Terms of Service

These Terms of Service are entered into between you and TwoND, Inc., d/b/a “Second” (“Company”, “us”, “our”, and “we”). Certain features of the Services (as defined below) may be subject to additional guidelines, terms, or rules, which will be posted on our website or otherwise made available in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into these Terms. We operate publicly accessible server infrastructure implementing the Ark protocol, the Lightning gateway integrated with that server, and related test-network infrastructure, developer tools, and community resources made available by us (collectively, the “Services”), as further described in Section 1.

These Terms of Service (these “Terms”) set forth the legally binding terms and conditions that govern your use of the Services. By accessing or using the Services, you are accepting these Terms (on behalf of yourself or the entity that you represent), and you represent and warrant that you have the right, authority, and capacity to enter into these Terms (on behalf of yourself or the entity that you represent). You may not access or use the Services or accept the Terms if you are not at least 16 years old (or, if higher, the age of legal majority in your jurisdiction). If you do not agree with all of the provisions of these Terms, do not access and/or use the Services.

PLEASE BE AWARE THAT SECTION 8.2 CONTAINS PROVISIONS GOVERNING HOW TO RESOLVE DISPUTES BETWEEN YOU AND US. AMONG OTHER THINGS, SECTION 8.2 INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US SHALL BE RESOLVED BY BINDING AND FINAL ARBITRATION. SECTION 8.2 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ SECTION 8.2 CAREFULLY.

UNLESS YOU OPT OUT OF THE AGREEMENT TO ARBITRATE WITHIN 30 DAYS: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.

1. The Services; Wallets; Self-Custody

1.1 The Services

We provide software and infrastructure for making self-custodial bitcoin payments using the Ark protocol. The “Services” are the software, infrastructure, tools, and resources that we operate or otherwise make available implementing or supporting the Ark protocol, including without limitation any Ark server operated by us, the Lightning gateway integrated with that server, our test-network (signet) server, faucet, and test store, and the developer documentation and community resources that we make available. The Services do not include third-party products and services described in Section 1.12, even where they embed our software or connect to the Services. Test-network services are provided for testing and development purposes only, test-network (signet) bitcoin has no monetary value, and we may reset, modify, or discontinue test-network services at any time. We may add to, modify, or discontinue features of the Services as described in Section 2.3. The Services do not include our open-source software (see §8.4)

1.2 Users

These Terms apply to anyone who accesses or uses the Services (each, a “User”). Users include: (a) any person who connects wallet software to an Ark server operated by us or otherwise transacts through the Services (an “End User”); and (b) any person who develops, distributes, or operates an application, wallet, or other product or service that connects to or integrates with the Services, including by embedding our software to do so (a “Developer”). A person may be both an End User and a Developer. References to “you” mean the applicable User. These Terms govern your access to and use of the Services.

1.3 No Accounts; Wallet Connections

The Services do not require you to register an account with us. You access the Services by connecting wallet software—whether software published by us or a third-party application—to an Ark server operated by us. Each time you connect to or transact through the Services, you reaffirm your acceptance of these Terms. The current version of these Terms will be posted at https://second.tech/terms (or a successor location designated by us). You are responsible for your choice of wallet software, including any third-party application that embeds our software.

1.4 Keys; Backups; No Recovery

Your cryptographic private keys are generated and stored on your own device by your wallet software. We do not have access to, do not store, and cannot recover your private keys, seed phrase, or wallet database. If you lose them, you may permanently lose access to your bitcoin, including bitcoin withdrawn on-chain in an emergency exit that has not yet been claimed. You are solely responsible for securing and backing up your keys and wallet data, and we will have no liability for any loss arising from your failure to do so.

1.5 Self-Custody; No Custody or Fiduciary Duties

The Services are designed so that you retain control of your bitcoin. Bitcoin you hold through the Ark protocol is held in virtual transaction outputs (“VTXOs”) that you can withdraw to the bitcoin blockchain without our cooperation using the emergency exit mechanism. Operations performed through the Services (including payments, boards, offboards, refreshes, and Lightning payments) are designed to execute atomically, so that your bitcoin is not spent unless the corresponding operation completes. We do not provide deposit or other financial accounts; do not take custody or control of bitcoin held in VTXOs; do not act as your agent, trustee, or intermediary; and do not buy bitcoin from you or sell bitcoin to you, and do not exchange bitcoin on your behalf. Where you use the Lightning gateway, we are not and do not act as your agent, broker, fiduciary, or intermediary. Bitcoin is not legal tender and is not backed by any government. Bitcoin you hold in VTXOs is not a deposit or other obligation of, and is not guaranteed by, us or any bank, and is not insured by the Federal Deposit Insurance Corporation, the Securities Investor Protection Corporation, or any other public or private insurer. These Terms do not create, and to the fullest extent permitted by applicable law we expressly disclaim, any fiduciary duties owed to you.

