Terms of Use

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TERMS OF USE

BITS, an Emcee Invest, Inc. company (“BITS,” “we,” “us,” or “our”) welcomes you. We invite you to access and use our website and mobile applications (collectively, the “Platform”) subject to the following Terms of Use (the “Terms of Use”), which may be updated by us from time to time without notice to you. By browsing, accessing, or using the Platform, you acknowledge that you have read, understood, and agree to be legally bound by the terms and conditions of these Terms of Use and the terms and conditions of our privacy policy (the “Privacy Policy”), which is hereby incorporated by reference (collectively, this “Agreement”). If you do not agree to any of the terms of the Agreement, then please do not use the Platform or any portion thereof.

THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.

We reserve the right, at our sole discretion, to modify, discontinue, or terminate the availability of the Platform, or to modify the Agreement, at any time and without prior notice. If we modify the Agreement, we will post the modification on the Platform or provide you with notice of the modification at the last email address you gave us. By continuing to access or use the Platform after we have posted a modification on the Platform or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Agreement. If the modified Agreement is not acceptable to you, your only recourse is to cease using the Platform.

Capitalized terms not defined in these Terms of Use shall have the meaning set forth in our Privacy Policy.

1. ELIGIBILITY

The Platform is available for individuals aged 18 years or older. If you are 18 or older, but under the age of majority in your jurisdiction, you should review this Agreement with your parent or guardian to make sure that you and your parent or guardian understands it. We reserve the right, in our sole and absolute discretion, to deny you access to the Platform or any portion thereof, without notice and without reason.

2. OPENING AN ACCOUNT

If you wish to create an account on the Platform, you will be prompted to enter your name, address, date of birth, email address, a password, and perhaps provide certain additional information that will assist in authenticating your identity when you log-in in the future (such as security questions). You will also be required to link your bank account to your BITS account using our third-party service provider. BITS does not collect your bank account information or Transactions (as defined below) directly; such information is transmitted to BITS via our third-party service provider (please see our Privacy Policy for more information about how we collect, use, transfer, and process personal information).

When creating your account, you must provide true, accurate, current, and complete information. Each account can be used by only one individual. You are solely responsible for the confidentiality and use of your log-in information, as well as for any use, misuse, or communications entered through the Platform using your log-in information. We reserve the right to decline to open your account for any reason. We further reserve the right to delete your account or require you to change your password at any time and for any reason and shall have no liability to you for any loss or damage caused by such action (provided that you will not lose any stock owned by you in the deletion of your account).

In order to use certain features of the Platform, you will be required to open and maintain an account with a participating third-party broker-dealer (a “Brokerage Account”). Your Brokerage Account is subject to a separate agreement directly between you and the applicable third-party broker-dealer. BITS does not process any Transactions, or award any Stock Rewards (defined below) unless and until you have opened and linked your Brokerage Account; provided, however, that any Transactions made in the one-week period prior to your opening and linking a Brokerage Account (so long as you have opened an account with BITS) will be processed at the time you link your Brokerage Account to the Platform.

When you make purchases with Brands (“Transactions”), you will earn rewards in accordance with Section 3 below. Currently, we are offering this program at no cost to you. In the future, you may upgrade to our premium version for a fee, which will permit you to increase your Brands, and enjoy additional features and functionalities of our Platform, such as monthly market reports, retirement accounts, and more.

3. TRANSACTIONS; STOCK REWARDS

Once you have opened a Brokerage Account, you will be eligible to start earning fractional shares of securities (aka “stock”) based on Transactions you make with your Brands (“Stock Rewards”). Upon making a Transaction with one of your Brands, a percentage of that Transaction shall be automatically deposited into your BITS account (the percentage will vary depending on the Brands, and will be made available for you to see prior to making your selections). In order to earn Stock Rewards, you must accumulate a minimum balance in your account per brand (“Thresholds”) (each minimum is set on a per-brand basis and is communicated to you through the Platform). When you’ve met the applicable threshold, you will be prompted to select one of your Selected Brands in which to purchase shares of stock. BITS will purchase securities in aggregate on behalf of customers on a daily basis (at 3:00 pm EST each day, subject to change by BITS at its discretion upon modification of these Terms of Use), by submitting an order to its clearing agent, DriveWealth (“Clearing Agent”). Once the purchase is completed, your portion of the securities purchased (your Stock Rewards) will be transferred into your BITS account.

