DAWN Terms & Conditions
Last Modified: September 10, 2024
1. Overview
Andrena, Inc. dba DAWN (“DAWN”, “we”, “us”, or “our”) operates the DAWN web browser extension (the “DAWN Validator Extension”) as made available through our website https://www.dawninternet.com/ (the “Website”, and together with the DAWN Validator Extension, the “DAWN Services”) that permit users to participate as a proof of bandwidth validator in our decentralized wireless network for delivering Internet services that is maintained through proof of coverage related to bandwidth (which may include, without limitation, backhaul bandwidth, data served, and device geolocation) (the “DAWN Network”).
Please read these Terms and Conditions (these “Terms”) carefully as they govern your access to and use of the DAWN Services and participation in the DAWN Network through your access to and use of the DAWN Services. These Terms incorporate by reference our Privacy Policy, available at https://www.dawninternet.com/privacy/. BY DOWNLOADING THE DAWN VALIDATOR EXTENSION, ACCESSING OR USING ANY OF THE DAWN SERVICES, OR OTHERWISE PARTICIPATING IN THE DAWN NETWORK, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH DAWN, (3) YOU HAVE THE AUTHORITY TO ENTER INTO THESE TERMS PERSONALLY OR ON BEHALF OF THE ENTITY (WHETHER OR NOT SUCH ENTITY IS REGISTERED OR INCORPORATED UNDER THE LAWS OF ANY JURISDICTION) YOU HAVE NAMED AS THE USER, AND TO BIND THAT ENTITY TO THESE TERMS; AND (4) YOU UNDERSTAND AND AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR ACCESS TO AND USE OF THE DAWN SERVICES AND PARTICIPATION IN THE DAWN NETWORK COMPLY WITH THE LAWS OF YOUR JURISDICTION. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE DAWN SERVICES. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, MAY NOT ACCESS OR USE THE DAWN SERVICES OR PARTICIPATE IN THE DAWN NETWORK.
PLEASE READ SECTION 16 CAREFULLY AS IT CONTAINS PROVISIONS THAT GOVERN HOW TO RESOLVE DISPUTES BETWEEN YOU AND DAWN. AMONG OTHER THINGS, SECTION 16 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 16 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER.
Your use of, and participation in, certain DAWN Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in these Terms or will be presented to you for your acceptance when you sign up to use the applicable supplemental DAWN Service. If these Terms are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to the applicable supplemental DAWN Service. These Terms and any applicable Supplemental Terms are referred to herein as this “Agreement.”
2. Eligibility
You represent and warrant that you and any entity on behalf of which you are entering into this Agreement: (a) do not reside, are not located, are not organized, are not ordinarily resident, and do not have an office or personnel in any jurisdiction that is subject to comprehensive U.S. sanctions (currently, Cuba, Iran, North Korea, Syria, and the Crimea, so-called Donetsk People’s Republic, and so-called Luhansk People’s Republic regions of Ukraine), or where access to or use of the DAWN Services or participation in the DAWN Network is illegal or not permitted by applicable law; and (b) are not Designated on any economic or financial sanctions list maintained by the U.S. Department of the Treasury’s Office of Foreign Assets Control or governmental authorities in any other applicable jurisdiction.
3. Access to the DAWN Services; Account Registration and Maintenance
Subject to this Agreement, DAWN grants you with a limited, personal, non-exclusive, non-transferable, non-sublicensable license to access and use the DAWN Services and participate in the DAWN Network solely as described hereunder. The foregoing license may be revoked by DAWN at any time, in accordance with this Agreement. You acknowledge and agree that nothing set forth herein shall be construed as a sale of any ownership interest in or to the DAWN Services, DAWN Network, or any intellectual property rights associated therewith.
In order to access the DAWN Services, you will be required to register an account on the DAWN Services (“Account”). In registering an Account, you shall (a) provide true, accurate, current, and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current, and complete at a ll times.
You will be responsible for the confidentiality and use of your username and password and agree not to transfer to any third party your right to use or access the DAWN Services or the DAWN Network via your Account. DAWN disclaims any and all responsibility or liability for any unauthorized use of your Account. You agree to notify us immediately of any unauthorized use, theft, or appropriation of your Account, username, or password. We will not be liable for any loss that you incur as a result of someone else’s use of your Account, username, or password, either with or without your knowledge.