1.6 VTXO Expiry; Renewal; Expired VTXOs

Every VTXO has a built-in expiry set when it is created. Expiry periods are determined by the server configuration in effect at the time of creation, are visible to your wallet software, and differ by VTXO type—some types, including VTXOs created by incoming Lightning payments, expire materially sooner than others. Before a VTXO expires, you must spend it, renew (refresh) it, offboard it, or complete an emergency exit, in each case in accordance with the protocol. Wallet software is generally designed to renew VTXOs automatically while online, but it is your responsibility to ensure that your wallet comes online frequently enough to do so. UPON EXPIRY OF A VTXO, THE PROTOCOL PERMITS THE OPERATOR OF THE APPLICABLE ARK SERVER TO SWEEP THE BITCOIN ASSOCIATED WITH THAT VTXO. IF YOUR WALLET REMAINS OFFLINE OR INACTIVE FOR TOO LONG AND A VTXO EXPIRES, ANY BITCOIN REMAINING IN IT MAY BE CLAIMED BY US, AND WE HAVE NO OBLIGATION TO RETURN IT TO YOU, ALTHOUGH WE MAY ELECT TO DO SO IN OUR SOLE DISCRETION. WE WILL HAVE NO LIABILITY FOR ANY LOSS ARISING FROM THE EXPIRY OF A VTXO.

1.7 Fees

Your use of the Services is subject to the fees published by us at https://second.tech/pricing (or any successor location we designate) (the “Fee Schedule”), which is incorporated into these Terms by reference. Fees are denominated in bitcoin and are deducted from, or charged in connection with, the applicable operation. We may modify the Fee Schedule at any time by posting an updated version; changes apply prospectively to operations initiated after posting. Bitcoin network (on-chain) transaction fees are charged by third parties, vary with network conditions, are not controlled by us, and are not refundable by us. Where we make such functionality available, a third-party application or integrator through which you access the Services may charge its own fees in addition to our fees; any such fees are set, charged, and disclosed by that third party, are not set or controlled by us, and are not received or refundable by us.

1.8 Lightning Gateway

The Services permit you to send and receive payments over the Lightning Network through Lightning infrastructure operated by or for us. Lightning operations are designed to settle atomically, so that your bitcoin is not spent unless the corresponding Lightning payment is delivered and, if a payment fails, your bitcoin is returned to you in accordance with the protocol. We do not guarantee that any Lightning payment can be routed or that it will be delivered within any particular time. Certain operations, including claiming an incoming Lightning payment, are time-sensitive: your wallet must come online before the relevant protocol time-locks lapse, and incoming payments that are not timely claimed may be returned to the sender.

1.9 Eligibility; Sanctions; Blocking

You represent and warrant, on each occasion you access or use the Services, that: (a) you are not located or ordinarily resident in, organized under the laws of, or accessing the Services from any country or region that is the subject of comprehensive U.S. sanctions or embargoes administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”), or any other country or region that is the subject of comprehensive sanctions or embargoes administered by the United States, the United Kingdom, the European Union, or the United Nations (each, a “Restricted Territory”); (b) you are not, and are not owned or controlled by or acting on behalf of, a person identified on any sanctions-related list maintained by any of the foregoing, including the U.S. Treasury Department’s List of Specially Designated Nationals; (c) you will not use the Services to transact, directly or indirectly, with any such person or in any Restricted Territory; and (d) you will not use a virtual private network or other means of disguising your location in order to circumvent the foregoing. We may, in our sole discretion and without notice or liability, refuse to process or participate in any operation, block access from any region or IP address, decline to co-sign transactions to or from any bitcoin address, or suspend the Services in whole or in part, including where we believe that doing so is required by applicable law. No such refusal or suspension limits your ability to access your bitcoin using the emergency exit mechanism, subject always to VTXO expiry under Section 1.6. We may also restrict, suspend, or discontinue the availability of the Services, in whole or in part, in any jurisdiction where we determine that offering the Services is or may become subject to licensing, registration, or other regulatory requirements, or is otherwise restricted under applicable law.

