TERMS AND CONDITIONS OF USE
Last Updated: May 13, 2022
Welcome to the Finestra Miner Support Page. (“Support Page”). This page is maintained as a service to our customers and for transitioning our customers who purchased the Finestra Miner from our previous distributor Cal-Chip Connected Devices. (collectively “Customer” or “You”).
These Terms and Conditions of Use (“Agreement”) is a legal agreement between You and Mimiq, Inc. (“Mimiq”, “Company”, “us”, “our”). By registering for any service provided on this Support Page You agree to be bound by all of the terms (the “Terms”) set forth in this Agreement.
PLEASE READ THE TERMS CONTAINED IN THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. PLEASE NOTE THAT THESE TERMS CONTAIN A BINDING AND MANDATORY ARBITRATION PROVISION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS AND LIMITS REMEDIES AVAILABLE TO YOU IN THE EVENT OF CERTAIN DISPUTES.
IF YOU DO NOT AGREE TO THE TERMS, PLEASE DO NOT REGISTER FOR ANY HTTPS://THEFINESTRA.COM/CAL-CHIP-TRANSITION/ SUPPORT SERVICE. The Terms are subject to change at any time, effective upon notice to You as set forth in Section 11.
BY CLICKING THE “I AGREE” BUTTON BELOW, YOU AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THE TERMS.
You further understand and agree that clicking or pressing on the “I agree” is the electronic equivalent of a written signature on this document.
1. IMPORTANT NOTICE REGARDING CAL-CHIP CONNECTED DEVICES
Please note that Cal-Chip Connected Devices is no longer Company’s authorized distributor for the Finestra Miner. All new Finestra Miner purchases shall be from Company’s own website and other authorized distributors at Company’s sole discretion and as stated on the applicable Company website.
2. CAL-CHIP PURCHASE, RETURN, REPLACEMENT OR CHARGEBACKS
If You have previously purchased Finestra Miner from Cal-Chip Connected Devices (“Cal-Chip Purchase”), You understand and agree that all purchase, return, replacement or chargebacks or other issues related to the Cal-Chip Purchase shall solely be handled by Cal-Chip, please refer to the link below for more information. Except as set forth in this Agreement, You understand and agree that Company shall in no way be responsible for resolving any issues or providing You any refund, replacement, chargeback or similar related to Cal-Chip Purchases.
3. LIMITED SUPPORT FOR CAL-CHIP PURCHASE
Company will offer You one year of free e-mail support for Your Cal-Chip Purchase, starting on the date of Your Cal-Chip Purchase (“Limited Support”).
You agree to indemnify, defend, and hold Mimiq and our officers, employees, managers, directors, customers, and agents (the “Indemnitees”) harmless from and against any and all costs, liabilities, losses and expenses (including but not limited to reasonable attorneys’ fees) resulting from any claim, suit, action, demand or proceeding brought by any third party against Mimiq and our Indemnitees arising from any of the following: (i) a breach of this Agreement; (ii) the negligence, fraud, or willful misconduct of You or Your employees, agents, or contractors; (iii) incorrect information provided by You in Your account or elsewhere; or (iv) a failure by You or Your employees, agents, contractors or invitees to comply with applicable laws and regulations.
Your access to and use of our Support Page or any content are at Your own risk. You understand and agree that our Support Page are provided to You on an “AS IS” and “AS AVAILABLE” basis. Without limiting the foregoing, to the maximum extent permitted under applicable law, WE DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. We make no warranty or representation and disclaim all responsibility and liability for: (i) the completeness, accuracy, availability, timeliness, security or reliability of our Support Page or any content; (ii) any harm to Your computer system, loss of data, or other harm that results from Your access to or use of our Support Page or any content; (iii) the failure to generate revenue from cryptocurrency mining or the loss of such revenue due to a phishing attack or due to the loss of password or keys associated with Your mining wallet (iv) the deletion of, or the failure to store or to transmit, any content and other communications maintained by our Support Page; and (v) whether our Support Page will meet Your requirements or be available on an uninterrupted, secure, or error-free basis. No advice or information, whether oral or written, obtained from us or through our Support Page will create any warranty or representation not expressly made herein.