4. DAWN Property; Trademarks; Feedback
4.1 You acknowledge and agree that DAWN, its affiliates and licensors own all right, title, and interest in and to the DAWN Services, DAWN Network, and all works, designs, content, data, information, features, functionality, software, code, objects, algorithms, methods of operation, documentation, and other materials that form part of the DAWN Services and DAWN Network (collectively, the “DAWN Property”). Neither this Agreement nor your use of the DAWN Property convey or will convey to you any right, title, or interest in or in relation to the DAWN Property, except for the limited right to access and use the DAWN Services and participate in the DAWN Network that is granted to you expressly in this Agreement. All rights in and to the DAWN Property, and the intellectual property rights embodied in and associated with them are expressly reserved by their owner(s). Without limiting the foregoing, you may not use, reproduce, or otherwise exploit the DAWN Property for any purpose, whether commercial or non-commercial, that is not expressly authorized by this Agreement without the prior written permission of DAWN. You may not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any DAWN Services.
4.2 DAWN’s stylized name and all related graphics, logos, service marks and trade names used on or in connection with any DAWN Services, are the trademarks of DAWN and may not be used without permission in connection with your, or any third-party, products or services. Other trademarks, service marks and trade names that may appear on or in the DAWN Services are the property of their respective owners.
4.3 You agree that submission of any ideas, suggestions, documents, and/or proposals to DAWN through its suggestion, feedback, wiki, discord, forum, or other pages or means (“Feedback”) is at your own risk and that DAWN has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to DAWN a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the DAWN Services and/or DAWN’s business.
5. Code of Conduct; Restrictions
You agree that you are solely responsible for your conduct in connection with your access to and use of the DAWN Property. You agree that you will comply with this Agreement and all applicable laws and will not (and will not attempt to or permit others to):
5.1 provide, disclose, divulge or make available to, or permit use of the DAWN Property by, any third party;
5.2 rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any DAWN Property to any third party, including on or in connection with the Internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
5.3 copy, modify, or create derivative works or improvements of or based on the DAWN Property;
5.4 interfere, or attempt to interfere, with the DAWN Property in any way, including to reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the DAWN Property, in whole or in part;
5.5 circumvent, or attempt to circumvent, any geographical restrictions, privacy measures, or other access controls, including the use of VPNs for such purposes;
5.6 facilitate, incite, or engage in the unethical manipulation or misuse of data or information in a manner that violates applicable law or undermines the access to, use, or operation of the DAWN Property;
5.7 engage in spamming, mailbombing, spoofing or any other fraudulent, illegal or unauthorized use of the DAWN Property;
5.8 engage in any activity that impedes or restricts any other user’s access, use, or enjoyment of the DAWN Property or which may cause harm to such user;
5.9 remove, obscure, or alter any copyright notice, trademarks or other proprietary rights notices affixed to or contained within the DAWN Property;
5.10 engage in or allow any action involving the DAWN Property that is inconsistent with the terms and conditions of this Agreement;
5.11 impersonate any user or other person or entity or otherwise engage is any fraudulent or intentionally misleading activities in connection with your access or use of the DAWN Property;
5.12 bypass or breach any security device, or protection used by or in connection with the DAWN Property, including in connection with the access or use of the DAWN Property;
5.13 input, upload, transmit, or otherwise provide to or through the DAWN Property any information or materials that are unlawful or injurious, or contain, transmit, or activate any software or other technology, including any virus, trojan horse, worm, backdoor, malware, or other malicious computer code, the purpose or effect of which is to: (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any: (i) computer, software, firmware, hardware, system or network; or (ii) application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data; or (b) prevent you or any other authorized user from accessing or using the DAWN Services or DAWN Network as intended (Harmful Code);
5.14 damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner DAWN, its affiliates, or the DAWN Property, including our provision of any data, products, or services to any third party, in whole or in part;
5.15 access or use the DAWN Property in any manner or for any purpose that (i) infringes, misappropriates, or otherwise violates the intellectual property or other rights of the DAWN or any third party; or (ii) violates any applicable law;
5.16 access or use the DAWN Property for purposes of competitive analysis of the DAWN Property, the development, provision or use of a competing software service or product, or any other purpose that is to the DAWN’s detriment or commercial disadvantage; or
5.17 otherwise access or use the DAWN Property beyond the scope of the authorizations granted under this Agreement.