1.10 Assumption of Risk

You acknowledge and accept the risks of using self-custodial bitcoin payment infrastructure, including that: (a) our software and the Services are under active development, may be designated beta or experimental, and may contain bugs or errors—do not transact with more bitcoin than you are prepared to lose; (b) certain operations carry temporary trust assumptions under the protocol until the resulting VTXO is refreshed, including payments received outside of a refresh round and incoming Lightning payments; (c) completing an emergency exit requires paying bitcoin network fees for each transaction in the exit path, which may exceed the value of small balances and make them uneconomical to recover; (d) bitcoin transactions are irreversible, and we cannot reverse, recall, or refund a completed operation; (e) the price of bitcoin is volatile; (f) the bitcoin network and the Lightning Network are public networks subject to congestion, fee volatility, forks, and protocol changes outside our control; and (g) the legal and regulatory treatment of bitcoin and layer-two protocols is uncertain and may change in ways that adversely affect the Services. All use of the Services is at your own risk.

1.11 No Advice; Taxes

We do not provide financial, investment, legal, tax, or accounting advice. Nothing in the Services or in any of our communications is a recommendation to buy, sell, or hold bitcoin or any other asset. You are solely responsible for determining, reporting, and paying any taxes that apply to your transactions.

1.12 Third-Party Wallets; Developers

Wallet applications and other products or services built by third parties—including those that embed our open-source software or connect to the Services—are not provided by us, are not under our control, and are governed by their own terms, and we are not responsible for them. You may not represent that your application is provided, sponsored, or endorsed by us without our prior written consent.

2. Access to the Services

2.1 License

Subject to these Terms, we grant you a non-transferable, non-exclusive, revocable, limited license to use and access the Services for purposes permitted by these Terms, including your personal use, your internal business use, and (if you are a Developer) the development and operation of applications that interoperate with the Services (subject to Section 1.12).

2.2 Acceptable Use

You will use the Services only for lawful purposes. You shall not, and shall not permit any third party to: (a) use the Services in violation of Section 1.9 or any applicable law; (b) use the Services in connection with any bitcoin that you know or reasonably should know constitutes the direct or indirect proceeds of unlawful activity; (c) interfere with or attempt to disrupt the operation of the Services, including by placing an unreasonable load on our infrastructure; (d) circumvent or attempt to circumvent any geographic, address-based, or other access restriction implemented by us; (e) attempt to gain unauthorized access to any of our non-public systems; or (f) misrepresent your affiliation with us. Any violation of the foregoing is grounds for suspension or termination under Section 7.

2.3 Modification

We reserve the right, at any time, to modify, suspend, or discontinue the Services (in whole or in part) with or without notice to you. You agree that we will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Services or any part thereof.

2.4 No Support or Maintenance

You acknowledge and agree that we will have no obligation to provide you with any support or maintenance in connection with the Services.

2.5 Ownership

You acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Services and our content (including our website, documentation, and other materials) are owned by us or our suppliers. Neither these Terms (nor your access to the Services) transfers to you or any third party any right, title, or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 2.1. We and our suppliers reserve all rights not granted in these Terms. There are no implied licenses granted under these Terms.

2.6 Feedback

If you provide us with any feedback or suggestions regarding the Services (“Feedback”), you hereby assign to us all rights in such Feedback and agree that we shall have the right to use and fully exploit such Feedback and related information in any manner we deem appropriate. We will treat any Feedback you provide to us as non-confidential and non-proprietary. You agree that you will not submit to us any information or ideas that you consider to be confidential or proprietary. This Section 2.6 does not apply to contributions you make to our public or open-source repositories (such as code, issues, or pull requests), which are governed solely by the applicable open-source license and any contribution terms for that repository, and not by these Terms.

3. Indemnification

You agree to indemnify and hold us (and our officers, directors, employees, agents, and affiliates) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Services, (b) your violation of these Terms, (c) your violation of applicable laws or regulations, or (d) your gross negligence, willful misconduct, or fraud. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without our prior written consent. We will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.

4. Other Users; Release

4.1 Other Users

Each User is solely responsible for its own use of the Services. Your interactions and transactions with other Users and third parties are solely between you and them. We make no guarantees regarding, and are not responsible for, the conduct of any other User, and are under no obligation to become involved in any dispute between you and any other User or third party. You agree that we will not be responsible for any loss or damage incurred as the result of any such interactions.

