These Terms of Service, the terms of any subscription that you procure through the Services interface (each, an "Order Form"), and any terms expressly incorporated herein (collectively, these "Terms") between Polygon.io, Inc. ( "Polygon", "we", "our", or "us") and you, as a current or prospective customer/user of Polygon's services ( "you" or "your"), describe your rights and responsibilities when accessing or using our website, application programming interfaces ( "APIs"), and other products and services that link to these Terms (collectively, the "Services") for your own individual, non-commercial purposes. Please read them carefully.
By using any of the Services, you agree to these Terms. You also agree to any additional terms specific to Services you use including restrictions and limitations (e.g. redistribution restrictions and API usage limitations) concerning any particular data feed you select to use ( "Additional Terms"). Such Additional Terms are in addition to, and shall be deemed a part of, these Terms for the purposes of the applicable option or offer. Additional Terms shall prevail over these Terms in the event of a conflict with respect to the applicable option or offer. If you do not agree with these Terms, please do not accept these Terms and you may not access or use the Services.
ARBITRATION NOTICE FOR USERS IN THE UNITED STATES: THESE TERMS CONTAIN AN ARBITRATION CLAUSE AND A WAIVER OF RIGHTS TO BRING A CLASS ACTION AGAINST US. EXCEPT FOR CERTAIN TYPES OF DISPUTES MENTIONED IN THAT ARBITRATION CLAUSE, YOU AND POLYGON AGREE THAT DISPUTES BETWEEN US WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION, AND POLYGON WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
Polygon offers a financial data market platform that gives users the tools to access and use financial market data and other information relating to securities, foreign exchange, cryptocurrencies, other financial instruments, products, vehicles, indexes, values, indicators, or other means, and other information concerning financial market made available by industry sources, financial exchanges, securities information processors, and other third-party suppliers of Market Data ("Third Party Providers") and/or Polygon through the Services (collectively, "Market Data"). Polygon is not a registered broker-dealer, financial institution, exchange, or investment advisor nor does it make any recommendations regarding the appropriateness of particular opportunities for any investor.
2. Access Grant.
Subject to the terms and conditions of these Terms, we grant you, a non-exclusive, non-transferable, non-assignable, worldwide, limited right to access and use the Services (including the Market Data), as such Services may be modified, revised, and updated in accordance with these Terms, solely for your own personal, non-commercial purposes. For the avoidance of doubt, your use of the Services intended for Individual Use only may not be utilized for business purposes or to build an application intended for use by end users other than you, and you may not redistribute or share any Market Data with other individuals.
3. Market Data.
Market Data is provided or made available to you on an "as is" and on an "as available" basis and should not be considered as any form of advice or recommendation for you or your Account. Polygon does not endorse, approve, or provide any view or opinion on any Market Data. Neither Polygon nor any Third Party Provider (i) warrants or guarantees the accuracy, timeliness, completeness or correctness of any Market Data, or (ii) warrants any results or interpretations from any use or reliance upon Market Data for any purpose. Your use of any Market Data is at your own risk. Past performance is no guarantee of future results.
You must not use Market Data for any purpose not directly related to the Services or your Account. No part of the Services (including Market Data) may be copied, reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted or distributed in any way (including "mirroring") to any other computer, server, website, or other medium for publication or distribution or for any commercial enterprise, without Polygon's express prior written consent. Certain Market Data sets available on the Services may have additional use restrictions or entitlement requirements or may require you to enter into a subsequent agreement with a Third-Party Provider. Unless otherwise stated in a subsequent agreement with us or a Third Party Provider, any and all Market Data is strictly for display use only. If required, we will report your unauthorized use of Market Data to the applicable Third Party Provider along with all required information pertaining to your Account.
