This Self-Clearing Member Agreement (the “Agreement”) sets forth the terms and conditions under which you (“Member,” “you” or “your”) may access and trade on Gemini Titan, LLC (“Gemini Titan” or the “Exchange”), a designated contract market registered with and regulated by the U.S. Commodity Futures Trading Commission (the “CFTC”).
PLEASE READ THIS AGREEMENT CAREFULLY, AS IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, INCLUDING YOUR AGREEMENT TO MANDATORY ARBITRATION AND YOUR ASSUMPTION OF RISK. BY ACCESSING AND USING THE EXCHANGE, YOU ARE ACKNOWLEDGING THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT, THE GEMINI TITAN RULEBOOK (AS MAY BE AMENDED FROM TIME TO TIME, THE “RULEBOOK”) AND ANY OTHER TERMS, AMENDMENTS AND AGREEMENTS POSTED BY GEMINI TITAN ON ITS WEBSITE OR OTHERWISE (COLLECTIVELY, THE “TERMS”), AND YOU ARE AGREEING THAT THE TERMS FORM A BINDING AND ENFORCEABLE CONTRACT BETWEEN YOU AND GEMINI TITAN. IF YOU DO NOT AGREE TO THE TERMS, YOU MAY NOT USE OR ACCESS THE EXCHANGE.
1. Services.
Gemini Titan will provide you with access to a platform for trade execution and related services (collectively, the “Services”) pursuant to the terms provided in the Rulebook and in accordance with CFTC regulations and other Applicable Law (as defined below). The Services may include but are not limited to the following:
(a) facilitating the funding of a trading account on the Exchange;
(b) facilitating withdrawals from a trading account on the Exchange;
(c) facilitating the purchase of assets on the Exchange; and
(d) facilitating the sale of assets on the Exchange.
2. Risk Disclosures.
(a) Electronic Trading. Trading through the internet or other dedicated lines of communication involves many interrelated systems, including hardware, software, telephonic, cable and power generation, all of which are subject to failure or malfunction that may adversely affect the ability to trade, place or cancel orders and see market data. In the event that the Exchange becomes unavailable for a period of time, it may not be possible to enter new orders, execute existing orders, modify or cancel orders that were previously entered, or access market data. Although Gemini Titan and its third-party and affiliated service providers have taken precautions to prevent such an occurrence, if the Exchange or one of its components suffers a catastrophic failure, orders and their priority in the order queue may be lost. Gemini Titan bears no responsibility or liability for any effect on the ability to trade caused by any of the foregoing. You understand that at various times trading of a particular contract on the Exchange may cease due to a lack of bids or offers and, on certain specific trading dates, a contract will expire pursuant to its terms even if the Exchange is not accessible. You freely assume these risks and hold Gemini Titan, its affiliates and their respective directors, managers, officers, employees and agents harmless against any such losses resulting from these risks.
(b) Event Contracts. There are numerous risks associated with trading on the Exchange, and you hereby acknowledge and assume those risks. The risk of loss in trading event contracts on the Exchange can be substantial and is a highly speculative activity involving volatile markets. Trading may also incur fees, which will add to losses and may significantly reduce earnings. Each event contract listed on the Exchange has specific rules that dictate terms, in addition to the Rulebook, including trading period, settlement, payout and outcome determination, among other things. You are responsible for reading, understanding and accepting the terms of an event contract prior to trading.
3. Membership Acknowledgments and Obligations.
Each Member agrees to cooperate with Gemini Titan to ensure the orderly operation of the Exchange. In furtherance and without limitation of the foregoing, from and after the date upon which you agree to the Terms, each Member agrees and consents to the following:
(a) Each Member shall promptly pay the fees and charges, as specified from time to time on the Gemini Titan website (the “Website”), for the Services provided to such Member, including any fees associated with the execution and settlement of transactions on the Exchange. Gemini Titan will post written notice of any changes to fees on the Website prior to implementing the changes.
(b) Each Member authorizes Gemini Titan to deduct from such Member’s account (“Member Account”) maintained on the books and records of Gemini Titan all fees or other charges accruing to the Member.
