above and as follows: (i) any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; and (ii) any claim seeking emergency injunctive relief based on exigent circumstances such as, imminent danger or commission of a crime. Such claims shall be brought before a judicial proceeding in a court of competent jurisdiction located within San Francisco County, CA .
28.5 Class Action
YOU UNDERSTAND AND AGREE THAT YOU AND Perennial MAY EACH BRING CLAIMS IN ARBITRATION AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT ON A CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE BASIS (“CLASS ACTION WAIVER”). YOU UNDERSTAND AND AGREE THAT YOU AND Perennial BOTH ARE WAIVING THE RIGHT TO PURSUE OR HAVE A DISPUTE RESOLVED AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE OR REPRESENTATIVE PROCEEDING. Notwithstanding any other provision of this Agreement, the Arbitration provisions or any associated rules or the disputes regarding the scope, applicability, enforceability, revocability, or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which: (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Disputes, the class, collective, and/or representative action on such Disputes must be litigated in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims to the fullest extent possible.
29. Force Majeure
You agree that we are not responsible to you for anything that we may otherwise be responsible for, if it is the result of events beyond our control, including, but not limited to, acts of God, war, insurrection, riots, terrorism, crime, labor shortages (including lawful and unlawful strikes), embargoes, postal disruption, internet outage, contagion, communication disruption, failure or shortage of infrastructure, shortage of materials, or any other event beyond our control.
In the event that a provision of this Agreement is found to be unlawful, conflicting with another provision of the Agreement, or otherwise unenforceable, the Agreement will remain in force as though it had been entered into without that unenforceable provision being included in it. If two or more provisions of this Agreement or any other agreement you may have with Perennial are deemed to conflict with each other’s operation, you agree that Perennial shall have the sole right to elect which provision remains in force.
We reserve all rights permitted to us under this Agreement as well as under the provisions of any applicable law. Our non-enforcement of any particular provision or provisions of this Agreement or any applicable law should not be construed as our waiver of the right to enforce that same provision under the same or different circumstances at any time in the future.
All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, Perennial Intellectual Property provisions including use of the Interface or Protocol, User eligibility, User covenants, representations and warranties, limitation of liabilities, release, arbitration, indemnity, fees and costs, assumption of risk, warranty disclaimers, indemnity and miscellaneous provisions.
You may not assign your rights and/or obligations under this Agreement to any other party without our prior written consent. We may assign our rights and/or obligations under this Agreement to any other party at our discretion.
We may amend this Agreement from time to time. When we amend this Agreement, we will update this page and indicate the date that it was last modified. You may refuse to agree to the amendments, but if you do, you must immediately cease using our Interface.
35. Electronic Communications
The communications between you and Perennial use electronic means, whether you visit the Interface or send Perennial emails, write in the Perennial Discord, or whether Perennial posts notices on the Interface or communicates with you via email. For contractual purposes, you (1) consent to receive communications from Perennial in an electronic form; and (2) agree that all terms, conditions, agreements, notices, disclosures, and other communications that Perennial provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.