Legal

Last updated 08 March 2019

Welcome to Abacus!

Through https://abacusfi.com or any other associated websites, APIs, or mobile applications (collectively, the "Abacus Site"), Abacus Protocol, Inc. ("Abacus") provides a platform for conducting client onboarding and identity verification services, including, without limitation, "Know Your Client" and "Anti-Money Laundering" services (collectively with the Abacus Site and any other features, tools, materials and other services offered from time to time by Abacus, the "Services").

If you do not understand any of the terms of the Agreement, please contact us before using the Services.

THESE TERMS SET FORTH A LEGALLY BINDING AGREEMENT BETWEEN YOU AND ABACUS THAT GOVERN YOUR USE OF THE SERVICES. BY ACCESSING OR OTHERWISE USING THE SERVICES, YOU ACCEPT THESE TERMS (INDIVIDUALLY OR ON BEHALF OF THE ENTITY THAT YOU REPRESENT), OUR PRIVACY POLICY, AND ANY ADDITIONAL TERMS, RULES, OR CONDITIONS OF USE ISSUED BY ABACUS FROM TIME TO TIME, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS, OUR PRIVACY POLICY, AND ANY SUCH ADDITIONAL TERMS. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT ACCESS THE ABACUS SITE OR USE THE SERVICES.

IMPORTANT: PLEASE REVIEW THE ARBITRATION AGREEMENT SET FORTH IN THESE TERMS CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH ABACUS ON AN INDIVIDUAL BASIS (RATHER THAN THROUGH A CLASS ACTION) THROUGH FINAL AND BINDING ARBITRATION (RATHER THAN THROUGH A JURY TRIAL). BY ENTERING INTO THESE TERMS, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THESE TERMS AND HAVE SPECIFICALLY CONSIDERED THE CONSEQUENCES OF AGREEING TO RESOLVE DISPUTES ON AN INDIVIDUAL BASIS THROUGH BINDING ARBITRATION.

Abacus may amend these Terms from time to time. If we do, we will notify you of any changes by posting notice on the Services or by sending notice to the primary email address specified in your account. Amendments will be effective upon Abacus's posting of such updated Terms at this location or in the amended policies or supplemental terms on the applicable Service(s). Your continued access or use of the Services after such posting confirms your consent to be bound by these Terms, as amended. Abacusreserves the right to modify, suspend, or discontinue the Services, in whole or in part, at any time, with or without notice to you. You agree that Abacus will not be liable to you or to any third party for such modification, suspension, or discontinuation.

Section 1: Accounts

a. Registration

To use certain features of the Services, you must register for an account ("Account") and provide certain information about yourself as prompted by the account registration form. You represent and warrant that all required registration information you submit is truthful and accurate and that you will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by following the instructions on the Services. Abacus may suspend or terminate your Account in its sole discretion, and may suspend access to the Services if Abacus suspects that you have failed to comply with these Terms. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Abacus of any unauthorized use, or suspected unauthorized use, of your Account or any other breach of security with respect to your Account. Abacus hereby disclaims any and all liability for any loss or damage for your failure to comply with the requirements set forth in this Section 1. Abacus may, in its sole discretion, refuse to open an Account for you or limit the number of Accounts that you hold.

b. Restrictions on Prohibited Uses

You may not use your Account to engage in the following categories of activity. The specific types of use listed below are representative, but not exhaustive. By opening an Account, you confirm that you will not use your Account to do any of the following:

  • Unlawful activity: Activity that would violate, or assist in violation of, any law, statute, ordinance, or regulation, sanctions programs administered in the countries where Abacus conducts business, including, without limitation, the U.S. Department of Treasury's Office of Foreign Assets Control, or which would involve proceeds of any unlawful activity; publish, distribute or disseminate any unlawful material or information.
  • Abusive Activity: Actions that impose an unreasonable or disproportionately large load on our infrastructure, or detrimentally interfere with, intercept, or expropriate any system, data, or information; transmit or upload any material to the Services that contains viruses, trojan horses, worms, or any other harmful or deleterious programs; attempt to gain unauthorized access to the Services, other Accounts, computer systems or networks connected to the Services, through password mining or any other means; use of Account information of another party to access or use the Services, except in the case of specific merchants and/or applications which are specifically authorized by a user to access such user's Account and information; or transferring your account access or rights to your account to a third party, unless by operation of law or with the express permission of Abacus.
  • Abusing other users: Interfere with another individual's or entity's access to or use of any Services; defame, abuse, extort, harass, stalk, threaten or otherwise violate or infringe the legal rights (such as, but not limited to, rights of privacy, publicity and intellectual property) of others; incite, threaten, facilitate, promote, or encourage hate, racial intolerance, or violent acts against others; harvest or otherwise collect information from the Services about others, including without limitation email addresses, without proper consent.
  • Fraud: Activity that operates to defraud Abacus, Abacus users, or any other person; provide any false, inaccurate, or misleading information to Abacus.
  • Gambling: Lotteries; bidding fee auctions; odds making; internet gaming; contests, sweepstakes; games of chance.
  • Intellectual property infringement: Engage in transactions involving items that infringe or violate any copyright, trademark, right of publicity or privacy or any other proprietary right under the law, including, without limitation, sales, distribution, or access to counterfeit music, movies, software, or other licensed materials without the appropriate authorization from the rights holder; use of Abacus intellectual property, name, or logo, including use of Abacus trade or service marks, without express consent from Abacus or in a manner that otherwise harms Abacus or the Abacus brand; any action that implies an untrue endorsement by or affiliation with Abacus.

c. Restrictions on Prohibited Businesses

By opening an Account, you confirm that you will not use the Services in connection with any of following businesses, activities, practices, or items:

  • Restricted financial services: Check cashing, bail bonds, collections agencies.
  • Multi-level marketing: Pyramid schemes, networking marketing and referral marketing programs.
  • Regulated products and services: Marijuana dispensaries and related businesses; sale of tobacco, e-cigarettes, and e-liquid; online prescription or pharmaceutical services; age restricted goods or services; weapons and munitions; gunpowder and other explosives; fireworks and related goods; toxic, flammable, and radioactive materials; products and services with varying legal status on a state-by-state basis.
  • Drugs and drug paraphernalia: Sale of narcotics, controlled substances and any equipment designed for making or using drugs, such as bongs, vaporizers and hookahs.
  • Unfair, predatory, or deceptive practices: Investment opportunities or other services that promise high rewards; Sale or resale of a service without added benefit to the buyer; resale of government offerings without authorization or added value; sites that we determine in our sole discretion to be unfair, deceptive, or predatory towards consumers.
  • High-risk businesses: Any businesses that Abacus believes poses elevated financial risk, legal liability, or violates card network or bank policies.

d. Your Content

In order to use the Services, you may be required to provide Abacus with certain personal information, including, but not limited to, your name, address, telephone number, e-mail address, date of birth, taxpayer identification number, government identification number, and information regarding your bank account (e.g., financial institution, account type, routing number, and account number) and other content, such as answers to certain security questions or other information (collectively, "Your Content"). You hereby grant to Abacus a nonexclusive, royalty-free license to access, use, copy, modify, create derivative works of, distribute, publicly display, publicly perform and otherwise exploit in any manner Your Content solely for purposes of Abacus' provision of the Services in accordance with Abacus' Privacy Policy. You are responsible and liable for Your Content and you represent and warrant that:

  • Your Content is accurate, valid, complete and truthful in all respects
  • You either are the sole and exclusive owner of Your Content or you have all rights, licenses, consents and releases necessary to grant Abacus the license to Your Content as set forth herein
  • Neither Your Content, nor your submission, uploading, publishing, or otherwise making available Your Content, nor Abacus' use of Your Content as permitted herein will infringe, misappropriate, or otherwise violate a third party's intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

e. Authorization to Make Inquiries

YOU HEREBY AUTHORIZE ABACUS TO, DIRECTLY OR THROUGH THIRD PARTIES, MAKE ANY INQUIRIES WE CONSIDER NECESSARY TO VERIFY YOUR IDENTITY AND/OR PROTECT AGAINST FRAUD, INCLUDING TO QUERY IDENTITY INFORMATION CONTAINED IN PUBLIC REPORTS (E.G., YOUR NAME, ADDRESS, PAST ADDRESSES, OR DATE OF BIRTH), ACCOUNT INFORMATION ASSOCIATED WITH YOUR LINKED BANK ACCOUNT OR QUALIFYING CREDIT/DEBIT CARDS (E.G., NAME OR ACCOUNT BALANCE), AND TO TAKE ACTION WE REASONABLY DEEM NECESSARY BASED ON THE RESULTS OF SUCH INQUIRIES AND REPORTS. YOU FURTHER AUTHORIZE ANY AND ALL THIRD PARTIES TO WHICH SUCH INQUIRIES OR REQUESTS MAY BE DIRECTED TO FULLY RESPOND TO SUCH INQUIRIES OR REQUESTS. ABACUS HEREBY DISCLAIMS ANY AND ALL LIABILITY FOR ANY LOSS OR DAMAGE OF YOUR CONTENT.

Section 2: Access

a. License

We grant you a limited, nonexclusive, nontransferable, nonsublicensable license, subject to the terms of this Agreement, to access and use the Services and related content, materials and information (collectively, the "Abacus Content") solely for approved purposes as permitted by Abacus from time to time. Any other use of the Services or Abacus Content is expressly prohibited. You agree you will not copy, transmit, distribute, sell, license, reverse engineer, modify, publish, or participate in the transfer or sale of, create derivative works from, or in any other way exploit any of the Abacus Content, in whole or in part. All intellectual property rights, including copyrights, patents, trademarks and trade secrets, in the Services, including, without limitation, "abacusfi.com" and all logos related to the Services or displayed on the Abacus Site, are owned by Abacus or its licensors. Neither these Terms (nor your access to the Services) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in this Section 2(a). Abacus and its licensors expressly reserve all rights not granted in these Terms. There are no implied licenses granted under these Terms.

b. Third-Party Services

The Services may integrate or incorporate products or services provided by third parties, contain links to third-party websites and services, and/or display advertisements for third parties (collectively, "Third-Party Services"). Such Third-Party Services are not under Abacus's control, and Abacus is not responsible for any Third-Party Services. Abacus does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Services. The applicable third party's terms and policies apply to all Third-Party Services, including, without limitation, the applicable third party’s privacy and data gathering practices.

c. Restrictions

The rights granted to you in these Terms are subject to the following restrictions:

  • You will not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services, whether in whole or in part, or any content displayed on the Services
  • You will not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Services
  • You will not access the Services in order to build a similar or competitive website, product, or service
  • Except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. All copyright and other proprietary notices on the Services (or on any content displayed on the Services) must be retained on all copies thereof.

Section 3: Indemnity; Limitation of Liability

a. Indemnity

You agree to indemnify and hold Abacus, its affiliates, and each of its and their respective officers, directors, agents, joint venturers, employees and representatives, harmless from any claim or demand (including attorneys' fees and any fines, fees or penalties imposed by any regulatory authority) arising out of or related to your breach of these Terms or your violation of any law, rule or regulation, or the rights of any third party.

b. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL ABACUS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, INTERRUPTION, DELAY OR INABILITY TO USE THE SERVICES, LOSS OF SERVICE, LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, ANY LOSS OR CORRUPTION OF DATA, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION OR BREACHES IN SYSTEM SECURITY, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE SERVICES, EVEN IF ABACUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICES IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, ABACUS'S LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF FIFTY US DOLLARS (U.S. \$50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