(c) Each Member agrees to be bound by, and comply with, the rules and requirements established by Gemini Titan contained in the Rulebook. In the event of any conflict between this Agreement and the Rulebook, the Rulebook shall govern.
(d) Each Member acknowledges that such Member has previously agreed to the terms of a User Agreement of an affiliate of Gemini Titan (the “User Agreement”) upon opening an account with such affiliate. Each Member agrees that the terms and provisions of this Agreement are in addition to the terms and provisions of the User Agreement to which you have agreed. In the event of a conflict between this Agreement, including the Terms incorporated by reference herein, and the User Agreement, this Agreement shall govern.
(e) Each Member consents and is subject to the jurisdiction of the Exchange and the Terms, including the obligation to submit to arbitration. Upon the prior written request of Gemini Titan, each Member will, within five Business Days (as defined below), provide to Gemini Titan any such information as may be deemed necessary for its fulfillment of the Services. You hereby acknowledge and agree that you have received and read the Rulebook. “Business Day” means any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on which commercial banks are authorized or required by law, regulation or executive order to close in New York.
(f) Each Member hereby agrees and consents that Gemini Titan may utilize a Derivatives Clearing Organization (“DCO”) of its choosing for clearing services, provided that DCO is registered and remains in good standing with the CFTC. In the event that Gemini Titan decides to change from one DCO to another, you hereby agree, unless you provide affirmative notice to the Exchange otherwise and timely close your Member Account, that you consent to the change, and you consent to the movement of your positions and your funds from one DCO to such other DCO.
(g) Each Member hereby agrees that such Member will not allow any person or entity not identified to Gemini Titan to access or use the Services.
(h) Your status as a Member may be limited, conditioned, restricted or terminated by Gemini Titan in accordance with the Rulebook.
(i) This Agreement may be amended unilaterally by Gemini Titan upon notice to you. You will be deemed to agree to each such amendment if you do not terminate this Agreement prior to the effective date of the amendment.
(j) You may fund your Member Account in accordance with the Rulebook. You have no right to a refund, cancellation, or return of the funds used to fund your Member Account other than in a manner as may be described in the Rulebook, including withdrawal of deposited or earned funds. Deposits are not subject to cancellation, refund, return, reimbursement, rollback or any other form of reversal other than as explicitly specified in the Rulebook.
(k) You may place a trade on the Exchange and purchase assets using the funds in your Member Account. The funds used for those trades will be removed from your Member Account, and you will only receive further payment(s) related to such trades upon the sale of those assets on the Exchange or upon a favorable final settlement of those assets.
(l) You acknowledge that any information provided by Gemini Titan will not be used or considered by you as a recommendation, offer or a solicitation of an offer to buy, sell or hold a particular investment or pursue any investment strategy.
(m) You agree to provide such other information as may be reasonably requested by Gemini Titan from time to time as may be necessary or desirable to verify your qualifications as a Member.
(n) You authorize Gemini Titan to verify, on an initial and a periodic basis, by investigation, the statements provided to Gemini Titan, which may include a criminal background check, a review of your credit report and such other action reasonably deemed necessary by Gemini Titan.
(o) You authorize any governmental, regulatory or self-regulatory body, futures exchange, swap execution facility, securities exchange, national securities association, national futures association or other similar entity to furnish to Gemini Titan, upon its request, any information such entity may have concerning you, and you hereby release such entity from any and all liability of whatsoever nature by reason of furnishing such information to Gemini Titan.
(p) You authorize Gemini Titan to make available to any governmental, regulatory or self regulatory body, futures exchange, swap execution facility, securities exchange, national securities association, national futures association, bank or other similar entity (upon such entity’s showing of proper authority and need) any information Gemini Titan may have concerning you, and you hereby release Gemini Titan from any and all liability by reason of furnishing any such information.
(q) You hereby authorize Gemini Titan to instruct the DCO to deduct from your Member Account (as defined below) all fees or other charges accruing to you.