MIMIQ DOES NOT REVIEW, VERIFY, REVISE, ENDORSE, OR OTHERWISE APPROVE ANY CONTENT CREATED OR POSTED BY OUR USERS, AND COMMUNICATED TO OTHER USERS OR THIRD PARTIES VIA OUR SUPPORT PAGE BUT MIMIQ WILL REMOVE CONTENT THAT VIOLATES ANY LAWS OR THIS AGREEMENT. UNDER NO CIRCUMSTANCES WILL MIMIQ BE LIABLE IN ANY WAY FOR ANY CONTENT CREATED OR POSTED BY OUR USERS FOR, INCLUDING, WITHOUT LIMITATION, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF SUCH CONTENT. THE CONTENT IS SOLELY CREATED BY OUR USERS, AND MIMIQ SPECIFICALLY DISCLAIMS ANY AND ALL ROLE WHATSOEVER WITH RESPECT TO THE CREATION OR POSTING OF SUCH CONTENT.
6. LIMITATION OF LIABILITY
You acknowledge and agree that in no event will Mimiq be liable to You or any third party for any indirect, punitive, exemplary, incidental, special, or consequential damages whether in contract, tort (including negligence), or otherwise arising out of this Agreement, or the use of, or the inability to use, our Support Page including, without limitation, any information made available through our, pursuant to this Agreement. In the event the foregoing limitation of liability is determined by a court of competent jurisdiction to be unenforceable, then the maximum liability for all claims of every kind will not exceed one times (1x) the aggregate of payments received under this Agreement. The foregoing limitation of liability will cover, without limitation, any technical malfunction, computer error or loss of data, and any other injury arising from the use of our Support Page. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. To the extent that Mimiq may not disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of Mimiq’s liability will be the minimum permitted under applicable law.
You may terminate this binding legal Agreement with Mimiq by providing thirty (30) days prior written notice, with a possible termination charge.
All sections, which by their nature and context are intended to survive the termination of this Agreement, will survive.
8. COPYRIGHT INFRINGEMENT/DMCA NOTICE
If You believe that any content on our Support Page or Support Page violates Your copyright, and You wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to the Digital Millennium Copyright Act of 1998 (“DMCA Takedown Notice”) must be provided to our designated Copyright Agent.
a. Your physical or electronic signature;
b. Identification of the copyrighted work(s) that You claim to have been infringed;
c. Identification of the material on our Support Page that You claim is infringing and that You request us to remove;
d. Sufficient information to permit us to locate such material;
e. Your address, telephone number, and email address;
f. A statement that You have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
g. A statement that the information in the notification is accurate, and under penalty of perjury, that You are either the owner of the copyright that has allegedly been infringed or that You are authorized to act on behalf of the copyright owner.
Mimiq’s Copyright Agent to receive DMCA Takedown Notices can be found here. You acknowledge that for us to be authorized to take down any content, Your DMCA Takedown Notice must comply with all the requirements of this Section. Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by Mimiq in connection with the written notification and allegation of copyright infringement.
This Agreement is only for Your benefit. You shall have no right to assign this Agreement or any benefits or obligation hereunder to any other party or legal entity. Any attempted assignment shall be void.
10. ANTI-BRIBERY AND EXPORT COMPLIANCE
You agree not to promote, approach, use, distribute, transfer, provide, sub-license, share with, or otherwise offer our Support Page in violation of any laws or this Agreement, including, without limitation, the United States Foreign Corrupt Practices Act, the UK Bribery Act and similar anti-corruption statutes in all jurisdictions. Without limiting the foregoing, You will not knowingly directly or indirectly export, re-export, transfer, make available or release (collectively, “Export”) our Support Page to any destination, person, entity or end-use prohibited or restricted under the US law without prior US government authorization to the extent required by the applicable export control regulations, including without limitation, to any parties listed on any of the denied parties lists or specially designated nationals lists maintained under the Export Administration Regulations or the Security, and the Foreign Asset Control Regulations (31 CFR 500 et seq.) administered by the US Department of Treasury, Office of Foreign Assets Control without appropriate US government authorization to the extent required by the applicable regulations.
We reserve the right, at our sole discretion, to change or modify this Agreement at any time. In the event, we modify the terms of this Agreement, such modifications shall be binding on You only upon Your acceptance of the modified Agreement. We will inform You about the modifications via email, if applicable or on our Support Page by posting a modified version of this page, or by a comparable means within a reasonable time period. Your continued use of our Support Page shall constitute Your consent to such changes.
12. RELATIONSHIP OF PARTIES
The parties hereto are independent contractors, and nothing contained herein shall be interpreted as creating any relationship other than that of independent contracting parties. The parties shall not be construed as being partners, joint ventures, shareholders, employer/employee, or agent/servant. The Customer has no power or authority to bind Mimiq to any obligation, agreement, debt or liability. The Customer shall not hold itself out as an agent or representative of Mimiq.