Engaging in prohibited conduct constitutes a breach of this Agreement and may subject you to civil liability or criminal prosecution under applicable laws. DAWN reserves the right to investigate and/or terminate your Account, without a refund of any purchases or settlement of any outstanding Accounts, if you have violated this Agreement, misused any DAWN Property or have acted in a manner that DAWN considers as inappropriate or unlawful.
6. Availability; Downtime; Updates
You are solely responsible, at your own expense, for obtaining and maintaining all Internet access, computer hardware, and other equipment and services needed to access and use the DAWN Property.
While we endeavor to maintain the availability of the DAWN Services and DAWN Network, we cannot promise that the DAWN Services or DAWN Network or their availability will be uninterrupted, secure, or error-free. We reserve the right to interrupt or suspend access to the DAWN Services, DAWN Network, or any other DAWN Property, or any part thereof, with or without prior notice for any reason, and you will not be entitled to any refund of fees or other compensation for any such interruption or suspension.
You understand that the DAWN Services and the DAWN Network are evolving. You acknowledge and agree that DAWN may update DAWN Services and the DAWN Network, or revise, supplement or delete any information, content, features, functionality, services, or resources contained on the DAWN Services or the DAWN Network, and DAWN reserves the right to make such updates or changes with or without prior notification to past, current, or prospective users, including you. You may need to update third-party software from time to time in order to use the DAWN Services and participate in the DAWN Network.
7. Disclaimers
The disclaimers set out in this Section 7 will not limit or exclude any warranties that cannot be excluded or limited excluded under applicable law.
7.1 General Disclaimer
You acknowledge and agree that the DAWN Services, the DAWN Network and all other DAWN Property are provided as-is and as available, without any warranty whatsoever. DAWN does not make any, and expressly disclaims all, representations, warranties, and conditions of any kind, whether express or implied, statutory or otherwise, including without limitation any implied warranty or condition of merchantability, fitness for a particular purpose, title, or non-infringement arising from the use of the DAWN Services, to the maximum extent permitted by applicable law. For clarity, and without limiting the generality of the foregoing, DAWN make no warranty of any kind that the DAWN Property, including the DAWN Services or DAWN Network, or any other products, services, opportunities, Rewards (as defined below), communications, or the results of the receipt of use thereof, will meet your or any other person’s requirements, operate without interruption, achieve any intended result, be compatible or work with any software, system, device, or other services, or be available, timely, secure, accurate, complete, free of Harmful Code, or error-free. You are responsible for implementing adequate measures to protect the security and integrity of your activities on the Internet, including by installing anti-virus protection and maintaining external backups to recover any lost data or information.
7.2 Disclaimer re: Professional Advice
No advice or information provided or through the DAWN Services, DAWN Network, or any other DAWN Property is intended to be investment, financial, legal, tax, or other professional advice. DAWN and its affiliates do not provide investment, financial, legal, tax, or other professional advice and recommend that all users of the DAWN Services and DAWN Network obtain any investment, financial, legal, tax, or other professional advice that such user deems necessary in connection with their download of the DAWN Validator Extension, access to or use of the DAWN Services, or participation in the DAWN Network.
7.3 Disclaimer re: Harmful Code
DAWN is not responsible or liable for any software, computer viruses, Harmful Code that may infect or otherwise affect the use of your computer equipment or other property on account of your access to or use of the DAWN Services or your downloading or otherwise acquiring any content or other information from or through the DAWN Services.
7.4 Disclaimer re: Rewards
The DAWN Services allow users to contribute their Internet connectivity and bandwidth in support of the creation, operation, and proliferation of the DAWN Network. Users may also use a Chrome extension that enables them to prove the coverage and bandwidth of the DAWN Network (the “Chrome Extension”). In exchange for their use of the Chrome Extension and contribution to the DAWN Network, certain users will be able to participate in a program to accumulate points (such points, “Rewards” and such program the “Rewards Program”). Your opportunity to receive such Rewards in connection will be determined by us in accordance with the then-current terms of the Rewards program, which is subject to change from time to time without notice in our sole discretion. You understand and agree that your access to and use of the DAWN Services and participation in the DAWN Network does not entitle to you to receive any Rewards. To the extent that you are attributed any Rewards, such Rewards are not, and may never convert to, accrue to, be used to calculate, or become any other physical or virtual assets, including without limitation cash, any cash equivalent, or cryptocurrency. Rewards have no monetary value and do not constitute currency of any kind. Rewards are not transferrable or redeemable for any fiat, currency, property, or other form of value. Users are not permitted to sell, transfer, loan, rent, lease, trade, or exchange Rewards, or rely on Rewards to obtain credit or set-off or pay-down any amount. DAWN does not make any representation or warranty of any kind, whether express or implied, statutory or otherwise as to the availability, amount, nature, or utility of any Rewards. Rewards are provided solely as an optional enhancement to users to incentivize participation in the DAWN Network. Rewards do not constitute compensation or any other form of consideration for services. You agree that Rewards may be canceled or revoked by DAWN at any time, including if you breach this Agreement; misuse or abuse the Rewards Program; or commit or participate in any fraudulent activity related to the Rewards Program. DAWN reserves the right to modify or terminate the Rewards Program and/or cancel or revoke any of your Rewards at any time, for any or for no reason, with or without notice, and without liability to you.