If the applicable Additional Terms require you to you To the extent you qualify your subscriber status and you qualify as a Non-Professional the applicable Additional Terms require you to verify your status as described in your Order Form or based on any use restrictions surrounding the Market Data that you are subscribing to as required by a Third Party Provider, you represent and warrant to us on a continuing basis that you qualify as a Non-Professional unless and until you have expressly notified us in writing to the contrary. If you think you are or might be a Securities Professional or if you think that you do not or might not qualify as a Non-Professional, you must contact us immediately at firstname.lastname@example.org. If you have told us in writing that you are a Securities Professional then you represent and warrant to us that you are a Securities Professional, until you notify us in writing to the contrary. For the purposes of these Terms, "Non-Professional" means any natural person who receives market data solely for their own personal, non-business use and who is not a Securities Professional. A "Securities Professional" for these purposes includes an individual who, if working in the United States, is:
Registered or qualified in any capacity with the Securities and Exchange Commission, the Commodities Futures Trading Commission, any state securities agency, any securities exchange or association, or any commodities or futures contract market or association, or self-regulatory body;
engaged as an "investment advisor" as that term is defined in Section 202(a)(11) of the Investment Advisor's Act of 1940 (whether or not registered or qualified under that Act), or
employed by a bank or other organization exempt from registration under Federal and/or state securities laws to perform functions that would require that individual to be so registered or qualified if they were to perform such functions for an organization not so exempt.
A person who works outside of the United States will be considered a Securities Professional if they perform the same function(s) as a person who would be considered a Securities Professional in the United States. Any use of Market Data for business, professional, or other commercial purposes is not compatible with Non-Professional status, even if the commercial use is on behalf of an organization that is not in the securities industry.
You undertake to continually assess your status as to whether you are a Non-Professional or whether you are a Securities Professional and undertake to promptly notify us if your classification as a Non-Professional or a Securities Professional changes at any time whilst you have an Account. You acknowledge that we have provided you with an Account and with Market Data in reliance on your representations and warranties to us as to your status. You will indemnify Polygon for any fees, costs, losses, liabilities or expenses that Polygon may incur or suffer, directly or indirectly, in connection with any such representation or warranty being incorrect or inaccurate in any respect when given or repeated.
5. Your Account.
5.1 Account Registration.
You must open an account with us (an "Account") to use the Services. During the registration process we will ask you for information, which may include but is not limited to, your name, e-mail address, and other personal information. You must provide accurate and complete information in response to our questions, and you must keep that information current. We reserve the right to change the account type, downgrade, suspend, or terminate your Account and the account of anyone who provides inaccurate, untrue, or incomplete information, or who fails to comply with the account registration requirements.
You represent and warrant that you are at least eighteen (18) years old. You also represent and warrant that you will comply with all applicable laws (e.g., local, state, federal and other laws) when using the Services. Without limiting the foregoing, by using the Services, you represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo; and (b) you have not been identified as a Specially Designated National or placed on any U.S. Government list of prohibited, sanctioned, or restricted parties. If you access or use the Services outside the United States, you are solely responsible for ensuring that your access and use of the Services in such country, territory, or jurisdiction does not violate any applicable laws.
5.3 Account Responsibility.
You are solely responsible for any and all activities conducted under your Account. You agree to notify us immediately of any unauthorized use or any other breach of security on your Account. We shall not be liable for any loss incurred in connection with or resulting from any party's unauthorized use of a password or an Account. You acknowledge and agree that losses incurred by us or another party due to the unauthorized use of your Account or password are solely at your liability - accordingly, you are solely responsible for maintaining the confidentiality of your Account password, username, and any other credentials relating to your Account. Unauthorized use of another's Account or password is strictly prohibited.
5.4 Disabling Accounts.
We reserve the right to disable your Account at any time, including if you have failed to comply with any of the provisions of these Terms, or if activities occur on your Account which, in our sole discretion, would or might cause damage to or impair the Services or infringe or violate any third-party rights, or violate any applicable laws or regulations.
