Last Updated: June 4th 2020
This User Agreement (“Agreement”) is between you (“User,” also referred to as “you” or “your”) and Sunship, Inc. ( “Vibrant,” also referred to as “we,” “us,” or “our”) that governs your use of the services provided by Vibrant as described below (the “Vibrant Services” or “Services”). By clicking “I Agree” or by using any Vibrant Service, whether through https://vibrantapp.com or other relevant website URLs, any associated website, APIs, or Vibrant mobile application (collectively, the “Vibrant Site”), you agree that you have read, understood, and accept all of the terms and conditions contained in this Agreement.
PLEASE READ THIS USER AGREEMENT CAREFULLY. IF YOU ARE LOCATED IN CERTAIN JURISDICTIONS, YOU AGREE THAT DISPUTES BETWEEN YOU AND Vibrant WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
1. GENERAL USE
By using the Services, you represent and warrant that you:
i. are 18 years of age or older;
ii. have the capacity to enter into this Agreement and agree to be legally bound by the terms and conditions of this Agreement, as amended from time to time; are not barred from using the Services under any applicable law;
iii. are not located in, under the control of, or a national or resident of any country to which the United States has embargoed goods or services, including but not limited to Syria, Sudan, Crimea, North Korea, Iran, or Cuba;
iv. are not identified as a Specially Designated National (“SDN”) by the U.S. Department of the Treasury Office of Foreign Assets Control (“OFAC”) or placed on the U.S. Department of Commerce’s Denied Persons List;
v. are either (a) using the Services only for your own personal use, or (b) using the Services for another entity with authorization from such entity, and you have authority to agree to and do agree to the terms of this Agreement on behalf of such entity; and
vi. you will comply with this Agreement and all applicable local, state, national, and international laws, rules, and regulations in your usage of the Services.
vii. If you do not meet all of these requirements, you must not access or use the Services.
We may modify this Agreement at any time, and such modification will be effective immediately upon posting of the modified Agreement to the Site. Your continued use of our Services following the posting of the revised Agreement means that you accept and agree to the revised terms.
1.3 Registration of Vibrant Account.
You must register for a Vibrant account to use the Vibrant Services (a "Vibrant Account"). By using a Vibrant Account, you agree that you will use the Services only for yourself, and not on behalf of any third party, unless you have obtained prior approval from Vibrant. During registration for your Vibrant Account, you agree to provide us with the information we request for the purposes of identity verification and the detection of fraud, and you permit us to keep a record of such information. Your access to one or more Services may be contingent on your ability to successfully satisfy our onboarding requirements, including providing any additional information we may request from time to time. We reserve the right to suspend or terminate your Vibrant Account if you provide inaccurate, untrue, or incomplete information, if your account is reasonably suspected of activity that violates this Agreement, or if you fail to comply with the account registration requirements. You agree that you won’t disclose your Vibrant Account credentials to anyone, and that you will notify us immediately of any unauthorized use of your Vibrant Account. You are responsible for all activities that occur under your Vibrant Account, whether or not you know about them. We may, in our sole discretion, refuse to open a Vibrant Account, or limit the number of Vibrant Accounts that you may hold, or limit your ability to access or use certain Services.
To access the Vibrant Services, you must have the necessary equipment (such as a smartphone or laptop) and the associated telecommunication service subscriptions to access the Internet. The Services can be accessed directly using the Vibrant Site. Although we strive to provide you with excellent service, we do not represent that the Vibrant Site or Services will be available without interruption. You acknowledge and agree that from time to time the Services may be inaccessible or inoperable for any reason, including without limitation: (i) equipment or technology malfunctions; (ii) periodic maintenance procedures or repairs which Vibrant may undertake from time to time; or (iii) causes beyond the control of Vibrant or which are not reasonably foreseeable by Vibrant. If for any reason the Services are inaccessible or inoperable, you agree to hold harmless Vibrant for any impact this inaccessibility or inoperability may have upon you or your use of the Services.
2.1 Vibrant Wallet.
In connection with a Vibrant Account, Vibrant will provide you with an account featuring one or more cryptographic private and public key pairs on the “Stellar Network,” (a distributed ledger network powered by open-source protocol, the reference implementation for which is found here: https://github.com/stellar/stellar-core) and a graphical user interface to allow you to view information about your Stellar Network account and generate, sign, and submit transactions to the Stellar Network (the “Vibrant Wallet”). The Stellar Network is not a part of the Services defined herein, however, the Vibrant Wallet will enable you to undertake certain actions and activities on the Stellar Network. An account on the Stellar Network enables the account holder to hold and transfer digital asset balances, undertake certain transactions, interact with smart contracts, and otherwise transact through the Stellar Network. Activities on the Stellar Network are powered by a network of independent servers and are not controlled by us or any other single entity. We do not and cannot guarantee the successful operation, up-time, security, or functioning of the Stellar Network. “Lumens” (sometimes referred to as “XLM”) are the native digital asset of the Stellar Network and are used to submit operations, create accounts, and serve as a bridge currency between different assets. Since we do not control the Stellar Network and cannot control activity and data on the network, we cannot control the activities of you or third parties who may develop or transact on the network, validate transactions on the network, or use the network. We cannot prevent, erase, reverse, hide, fix, or otherwise change any transaction submitted on the Stellar Network. All activity and data on the Stellar Network are permanent and public.