(r) You will keep confidential all information related to your account carried by the DCO on your behalf (“Member Account”), including but not limited to your account number, except as necessary to perform Exchange-related transfers.
(s) You hereby declare that the statements in this Agreement and in any application materials provided to Gemini Titan are true, complete and accurate, and that you will promptly notify Gemini Titan in writing if any representation, warranty or covenant made herein changes or ceases to be true.
(t) You will be solely responsible, at your own risk and expense, for acquiring, installing and maintaining all equipment, hardware and software, and shall ensure that any systems, facilities, servers, routers and other equipment and software used to access and transact on the Exchange are at all times protected by, and at all times comply with, all applicable information security and firewall precautions, but at all times at a level of security not less than that prevailing in the industry. You acknowledge that you will be responsible for any orders placed on the Exchange by any unauthorized party accessing your system. You agree to provide Gemini Titan with such information as Gemini Titan may reasonably request regarding your system’s security and to allow Gemini Titan, upon reasonable notice to you, to audit your system’s security.
(u) You acknowledge that failure to comply with the Terms may, in Gemini Titan’s sole discretion, lead to suspension of the Services or termination of this Agreement.
(v) You acknowledge that the Rulebook allows Gemini Titan to implement market maker programs. Gemini Titan believes that these programs will promote liquidity and orderliness on the Exchange. Under the Rulebook, market makers will make markets on the Exchange in exchange for receiving benefits. Such benefits may include monetary benefits, such as discounts on fees, rebates on fees, revenue share from fees and other monetary benefits. Market makers who receive these benefits may be able to price their quotes in ways that are materially different from other Members who are not eligible to receive these financial benefits. Market makers may also be eligible for sophisticated risk management tools, such as order protections whereby orders are canceled if the market maker’s trading session disconnects from the Exchange and may be eligible to greater throughput to the Exchange. These risk management tools enable market makers to effectively manage the risks of their market making activity and may not be available to Members who are not market makers. These tools may give market makers a trading advantage over Members who are not market makers. You further acknowledge that market makers may be required, during specific times, to maintain a maximum spread size and may be required to maintain a minimum depth within the spread. Outside of the required times, market makers are not required to, and potentially will not, maintain the maximum spread size and minimum depth. Therefore, pricing and liquidity outside of the required times may be worse than during the required times.
(w) You shall be responsible for providing and maintaining the means by which you will access the Exchange, which may include a personal computer, modem and telephone or other access line. You are responsible for all access and service fees necessary for you to connect to the Exchange, and you are responsible for all charges incurred by you in accessing the Exchange.
(x) You have made and will make to Gemini Titan all disclosures required by the Terms or under Applicable Law.
(y) Any financial or other information you provide to Gemini Titan or its agents is and will be accurate and complete in all respects.
(z) You agree that you will not, directly or indirectly, make, publish or communicate to any person or entity, in any medium including but not limited to social media, print or online, any statement or remark that is false, defamatory or disparaging about Gemini Titan, its affiliates, or any of their respective directors, managers, officers, employees, members, agents or affiliates, or any of its or their products or services. This Section 3(z) does not prohibit the disclosure of truthful statements required to be made by Applicable Law or in connection with any government investigation or proceeding; provided, however, that any such disclosure shall be narrowly tailored to comply with Applicable Law and shall not extend beyond what is reasonably necessary to satisfy any requirement under Applicable Law.
(aa) You agree to provide Gemini Titan with information and documentation that Gemini Titan may reasonably request.
4. Representations and Warranties.
Each Member hereby represents and warrants, and each time a Member enters an order, effects a transaction or otherwise uses the Services, such Member represents and warrants, to Gemini Titan as follows:
(a) Organization and Authority. If you are not a natural person, you are duly organized, validly existing and in good standing under the laws of the jurisdiction of your organization and each other jurisdiction in which the nature or conduct of your business requires such qualification. If you are an individual, you are of the age of majority in your state of residence. You have all requisite legal authority and capacity to enter into this Agreement and to use the Services on your own behalf and to perform your obligations as a Member.