6. Payment Obligations.
6.1 Payment Terms.
The Services include both paid-for Services to be paid for on a recurring basis and free Services ( "Subscription Services"). Subscription Services may subject you to recurring fees on a monthly or annual basis and/or additional terms and conditions. By signing up for a Subscription Service, you agree to pay us the subscription fees specified in the applicable Order Form(s) (the "Fees"). If you sign up for or upgrade your Account, electing to pay the applicable Fees on a monthly basis, you will be invoiced immediately, and you will be invoiced on the same date of each subsequent calendar month. If you sign up for or upgrade your Account, electing to pay the applicable Fees on an annual basis, you will immediately be invoiced the full annual Fees beginning on your sign-up date. You will be invoiced for future Fees on the same date as your initial sign-up for subsequent years until you cancel your annual Subscription Services or switch to monthly Subscription Services. You must keep a valid payment method on file with us to pay for all incurred and recurring Fees. Polygon will charge applicable Fees to any valid payment method that you authorize ( "Authorized Payment Method"), and Polygon will continue to charge the Authorized Payment Method for applicable Fees until the Services are terminated and any and all outstanding Fees have been paid in full. Unless otherwise indicated, all Fees and other charges are quoted in U.S. Dollars ($), and all payments must be in U.S. Dollars ($).
Fees are stated exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, "Taxes"). You will be responsible for paying all Taxes associated with your purchases, except for those taxes based on our net income. Should any payment for the Services be subject to withholding tax by any government, you will reimburse us for such withholding tax.
6.3 Upgrading and Downgrading at Your Election.
You may upgrade your Account at any time from your Account settings, and you will be invoiced immediately. If you sign up for a monthly subscription, the Fees reflected in the applicable invoice will be for a prorated monthly subscription, and you will be invoiced on the same date that you upgraded your account for each subsequent calendar month. If you sign up for an annual subscription, the Fees reflected in the applicable invoice will be for a full annual subscription.
You may downgrade at any time from your Account settings. If you downgrade any Subscription Services, you will remain responsible for any unpaid Fees under the applicable Subscription Services, and Services under the applicable Subscription Services will be deemed fully performed and delivered upon expiration of the applicable Subscription Services subscription term. If you cancel a Subscription Service, you will continue to have access to that Subscription Service through the end of your then current billing period, but you will not be entitled to a refund or credit for any Fees already due or paid. We reserve the right to change our Fees upon thirty (30) days' advance notice. Your continued use of the Subscription Services after notice of a change to our Fees will constitute your agreement to such changes.
6.4 Downgrade for Non-Payment.
If any Fees owed to us by you are thirty (30) days or more overdue, we may, without limiting our other rights and remedies, downgrade any fee-based Subscription Services to free plans until those amounts are paid in full, so long as we have given you five (5) or more days' notice that your account is overdue. You acknowledge and agree that a downgrade will result in a decrease in certain features and functionality as illustrated by comparing the plans on our Products page.
6.5 Additional Products.
At any time, you may purchase additional Subscription Services that can be separately purchased or provisioned for use with the Services (collectively, "Add-Ons") for use in conjunction with your existing Subscription Services. Add-Ons may be subject to additional terms as set forth in the applicable Order Form(s). You are responsible for understanding the limitations of any Add-Ons. You will be charged the Fees for the Add-Ons as specified in the applicable Order Form(s) and in these Terms.
7. Polygon's Intellectual Property.
7.1 Rights We Grant You.
The Services contain material that is derived, in whole or in part, from material owned by Polygon as well as third-parties. We expressly and exclusively reserve for ourself (and our licensors) any and all registered and unregistered rights (whether or not registrable) granted, applied for, or otherwise now or hereafter in existence under or related to any patent or patentable subject matter, copyright or copyrightable subject matter, trademark or trademarkable subject matter, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world (the "Intellectual Property Rights") that are created, generated, acquired, or used in connection with the Services. The look and feel of the Services, including, but not limited to, any custom graphics, button icons, and scripts are also our property, and you may not copy, imitate, or use them, in whole or in part, without our prior written consent. Nothing herein shall be deemed to grant any rights or licenses to our Intellectual Property Rights to you, except as is expressly required for you to use the Services (but not apart from your use thereof).
7.2 Third-Party Trademarks.
You acknowledge and agree that any of our names, trademarks, service marks, logos, trade dress, or other branding included on our website or as part of the Services are owned by us, unless otherwise noted, and may not be copied, imitated, or used (in whole or in part) without our prior written consent. All other third-party trademarks, registered trademarks, and product names mentioned on the Service or contained in the content linked to or associated with any information displayed on the Service are the property of their respective owners and may not be copied, imitated, or used, in whole or in part, without the permission of the applicable intellectual property rights holder. Reference to any products, services, processes, or other information by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship, or recommendation by Polygon.