2.2 Use of the Stellar Network.
You agree and acknowledge that any access or use by you of the Stellar Network is made solely at your own risk and that we bear no responsibility or liability for your use of the Stellar Network, including, without limitation, for any harm, loss, or damages arising from transactions sent to wrong Stellar addresses, incorrectly constructed transactions, software and network problems, technical failures, unauthorized access to any accounts, legal and regulatory matters and consequences, or fraud conducted by third parties. Additionally, you agree and acknowledge that you will not, in connection with our Services, use the Stellar Network: (i) in a manner that violates any applicable federal, state, local, or international law or regulation; (ii) to fund terrorism or other criminal activity; (iii) to circumvent any export restrictions or economic sanctions; or (iv) to engage in unlawful money transmission, currency exchanging, or money laundering.
2.3 Digital Assets.
The Vibrant Wallet enables you to store, view, transfer, and otherwise interact with your digital assets on the Stellar Network. However, we cannot and do not guarantee that the Vibrant Wallet and its related applications will display all digital assets capable of being held in an account on the Stellar Network. In providing the Vibrant Wallet, Vibrant retains the sole right to select which digital assets from the Stellar Network will be displayed to you via the Services. Although it serves as the native digital asset on the Stellar Network, neither XLM nor any other digital asset held in your Vibrant Wallet is legal tender, backed by any government, or subject to protections or insurance provided by the Federal Deposit Insurance Corporation (“FDIC”) or the Securities Investor Protection Corporation (“SIPC”). The fiat value of XLM or other digital assets held in your Vibrant Wallet may be highly volatile and may lose all value, even if such digital assets purport to track the value of real-world currency. Vibrant does not control, and is not responsible for, the value of any digital assets held in your Vibrant Wallet and makes no representation, warranty, guarantee, or recommendation, express or implied, of its value. You agree to conduct independent due diligence on any digital asset you may acquire using the Vibrant Wallet and agree and acknowledge that any purchase of digital assets by you or on your behalf is made voluntarily, willfully, and exclusively at your own risk. We may impose limits on the total value of digital assets you may hold in your Vibrant Wallet at any time. When such limits are imposed, the quantity and value of your digital asset holdings in the Stellar account associated with your Vibrant Wallet may differ from that which is displayed on the Vibrant Wallet interface.
2.4 Vibrant Wallet Credentials.
When creating a Vibrant Wallet, the Services generate cryptographic private and public key pairs which will comprise your account on the Stellar Network. When setting up your Vibrant Account you must also enroll in the “Key Recovery Services.” With the Key Recovery Services, each Vibrant Wallet is provisioned with three associated private keys with the following weights: (i) your private key, which is encrypted and stored locally on your phone, will possess a weight of twenty (“User Key”) (ii) a private key stored by Vibrant, with a weight of ten (“Recovery Key A”); and (iii) a private key stored by a key recovery service provider (a “KRSP”), with a weight of ten (“Recovery Key B”). As such, by using the Vibrant Wallet, you agree to create a separate account with, and to be bound by the terms and conditions of, the applicable KRSP. Recovery Key A and Recovery Key B are for use exclusively in connection with the Key Recovery Services facilitated by a KRSP, as described below. You acknowledge that Vibrant only controls one of the private keys for your account on the Stellar Network, and that we do not possess sufficient credentials to take any unilateral action with respect to such account or any balances reflected in such account. We will never take action to recover your account unless we receive a request for action that we reasonably believe was submitted by you and has been confirmed by a phone number or email that you have previously linked to your account. You agree to store, outside of the services, a backup of your User Key and all related Vibrant Wallet credentials, including any passphrases, mnemonic phrases, identifiers, backup phrases, private keys, and network addresses. If you do not maintain a backup of your User Key and Vibrant Wallet data outside of the Services, you will not be able to access the digital asset balance associated with your Vibrant Wallet account on the Stellar Network in the event that Services or the Vibrant Wallet are disrupted or we discontinue or no longer offer some or all of the Services. The Key Recovery Services are provided at our discretion and should not be relied upon for recovery of funds. You acknowledge and agree that the Key Recovery Services may not function reliably, accurately, securely, or effectively, and that we or a KRSP may lose or otherwise be unable to provide or use Recovery Key A or Recovery B at any time for any reason. We will not maintain nor are we responsible for maintaining any data on your behalf. You agree and acknowledge that you are solely responsible for the secure storage of any digital assets in your Vibrant Wallet, your User Key, and any other related private keys in your possession. You agree that in no event will Vibrant be liable for the security or control of any digital assets, User Keys, recovery keys, or other credentials held in or related to the Vibrant Wallet.