4.2 Release

You hereby release and forever discharge us (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the acts or omissions of any other User or any third party in connection with the Services (including any interactions with other Users and any third-party application, wallet, or service). IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”

5. Disclaimers

THE SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND WE (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY REGARDING THE CONTINUOUS OPERATION OF ANY ARK SERVER, THE TIMING OR COMPLETION OF ANY ROUND, REFRESH, BOARD, OFFBOARD, OR EXIT, THE ROUTABILITY OR DELIVERY OF ANY LIGHTNING PAYMENT, OR THE VALUE OF BITCOIN. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SERVICES, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO 90 DAYS FROM THE DATE OF FIRST USE.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

6. Limitation on Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WE (OR OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICES ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THESE TERMS (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) THE TOTAL FEES PAID BY YOU TO US FOR THE SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM AND (B) ONE HUNDRED US DOLLARS (US$100). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THESE TERMS.

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

7. Term and Termination

Subject to this Section, these Terms will remain in full force and effect while you use the Services. We may suspend or terminate your rights to use the Services at any time for any reason at our sole discretion, including for any use of the Services in violation of these Terms. Upon termination of your rights under these Terms, your right to access and use the Services will terminate immediately. We will not have any liability whatsoever to you for any termination of your rights under these Terms, including for termination of your access. On suspension or termination, we may stop providing cooperative operations, including payments, refreshes, Lightning, and cooperative offboards. Your emergency exit is unaffected and remains available without our cooperation, subject to VTXO expiry under Section 1.6; because we will no longer refresh your VTXOs, you should exit before they expire. Even after your rights under these Terms are terminated, the following provisions of these Terms will remain in effect: Section 1, Sections 2.2 through 2.6 and Sections 3 through 8.

8. General

8.1 Changes

These Terms are subject to occasional revision, and if we make any substantial changes, we will notify you by prominently posting notice of the changes on our website and updating the “Last revised” date at the top of these Terms, and we may also provide notice by any other means we consider reasonable (including by e-mail, if you have provided one, or through notices surfaced by wallet software). Because the Services do not require an account, you are responsible for reviewing these Terms from time to time. Continued use of the Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.

8.2 Dispute Resolution

Please read the following arbitration agreement in this Section (the “Arbitration Agreement”) carefully. It requires you to arbitrate disputes with us, our parent companies, subsidiaries, affiliates, successors and assigns and all of their respective officers, directors, employees, agents, and representatives (collectively, the “Company Parties”) and limits the manner in which you can seek relief from the Company Parties.

(a) Applicability of Arbitration Agreement. You agree that any dispute between you and any of the Company Parties relating in any way to the Services or these Terms will be resolved by binding arbitration, rather than in court, except that (1) you and the Company Parties may assert individualized claims in small claims court if the claims qualify, remain in such court and advance solely on an individual, non-class basis; and (2) you or the Company Parties may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall survive the expiration or termination of these Terms and shall apply, without limitation, to all claims that arose or were asserted before you agreed to these Terms (in accordance with the preamble) or any prior version of these Terms. This Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state or local agencies. Such agencies can, if the law allows, seek relief against the Company Parties on your behalf. For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Agreement as well as claims that may arise after the termination of these Terms.

(b) Informal Dispute Resolution. There might be instances when a Dispute arises between you and us. If that occurs, we are committed to working with you to reach a reasonable resolution. You and we agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and we therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.

The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to us that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to: support@second.tech, or by regular mail to 131 Continental Drive, Suite 305, Newark, Delaware 19713. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute.

The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.

(c) Arbitration Rules and Forum. These Terms evidence a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Process described above does not resolve satisfactorily within 60 days after receipt of your Notice, you and we agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims with an amount in controversy under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’ most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.

If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.

Unless you and we otherwise agree, or the Batch Arbitration process discussed in Subsection 8.2(h) is triggered, the arbitration will be conducted in the county where you reside. Subject to the JAMS Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any JAMS fees and costs will be solely as set forth in the applicable JAMS Rules.

You and we agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.

(d) Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve all disputes subject to arbitration hereunder including, without limitation, any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to the subsection entitled “Waiver of Class or Other Non-Individualized Relief,” including any claim that all or part of the subsection entitled “Waiver of Class or Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such subsection entitled “Waiver of Class or Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in the subsection entitled “Batch Arbitration,” all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in the subsection entitled “Batch Arbitration.” The arbitrator shall have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual party under applicable law, the arbitral forum’s rules, and these Terms (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.