(b) Legal Compliance. You are and will be in compliance in all material respects with the Commodity Exchange Act, CFTC regulations and all other applicable laws, rules, regulations, judgments, orders and rulings of any governmental authority or self-regulatory organization, authority, agency, court or body, including the laws of any jurisdiction applicable to an order or transaction (including data protection and privacy laws and laws with respect to recording messages of Member employees, including providing and obtaining required notices or consents) (collectively, “Applicable Law”). You are not statutorily disqualified from acting as a Member, and there is no pending, or to the best of your knowledge, threatened, action, suit or proceeding before or by any court or other governmental, regulatory or self
regulatory body that seeks to affect the enforceability of this Agreement or your ability to act as a Member.
(c) Personal Information. If you are an entity, you represent and warrant that you have the right to disclose to Gemini Titan any and all Personal Information (as defined below) that you provide or make available to Gemini Titan in connection with this Agreement. Without limiting the foregoing, you further represent and warrant that (i) you have provided all necessary notices to, and obtained all necessary consents, authorizations and permissions from individuals and third parties required under Applicable Law or contractual obligations in order to disclose such Personal Information to Gemini Titan and (ii) the disclosure to Gemini Titan of such Personal Information, and Gemini Titan’s use of such Personal Information in accordance with this Agreement, will not violate any Applicable Law or contractual obligations.
5. Prohibited Uses.
You agree to only use the Website and the Services in accordance with the Terms, and you are solely responsible for your use of the Website and the Services. You expressly agree that you will not:
(a) operate or utilize the Website or the Services in any manner that is illegal or violates Applicable Law, including by posting or transmitting any messages or content that violates Applicable Law;
(b) engage in any conduct or practice inconsistent with just and equitable principles of trade or conduct or practices detrimental to the best interests of the market, the Exchange and/or other Members;
(c) upload or distribute any content that is libelous, defamatory, inaccurate, unlawful or that could be deemed to be hateful, threatening, harassing, profane, indecent, objectionable, pornographic or otherwise inappropriate;
(d) violate or encourage others to violate any third parties’ rights, including but not limited to third parties’ intellectual property rights;
(e) change, inhibit or interfere with the security-related features of the Website or the Services;
(f) disrupt or interfere with the functionality or any other Member’s enjoyment of the Website or the Services, including but not limited to uploading and spreading viruses, Trojan horses, adware, spyware, worms or other malicious code;
(g) make or encourage others to make unsolicited offers or advertisements to other Members, or attempt or encourage others to attempt to collect Personal Information about other Members without their permission or consent;
(h) attempt to gain access to or copy any information from the Website or the Services using any automated or manual processes (including but not limited to robots, spiders or scrapers) without Gemini Titan’s written consent; or
(i) engage in or perform any fraudulent activity, including but not limited to impersonation, falsifying affiliations, falsifying identification information, including but not limited to your date of birth, or using another Member’s account without such Member’s consent.
6. Indemnification.
You hereby agree, to the maximum extent permitted by Applicable Law, to indemnify, defend and hold harmless Gemini Titan and its directors, managers, officers, employees, members, affiliates and agents (collectively, the “Indemnified Parties”) from and against all losses, liabilities, costs, expenses, judgments, amounts paid in settlement and other damages, including all documented legal, witness and accounting fees and customary expenses (collectively, “Damage”), directly and actually incurred by an Indemnified Party (including consequential damages awarded to the third party) as a result of any claim, suit, proceeding, investigation or threatened action (collectively, “Claim”) resulting from, in connection with, or arising out of your use of the Services or your activities, or arising out of or relating to this Agreement, including any failure by you, for any reason, fraudulent, negligent or otherwise, to comply with your obligations and requirements set forth in this Agreement, or any breach or failure to comply with the agreements, representations or covenants contained in this Agreement. Within 10 Business Days after an Indemnified Party receives written notice of a Claim that the Indemnified Party reasonably believes falls within the scope of this Section 6, such Indemnified Party will provide you with written notice of such Claim; provided, however, that failure to provide such notice will not relieve you of your indemnity obligations hereunder except to the extent you are materially prejudiced thereby, and you will not be responsible for Damage that the Indemnified Party incurs solely as a result of any such delay. The Indemnified Party shall have the right to assume the defense and control of any Claim for which you are obligated to indemnify such Indemnified Party, and you shall cooperate with the Indemnified Party’s defense of any such Claim. Your indemnity obligation will not apply to the extent there has been a final determination (including exhaustion of any appeals) by a court or arbitrator of competent jurisdiction that the Damage arose from the Indemnified Party’s gross negligence, fraud or willful misconduct.