2.5 Vibrant Wallet Transactions.
The Vibrant Wallet provides an interface that enables you to automatically generate, sign, and submit transactions to the Stellar Network simply by using the buttons, links, and other features provided within the Vibrant Wallet. The Vibrant Wallet will use the private key information contained locally on your device to sign the transactions you initiate via the Vibrant Wallet.In order to conduct any transaction on the Stellar Network via the Vibrant Wallet, the transaction must: (i) contain sufficient network transaction fees – denominated in XLM – for the Stellar Network to process the transaction, and (ii) be signed by private key or keys with a total weight of twenty. As such, you may conduct any transactions from the Vibrant Wallet solely by use of your User Key, since your User Key possesses a weight of twenty. Neither Vibrant nor any KRSP may unilaterally conduct any transactions associated with the Vibrant Wallet, since the Recovery Keys each possess a weight of only ten. Once a Vibrant Wallet transaction has been signed by a key weight of twenty and submitted to the Stellar Network for confirmation, you cannot cancel, reverse, or change the transaction. The transaction may be suspended, delayed, redirected, reversed, or canceled at any time for any reason or no reason by the Stellar Network, and Vibrant will bear no responsibility or liability resulting from any such suspension, delay, redirect, reversal, or cancellation.
Vibrant currently provides each Vibrant Wallet with sufficient XLM to cover Stellar Network transaction fees for transactions initiated via the Vibrant Wallet and the minimum reserves necessary for maintaining and adding trustlines or signers to the Stellar Network account tied to your Vibrant Account (“XLM Reserve”) . However, in the future we may no longer do so, in which case you will be responsible for such Stellar Network transaction fees and the minimum reserves. The XLM Reserve may only be used to maintain the existence and functionality of the Stellar Network account associated with your Vibrant Account and may not be used for any other purpose, extracted from such Stellar Network account, or merged into another account. The Vibrant Wallet itself does not currently charge a fee for the Services or any transactions you may conduct via the Services, however, we reserve the right to do so in the future, and in such case we will display to you any applicable fees prior to you incurring the fee. The issuers of non-XLM digital assets that you may use in connection with the Vibrant Wallet may charge fees for deposit, withdrawal, or other services.
3. THIRD-PARTY SERVICES.
3.1 Third-Party Services.
The Service provides, or third parties may provide, links to other World Wide Web or accessible sites, applications, content, or resources (“Third-Party Services”). We provide these links or integrations only as a convenience, and we do not have control over their content, do not warrant or endorse, and are not responsible for the availability or legitimacy of, or the content, products, or services on or accessible from, those websites, services, resources, or links displayed therein. We make no warranties or representations, express or implied, about such Third-Party Services, the third parties they are owned and operated by, the information contained on them, or the suitability of their products or services. You acknowledge sole responsibility for and assume all risk arising from your use of any third-party websites, applications, services, or resources.
Among other Third-Party Services, we may provide you with the ability to interact with Anchors on the Stellar Network from within the Vibrant Site. An “Anchor” is a participant on the Stellar Network that: (i) issues digital assets on the Stellar Network that are tied to the value or ownership of a real currency or other real-life asset – e.g., a dollar-denominated token; and (ii) offers eligible persons the ability to convert between a real currency or asset and its correlated digital asset.
3.3 Anchor Services.
You acknowledge that any services provided by an Anchor which you can access from within the Vibrant Wallet, such as the ability to convert between real currency and digital assets denominated in real currency, are the sole responsibility of such Anchor, and not Vibrant. Your use of any such Anchor services will be subject to the terms and conditions specified by the Anchor. Vibrant makes no representations, warranties, or endorsements regarding the services of any Anchor, and Vibrant expressly disclaims responsibility for any such services. You accept that there are risks with using the services of an Anchor, including without limitation, risks related to loss of funds, loss of access to digital assets, unavailability of relevant Stellar Network functionality, software bugs or errors in the Anchor’s services, inability to purchase, redeem, or convert digital assets, and risks related to the use or storage of any data or information you share with the Anchor. You agree that Vibrant is not responsible for any loss or delay in accessing your digital assets when such loss or delay occurs in connection with an Anchor’s services. We (or the Anchor) may cap the maximum amount of real currency or digital assets that you may convert via an Anchor’s services accessed through the Vibrant Wallet, and we (or the Anchor) may increase or decrease this cap in our sole discretion without notice to you.