7.5 Disclaimer re: Digital Wallets
If you provide information relating to your
on through, or in connection with the DAWN Services or any linked or related website that permits the payment, acquisition, or transfer of any type of currency or other assets, you understand and agree that you are solely responsible and liable for maintaining the security of your digital wallet and your control over your passwords, private keys, seed phrases, or other credentials relating to the access and use of your digital wallet. DAWN will never ask for your seed phrases, private keys, or other access credentials, and you should not provide any such access credentials to DAWN. We are not responsible or liable for managing or maintaining the security of your digital wallet or for any unauthorized access to or use of your digital wallet, including but not limited to any loss of any assets or currency in such digital wallet. You acknowledge and agree that you understand that unauthorized access to your digital wallet by third parties could result in the loss or theft of the contents of your wallet and that we have no responsibility or liability for storing, retaining, securing, or recovering your digital wallet, access to your digital wallet, or the contents of your digital wallet, including any passwords, private keys, seed phrases, or other credentials. By providing or using any digital wallet in connection with the DAWN Services or any linked or related website, you agree that you are using the digital wallet under the terms and conditions of the applicable provider of the digital wallet. No digital wallet is created, operated, or maintained by DAWN or affiliated with DAWN, and DAWN does not have custody or control over the contents of your digital wallet and have no ability to retrieve or transfer its contents. Your relationship with any digital wallet provider is governed by the applicable terms and conditions of that wallet provider, not this Agreement. You further represent and warrant that you own or have the authority to use such digital wallet.
7.6 Disclaimer re Blockchain Technologies; Representations and warranties.
The DAWN Services may also reference or provide links to applications or applications related to smart contracts, protocols, and other blockchain technologies (collectively, “Blockchain Technologies”). The Blockchain Technologies are not part of the DAWN Services or the DAWN Network, and your access to and use of any Blockchain Technologies is entirely at your own risk. In addition, any third party technologies required to be accessed or used in order to interact with the Blockchain Technologies, including any digital wallet, are not part of the DAWN Services or the DAWN Network and your access to and use of such third party technologies are at your own risk. You represent and warrant that:
(a) There is no legal proceeding pending that relates to your activities relating to buying, selling, staking, or otherwise using cryptocurrency or any other token- or digital asset- trading or blockchain technology related activities; and (b) You have not failed to comply with, and have not violated, any applicable legal requirement relating to any blockchain technologies or token- or digital asset-trading activities, and no investigation or review by any governmental entity is pending or, to your knowledge, has been threatened against or with respect to you, nor does any government order or action prohibit you or any of your representatives from engaging in or continuing any conduct, activity or practice relating to cryptocurrency.
8. Assumption of Risk; Responsibilities
All users are responsible for their (a) download of the DAWN Validator Extension, access and use of the DAWN Services, participation in the DAWN Network, and use of any other DAWN Property; and (b) access, use, and interaction with the Third-Party Services and any other third party services, products, or technologies, including your compliance with all applicable laws in connection with the foregoing. Your access to and use of the DAWN Services, participation in the DAWN Network, and use of any other DAWN Property is purely voluntary, and you freely accept all risks and liabilities associated with the foregoing.
9. Investigations; Enforcement
You acknowledge and agree that we reserve the right to:
- take any necessary legal action, including but not limited to, referral to law enforcement, for any illegal or unauthorized use of the DAWN Services, DAWN Network, or any other DAWN Property;
- cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone using the DAWN Services or DAWN Network.