Section 4: Disclaimers; Release

a. Services Disclaimers

Although we intend to provide accurate and timely information on the Services, the Services (including, without limitation, the Content) may not always be entirely accurate, complete or current and may also include technical inaccuracies or typographical errors. THE SERVICES ARE PROVIDED ON AN "AS-IS" AND "AS AVAILABLE" BASIS, AND ABACUS EXRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. ABACUS MAKES NO WARRANTY THAT THE SITE WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SITE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO THIRTY (30) DAYS FROM THE DATE OF FIRST USE.

b. Digital Currency Transactions

ABACUS DOES NOT TRADE, PROCESS, STORE, HOLD, MANAGE, ISSUING, OR OTHERWISE TRANSACT IN DIGITAL CURRENCIES, COMMODITIES, "COINS," OR OTHER DIGITAL ASSETS (COLLECTIVELY, "DIGITAL CURRENCY"). ABACUS DOES NOT OWN OR CONTROL THE UNDERLYING SOFTWARE PROTOCOLS (INCLUDING WITHOUT LIMITATION ANY BLOCKCHAIN SOFTWARE OR TECHNOLOGY AND/OR ANY "SMART CONTRACTS" OR OTHER CODE OPERATING ON OR EXECUTING IN CONNECTION WITH SUCH SOFTWARE OR TECHNOLOGY) WHICH GOVERN THE OPERATION OF DIGITAL CURRENCY, "TOKENS" (INCLUDING, WITHOUT LIMITATION, NON-FUNGIBLE ETHEREUM TOKENS ERC20, ERC721, AND FUTURE ITERATIONS OF SUCH TOKENS) (COLLECTIVELY, "TOKENS"), "SMART CONTRACTS" OR OTHER COMPUTERIZED TRANSACTION PROTOCOLS INTENDED TO DIGITALLY FACILITATE, VERIFY, OR ENFORCE THE NEGOTIATION OR PERFORMANCE OF A CONTRACT (INCLUDING, WITHOUT LIMITATION, THOSE THAT TAKE PLACE ON A BLOCKCHAIN OR DISTRIBUTED LEDGER) (COLLECTIVELY, "SMART CONTRACTS"). IN GENERAL, THE UNDERLYING PROTOCOLS ARE OPEN-SOURCE AND ANYONE CAN USE, COPY, MODIFY, AND DISTRIBUTE THEM. BY USING THE SERVICES, YOU ACKNOWLEDGE AND AGREE:

  • THAT ABACUS IS NOT RESPONSIBLE FOR OPERATION OF THE UNDERLYING PROTOCOLS AND THAT ABACUS MAKES NO GUARANTEE OF THEIR FUNCTIONALITY, SECURITY, OR AVAILABILITY
  • THAT THE UNDERLYING PROTOCOLS ARE SUBJECT TO SUDDEN CHANGES IN OPERATING RULES (A/K/A "FORKS"), AND THAT SUCH FORKS MAY MATERIALLY AFFECT THE VALUE, FUNCTION, AND/OR EVEN THE NAME OF THE DIGITAL CURRENCY, TOKENS, AND/OR SMART CONTRACTS.

THE RISK OF LOSS IN PURCHASING, SELLING, TRADING, HOLDING, MANAGING, ACCEPTING, OR OTHERWISE TRANSACTING IN DIGITAL CURRENCY, TOKENS, AND/OR SMART CONTRACTS CAN BE SUBSTANTIAL AND YOU ASSUME ALL RISKS ASSOCIATED WITH SUCH PURCHASING, SELLING, TRADING, HOLDING, MANAGING, ACCEPTING, OR OTHERWISE TRANSACTING IN SUCH DIGITAL CURRENCY, TOKENS, AND/OR SMART CONTRACTS, INCLUDING WITHOUT LIMITATION PRICE VOLATILITY RISKS, SECURITY RISKS, RISKS OF LOSS AND ANY OTHER RISKS. YOU SHOULD THEREFORE CAREFULLY CONSIDER WHETHER TRADING, PROCESSING, STORING, HOLDING, TRACKING, MANAGING, ISSUING, ACCEPTING, OR OTHERWISE TRANSACTING IN DIGITAL CURRENCY, TOKENS, AND/OR SMART CONTRACTS IS SUITABLE FOR YOU IN LIGHT OF YOUR FINANCIAL CONDITION. ABACUS WILL HAVE NO LIABILITY FOR ANY DAMAGE, LIABILITIES, LOSSES (INCLUDING ANY LOSS OF DATA OR PROFITS), OR ANY OTHER CONSEQUENCES THAT YOU OR ANY OTHER THIRD PARTY MAY INCUR AS A RESULT OF TRADING, PROCESSING, STORING, HOLDING, TRACKING, MANAGING, ISSUING, ACCEPTING, OR OTHERWISE TRANSACTING IN DIGITAL CURRENCY, TOKENS, AND/OR SMART CONTRACTS.