3.4 Stellar Network DEX.
The Stellar Network has a built-in decentralized exchange trading protocol (the “DEX”), the developer guide for which is published here: https://www.stellar.org/developers/guides/concepts/exchange.html. This means that, in addition to tracking an account holder’s digital asset balances on the Stellar Network, an account on the Stellar Network also stores such account holder’s bids and asks among all digital asset pairs on the network. The DEX programmatically matches bids and asks to facilitate peer-to-peer exchanges. Although the DEX may be accessible via the Vibrant Wallet, Vibrant is solely a graphical user interface for the DEX designed for your convenience, is not affiliated with the DEX, and is not responsible for the functionality, reliability, and security of the DEX. All DEX transactions are entirely between holders of accounts on the Stellar Network – no intermediation by Vibrant or any other third party is required for settlement, matching, exchange, or transfer of assets traded via the DEX. Via the Vibrant Wallet and related Services, we may provide you with certain features that enable you to more efficiently conduct trades using the DEX. We reserve the right to select which trading pairs we may present to you from within the Vibrant Services, and we make no guarantee that we will present (or continue to present) any particular trading pair. We may, at our sole discretion: (i) require you to provide certain information prior to or to continue using the Services related to the DEX; and (ii) limit the amounts, sizes, or values of DEX transactions offered to you via the Services.
3.5 Key Recovery Services.
As described above, your use of a Vibrant Wallet is dependent on your agreement to use a KRSP to store Recovery Key B and to provide the Key Recovery Services in the event you lose access to your User Key. Solely in the event that you lose access to your User Key and upon your explicit request, Vibrant and your KRSP will each use their respective Recovery Key to help recover the assets in your account. Vibrant and your KRSP each represents and warrants that it will not use its respective key for any other purpose. You acknowledge and agree that your KRSP may require you to provide certain identification information, to prove you have control or access to certain email accounts or phone numbers, or to furnish such other information as the KRSP may require in order to validate your authority to request the Key Recovery Services. The Vibrant Wallet currently supports Ultra Stellar as a KRSP. Ultra Stellar is an independent commercial entity trading as Lobstr and unaffiliated with Vibrant. When you register for the Key Recovery Services for your Vibrant Wallet, you must agree to create a separate account with, and be bound to the terms and conditions of, the applicable KRSP. The Lobstr terms and conditions are available here https://recoverysigner.lobstr.co/terms. Other KRSPs may be made available in the future, but you will not be automatically enrolled in any KRSP’s service without your prior consent.
4. REPRESENTATIONS, WARRANTIES, AND RISKS.
4.1 Warranty Disclaimers.
YOUR USE OF THE SERVICES IS AT YOUR OWN RISK. THE SERVICES, ALL SUBPARTS THEREOF, INCLUDING ALL TOOLS, APPLICATIONS, AND OTHER CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Vibrant SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND/OR NON-INFRINGEMENT AS TO THE SERVICES AND THE INFORMATION, CONTENT, TOOLS, AND MATERIALS CONTAINED THEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. Vibrant DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT (I) ACCESS TO THE SERVICES OR ANY PART THEREOF WILL BE CONTINUOUS, UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (II) THAT THE SERVICES OR ANY MATERIALS CONTAINED THEREIN ARE ACCURATE, COMPLETE, RELIABLE, OR CURRENT; (III) THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (IV) THAT THE SERVICES OR ANY OF THE MATERIALS CONTAINED THEREIN WILL MEET YOUR REQUIREMENTS, NEEDS, OR EXPECTATIONS. ADDITIONALLY, Vibrant DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE LEGALITY OF THE SERVICES FOR ANY USE CASE, OR THAT THE SERVICES MAY MEET ANY REGULATORY AND COMPLIANCE NEEDS. YOU ARE SOLELY RESPONSIBLE FOR DETERMINING AND COMPLYING WITH ALL APPLICABLE LEGAL AND REGULATORY RESTRICTIONS, REPORTING OBLIGATIONS AND OTHER REQUIREMENTS THAT MAY GOVERN YOUR USE OF THE SERVICES. EXCEPT FOR THE EXPRESS STATEMENTS SET FORTH IN THIS AGREEMENT, YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU HAVE NOT RELIED UPON ANY OTHER STATEMENT OR UNDERSTANDING, WHETHER WRITTEN OR ORAL, WITH RESPECT TO YOUR ACCESS AND USE OF THE SERVICES. Vibrant IS NOT ACTING AND CANNOT ACT AS YOUR ADVISOR WITH RESPECT TO ANY FINANCIAL, LEGAL, INVESTMENT, OR TAX MATTERS. ANY INFORMATION PROVIDED BY THE COMPANY IS FOR GENERAL INFORMATION ONLY, AND YOU ARE SOLELY RESPONSIBLE FOR DETERMINING WHETHER OR NOT TO USE THE SERVICES. YOU ACKNOWLEDGE THAT THE SERVICE MAY BE SUBJECT TO EXPORT RESTRICTIONS AND ECONOMIC SANCTIONS IMPOSED BY U.S. LAW.