You waive and release DAWN and its affiliates from and against any and all claims resulting from any action taken by DAWN or its affiliates during, or as a consequence of, investigations by any governmental authority.
10. Limitation of Liability
10.1 Disclaimer of Certain Damages
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL DAWN OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, USE, DATA, OR OTHER ECONOMIC ADVANTAGE, ARISING UNDER, IN CONNECTION WITH, OR RELATED TO (A) THIS AGREEMENT; (B) THE OPERATION OR PROVISION OF THE DAWN SERVICES, DAWN NETWORK, OR ANY OTHER DAWN PROPERTY; (C) YOUR ACCESS TO OR USE OF THE DAWN SERVICES, DAWN NETWORK, OR ANY OTHER DAWN PROPERTY; OR (D) YOUR PARTICIPATION IN THE DAWN NETWORK, HOWSOEVER ARISING, EITHER OF A BREACH OF THIS AGREEMENT, NEGLIGENCE, STRICT LIABILITY, TORT, OR ANY OTHER THEORY OF LIABILITY, EVEN IF DAWN OR ITS AFFILIATES HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2 Limitation of Liability for Direct Damages
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL AGGREGATE LIABILITY OF THE DAWN AND ITS AFFILIATES FOR DIRECT DAMAGES ARISING UNDER, IN CONNECTION WITH, OR RELATED TO (A) THIS AGREEMENT; (B) THE OPERATION OR PROVISION OF THE DAWN SERVICES, DAWN NETWORK, OR ANY OTHER DAWN PROPERTY; (C) YOUR ACCESS TO OR USE OF THE DAWN SERVICES, DAWN NETWORK, OR ANY OTHER DAWN PROPERTY; OR (D) YOUR PARTICIPATION IN THE DAWN NETWORK, WILL BE LIMITED TO $1.
10.3 Exclusions
CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
11. Indemnification
You agree to indemnify, defend, and hold harmless DAWN, its affiliates, and their respective directors, officers, shareholders, employees, staff, representatives, agents, licensors, licensees, successors, and assigns (the DAWN Indemnified Parties) from and against any and all claims, demands, damages, judgments, penalties, fines, costs, and expenses, including legal fees, and disbursements, incurred by the DAWN Indemnified Parties (or any of them), relating to, arising from, or in connection with a third party claim, demand, action, or proceeding arising out of (a) an allegation that your unauthorized use of any of the DAWN Property infringes, misappropriates, or otherwise violates any third party’s rights or is otherwise unlawful; (b) your breach of this Agreement, including, any representation, warranty, covenant, or obligation in this Agreement; (c) your negligence, fraud, or willful misconduct; (d) your use of the DAWN Property in a manner that is not authorized by this Agreement; (e) your use of the DAWN Property in combination with data, software, hardware, equipment or technology not provided by DAWN or authorized by DAWN in writing; or (f) any modifications made by you to any DAWN Property that have not been authorized by DAWN in writing.
12. Term; Suspension; Termination
12.1 Term
The Agreement commences on the date when you accept the Agreement (as described in the preamble above) and remain in full force and effect while you access or use the DAWN Services, participate in the DAWN Network, or to otherwise access or use any DAWN Property, unless terminated earlier in accordance with the Agreement.
12.2 Termination or Suspension by DAWN
DAWN may, at any time and from time to time, without notice, suspend or terminate your access or right to access or use the DAWN Services, participate in the DAWN Network, or to otherwise access or use any DAWN Property, if DAWN determines, in its sole discretion, that you have violated or otherwise breached this Agreement.
A suspension may be for such period of time as DAWN considers necessary to permit the thorough investigation of the conduct at issue. You agree that, upon the suspension or termination of your access to or use of the DAWN Services or participation in the DAWN Network, you will immediately cease and desist from all access to and use of the DAWN Services, participation in the DAWN Network, and access to or use of the DAWN Property, including in accordance with the written directions of DAWN.
12.3 Termination by You
If you want to terminate the DAWN Services provided by DAWN, you may do so by (a) notifying DAWN at any time and (b) ceasing all further use of the DAWN Property and all further participation in the DAWN Network. Your notice should be sent, in writing, to DAWN’s address set forth below.
12.4 Effect of Termination
Upon termination of the DAWN Services, your right to use the DAWN Services and to participate in the DAWN Network will automatically terminate immediately. DAWN will not have any liability whatsoever to you for any suspension or termination. All provisions of the Agreement which by their nature should survive, shall survive termination of the DAWN Services, including without limitation, ownership provisions, warranty disclaimers, indemnification and limitation of liability.