7. Limitation of Liability.
TO THE FULLEST EXTENT PROVIDED BY APPLICABLE LAW, YOU ACKNOWLEDGE AND AGREE THAT IN NO EVENT SHALL GEMINI TITAN, ITS AFFILIATES, SUBSIDIARIES, SUPPLIERS AND LICENSORS OR ANY OF THE DIRECTORS, MANAGERS, OFFICERS, EMPLOYEES, REPRESENTATIVES, STOCKHOLDERS, OWNERS OR AGENTS OF ANY OF THE FOREGOING BE LIABLE FOR ANY CONSEQUENTIAL DAMAGES, SPECIAL DAMAGES, TRADING LOSSES, LOSS OF ANTICIPATED PROFITS OR GAIN RELATING IN ANY WAY TO TRADING, INCLUDING LOSS OF ANY TRADING INCENTIVE OR BONUS, LOSS BY REASON OF SHUTDOWN IN OPERATION OR FOR INCREASED EXPENSES OF OPERATION, SPECIAL PUNITIVE DAMAGES, INCIDENTAL LOSS, LOST PROFITS, LOSS OF OPPORTUNITY OR INDIRECT DAMAGES, ARISING FROM ANY CAUSE WHATSOEVER, INCLUDING CAUSES RELATED TO OR ARISING FROM YOUR USE OF THE EXCHANGE, EVEN IN THE EVENT GEMINI TITAN OR ANY OF THE FOREGOING PERSONS OR ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH SUCH CLAIM IS BASED. YOU AGREE THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IN THE EVENT ANY LIMITED REMEDY IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
WITHOUT LIMITATION OF THE FOREGOING, GEMINI TITAN’S AGGREGATE MAXIMUM LIABILITY RELATED TO OR ASSOCIATED WITH YOUR USE OF THE EXCHANGE SHALL IN NO EVENT EXCEED THE LESSER OF (1) THE PURCHASE PRICE OF ANY OF YOUR ASSETS ASSOCIATED WITH THE CLAIM PURCHASED VIA THE EXCHANGE; OR (2) THE TOTAL FUNDS YOU HAVE DEPOSITED TO THE EXCHANGE PRIOR TO MAKING A CLAIM.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
8. Data Use.
(a) If you are an individual, you acknowledge and agree that Gemini Titan may collect and use your Personal Information in accordance with the terms and provisions of Gemini Titan’s privacy policy, available at https://www.gemini.com/legal/privacy-policy (the “Privacy Policy”).
(b) If you are an entity, prior to disclosing to Gemini Titan any individual’s Personal Information, you shall provide the Privacy Policy to such individual. Upon Gemini Titan’s request, you shall also promptly provide to such individuals any updated versions of the Privacy Policy. You shall only disclose to Gemini Titan Personal Information that is reasonably necessary for Gemini Titan to provide the Services. You are responsible for ensuring that all Personal Information that you disclose to Gemini Titan is accurate and shall promptly inform Gemini Titan if you become aware that any Personal Information you have previously provided to Gemini Titan is inaccurate. You shall not disclose to Gemini Titan any Personal Information unless you have provided the Privacy Policy to the individual about whom the Personal Information relates. You shall not disclose to Gemini Titan any Personal Information that includes: (i) information revealing racial or ethnic origin, national origin, religious beliefs, mental or physical health condition or diagnosis, medical history, medical treatment, sex life, sexual orientation, status as transgender or nonbinary, status as a victim of crime or citizenship or immigration status, (ii) genetic or biometric data, (iii) information about a child under 13 years of age or (iv) precise geolocation data. You shall not disclose to Gemini Titan any Personal Information about individuals located outside of the United States unless the parties have, where required by Applicable Law, entered into a data processing agreement that complies with such Applicable Law. If a data processing agreement is required by Applicable Law, the parties shall use good faith efforts to negotiate a data processing agreement that complies with such Applicable Law. As used in this Agreement, “Personal Information” means any information that identifies, relates to, describes, is linked to, is reasonably capable of being associated with or could reasonably be linked to, directly or indirectly, any identified or identifiable individual or household, and any information covered by definitions of “personal data,” “personally identifiable information,” “personal information,” “nonpublic personal information” or any substantial equivalent of these terms under any Applicable Law.