4.2 Technology Disclosures and Disclaimers
WITHOUT LIMITING THE GENERALITY OF SECTION 4.1: YOU ACKNOWLEDGE THAT THE STELLAR NETWORK IS A DECENTRALIZED NETWORK THAT IS NOT OPERATED OR CONTROLLED BY VIBRANT, THE STELLAR DEVELOPMENT FOUNDATION, OR ANY THIRD PARTY ENTITY. NO ENTITY CONTROLS THE FUNCTIONALITY OR ACTIVITY OF THE STELLAR NETWORK OR THE VALUE OR ACTIVITY OF XLM. ALL TECHNOLOGY, SERVICES, AND INFORMATION RELATED TO THE STELLAR SOFTWARE AND THE STELLAR NETWORK ARE PROVIDED ON AN “AS IS” BASIS. VIBRANT EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, SERVICE LEVELS, AND INDEMNITIES, EXPRESS OR IMPLIED, RELATED TO THE STELLAR NETWORK, STELLAR SOFTWARE, DIGITAL ASSETS, AND XLM, INCLUDING ANY FAILURE OF THE STELLAR NETWORK, ANY LOSS OF VALUE OR ACCESS RELATED TO XLM OR OTHER DIGITAL ASSETS, OR ANY TECHNOLOGICAL DISRUPTIONS OR FAILURES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE.
4.3 Regulatory Disclosures and Disclaimers.
You acknowledge that: (i) Vibrant does not offer securities-related services in the United States or to U.S. persons and is not registered with the U.S. Securities and Exchange Commission; (ii) Vibrant does not possess sufficient credentials to conduct transactions from any User’s Vibrant Wallet, whether denominated in XLM or any other digital asset; (iii) Vibrant is not a money transmitter or money service business and does not convert or transmit XLM or any other thing of value on anyone’s behalf; and (iv) Vibrant does not provide investment, financial, tax, or legal advice. The information and applications provided in connection with the Services does not constitute investment advice, financial advice, trading advice, or any other sort of advice, and should not be treated by any user as such. Vibrant makes no recommendation, and does not provide any advice about, the value of XLM or any other digital asset. Additionally, Vibrant and digital assets using the Stellar Network could be impacted by one or more regulatory inquiries or regulatory action, which could impede or limit the ability of Vibrant to continue to develop, or which could impede or limit your ability to access or use the Services or the Stellar Network.
4.4 Sophistication and Risk of Cryptographic Systems.
By utilizing the Services or interacting with the Vibrant Site or Stellar Network in any way, you represent that you understand the inherent risks associated with cryptographic systems, and you warrant that you have an understanding of the usage and intricacies of native cryptographic tokens, like XLM, public and private key management, and blockchain-based software systems.
4.5 Risk of Weaknesses or Exploits in the Field of Cryptography.
You acknowledge and understand that cryptography is a progressing field. Advances in code cracking or technical advances such as the development of quantum computers may present risks to digital assets and the Services, which could result in the theft or loss of your cryptographic tokens or property. To the extent possible, Vibrant intends to update the Services to account for any advances in cryptography and to incorporate additional security measures, but does not guarantee or otherwise represent full security of the system. By using the Service or accessing Content, you acknowledge these inherent risks.
4.6 Third Party Risks.
You understand that conducting transactions that involve the DEX, Anchors, or any KRSP will inherently carry risks associated with third parties that Vibrant does not and cannot control. You understand and acknowledge that the ability to transact with the DEX, with any Anchor, or with any KRSP via the Services does not mean that Vibrant endorses, supports, recommends, or makes any other representation regarding such Anchor, the DEX, or such KRSP. Unless expressly stated otherwise in this Agreement, Vibrant disclaims any and all liability arising from your use of Third-Party Services, your interaction with third parties, or any transactions you may conduct with third parties, whether via the Vibrant Site, the Services, or otherwise.
4.7 Volatility of Digital Assets.
You understand that the value of cryptocurrencies and blockchain tokens, including XLM and digital assets issued on the Stellar Network, are highly volatile due to many factors including but not limited to adoption, speculation, technology, and security risks, and you could lose all value. You also acknowledge that the cost of transacting on such technologies is variable and may increase at any time causing impact to any activities taking place on the Stellar Network. You acknowledge these risks and represent that Vibrant cannot be held liable for price fluctuations or increased costs.
4.8 Application Security.
You acknowledge that Stellar Network applications are code subject to flaws and acknowledge that you are solely responsible for evaluating any code provided by the Services and the trustworthiness of any third-party websites, products, smart-contracts, or content you access or use through the Services. You further expressly acknowledge and represent that Stellar Network applications can be written maliciously or negligently, that Vibrant cannot be held liable for your interaction with such applications, and that such applications may cause the loss of property or even identity. This warning and others provided by Vibrant in no way evidence or represent an ongoing duty to alert you to all of the potential risks of utilizing the Services.
4.9 Network Disruption.
In the event of a network disruption of the Stellar Network or any other applicable network, Vibrant or the Services may not be able to support activity related to your account on the Stellar Network. In the event of a network disruption, transactions may not be completed, or they may be completed partially, incorrectly completed, or substantially delayed. Vibrant is not responsible for any loss incurred by you, caused in whole or in part, directly or indirectly, by a fork or other network disruption.