You may voluntarily post, submit, or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials or other information about Polygon or our Services (collectively, "Feedback"). By submitting Feedback to us, you hereby grant us a royalty-free, irrevocable, perpetual, non-exclusive, unrestricted, worldwide license to use, copy, adapt, modify, sublicense, transmit, distribute, display, sell, transfer, incorporate into our products or services, create derivative works from, or otherwise exploit any such Feedback without any compensation to you.
8. User Conduct.
8.1 Use Restrictions.
You may not do, attempt to do, enable, or encourage anyone else to do, any of the following:
Use or attempt to use another user's Account;
Pose as another person or entity or otherwise falsify your Account information;
Duplicate, license, sublicense, publish, broadcast, transmit, distribute, perform, display, sell, resell, rebrand, or otherwise transfer information found on the Services except as permitted in these Terms, or as expressly authorized by Polygon in writing;
Upload, post, or transmit unsolicited commercial email or “SPAM,” including, but not limited to, unethical marketing, advertising, or any other practice that is in any way connected with SPAM, such as: (i) sending mass email to recipients who haven't requested email from you or with a fake return address; (ii) promoting a site with inappropriate links, titles, or descriptions; or (iii) promoting any site by posting multiple submissions in forums that are identical;
Use the Services in any manner that could damage, disable, overburden, or impair the functioning of the Services in any manner;
Bypass or ignore instructions that control access to the Services, including attempting to circumvent any rate limiting systems by using multiple API keys, directing traffic through multiple IP addresses, or otherwise obfuscating the source of traffic you send to Polygon;
Use any data mining, robot, spider, crawler, scraper, script, browser extension, offline reader, or other automated means or interface not authorized by us to access the Services, extract data, or otherwise interfere with or modify the rendering of Services pages or functionality;
Reverse engineer, duplicate, decompile, disassemble, or decode any aspect of the Services, or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any service, area, or code of the Services;
Use the Services or data collected from our Services for any advertising or direct marketing activity (including, without limitation, e-mail marketing, SMS marketing, and telemarketing);
Adapt, modify or create derivative works based on the Services or the technology underlying the Services in whole or part;
Use the Services from a country sanctioned by the government of the United States or to facilitate transactions involving individuals sanctioned by the government of the United States or located in sanctioned countries;
Use the Services to carry out any financial activities subject to registration or licensing;
Use the Services to engage in price manipulation, fraud, or other deceptive, misleading, or manipulative activity;
Infringe or violate the intellectual property rights or any other rights of others;
Use the Services for any illegal or unauthorized purpose, including encouraging or promoting any activity that violates these Terms;
Upload, post or otherwise transmit any material that 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; interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services;
Intentionally or unintentionally violate any applicable local, state, national, or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, and any regulations having the force of law;
Promote, offer for sale or sell any security or item, good, or service that (i) violates any applicable federal, state, or local law or regulation, (ii) you do not have full power and authority under all relevant laws and regulations to offer and sell, including all necessary licenses and authorizations, or (iii) Polygon or the Market Data providers determine, in their sole discretion, is inappropriate for sale; or
Use the Services in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Services.
8.2 Monitoring and Suspending Access
We may, but have no obligation to, monitor the use by you and other users of the Services. We reserve the right to take, or refrain from taking, any and all steps available to us, including downgrading, suspending, or terminating your access to the Services or seeking other legal or equitable remedies, once we reasonably suspect or become aware of any violation of applicable law, any governmental authority, or if we in our sole and reasonable discretion determine you are violating these Terms or the terms of Third-Party Provider. Such suspension or termination shall not constitute a breach of these Terms by Polygon.
9. Third-Party Services
The Services may also contain links or functionality to access or use third-party websites and applications (collectively, "Third-Party Services"). When you click on a link to or access and use a Third-Party Services, we may not warn you that you have left our Services, and you are subject to the terms and conditions (including privacy policies) of such Third-Party Services. Polygon provides links to these Third-Party Services only as a convenience. Such Third-Party Services are not under the control of Polygon and may be "open" applications for which no recourse is possible. Polygon is not responsible or liable for any Third-Party Services. Polygon does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Services or their associated products or services. Polygon does not prepare, edit, or endorse any Third-Party Services. Polygon does not guarantee the accuracy, timeliness, completeness or usefulness of Third-Party Services, and is not responsible or liable for any content, advertising, products, or other materials on or available from Third-Party Services. You use all links in Third-Party Services at your own risk.