c. Investment Disclaimer

NEITHER ABACUS NOR OF ANY OF ITS PRINCIPALS, DIRECTORS, EMPLOYEES, OR REPRESENTATIVES ARE PROVIDING ANY INVESTMENT ADVICE THROUGH YOUR USE OF THE SERVICES. ABACUS:

  • IS NOT AN INVESTMENT ADVISER
  • IS NOT REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE REGULATOR
  • IS NOT A REGISTERED BROKER-DEALER
  • IS NOT REGULATED BY THE FINANCIAL INDUSTRY REGULATORY ASSOCIATION ("FINRA").

WITHOUT LIMITING THE DISCLAIMER IN SECTION 1(b) ABOVE, ABACUS DOES NOT ENDORSE OR RECOMMEND YOU OR ANY THIRD PARTY PURCHASE, SELL, TRADE, PROCESS, STORE, HOLD, TRACK, MANAGE, ISSUE, OR OTHERWISE TRANSACT IN ANY SECURITIES, DIGITAL CURRENCY, TOKENS, AND/OR SMART CONTRACTS AND ABACUS WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY DECISIONS YOU MAKE TO PURCHASE, SELL, TRADE, PROCESS, STORE, HOLD, TRACK, MANAGE, ISSUE, OR OTHERWISE TRANSACT IN ANY SECURITIES, DIGITAL CURRENCY, TOKENS, AND/OR SMART CONTRACTS, WHICH SUCH DECISIONS ARE YOURS ALONE.

d. Applicable Law Disclaimer

WITHOUT LIMITING THE GENERALITY OF THE DISCLAIMERS SET FORTH IN THIS SECTION, ABACUS MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER AS TO WHETHER THE SERVICES ARE COMPLIANT WITH ANY LAWS, REGULATIONS, RULES, OR ORDINANCES OF ANY JURISDICTION. YOU ACKNOWLEDGE AND AGREE THAT NO REGULATORY AUTHORITY HAS EXAMINED OR APPROVED OF THE SERVICES AND THAT ABACUS IS NOT A BROKER-DEALER OR REGULATED BY FINRA, NOR IS ABACUS PROVIDING TAX OR LEGAL ADVICE TO YOU. YOU REPRESENT AND WARRANT THAT YOU HAVE (OR WILL) CONDUCT SATISFACTORY DUE DILIGENCE BEFORE TRADING, PROCESSING, STORING, HOLDING, TRACKING, MANAGING, ISSUING, ACCEPTING, OR OTHERWISE TRANSACTING IN SECURITIES, DIGITAL CURRENCY, TOKENS, AND/OR SMART CONTRACTS INCLUDING, WITHOUT LIMITATION, THAT YOU HAVE SOUGHT (OR WILL SEEK) INDEPENDENT FINANCIAL AND/OR LEGAL ADVICE WHERE NECESSARY OR APPROPRIATE.

e. Release

YOU HEREBY RELEASE ABACUS FROM ANY AND ALL CLAIMS, DEMANDS, LIABILITIES, DAMAGES, LOSSES, AND CAUSES OF ACTION OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, IN CONNECTION WITH ANY CLAIM ARISING OUT OF THE SERVICES AND/OR ANY ACTS OR OMISSIONS OF ABACUS. IF YOU ARE A CALIFORNIA RESIDENT, YOU EXPRESSLY WAIVE THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES:

A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.