You agree to defend, indemnify, and hold harmless Vibrant, its independent contractors, service providers, advisors, and consultants, and their respective directors, employees, and agents (altogether, the “Indemnitees”), from and against any Claims, damages, costs, liabilities, and expenses (including, without limitation, reasonable attorneys’ fees) arising out of or related to: (i) your use of the Services; (ii) your violation of the terms of this Agreement; (iii) your violation of any rights of another; (iv) your conduct in connection with the Services; or (v) your use of the Stellar Network, XLM, or any other digital asset. Some jurisdictions limit consumer indemnities, so some or all of the indemnity provisions above may not apply to you. If you are obligated to indemnify any of the Indemnitees, we reserve the right, in our sole discretion, to control any action or proceeding and to determine whether to settle and on what terms.
6. LIMITATION ON LIABILITY.
YOU AGREE THAT IN NO EVENT WILL YOU SEEK TO HOLD Vibrant, NOR WILL Vibrant BE LIABLE FOR, ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE, THE SERVICES, THE STELLAR NETWORK, THE VIBRANT WALLET, OR ANY DIGITAL ASSETS ASSOCIATED WITH THE SERVICES, INCLUDING, WITHOUT LIMITATION, YOUR USE OR INABILITY TO USE THE SERVICES; THE SECURE STORAGE OF YOUR PRIVATE USER KEYS OR OTHER RELEVANT CREDENTIALS; ANY CHANGES TO OR INACCESSIBILITY OR TERMINATION OF THE SERVICES; ANY DELAY, FAILURE, UNAUTHORIZED ACCESS TO, OR ALTERATION OF ANY TRANSMISSION OR DATA; ANY TRANSACTION OR AGREEMENT ENTERED INTO THROUGH THE SERVICES; ANY ACTIVITIES OR COMMUNICATIONS OF THIRD PARTIES; ANY LOSS OF VALUE FOR ANY DIGITAL ASSET; OR ANY DATA OR MATERIAL FROM A THIRD PERSON ACCESSED ON OR THROUGH THE SERVICES, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF TORT OR OTHERWISE, AND WHETHER OR NOT VIBRANT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON VIBRANT OR THE SERVICES, NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.IF YOU ARE DISSATISFIED WITH THE SERVICES, YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY WILL BE FOR YOU TO DISCONTINUE YOUR USE OF THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
7. INTELLECTUAL PROPERTY.
7.1 Our Proprietary Rights.
All title, ownership and intellectual property rights in and to the Services are owned by Vibrant or its licensors. You acknowledge and agree that the Services (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection, and arrangement thereof) are protected by copyright, trademark, and other intellectual property rights and laws of the United States and other applicable countries. You agree to abide by all applicable proprietary rights and laws, as well as any trademark or copyright notices or restrictions contained in this Agreement. These Terms of Service permit you to use the Services for your personal, non-commercial use only. Unless otherwise expressly indicated, you are prohibited from modifying, copying, displaying, distributing, transmitting, publishing, selling, licensing, creating derivative works from, or using any portions of the Services for commercial or public purposes without our express authorization or as expressly permitted by applicable copyright or trademark law.
Sunship, Inc., its logos, and any related product or service names, logos, or slogans, including, without limitation, the “Vibrant” name and design, contained herein are trademarks or service marks of Vibrant and may not be copied, imitated, or used, in whole or in part, except as expressly permitted in this Agreement or with the prior written permission of Vibrant. All other trademarks, names, or logos mentioned in connection with the Services are the property of their respective owners and may not be copied, imitated, or used, in whole or in part, without the written permission of the applicable trademark holder. The inclusion of any such reference does not constitute an approval, endorsement, or recommendation by us.
7.3 Limited License.
We grant you a limited, nonexclusive, nontransferable license to access and use the Services, Vibrant Site, and related content, materials, and information (collectively, “Content”) solely for purpose approved by Vibrant from time to time. Any other use of the Content is expressly prohibited and all other right, title, and interest in the Content is exclusively the property of Vibrant or its licensors. 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 Content, in whole or in part without the prior written consent of Vibrant. The Vibrant software application, including without limitation the Vibrant Site, the Content, and the Services, are not sold or transferred to you, and Vibrant and its licensors retain ownership of all copies of the software applications even after installation on your personal computers, mobile handsets, tablets, wearable devices, speakers and/or other devices. You agree to abide by our user guidelines and not to use the Services or any part thereof in any manner not expressly permitted by this Agreement. Except for the rights expressly granted to you in this Agreement, Vibrant grants no right, title, or interest to you in the Vibrant Site, the Content, or the Services. Notwithstanding anything herein to the contrary, nothing in the Terms entitles you to use, copy, fork, modify or create derivative works based on the Vibrant Site’s source code for commercial purposes without our prior written consent.