10. Term and Termination.
The "Term" of these Terms will begin on the date that you click accept to these Terms and continue until these Terms are terminated as set forth herein.
10.2 Termination for Breach.
Either party may terminate these Terms for breach if: (a) the other party is in material breach of these Terms and fails to cure that breach within thirty (30) days after receipt of written notice; (b) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety (90) days; or (c) Customer breaches Section 8.1 of these Terms.
10.3 Termination for Convenience.
You may stop using the Services at any time. You may terminate these Terms for its convenience at any time by contacting us at email@example.com, and upon termination, you must cease use of the applicable Services at the end of your subscription term. We may terminate these Terms for its convenience at any time without liability to you. Following termination, you remain liable for any Fees accrued based on your current Subscription Services and will be invoiced at time of termination.
10.4 Effect of Termination.
As our business evolves, we may make commercially reasonable updates to the Services from time to time. We may also change these Terms and the other components of these Terms (except any Order Forms). You can review the most current version of these Terms at any time by visiting this page and by visiting the most current versions of the other pages that are referenced in these Terms. The materially revised Terms will become effective on the date set forth in our notice, and all other changes will become effective upon posting of the change. If you access or use the Services after the effective date, that use will constitute your acceptance of any revised terms and conditions.
YOUR ACCESS TO AND USE OF THE SERVICES IS AT YOUR OWN RISK. YOU UNDERSTAND AND AGREE THAT THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND POLYGON MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT THERETO. POLYGON DISCLAIMS ALL IMPLIED WARRANTIES TO THE FULLEST EXTENT PERMISSIBLE UNDER LAW, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND DOES NOT REPRESENT OR WARRANT: (A) THAT THE CONTENT OR THE MARKET DATA WILL MEET YOUR SPECIFIC REQUIREMENTS OR IS TIMELY, CORRECT, ADEQUATE, ACCURATE, OR COMPLETE; OR (B) THE AVAILABILITY OF THE SERVICES THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, SECURE, OR ERROR-FREE. POLYGON HAS NO RESPONSIBILITY TO MAKE CORRECTIONS OR UPDATES TO THE CONTENT OR THE Market Data ON THE SERVICES. YOUR USE OR RELIANCE ON THE SERVICES IS SOLELY WITHIN YOUR DISCRETION AND AT YOUR RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS THAT RESULTS THEREFROM. IT IS EXPRESSLY UNDERSTOOD THAT THE CONTENT AND THE MARKET DATA ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND ARE NOT INTENDED TO PROVIDE LEGAL, TAX, INVESTMENT, OR ACCOUNTING ADVICE, NOR SHOULD THE CONTENT OR THE MARKET DATA BE CONSTRUED AS A RECOMMENDATION, OR AN OFFER TO BUY OR SELL, OR THE SOLICITATION OF AN OFFER TO BUY OR SELL ANY SECURITY, FINANCIAL PRODUCT, OR INSTRUMENT OR TO PARTICIPATE IN ANY TRADING STRATEGY. YOU ARE SOLELY RESPONSIBLE FOR DETERMINING WHETHER ANY INVESTMENT, INVESTMENT STRATEGY OR RELATED TRANSACTION IS APPROPRIATE FOR YOU BASED ON YOUR PERSONAL INVESTMENT OBJECTIVES, FINANCIAL CIRCUMSTANCES AND RISK TOLERANCE. YOU SHOULD CONSULT YOUR LEGAL OR TAX PROFESSIONAL REGARDING YOUR SPECIFIC SITUATION. NO DETERMINATION OF YOUR SUITABILITY FOR OR THE APPROPRIATENESS OF ANY SERVICES PROVIDED BY POLYGON HAS BEEN MADE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN CONTRACTS WITH CONSUMERS, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
To the fullest extent permitted by applicable law, you agree to indemnify, defend and hold harmless Polygon, and our respective past, present and future employees, officers, directors, contractors, consultants, equity holders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors and assigns (individually and collectively, the "Polygon Parties"), from and against all actual or alleged claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses (including, without limitation, attorneys' fees and expenses) and costs (including, without limitation, court costs, costs of settlement and costs of pursuing indemnification and insurance), of every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise (collectively, "Claims"), including, but not limited to, damages to property or personal injury, that are caused by, arise out of, or are related to: (a) your access and/or use of, or interaction with the Services (including, without limitation, Market Data); (b) or any act, error, or omission of your use of your Account or any user of your Account, in connection therewith, including, but not limited to, matters relating to incorrect, incomplete, or misleading information; (c) your violation of these Terms; (d) your violation of the rights of any third-party; and/or (e) your violation of any applicable laws, rules, or regulations.