13. GOVERNING LAW
This Agreement shall be governed by the law of the State of Delaware, without respect to its conflicts of laws principles. Each of the parties to this Agreement consents to the exclusive jurisdiction and venue of the state and federal courts located in Santa Clara County, California for any actions not subject to Dispute Resolution and Arbitration provisions as set forth in Section 14.
14. DISPUTE RESOLUTION AND ARBITRATION
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH MIMIQ AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
a. Binding Arbitration
Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, You and Mimiq agree (a) to waive Your and Mimiq’s respective rights to have any and all Disputes arising from or related to this Agreement, use of our Support Page resolved in a court, and (b) to waive Your and Mimiq’s respective rights to a jury trial. Instead, You and Mimiq agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or a jury in court).
b. No Class Arbitrations, Class Actions or Representative Actions
You and Mimiq agree that any Dispute arising out of or related to these Terms or use or access of our Support Page is personal to You and Mimiq and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and Mimiq agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, You and Mimiq agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
c. Federal Arbitration Act
You and Mimiq agree that these Terms affect interstate commerce and that the enforceability of this Section shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.
d. Notice; Informal Dispute Resolution
You and Mimiq agree that each party will notify the other party in writing of any arbitral or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to Mimiq shall be sent by certified mail or courier to Mimiq at the street address provided here. Your notice must include (a) Your name, postal address, telephone number, the email address You use or used for Your Mimiq account and, if different, an email address at which You can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that You are seeking. Our notice to You will be sent electronically in accordance with this Agreement and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. If You and Mimiq cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either You or Mimiq may, as appropriate and in accordance with this Section, commence an arbitration proceeding.
EXCEPT FOR DISPUTES IN WHICH EITHER PARTY SEEKS TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT OR SEEKS INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, TRADEMARKS, TRADE NAMES, LOGOS, TRADE SECRETS OR PATENTS, YOU AND MIMIQ AGREE THAT ANY DISPUTE MUST BE COMMENCED OR FILED BY YOU OR MIMIQ WITHIN (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND MIMIQ WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE). You and Mimiq agree that (a) any arbitration will occur in Santa Clara County, California, (b) arbitration will be conducted confidentially by a single arbitrator in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section, and (c) that the state or federal courts of the State of California, have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. You may also litigate a Dispute in the small claims court located in the county of Your billing address if the Dispute meets the requirements to be heard in small claims court.
f. Authority of Arbitrator
As limited by the FAA, these Terms and the applicable AAA Rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitral, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding, or preside over any proceeding involving more than one individual. Notwithstanding anything to the contrary herein or the applicable AAA Rules, discovery in the arbitration shall be limited to one set of interrogatories, one set of requests for admissions, and one set of requests for production of documents.
The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. Mimiq and You agree that the prevailing party in the arbitration will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law.
g. Rules of AAA
The AAA Rules are available at www.adr.org/Rules or by calling the AAA at 1-800-778-7879. By agreeing to be bound by these Terms, You either (a) acknowledge and agree that You have read and understand the rules of AAA, or (b) waive Your opportunity to read the rules of AAA and any claim that the rules of AAA are unfair or should not apply for any reason.
If any term, clause or provision of this Section is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section will remain valid and enforceable. Further, the waivers set forth herein are severable from the other provisions of this Agreement and will remain valid and enforceable, except as prohibited by applicable law.
i. Opt-Out Right
YOU HAVE THE RIGHT TO OPT OUT OF BINDING ARBITRATION WITHIN THIRTY (30) DAYS OF THE DATE YOU FIRST ACCEPTED THE TERMS OF THIS SECTION BY WRITING TO MIMIQ AT THE STREET ADDRESS PROVIDED HERE. IN ORDER TO BE EFFECTIVE, THE OPT OUT NOTICE MUST INCLUDE YOUR FULL NAME AND CLEARLY INDICATE YOUR INTENT TO OPT OUT OF BINDING ARBITRATION. BY OPTING OUT OF BINDING ARBITRATION, YOU ARE AGREEING TO RESOLVE DISPUTES IN ACCORDANCE WITH SECTION 13.
I HAVE READ AND UNDERSTOOD THE AGREEMENT ABOVE AND AGREE TO BE BOUND BY ITS TERMS.