We welcome your feedback, comments, ideas, and suggestions for improvements to the Services (“Feedback”). You can submit Feedback by emailing us at firstname.lastname@example.org. You grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable, and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
8. PROHIBITED ACTIVITIES.
You agree that you will use the Services only for lawful purposes and in accordance with the terms of this Agreement and any user guidelines. It is your responsibility to determine whether you are subject to laws specific to your jurisdiction or otherwise that apply to and/or restrict your use of the Services, including transactions involving the Stellar Network, the DEX or any Anchor or KRSP including but not limited to any restricted activities, registration or reporting obligations. You agree that you are solely responsible for any and all acts and omissions that occur with regard to your use of the Services, and you agree not to engage in prohibited use of the Services. You will not, under any circumstances, do any of the following:
i. use the Services to defraud, threaten, harass, stalk, spam, abuse, or otherwise violate the legal rights (including rights of privacy and publicity) of others;
ii. act, or fail to act, in your use of Services, in a manner that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the U.S. or other countries);
iii. provide false, inaccurate, or misleading information;
iv. send, upload, download, or knowingly receive, use, or re-use any material which, in Vibrant’s discretion, is abusive, inappropriate or otherwise does not comply with the terms of this Agreement;
v. scrape or collect information from the Services, including about others, without prior consent from us;
vi. attempt to disrupt, interfere, damage, or gain unauthorized access to any parts of the Services or any other computer network, server, computer, or database connected to the Services, including without limitation the Stellar Network;
vii. impersonate or attempt to impersonate another person or entity including another user, Vibrant, a Vibrant employee, contractor, or director.
viii. disseminate, store, or transmit viruses, scareware, Trojan horses, or other malicious code or program;
ix. use the Services to engage in or support any phishing, spoofing, or similar attack;
x. use the Services to engage in or support fraudulent, unlawful, or x activity;
xi. engage in any abusive conduct including but not limited to farming of accounts or XLM;
xii. engage in any disruptive behavior or conduct that restricts or inhibits anyone’s use or enjoyment of the Services; or
xiii. or engage in any other activity deemed by Vibrant to be in conflict with the spirit or intent of the terms of this Agreement or that, as determined by us, may harm Vibrant or users of the Services, or may expose them to liability.
9. DISPUTE RESOLUTION.
9.1 Governing Law, Forum, and Venue.
This Agreement and any action related to it will be governed by the laws of the state of California in the United States, without regard to its conflict of laws provisions. If you are a User located in the United States or Canada, the terms in the “Special Arbitration Provision for United States or Canada Users” section below apply to you. If you are not located in the United States or Canada, you agree that you will resolve any claim you have with us relating to, arising out of, or in any way in connection with this Agreement, us, or our Services exclusively in the state courts located in the City and County of San Francisco, California, or federal court for the Northern District of California, and you agree to submit to the personal jurisdiction of such courts for the purpose of litigating all such grievances.
9.2 Special Arbitration Provision for United States or Canada Users.
If you are a user located in the United States or Canada, you and Vibrant agree to arbitrate any disputes, controversies, or claims (any of the foregoing, a “Claim”) arising from this Agreement or relating to the Services. ARBITRATION PREVENTS YOU FROM SUING IN COURT OR FROM HAVING A JURY TRIAL. You and Vibrant agree to the following:
i. NEITHER YOU NOR Vibrant WILL HAVE THE RIGHT TO LITIGATE A CLAIM IN COURT OR TO HAVE A JURY TRIAL ON A CLAIM, OR TO ENGAGE IN PRE-ARBITRATION DISCOVERY;
ii. Arbitration will only decide your or our Claim, and you may not consolidate or join the Claims of other persons who have similar Claims. YOU AGREE THAT YOU WILL NOT HAVE THE RIGHT TO PARTICIPATE AS A REPRESENTATIVE OR MEMBER OF ANY CLASS OF CLAIMANTS, OR AS A PRIVATE ATTORNEY GENERAL, PERTAINING TO ANY CLAIM COVERED OR ARISING FROM THESE TERMS OF SERVICE OR YOUR USE OF THE SERVICES;
iii. Each party will notify the other of any dispute within thirty (30) days of when the cause of dispute arises; and
iv. Each party will attempt informal resolution prior to any demand for arbitration.