THIS INDEMNITY IS IN ADDITION TO, AND NOT IN LIEU OF, ANY OTHER INDEMNITIES SET FORTH IN A WRITTEN AGREEMENT BETWEEN YOU AND POLYGON.
15. Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AGREE THAT IN NO EVENT WILL POLYGON OR ITS THIRD-PARTY PROVIDERS BE LIABLE TO YOU OR ANY THIRD-PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES ARISING FROM THIS AGREEMENT OR THE SERVICES, PRODUCTS OR THIRD-PARTY SITES AND PRODUCTS, OR FOR ANY DAMAGES RELATED TO LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, OR LOSS OF DATA, AND WHETHER CAUSED BY STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE AND EVEN IF POLYGON OR ITS SERVICE PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) FOR ANY OTHER CLAIM, DEMAND, OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OF THE DELIVERY, USE, OR PERFORMANCE OF THE SERVICES. ACCESS TO, AND USE OF, THE SERVICES, PRODUCTS OR THIRD-PARTY SITES, AND PRODUCTS ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA RESULTING THEREFROM.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF POLYGON ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, THE ACCESS TO AND USE OF THE SERVICES EXCEED THE GREATER OF (I) ONE HUNDRED DOLLARS ($100.00), OR (II) THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE SIX (6) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
FOR JURISDICTIONS THAT DO NOT ALLOW US TO LIMIT OUR LIABILITY: NOTWITHSTANDING ANY PROVISION OF THESE TERMS, IF YOUR JURISDICTION HAS PROVISIONS SPECIFIC TO WAIVER OR LIABILITY THAT CONFLICT WITH THE ABOVE THEN OUR LIABILITY IS LIMITED TO THE SMALLEST EXTENT POSSIBLE BY APPLICABLE LAW. SPECIFICALLY, IN THOSE JURISDICTIONS NOT ALLOWED, WE DO NOT DISCLAIM LIABILITY FOR: (I) DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE OR THAT OF ANY OF ITS OFFICERS, EMPLOYEES OR AGENTS; (II) FRAUDULENT MISREPRESENTATION; OR (III) ANY LIABILITY WHICH IT IS NOT LAWFUL TO EXCLUDE EITHER NOW OR IN THE FUTURE.
IF YOU ARE A RESIDENT OF A JURISDICTION THAT REQUIRES A SPECIFIC STATEMENT REGARDING RELEASE THEN THE FOLLOWING APPLIES. FOR EXAMPLE, CALIFORNIA RESIDENTS MUST, AS A CONDITION OF THIS AGREEMENT, WAIVE THE APPLICABILITY OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” YOU HEREBY EXPRESSLY WAIVE THE APPLICABILITY OF THIS SECTION OF THE CALIFORNIA CIVIL CODE AND ANY RIGHTS THAT YOU MAY HAVE THEREUNDER YOU HEREBY WAIVE ANY SIMILAR PROVISION IN LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS THE ABOVE RELEASE.
16. Arbitration Notice.
PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY PROVIDE THAT YOU AND POLYGON AGREE TO RESOLVE ALL DISPUTES BETWEEN US THROUGH BINDING INDIVIDUAL ARBITRATION.