9. Termination.
Subject to the Terms and Applicable Law, Gemini Titan or you may terminate this Agreement by giving the other prior written notice or by closing your trading account on the Exchange. Gemini Titan may terminate this Agreement upon written notice to you following the occurrence of any of the events set forth below (each such event, “Default”):
(a) you breach or fail to timely perform any of your material obligations under this Agreement or the Rulebook, or otherwise in respect of any order or trade;
(b) you fail to deposit or maintain any required collateral or fail to make any other payment required with respect to any order or trade;
(c) any representation made by you hereunder, including all documents incorporated by reference, is not or ceases to be accurate and complete in any material respect;
(d) a case in bankruptcy is commenced or a proceeding under any insolvency or other law for the protection of creditors or for the appointment of a receiver, trustee or similar officer is filed by or against you;
(e) any warrant or order of attachment is issued against your Member Account or a judgment is levied against your Member Account; or
(f) you fail to provide adequate assurances acceptable to Gemini Titan after Gemini Titan has requested that such assurances be provided within a reasonable period of time under the circumstances, whenever Gemini Titan considers such assurances necessary for the protection of Gemini Titan, other Members and/or the market.
Termination of this Agreement will not affect liability accrued as of termination. 10. Member Default.
In the event of a Member’s Default, Gemini Titan shall have the right, without limitation, to take any of the actions set forth below (each, a “Default Action”) with respect to such Member:
(a) close out any or all open orders or trades;
(b) cancel any of the Member’s outstanding orders;
(c) treat any and all of the Member’s obligations to Gemini Titan as immediately due and owing;
(d) set-off any Gemini Titan obligation to the Member against any of the Member’s obligations to Gemini Titan;
(e) require that the Member liquidate any collateral held in such Member’s Member Account on its behalf to satisfy the Member’s obligations to Gemini Titan;
(f) terminate any or all of Gemini Titan’s obligations for future performance with respect to the Member’s Member Account;
(g) terminate the Member’s access to Gemini Titan; and/or
(h) proceed with any other appropriate action in accordance with the Rulebook.
Gemini Titan shall use reasonable efforts to provide prior written notice to a Member before taking a Default Action. If it is not reasonably practicable to provide prior written notice, Gemini Titan shall provide written notice to such Member as soon as reasonably practicable after taking a Default Action.
11. Disclaimer of Warranties.
YOUR USE OF THE WEBSITE AND THE SERVICES IS AT YOUR OWN RISK. YOU UNDERSTAND THAT GEMINI TITAN, ITS AFFILIATES AND ITS SOFTWARE, HARDWARE AND SERVICE PROVIDERS PROVIDE THE SERVICES “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY. GEMINI TITAN, ITS AFFILIATES AND ITS SOFTWARE, HARDWARE AND SERVICE PROVIDERS OR ANY OF THE DIRECTORS, MANAGERS, OFFICERS, EMPLOYEES, REPRESENTATIVES, STOCKHOLDERS, OWNERS OR AGENTS OF ANY OF THE FOREGOING, SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT
AND ANY WARRANTIES ARISING OUT OF COURSE-OF-DEALING, USAGE OR TRADE. YOU ASSUME ALL RISK FOR ANY AND ALL DAMAGES THAT MAY OR DO RESULT FROM YOUR USAGE OF, ACCESS TO OR INTERACTIONS WITH THE WEBSITE AND THE SERVICES.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, GEMINI TITAN WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE, THE SERVICES OR ANY ITEMS OBTAINED THROUGH THE WEBSITE OR THE SERVICES OR YOUR DOWNLOADING OF ANY MATERIAL POSTED ON THE WEBSITE OR THE SERVICES, OR ON ANY WEBSITE LINKED TO THE WEBSITE OR THE SERVICES.