Section 5: Arbitration Agreement

a. Agreement to Arbitrate

You and Abacus agree that any dispute, claim, or controversy between you and Abacus arising in connection with or relating in any way to these Terms or to your relationship with Abacus as a user of the Service (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and whether the claims arise during or after the termination of the Agreements) will be determined by mandatory binding individual (not class) arbitration. You and Abacus further agree that the arbitrator will have the exclusive power to rule on any disputes relating to the interpretation, applicability, enforceability, existence, scope or validity of this agreement to arbitrate (this "Arbitration Agreement") or to the arbitrability of any claim or counterclaim, including whether these Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel. Arbitration is more informal than a lawsuit in court. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. There may be more limited discovery than in court. The arbitrator must follow this Arbitration Agreement and can award the same damages and relief as a court (including attorney fees), except that the arbitrator may not award any relief, including declaratory or injunctive relief, benefiting anyone but the parties to the arbitration. This Arbitration Agreement will survive termination of these Terms.

b. Class Action Waiver

YOU AND ABACUS AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR A CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both you and Abacus otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding.

c. Waiver of Jury Trial; Certain Exceptions

You acknowledge and agree that you and Abacus are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Notwithstanding the foregoing, you and Abacus each agree that nothing in this Arbitration Agreement will be deemed to waive, preclude, or otherwise limit either of our rights to:

  • Bring an individual action in a U.S. small claims court
  • Bring an individual action seeking only temporary or preliminary individualized injunctive relief in a court of law, pending a final ruling from the arbitrator.

d. Procedure; Rules; Location

Either party may initiate arbitration proceedings by providing the other party with a written Demand for Arbitration as specified in the AAA Rules (defined in the following sentence). The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879. The arbitration will be conducted in the county or parish in which you reside.

e. Fees

Each party will be responsible for payment of its own fees as set forth in the AAA Rules.

f. Choice of Law

Notwithstanding any choice of law provision in these Terms, the parties acknowledge and agree that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. ("FAA"), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules will preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue will be resolved under the laws of the State of California.

g. Severability

If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason:

  • The unenforceable or unlawful provision will be severed from these Terms
  • Severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of the Arbitration Agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement
  • To the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims will be stayed pending the outcome of any individual claims in arbitration.

Section 6: General

a. Entire Agreement

These Terms, along with Abacus's Privacy Policy — which is incorporated by reference herein — constitute the entire terms and conditions between you and Abacus and supersede any prior or contemporaneous agreement or understanding between you and Abacus, whether written or oral.

b. Severability and Waiver

Unless as otherwise stated in these Terms, should any provision of these Terms be held invalid or unenforceable for any reason or to any extent, such invalidity or enforceability will not in any manner affect or render invalid or unenforceable the remaining provisions of these Terms, and the application of that provision will be enforced to the extent permitted by law. Any failure by Abacus or any third-party beneficiary to enforce the Agreements or any provision thereof will not waive Abacus's or the applicable third-party beneficiary's right to do so.

c. Choice of Law

These Terms are governed by the internal laws of the State of California, United States, without regard to its choice or conflicts of laws principles. You and Abacus agree to the exclusive jurisdiction of the state and federal courts located in San Francisco, California to resolve any dispute, claim, or controversy that relates to or arises in connection with these Terms that is not subject to binding arbitration as set forth in Section 5.

d. Assignment

You may not assign these Terms without Abacus's prior written consent. Abacus may assign these Terms without your consent to:

  • A subsidiary or affiliate of Abacus
  • An acquirer of Abacus's equity, business, or assets
  • A successor of Abacus by merger or operation of law.

Any purported assignment in violation of this Section 6(e) will be void.

e. Survival

The provisions of Sections 3 through 6 will survive the termination or expiration of these Terms.