16.1 Informal Resolution.
If you have an issue that our customer support can’t resolve, prior to starting arbitration, you and Polygon agree to attempt to resolve the dispute informally to help get us to a resolution and control costs for both parties. You and Polygon agree to make a good-faith effort to negotiate any dispute between us for at least 30 days ("Informal Resolution"). If the dispute isn't resolved by Informal Resolution or small-claims court (below), you or Polygon may start an arbitration in accordance with these Terms.
16.2 Applicability of Arbitration Agreement.
Notwithstanding the above, in this Section 16 (the "Arbitration Agreement"), you and Polygon agree that all claims and disputes (whether contract, tort, or otherwise), including all statutory claims and disputes, arising out of or relating to these Terms or the use of the Services that cannot be resolved through Informal Resolution (as defined below) or in small claims court will be resolved by binding arbitration on an individual basis, except that you and Polygon are not required to arbitrate any dispute in which either party seeks equitable relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. To be clear: the phrase "all claims and disputes " also includes claims and disputes that arose between us before the effective date of these Terms. In addition, all disputes concerning the arbitrability of a claim (including disputes about the scope, applicability, enforceability, revocability, or validity of the Arbitration Agreement) shall be decided by the arbitrator, except as expressly provided below.
16.3 Arbitration Rules.
The Federal Arbitration Act, including its procedural provisions, governs the interpretation and enforcement of this dispute-resolution provision, and not state law. Arbitration will be conducted by the Judicial Arbitration Mediation Services, Inc. ("JAMS") in accordance with the JAMS Streamlined Arbitration Rules and Procedures effective July 1, 2014 (the "JAMS Rules") as modified by this Agreement. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum, and if they cannot agree, will ask the court to appoint an arbitrator pursuant to 9 U.S.C. § 5.
16.4 Arbitration Procedure.
To start an arbitration, review the JAMS Rules and follow the instructions for initiating an arbitration on the JAMS website. The party starting an arbitration must send JAMS a "Demand for Arbitration" (available on its website), pay a filing fee, and mail a copy of the Demand for Arbitration to the opposing party. You will send a copy to Polygon.io, Inc., Legal Department, ATTN: ARBITRATION OF DISPUTE, 331 Elizabeth Street NE, Suite A, Atlanta, Georgia 30307, U.S.A. Polygon will send its copy to your registered email address and any billing address You have provided us.
The arbitration will be conducted by a single JAMS arbitrator selected with substantial experience in resolving intellectual-property and commercial-contract disputes. You and Polygon both agree that the arbitration will be conducted in the English language and that the arbitrator will be bound by these Terms. The rules of the arbitral forum will govern all aspects of this arbitration, except to the extent those rules conflict with these Terms.
Any claims or disputes where the total amount sought is less than $10,000 USD may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount sought is $10,000 USD or more, the right to a hearing will be determined by the arbitral forum's rules. If non-appearance arbitration is elected, the arbitration will be conducted by telephone, online, written submissions, or any combination of the three. The specific manner will be chosen by the party initiating the arbitration. The arbitration will not involve any personal appearance by the parties or witnesses unless the parties mutually agree otherwise. If an in-person hearing is required, the hearing will take place in Fulton County, Georgia.
If you start the arbitration, you must pay the JAMS filing fee required for consumer arbitrations. If Polygon is the party initiating an arbitration against you, Polygon will pay all of the JAMS costs associated with the arbitration, including the entire filing fee. If you demonstrate that arbitration costs will be prohibitive compared to litigation costs, Polygon will pay as much of your JAMS costs as the arbitrator finds is necessary to prevent arbitration from being cost-prohibitive (as compared to the cost of litigation). If the arbitrator finds you brought an arbitration claim against Polygon for an improper purpose, frivolously, or without a sufficient pre-claim investigation into the facts or applicable law, then the payment of all fees will be governed by the JAMS Rules. JAMS costs do not include your attorneys' fees and costs and attorneys' fees and JAMS costs are not counted when determining how much a dispute involves. Polygon may seek its attorneys' fees or expenses from you in any arbitration if the law or the JAMS Rules entitle us to do so. If you choose to be represented by an attorney, you will pay your own attorneys' fees and costs unless the applicable law provides otherwise.