NEITHER GEMINI TITAN, ITS AFFILIATES NOR ANY OF ITS DIRECTORS, MANAGERS, OFFICERS, EMPLOYEES, REPRESENTATIVES, STOCKHOLDERS, OWNERS OR AGENTS MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE WEBSITE OR THE SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER GEMINI TITAN, ITS AFFILIATES NOR ANY OF ITS DIRECTORS, MANAGERS, OFFICERS, EMPLOYEES, REPRESENTATIVES, STOCKHOLDERS, OWNERS OR AGENTS REPRESENTS OR WARRANTS THAT THE WEBSITE AND THE SERVICES, THEIR CONTENT OR ANY ITEMS OBTAINED THROUGH THE WEBSITE OR THE SERVICES WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE WEBSITE, THE SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE WEBSITE, THE SERVICES OR ANY ITEMS OBTAINED THROUGH THE WEBSITE OR THE SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
12. Complete Agreement.
This Agreement constitutes the entire contract between you and Gemini Titan relative to the subject matter hereof. Any other previous agreement between you and Gemini Titan with respect to the subject matter hereof is superseded by this Agreement. Nothing in this Agreement, expressed or implied, is intended to confer upon any person (other than the parties hereto, and their respective successors and assigns permitted hereunder) any rights, remedies, obligations or liabilities under or by reason of this Agreement.
13. Severability.
In the event any one or more of the provisions contained in this Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby, and such invalidity, legality and enforceability will not invalidate or render unenforceable such term or provision in any other jurisdiction. The parties shall endeavor in good-faith negotiations to replace such invalid, illegal or unenforceable provisions with valid provisions, the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
14. Assignment.
You may not assign this Agreement, in whole or in part, without the prior written consent of Gemini Titan. Gemini Titan may assign this Agreement without your prior written consent. In the event Gemini Titan is acquired by or merged with an affiliate or third party, Gemini Titan may transfer or assign the information collected from you in connection with such merger, acquisition or other change of control transaction.
15. Interpretation.
Section headings in this Agreement are for convenience only and do not govern the meaning or interpretation of any provision of this Agreement. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement will refer to the Agreement as a whole and not to any particular provision in this Agreement. The word “including” and words of similar import when used in this Agreement will mean “including, without limitation,” unless otherwise specified. The term “or” is not exclusive. The word “will” will be construed to have the same meaning and effect as the word “shall.”
16. USA PATRIOT Act.
Gemini Titan hereby notifies you that pursuant to the requirements of the USA PATRIOT Act, it is required to obtain, verify and record information that identifies you, which information includes your name and address and other information that will allow Gemini Titan to identify you in accordance with the USA PATRIOT Act.
17. Governing Law; Jurisdiction.
This Agreement will be governed by the laws of the State of New York. Any dispute between Gemini Titan and you arising from or in connection with this Agreement or your use of the Services will be settled by binding arbitration in accordance with the Rulebook and the arbitration procedures set forth in the User Agreement mutatis mutandis. Pursuant to Section 3(d) of this Agreement, in the event of a conflict between the Rulebook and the User Agreement, the Rulebook shall govern.
BY CLICKING “I AGREE” OR OTHERWISE CONTINUING PAST THIS AGREEMENT, YOU HEREBY AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND EXPRESSLY ACKNOWLEDGE THAT YOU HAVE RECEIVED, READ AND UNDERSTAND ALL DOCUMENTS INCORPORATED HEREIN BY REFERENCE.