Soon, you will be able to sell your securities at any time by entering a sell order with BITS via the Platform. All proceeds from sales will go into your BITS account. If you wish to withdraw funds, you must provide electronic payment instructions for your bank account. You understand that certain types of payment card rewards and dividends may have tax implications and that all tax liabilities are your responsibility. Dividends earned from your Stock Rewards are automatically reinvested by BITS on your behalf, or otherwise transferred to your account. Before accepting a Stock Reward, or selling any securities, you are urged to consult your own tax advisor with respect to the tax consequences of your participation in the BITS services. Please be advised that BITS charges $1.00 per ACH transfer from you Brokerage Account to your bank account.

BITS reserves the right to limit the amount of money you can earn from Transactions, or the amount that you are entitled to spend on Stock Rewards within certain periods of time, or may implement other restrictions related to Stock Rewards. If you attempt to use or earn Stock Rewards in a fraudulent or otherwise illegal way, we may cancel all unused dollar amounts in your account and cancel your account without liability to you.

You can access information about your account, including the Stock Rewards in your account and the status and history of your Transactions, via the Platform.

4. RISKS AND DISCLAIMERS.

IN ANY SECURITIES TRANSACTION, BITS GENERALLY WILL BE ACTING AS YOUR AGENT OR BROKER. YOU UNDERSTAND THAT WE AND OUR REGISTERED PERSONNEL WILL MAKE NO RECOMMENDATIONS ABOUT ANY SECURITIES AND WILL NOT DISCUSS THE APPROPRIATENESS OF ANY TRANSACTION WITH, OR THE SECURITIES OF, ANY OF YOUR SELECTED BRANDS, AND WILL NOT PROVIDE ANY TAX, ACCOUNTING, OR LEGAL ADVICE. YOU ACKNOWLEDGE THAT ALL INVESTMENT DECISIONS ARE MADE SOLELY BY YOU.

AS WITH ALL EQUITY SECURITIES, THE SECURITIES REWARDED THROUGH THE PROGRAM MAY GAIN OR LOSE VALUE AND THERE IS A RISK THAT THEY COULD LOSE ALL OF THEIR VALUE. BITS IS NOT LIABLE FOR LOSS DUE TO MARKET FLUCTUATIONS. THE PARTICIPATING BRANDS MAY CHANGE OR TERMINATE THEIR PARTICIPATION IN THE PROGRAM OR AWARDS PROVIDED UNDER THE PROGRAM, AT ANY TIME. ALTHOUGH YOU WILL NOT BE ABLE TO REDEEM OR PURCHASE NEW SHARES IF ONE OF YOUR SELECTED BRAND’S PARTICIPATION IN THE PROGRAM IS TERMINATED, YOU WILL BE ABLE TO RETAIN THE SHARES OF THAT BRAND’S SECURITIES YOU HAVE RECEIVED OR PURCHASED IN YOUR BITS ACCOUNT AND BE ABLE TO SELL SUCH SHARES AS DESCRIBED HEREIN.

BITS DOES NOT COLLECT ANY FUNDS, EXECUTE ANY TRANSACTIONS, OR OTHERWISE ACT AS A BROKER-DEALER, MONEY TRANSMITTER, MONEY SERVICES BUSINESS, BANK ACCOUNT, BROKERAGE ACCOUNT, OR OTHER FINANCIAL ACCOUNT. BITS MERELY COMMUNICATES YOUR TRANSACTIONS TO BROKER-DEALERS THAT COMPLETE THE SECURITY PURCHASES ON YOUR BEHALF. ALTHOUGH YOU MAY BE ABLE TO FIND INFORMATION ABOUT INVESTMENT OPPORTUNITIES THROUGH OUR PLATFORM, WE ARE NOT A PARTY TO ANY TRANSACTION REGARDING ANY SUCH OPPORTUNITY. WE STRONGLY RECOMMEND THAT IN CONNECTION WITH EACH SECURITY TRANSACTION, YOU CONDUCT YOUR OWN DUE DILIGENCE.

ALL MESSAGES SENT USING BITS’S PLATFORM ARE SELF-DIRECTED BY YOU TO YOUR BROKER-DEALER. ALL ORDERS ARE EXECUTED BY BROKER-DEALERS AND BITS IS NOT RESPONSIBLE FOR THE ORDER ROUTING OR EXECUTION OF ANY TRANSACTION. ANY CONFIRMATIONS OF SUCH TRANSACTION WILL BE ISSUED SOLELY BY YOUR BROKER-DEALER. BITS AND ANY OF ITS AFFILIATES, EMPLOYEES, AGENTS, PRINCIPALS, OR REPRESENTATIVES DO NOT PROVIDE RECOMMENDATIONS OF ANY TRANSACTION, PROVIDE INVESTMENT ADVICE, OR PRODUCE OR PROVIDE RESEARCH TO ANY USER REGARDING ANY TRANSACTION. WE MAKE NO, AND HEREBY DISCLAIM ALL, REPRESENTATIONS, WARRANTIES, CLAIMS, AND ASSURANCES AS TO ANY INVESTMENT OR TRANSACTION.