12.5 No Subsequent Registration
If your ability to access the DAWN Services, is discontinued by DAWN due to your violation of any portion of the Agreement, then you agree that you shall not attempt to re-register with or access the DAWN Services, and you acknowledge that you will not be entitled to receive a refund for any Fees related to those Services to which your access has been terminated.
13. Third-Party Services
Certain features of the DAWN Services and the DAWN Network may rely on third party websites, social channels, services, technology, or applications accessible or otherwise connected to the DAWN Services or the DAWN Network but not provided by DAWN, including without limitation the Blockchain Technologies, your digital wallet, links to third party websites for the purpose of connecting you with third parties who may offer Rewards in connection with your use of the DAWN Services (each, a “Third-Party Service” and, collectively, “Third-Party Services”). Notwithstanding anything to the contrary in this Agreement, you acknowledge and agree that (i) DAWN is not responsible or liable for any damages, liabilities, or other harms caused by or arising in connection with your use of or reliance on (or inability to use or rely on) the Third-Party Services or any information, content, goods, or services available on or through the Third-Party Services; and (ii) DAWN shall be under no obligation to inquire into and shall not be liable for any damages, other liabilities or harm to any person or entity relating to any losses, delays, failures, errors, interruptions or loss of data occurring directly or indirectly by reason of Third-Party Services or any other circumstances beyond DAWN’s control, including without limitation the failure of a Third-Party Service. Please be aware that the Third-Party Services may be governed by separate terms and conditions and privacy policies. We encourage you to be aware when you click on any links to Third-Party Services. Your use of the Third-Party Services is at your own risk.
14. Changes to this Agreement
You acknowledge and agree that we may make changes to this Agreement from time to time, for any reason, in our sole and absolute discretion. When changes are made, DAWN will make a new copy of these Terms available at the Website and any new Supplemental Terms will be made available from within, or through, the affected DAWN Service on the Website. We will also update the “Last Updated” date at the top of these Terms. If the changes that we make include material changes that affect your rights and obligations, we will take reasonable steps to notify you of the changes in advance, including by email or by notification through the DAWN Services or through our social media channels. Any changes to this Agreement will be effective immediately for new users of the Website and/or the DAWN Services and will be effective thirty (30) days after posting notice of such changes on the Website for existing users. DAWN may require you to provide consent to the updated Agreement in a specified manner before further use of the Website, and/or the DAWN Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the DAWN Services. Otherwise, your continued use of the DAWN Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
15. Governing Law
This Agreement and any action arising under or in connection with this Agreement shall be governed by and construed in accordance with, in all respects including as to its validity, interpretation and effect, the laws of the state of New York, without giving effect to its principles or rules of conflict of laws that provide for the application of the laws of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
16. Dispute Resolution
Please read this Section 16 (the “Arbitration Agreement”) carefully. It is part of your contract with DAWN and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
16.1 Applicability of Arbitration Agreement
Subject to the terms of this Arbitration Agreement (including Section 16.2, which shall apply notwithstanding any laws or rules in your jurisdiction that may prohibit mandatory or compelled arbitration), you and DAWN agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the DAWN Property or this Agreement and prior versions of this Agreement, including claims and disputes that arose between us before the effective date of this Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and DAWN may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or DAWN 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). 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 this Agreement as well as claims that may arise after the termination of this Agreement.
16.2 Informal Dispute Resolution
There might be instances when a Dispute arises between you and DAWN. If that occurs, DAWN is committed to working with you to reach a reasonable resolution. You and DAWN agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and DAWN 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 DAWN that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to the contact information set forth below. The Notice must include: (1) your name, telephone number, mailing address, and e‐mail address; (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.
16.3 Waiver of Jury Trial
YOU AND DAWN 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 Dawn are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the Section entitled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
16.4 Waiver of Class and Other Non-Individualized Relief
YOU AND DAWN AGREE THAT, EXCEPT AS SPECIFIED IN SECTION 16.9, 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 Section 16.9. 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 Section 16.4 are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and DAWN 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 courts of New York, sitting in New York. All other Disputes shall be arbitrated or litigated in small claims court. This Section 16.4 does not prevent you or DAWN from participating in a class-wide settlement of claims.