(e) Waiver of Jury Trial. EXCEPT AS SPECIFIED in section 8.2(a) YOU AND THE COMPANY PARTIES HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and the Company Parties are instead electing that all covered claims and disputes shall be resolved exclusively by arbitration under this Arbitration Agreement, except as specified in Section 8.2(a) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

(f) Waiver of Class or Other Non-Individualized Relief. YOU AND WE AGREE THAT, EXCEPT AS SPECIFIED IN SUBSECTION 8.2(h) EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the Subsection 8.2(h) entitled “Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this subsection, “Waiver of Class or Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and we agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of Delaware. All other Disputes shall be arbitrated. This subsection does not prevent you or us from participating in a class-wide settlement of claims.

(g) Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or we need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.

(h) Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and we agree that in the event that there are 100 or more individual Requests of a substantially similar nature filed against us by or with the assistance of the same law firm, group of law firms, or organizations, within a 30 day period (or as soon as possible thereafter), the JAMS shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).

All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the JAMS, and the JAMS shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by us.

You and we agree to cooperate in good faith with the JAMS to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.

This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.

(i) 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending a timely written notice of your decision to opt out to the following address: 131 Continental Drive, Suite 305, Newark, Delaware 19713, or email to support@second.tech, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address and a clear statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have with us, or may enter into in the future with us.

(j) Invalidity, Expiration. Except as provided in the subsection entitled “Waiver of Class or Other Non-Individualized Relief”, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with us as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.

(k) Modification. Notwithstanding any provision in these Terms to the contrary, we agree that if we make any future material change to this Arbitration Agreement, you may reject that change within 30 days of such change becoming effective by writing us at the following address: 131 Continental Drive, Suite 305, Newark, Delaware 19713, or email to support@second.tech. Unless you reject the change within 30 days of such change becoming effective by writing to us in accordance with the foregoing, your continued use of the Services, including the acceptance of products and services offered by us following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of these Terms and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services, or these Terms, the provisions of this Arbitration Agreement as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms) remain in full force and effect. We will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of these Terms.

8.3 Governing Law

These Terms and any Dispute will be governed by the laws of the State of Delaware and applicable United States federal law, without regard to conflict of laws principles; provided that the Federal Arbitration Act governs the interpretation and enforcement of the Arbitration Agreement in Section 8.2 as stated therein.

8.4 Open-Source Software

Certain software made available by us (including bark, the Bark SDK, and barkd) is licensed under separate open-source license terms. Those license terms govern your rights in that software, and in the event of a conflict between these Terms and an applicable open-source license, the open-source license controls with respect to the software it covers. Obtaining, running, or modifying that software on its own is governed solely by the applicable open-source license and creates no obligations under these Terms. However, accessing or connecting to the Services, including by using that software to do so, remains governed by these Terms.

8.5 Export

The Services and our software may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from us, or any products utilizing such data, in violation of the United States export laws or regulations. The foregoing export restriction does not apply to our software to the extent it is published and publicly available as open source, and therefore falls outside U.S. export control (for example, as publicly available or published source code).

8.6 Force Majeure

We will not be liable for any delay or failure in performance under these Terms to the extent caused by events beyond our reasonable control, including acts of God, natural disasters, pandemics, war, terrorism, civil unrest, labor disputes, actions of governmental authorities, power or telecommunications failures, internet disturbances, congestion or failure of the bitcoin network or the Lightning Network, or attacks on or failures of third-party software, hardware, or infrastructure.

8.7 Disclosures

We are located at the address in Section 8.11. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.

8.8 Electronic Communications

The communications between you and us use electronic means, whether you use the Services or send us emails, or whether we post notices on our website or communicate with you via email. For contractual purposes, you (a) consent to receive communications from us in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if it were in a hardcopy writing. The foregoing does not affect your non-waivable rights.

8.9 Entire Terms

These Terms, together with the Fee Schedule and any other terms incorporated by reference, constitute the entire agreement between you and us regarding the use of the Services. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. These Terms do not create any agency, partnership, joint venture, employment, or franchise relationship between you and us. These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without our prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. We may freely assign these Terms. The terms and conditions set forth in these Terms shall be binding upon assignees.

8.10 Copyright/Trademark Information

Copyright © TwoND, Inc. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on our website or within the Services are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.

8.11 Contact Information

TwoND, Inc.
131 Continental Drive, Suite 305
Newark, Delaware 19713
Telephone: (641) 637-5924
Email: support@second.tech