5. YOUR OBLIGATIONS; RESTRICTIONS ON USE

You agree immediately to notify us if you:

Become aware of any loss or theft of your account, password, or any other security codes.
Become aware of any unauthorized use of your account, password, or any other security codes.
Change your email address, residential address, or any other information that you have provided to BITS via the Platform.
You become subject to back up withholding by the Internal Revenue Service or any other taxing agency.
You no longer fit the eligibility requirements of Section 1.

By accessing and/or using the Platform, you hereby agree to comply with the following:

You will not use the Platform for any unlawful purpose and you will comply with all applicable laws when using the Platform including, but not limited to, the Securities Exchange Act of 1934, as amended;
You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
You will not decompile, reverse engineer, or disassemble any software or other products or processes accessible through the Platform;
You will not cover, obscure, block, or in any way interfere with any advertisements and/or safety features on the Platform;
You will not circumvent, remove, alter, deactivate, degrade, or thwart any of the protections in the Platform;
You will not use automated means, including spiders, robots, crawlers, data mining tools, or the like to download or scrape data from the Platform, directly or indirectly, except for Internet search engines (e.g., Google) and non-commercial public archives (e.g., archive.org) that comply with our robots.txt file;
You will not access or use the Platform to collect any market research for a competing business;
You will not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure; and
You will not interfere with or attempt to interrupt the proper operation of the Platform through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any data, files, or passwords related to the Platform through hacking, password or data mining, or any other means.

We reserve the right, in our sole and absolute discretion, to deny you (or any device) access to the Platform, or any portion thereof, without notice.

6. CONFIRMATIONS AND STATEMENTS

You will receive trade confirmations and statements generated by our Clearing Agent and will be able to access them on the Platform. If you find an error or discrepancy relating to your brokerage activity, you must notify us promptly after the confirmation or statement is made available to you. Any oral communications regarding inaccuracies or discrepancies should be reconfirmed in writing to protect your rights, including those under the Securities Investor Protection Act (or SIPA). For discrepancies related to electronic fund transfers, please contact your financial institution. You agree that BITS will not be liable to you for any losses arising in connection with your delay in properly reporting an error, including but not limited to, losses resulting from market fluctuations.

7. INTELLECTUAL PROPERTY

The Platform is protected by copyright, trademark, and other laws of the United States and foreign countries. Except as expressly provided in these Terms of Use, BITS and its licensors exclusively own all right, title, and interest in and to the Platform, including all associated intellectual property rights. You will not remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Platform.

You may view all content on the Platform (the “Content”) for your own internal business use and not for any other use, including any commercial use, without the prior written consent of BITS. We, and our licensors, retain all right, title, and interest, including all intellectual property rights, in and to the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of the Content on any other website, social media page, or in a networked computer environment for any purpose is expressly prohibited.

If you violate any part of this Agreement, your permission to access the Platform automatically terminates and you must immediately destroy any copies you have made of the Platform.

The trademarks, service marks, and logos of BITS (the “BITS Trademarks”) used and displayed on the Platform are registered and unregistered trademarks or service marks of BITS. Other company, product, and service names located on the Platform may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with BITS Trademarks, the “Trademarks”). Nothing on the Platform should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any website is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of BITS Trademarks inures to our benefit.

Elements of the Platform are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including, but not limited to, the use of framing or mirrors. None of the Content may be retransmitted without our express, written consent for each and every instance.

8. FEEDBACK

We welcome and encourage you to provide feedback, comments, and suggestions for improvements to the Platform and our services (“Feedback”). Although we encourage you to e-mail us, we do not want you to, and you should not, e-mail us any content that contains confidential information. With respect to any Feedback you provide, we shall be free to use and disclose any ideas, concepts, know-how, techniques, or other materials contained in your Feedback for any purpose whatsoever, including, but not limited to, the development, production and marketing of products and services that incorporate such information, without compensation or attribution to you.