16.6 Authority of the Arbitrator.
The arbitrator will decide the jurisdiction of the arbitrator and the rights and liabilities, if any, of you and Polygon. The dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under law, the arbitral forum's rules, and the Terms. The arbitrator will 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 Polygon. Any decision or award may be enforced as a final judgment by any court of competent jurisdiction or, if applicable, application may be made to such court for judicial acceptance of any award and an order of enforcement.
16.7 Waiver of Jury Trial.
YOU AND POLYGON WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Polygon are instead electing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Polygon over whether to vacate or enforce an arbitration award, YOU AND POLYGON WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
16.8 Waiver of Class or Consolidated Actions.
ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Notwithstanding any other provision of these Terms, the Arbitration Agreement, or JAMS rules, disputes regarding the interpretation, applicability, or enforceability of this waiver may be resolved only by a court and not by an arbitrator. If this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor we are entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in this section.
16.9 Right to Waive.
Any rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver will not waive or affect any other portion of this Arbitration Agreement.
You may opt out of this Arbitration Agreement. If you do so, neither you nor Polygon can force the other to arbitrate. To opt out, you must notify Polygon in writing no later than 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Polygon username and the email address you used to set up your Polygon account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. You must email the opt-out notice to firstname.lastname@example.org.
16.11 Small Claims Court.
Notwithstanding the foregoing, either you or Polygon may bring an individual action in small claims court.
16.12 Arbitration Agreement Survival.
This Arbitration Agreement will survive the termination of your relationship with Polygon.
16.13 Arbitration Agreement Severability.
If all or any provision of this Arbitration Agreement is found invalid, unenforceable, or illegal, then you and Polygon agree that the provision will be severed and the rest of the agreement shall remain in effect and be construed as if any severed provision had not been included. The sole exception is that if the class action waiver is found invalid, unenforceable, or illegal, you and Polygon agree that it will not be severable, and this entire Arbitration Agreement will be void and unenforceable and any dispute will be resolved in court subject to the venue and choice of clauses specified in these Terms.
17. Contact Us.
18.1 Governing Law; Exclusive Venue.
Except to the extent they are preempted by U.S. federal law, the laws of Georgia, other than its conflict-of-laws principles, govern these Terms and any claims and disputes (whether contract, tort, or otherwise) arising out of or relating to these Terms or its subject matter. To the extent that these Terms allow you or Polygon to initiate litigation in a court, both you and Polygon agree that all claims and disputes (whether contract, tort, or otherwise), including statutory claims and disputes, arising out of or relating to these Terms or the use of the Services will be litigated exclusively in the federal and state courts located in Atlanta, Georgia. You and Polygon consent to the personal jurisdiction of such courts and waive any objection to venue in any such courts.
18.2 No Conflicts.
These Terms shall govern and any conflicting, inconsistent, or additional terms contained in such documents shall be null and void.
These Terms are binding upon and inure to the benefit of the permitted successors and assigns of each party. You may not assign, subcontract, delegate, or otherwise convey these Terms, or any of its rights and obligations hereunder. Notwithstanding anything to the contrary in these Terms, we may assign, transfer, or delegate these Terms and our obligations hereunder at any time, in our sole discretion.
These Terms will be enforced to the fullest extent permitted under applicable law. If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms will remain in effect.
No failure or delay by either party in exercising any right under these Terms will constitute a waiver of that right. No waiver under these Terms will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
18.6 Force Majeure.
We will not be responsible or liable to you or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.
18.7 Relationship of the Parties; No Third-Party Beneficiaries.
These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries to these Terms.
18.8 Equitable Relief.
You acknowledge and agree that your breach of these Terms would cause irreparable harm to us, for which money damages alone may not be adequate. In addition to damages and any other remedies to which we may be entitled, you acknowledge and agree that we may seek and shall be entitled to injunctive relief hereunder to prevent the actual, threatened, or continued breach of these Terms.
18.9 Entire Agreement; Order of Precedence.
These Terms contain the entire agreement and supersede all prior and contemporaneous understandings between the parties regarding the Services. In the event of any conflict between these Terms and any other agreement you may have with us, these Terms will control unless the other agreement specifically identifies these Terms and declares that the other agreement supersedes these Terms.