16.5 Rules and Forum
This Agreement evidences 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 Conference process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and DAWN agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf. 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 (if applicable) as well as the applicable digital wallet address; (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 Conference 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 DAWN otherwise agree, or the Batch Arbitration process discussed in Section 16.9 is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA 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 AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA Rules. You and DAWN 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.
16.6 Arbitrator
The arbitrator will be either a retired judge or an attorney licensed to practice law in the State of New York and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under Section 16.9 is triggered, the AAA will appoint the arbitrator for each batch.
16.7 Authority of Arbitrator
The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to Subsection 16.4, including any claim that all or part of Subsection 16.4 is unenforceable, illegal, void or voidable, or that Subsection 16.4 has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in Section 16.9, 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 Section 16.9. The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. 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.
16.8 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 DAWN 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 Conference process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
16.9 Batch Arbitration
To increase the efficiency of administration and resolution of arbitrations, you and DAWN agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against DAWN by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA 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 AAA, and the AAA 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 DAWN. You and DAWN agree to cooperate in good faith with the AAA 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.
16.10 30-Day Right to Opt Out
You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the address set forth below, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, email address, digital wallet address (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement 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, or may enter in the future, with us.
16.11 Invalidity, Expiration
Except as provided in Subsection 16.4, 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 DAWN 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.
16.12 Modification
Notwithstanding any provision in this Agreement to the contrary, we agree that if DAWN makes any future material change to this Arbitration Agreement, it will notify you. Unless you reject the change within thirty (30) days of such change become effective by writing to DAWN at the address set forth in Section 16.10, your continued use of the DAWN Property, including the acceptance of products and services offered on the DAWN Services and DAWN Network 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 this Agreement 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 DAWN Property, any communications you receive, or this Agreement, the provisions of this Arbitration Agreement as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement) remain in full force and effect. DAWN will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.
16.13 Confidentiality
All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
16.14 Survival of Agreement
This Arbitration Agreement will survive the termination of your relationship with DAWN.
17. Limitation on Time to Commence Disputes
To the maximum extent permitted by applicable law, you acknowledge and agree that any Dispute that you may have arising out of or relating to (a) this Agreement; (b) the operation or provision of the DAWN Services, DAWN Network, or any other DAWN Property; or (c) your access to or use of the DAWN Services, DAWN Network, or any other DAWN Property or your participation in the DAWN Network, must be commenced within one year after the date that is the earlier of: (i) the date you discovered the Dispute; or (ii) the day on which a reasonable person with the abilities in the circumstances of the person with the Dispute first ought to have known of the Dispute.
18. International Users
The DAWN Services can be accessed from countries around the world and may contain references to DAWN Services that are not available in your country. These references do not imply that DAWN intends to announce such DAWN Services in your country. DAWN makes no representations that DAWN Services are appropriate or available for use in other locations. Those who access or use DAWN Services from other countries do so at their own volition and are responsible for compliance with local law.
19. Entire Agreement
This Agreement and to any separate written agreement between you and DAWN, constitute the entire agreement between you and DAWN with respect to the subject matter of this Agreement. There are no representations, covenants, or other terms other than those set out under this Agreement. This Agreement supersedes any previous discussions, understandings, or agreements, between the parties relating to the subject matter of this Agreement.
20. No Waiver
No waiver of satisfaction of a condition or non-performance of an obligation under this Agreement is effective unless it is in writing and signed by the party granting the waiver or that party’s authorized representative. Unless expressly granted in writing and signed by the party granting the waiver or that party’s authorized representative, no waiver will extend to any subsequent non-satisfaction of a condition or non-performance of an obligation under this Agreement, whether or not of the same or similar nature to that which was waived. No waiver will affect the exercise of any other rights or remedies under this Agreement. Any failure or delay in exercising any right or remedy will not constitute, or be deemed to constitute, a waiver of that right or remedy. No single or partial exercise of any right or remedy will affect further exercise of any right or remedy.
21. Severability
If any provision of this Agreement is found to be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provisions.
22. Assignment
You may not assign, transfer, sublicense, or convey this Agreement, including any rights granted by DAWN and obligations assumed by you, except with DAWN’s prior written consent. We may assign, transfer, sublicense, or convey this Agreement, and our rights and obligations under them, to any third party without notice to you.
23. Contact Information
If you have any questions, concerns or suggestions regarding the DAWN Services or this Agreement, please contact us at hello@dawninternet.com.