9. NO WARRANTIES; LIMITATION OF LIABILITY

THE PLATFORM AND OUR SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND NEITHER BITS NOR OUR SUPPLIERS MAKE ANY WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, AND BITS HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT BITS AND BITS’S SUPPLIERS MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.

NO MATERIAL AVAILABLE THROUGH THE PLATFORM SHALL BE USED OR CONSIDERED AS AN OFFER TO SELL OR A SOLICITATION OF ANY OFFER TO BUY THE SECURITIES OR PRODUCTS OR SERVICES OF ANY ENTITY. BITS PROVIDES NO INVESTMENT OR OTHER ADVICE, AND NO INFORMATION OR MATERIAL AVAILABLE THROUGH US IS TO BE RELIED UPON FOR THE PURPOSE OF MAKING OR COMMUNICATING INVESTMENT OR OTHER DECISIONS. IN MAKING AN INVESTMENT DECISION, YOU MUST RELY ON YOUR OWN EXAMINATION OF THE INVESTMENT AND THE TERMS OF THE OFFERING. WE DO NOT ADVISE ON THE TAX CONSEQUENCES OF ANY INVESTMENT. TO THE EXTENT THAT PAST PERFORMANCE IS AVAILABLE THROUGH THE PLATFORM, PAST PERFORMANCE IS NOT INDICATIVE OF FUTURE RESULTS, AND NO REPRESENTATION IS BEING MADE THAT ANY INVESTMENT WILL OR IS LIKELY TO ACHIEVE PROFITS OR LOSSES SIMILAR TO THOSE ACHIEVED IN THE PAST, OR THAT SIGNIFICANT LOSSES WILL BE AVOIDED.

IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) WE SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE PLATFORM OR ANY RELATED SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY DIRECT DAMAGES THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE PLATFORM OR ANY RELATED SERVICES SHALL BE LIMITED TO ONE HUNDRED DOLLARS ($100).

SOME JURISDICTIONS, INCLUDING THE STATE OF NEW JERSEY, DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CERTAIN LIMITATIONS OF LIABILITY. THEREFORE, SOME OF THE ABOVE LIMITATIONS AND DISCLAIMERS IN THIS SECTION MAY NOT APPLY TO YOU.

NOTHING IN THESE TERMS OF USE SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU.

10. EXTERNAL SITES

The Platform may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.

11. INDEMNIFICATION

You will indemnify, defend, and hold BITS, its Affiliates, and our and their respective shareholders, members, officers, directors, employees, agents, and representatives (collectively, “BITS Indemnitees”) harmless from and against any and all damages, liabilities, losses, costs, and expenses, including reasonable attorney’s fees (collectively, “Losses”) incurred by any BITS Indemnitee in connection with a third-party claim, action, or proceeding (each, a “Claim”) arising from (i) your use of the Platform or related services in violation of this Agreement; (ii) your breach of any of your representations and warranties hereunder; or (iii) your gross negligence or willful misconduct; provided, however, that the foregoing obligations shall be subject to our: (x) promptly notifying you of the Claim; (y) providing you, at your expense, with reasonable cooperation in the defense of the Claim; and (z) providing you with sole control over the defense and negotiations for a settlement or compromise. “Affiliate” means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.

12. COMPLIANCE WITH APPLICABLE LAWS

The Platform is based in the United States. We make no claims concerning whether the Platform may be viewed or be appropriate for use outside of the United States. If you access the Platform from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.

13. CONSENT TO ELECTRONIC DELIVERY AND COMMUNICATIONS; RECORDING COMMUNICATIONS

You consent to the receipt of all reports, transaction related documentation, account statements, correspondence and other information from us electronically (collectively, “Electronic Communications”) through either the Platform or the email address provided by you to BITS. In order to access and retain electronic disclosures from us, you confirm that you have (i) a mobile phone, (ii) internet access and a valid email account supported by software to enable you to receive email messages, and (iii) sufficient electronic storage capacity to store disclosures or a printer capable of printing your electronic disclosures. You may update your email address at any time by logging into your account and updating your profile accordingly. BITS will not be responsible for your inability to connect to the internet or to access the Platform or otherwise not to receive Electronic Communications. Electronic Communications are presumed to be delivered to and received by you when sent by us, whether actually received or not. You acknowledge that you have access to hardware and software meeting the system requirements set forth above to receive from us correspondence and records in electronic form and consent to check the Platform regularly for Electronic Communications. With your consent, certain Electronic Communications may also be made by text messages; however, email and messages through the mobile application will be our primary methods of contact. If you decide to withdraw your consent to electronic delivery and communication, you will be deemed to have terminated your BITS account.