If arbitration is chosen by any party, the following will apply:
i. Arbitration will be conducted confidentially by a single arbitrator in accordance with the JAMS Streamlined Arbitration Rules, unless your aggregated Claims are for $250,000 or more, in which case its Comprehensive Arbitration Rules shall apply;
ii. Arbitration will occur in San Francisco, California, and the arbitrator will apply applicable substantive law consistent with the Federal - Arbitration Act, 9 U.S.C. §§ 1 through 16, including but not limited to applicable statutes of limitation, and will honor claims of privilege recognized at law;
iii. The state or federal courts in San Francisco County, California have exclusive jurisdiction over any appeals of an arbitration award and over any suit between the parties not subject to arbitration;
iv. In any arbitration, the parties will not seek discovery from each other, and the arbitrator will not allow parties to engage in discovery; rather, each party will disclose the evidence supporting their positions at a mutually agreeable time and date prior to the final hearing;
v. At the request of either party, all arbitration proceedings will be conducted in the utmost secrecy and, in such case, all documents, testimony, and records will be received, heard, and maintained by the arbitrators in secrecy under seal, available for inspection only by the parties, their respective attorneys, and their respective experts, consultants, or witnesses who have agreed, in advance and in writing, to receive all such information as confidential to be used solely for purposes of the arbitration; and
vi. Other than class procedures and remedies discussed herein, the arbitrator has the authority to grant any remedy that would otherwise be available in court.
If the requirement to arbitrate and/or the prohibition against class actions and other Claims brought on behalf of third parties contained above is found to be unenforceable, then that language will be deemed to have been removed from this Agreement and the remaining obligations relating to arbitration will continue in full force and effect.
10.1 No Third-Party Beneficiaries.
No provision of this Agreement is intended, nor will be interpreted, to provide or create any third party beneficiary rights or any other rights of any kind in any user, client, customer, affiliate, or any party hereto or any other person unless specifically provided otherwise herein, and except as so provided, all provisions hereof will be personal solely between you and Vibrant.
This Agreement will be binding on your successors, heirs, personal representatives, and assigns. You may not assign, delegate, or transfer any of your rights or obligations under this Agreement without prior written consent of Vibrant, which may be withheld in Vibrant’s sole discretion for any reason or no reason. Vibrant may assign its rights and duties under this Agreement to any party at any time, in our sole discretion, without notice to you.
No waiver by Vibrant, whether by conduct or otherwise, of any term, provision, or condition set forth in this Agreement will be deemed a further or continuing waiver of such term, provision, or condition or a waiver of any other term, provision, or condition. Any failure or delay of Vibrant to assert a right or provision under this Agreement will not constitute a waiver of such right or provision.
If any provision of this Agreement is deemed unlawful, invalid, or otherwise unenforceable, then that provision, to the minimum extent necessary, will be eliminated and deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provisions.
10.5 Entire Agreement.
This Agreement constitutes the complete and exclusive statement of the agreement between you and Vibrant with respect to the Services and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, concerning the Services.
10.6 Termination, Suspension, and Survival.
Vibrant may terminate or suspend all or part of the Services and your access to the Vibrant Site immediately, without prior notice or liability, if you breach any of the terms or conditions of this Agreement. Upon termination of your access, your right to use the Services will immediately cease. All provisions of this Agreement which by their nature should survive termination will survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, dispute resolution, and limitations of liability. The provisions of this Agreement which, by their nature would reasonably survive any termination of this Agreement will survive, including without limitation provisions regarding indemnity, warranty disclaimers, limitation on liability, intellectual property, and dispute resolution.
10.7 Electronic Notices.
You consent to receive all communications, agreements, documents, receipts, notices, and disclosures electronically (collectively, our “Communications”) that we provide in connection with this Agreement and any Services. You agree that we may provide our Communications to you by posting them on the Vibrant Site or through the Services or by emailing them to you at the email address you provide in connection with using the Services. You should maintain copies of our Communications by printing a paper copy or saving an electronic copy. You may also contact our support team regarding questions about electronic communications at email@example.com.
10.8 Force Majeure.
If by reason in whole or in part of any Force Majeure Event Vibrant is delayed or prevented from complying with this Agreement, then such delay or non-compliance will not be deemed to be a breach of this Agreement, and no loss or damage will be claimed by you by reason thereof. “Force Majeure Event” means any event beyond the party’s reasonable control, including, but not limited to, flood, extraordinary weather conditions, earthquake, or other act of God, fire, war, disease, pandemic, insurrection, riot, labor dispute, accident, action of government, communications, power failure, failure in bank performance, network failure, epidemic, or equipment or software malfunction including network splits or “forks” or unexpected changes in a computer network upon which the Services rely.
It is your responsibility to determine what, if any, taxes apply due to your use of Services, including any transactions involving the Stellar Network, the DEX, or any Anchor, and it is your responsibility to report and remit the correct tax to the appropriate tax authority. Vibrant is not responsible for determining or informing you whether taxes apply to your transactions, or for collecting, reporting, withholding or remitting any taxes arising from any transactions, whether involving digital assets or real currency, associated with the Services.
10.10 Relationship of the Parties.
Nothing in this Agreement is intended to, nor will create any partnership, custodial arrangement, joint venture, agency, consultancy or trusteeship.
10.11 Technical Support.
We may supply electronic or other technical support services, but cannot guarantee immediate responses.
10.12 Contact Information.
For any purpose other than technical support requests, you may contact us by registered post or courier: Sunship, Inc. PO Box 192750, PMB 24194, San Francisco, CA 94119. For technical support requests only, you may email us at firstname.lastname@example.org.