If your email address becomes invalid such that Electronic Communications sent to you by BITS are returned, we may deem your account to be inactive, and you will not be able to transact in your account or receive Stock Rewards until we receive a valid, functioning primary email address.

BITS reserves the right to record all telephone calls, chat, emails, and other communications to BITS to help us with the quality of our service, to satisfy regulatory requirements and for any other reasons that we deem appropriate to protect our customers or BITS.

14. MODIFICATIONS; TERMINATION OF THE AGREEMENT

We reserve the right, in our sole discretion, to modify, update, or enhance the Platform from time to time, but has no duty to do so. We may also discontinue any available service to any person at any time without prior notice and may, in its sole discretion, remove particular programs supported by the Platform.

We reserve the right, in our sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Platform, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the Platform at any time without prior notice or liability.

15. BINDING ARBITRATION

In the event of a dispute arising under or relating to this Agreement or the Platform (each, a “Dispute”), either party may elect to finally and exclusively resolve the dispute by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other party. IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator selected jointly by the parties, whose decision will be final, except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by JAMS pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative, and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in the United States county where you reside. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. As set forth in Section 17 below, nothing in this Agreement will prevent us from seeking injunctive relief in any court of competent jurisdiction as necessary to protect our proprietary interests.

16. CLASS ACTION WAIVER

You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.

17. EQUITABLE RELIEF

You acknowledge and agree that in the event of a breach or threatened violation of our intellectual property rights and confidential and proprietary information by you, we will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement. We may, without waiving any other remedies under this Agreement, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect our rights and property pending the outcome of the arbitration referenced above. You hereby irrevocably and unconditionally consent to the personal and subject matter jurisdiction of the federal and state courts in the State of New York, Borough of Manhattan for purposes of any such action by us.

18. CONTROLLING LAW; EXCLUSIVE FORUM

The Agreement and any action related thereto will be governed by the laws of the State of New York without regard to its conflict of laws provisions.

19. DOWNLOADING THE PLATFORM FROM THE APPLE APP STORE:

With respect to any application (including the Platform) accessed through or downloaded from the Apple, Inc. (“Apple”) application store, you shall use the application only: (i) on an Apple-branded product that runs iOS (Apple’s proprietary operating system software); and (ii) as permitted by the “Usage Rules” set forth in the App Store Terms of Service.

The following terms apply to the Platform when downloaded from the Apple App Store:

Acknowledgement: You acknowledge and agree that (i) these Terms of Use are concluded between BITS and you only, and not Apple, and (ii) BITS, not Apple, is solely responsible for the Platform and the content thereof. Your use of the Platform must comply with the Apple App Store Terms of Service.

Maintenance and Support: BITS is solely responsible for providing any maintenance and support services with respect to the Platform, as specified in herein, or as required under applicable law. You and BITS acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Platform.

Warranty: BITS is solely responsible for any product warranties, whether express or implied, to the extent not effectively disclaimed. In the event of any failure of the Platform to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price (if any) for the Platform to you, and; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Platform, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty not otherwise disclaimed by BITS will be the sole responsibility of BITS.

Product Claims: BITS and you acknowledge that BITS, not Apple, is responsible for addressing any of your claims or any third party relating to the Platform or your possession and/or use of the Platform, including, but not limited to: (i) product liability claims; (ii) any claim that the Platform fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation.

Intellectual Property Rights: BITS and you acknowledge that, in the event of any third party claim that the Platform or your possession and use of the Platform infringes that third party’s intellectual property rights, Apple is not, under any circumstances, responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. You may contact BITS in such event.

Legal Compliance: You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

Third Party Beneficiary: BITS and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Use, and that, upon your acceptance of these Terms of Use, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Use against you as a third party beneficiary thereof.

20. MISCELLANEOUS

If the Agreement is terminated for any reason including, without limitation, cancellation by you of your account or cancellation by BITS for any reason or no reason, such termination shall not affect the validity of the following provisions of this Agreement, which shall remain in full force and effect: “Risks and Disclaimers,” “Intellectual Property,” “Feedback,” “No Warranties; Limitation of Liability,” “Indemnification,” “Compliance with Applicable Laws,” “Binding Arbitration,” “Class Action Waiver,” “Equitable Relief,” “Controlling Law; Exclusive Forum,” and “Miscellaneous.”

Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you in writing, the Agreement constitutes the entire agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.