Last updated 9/10/2019
These Terms of Service (“Terms”) apply to your access to and use of the websites and other online products and services (collectively, the “Services”) provided by Benthos Labs, Inc. (“Benthos” or “we”), including Shrimpy.io (the “Shrimpy Site”). By clicking “I Accept” or by using our Services, you agree to these Terms, including the mandatory arbitration provision and class action waiver in Section 17. If you do not agree to these Terms, do not use our Services.
We may make changes to these Terms from time to time. If we make changes, we will provide you with notice of such changes, such as by sending an email, providing a notice through our Services or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of our Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using our Services.
The Shrimpy Site is a personal cryptocurrency portfolio automation service, including tools for asset allocation, automatic rebalancing and backtesting. You do not trade cryptocurrency, cryptographic tokens or other digital rights or assets (collectively “Tokens”) on the Shrimpy Site, and the Shrimpy Site is not a Token exchange. Rather, you access your own accounts on the Token exchanges through the Shrimpy Site.
Some features of the Shrimpy Site are provided to you by Benthos without charge, including tracking a Token’s price in the Token exchanges you give us access to and using our automatic rebalancing tool. Some other features may require a paid subscription, including using our social trading tool and backtesting tool.
We may make changes to the Shrimpy Site and its features from time to time, including the free and paid offerings and its and their general availability. Please check the Shrimpy Site for our latest offerings.
The Services are intended solely for users who are 18 or older and who satisfy the criteria described in these Terms. You represent and warrant that you: (a) are of legal age to form a binding contract (at least 18 years old in the U.S.); (b) have not previously been suspended or removed from using our Services; (c) are not identified as a “Specially Designated National” by the Office of Foreign Assets Control; (d) are not placed on the U.S. Commerce Department’s Denied Persons List; and (e) have full power and authority to agree to these Terms.
If you use our Services on behalf of another person or entity, (a) all references to “you” throughout these Terms will include that person or entity, (b) you represent that you are authorized to accept these Terms on that person’s or entity’s behalf, and (c) in the event you or the person or entity violates these Terms, the person or entity agrees to be responsible to us.
You may not use the Services if you are located in, or a citizen or resident of any state, country, territory or other jurisdiction that is embargoed by the United States or where your use of the Services would be illegal or otherwise violate any applicable law. You represent and warrant that you are not a citizen or resident of any such jurisdiction and that you will not use any Services while located in any such jurisdiction. You also may not use the Services if you are located in, or a citizen or resident of, any other jurisdiction where Benthos has determined, at its discretion, to prohibit use of the Services. Benthos may implement controls to restrict access to the Services from any jurisdiction prohibited pursuant to this Section 3.2. You will comply with this Section 3.2, even if Benthos’s methods to prevent use of the Services are not effective or can be bypassed.
You may need to register for an account to access some or all of our Services. If you register for an account, you must provide accurate account information and promptly update this information if it changes. You may not allow others to use your account. You also must maintain the security of your account and promptly notify us if you discover or suspect that someone has accessed your account without your permission. If you permit others to use your account credentials, you are responsible for the activities of such users that occur in connection with your account. We reserve the right to reclaim usernames, including on behalf of businesses or individuals that hold legal claim, including trademark rights, in those usernames.
Users may direct us to retrieve their own Token information maintained by third parties with which they maintain accounts or otherwise use (“Account Information”). We work with one or more online service providers to access this Account Information. We do not review the Account Information for accuracy, legality or non-infringement. We are not responsible for the Account Information or products and services offered by or on third-party sites.
We cannot always foresee or anticipate technical or other difficulties which may result in failure to obtain data or loss of data, personalization settings or other service interruptions. We cannot and do not assume responsibility for the timeliness, accuracy, deletion, non-delivery or failure to store any user data, communications or personalization settings. For example, when displayed through the Services, Account Information is only as fresh as the time shown, which reflects when the information is obtained from such sites. Such information may be more up-to-date when obtained directly from the relevant sites.
Certain feature of our Services may only be available for premium subscribers who pay a monthly fee for their premium subscription. You agree to pay any fees for the premium services you use or subscribe to as described on the Shrimpy Site. Failure to pay these fees will result in the termination of your paid Services. You further agree that:
Depending on the functions that you seek to enable on your account and our risk determination, we may, in its discretion, require identity verification and other screening procedures with respect to you or transactions associated with your account. These verification and screening procedures may include, without limitation, checking the information you provide against the Specially Designated Nationals and Blocked Persons list maintained by the U.S. Office of Foreign Assets Control, the U.S. Department of Commerce Denied Persons list, and any similar list issued by any U.S. governmental authority prohibiting or limiting business activities or transactions with any persons. You may be required to provide us with certain personal information, including, but not limited to, your name, address, telephone number, email address, date of birth, taxpayer identification number, government identification number, photograph of your government-issued ID or other photographic proof of your identity, and information regarding your bank account. You hereby authorize us, directly or through a third party, to make any inquiries we consider necessary to verify your identity and/or protect against fraud, including but not limited to: (a) query identity information contained in public reports (e.g., your name, address, past addresses, or date of birth); (b) query account information associated with your linked bank account (e.g., name or account balance); and (c) take action we reasonably deem necessary based on the results of such inquiries and reports. You further authorize any and all third parties to which such inquiries or requests may be directed to fully respond to such inquiries or requests. We will have no liability or responsibility for any permanent or temporary inability to access or use any Services as a result of any identity verification or other screening procedures.
Our Services may allow you and other users to create, post, store and share content, including messages, text, photos, videos, software and other materials (collectively, “User Content”). Except for the license you grant below, you retain all rights in and to your User Content, as between you and Benthos.
You grant Benthos and its subsidiaries and affiliates a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully paid, and sublicensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display your User Content and any name, username or likeness provided in connection with your User Content in all media formats and channels now known or later developed without compensation to you. Depending on your account settings, when you post or otherwise share User Content on or through our Services, you understand that your User Content and any associated information (such as your username or profile photo) may be visible to others.
You may not create, post, store or share any User Content that violates these Terms or for which you do not have all the rights necessary to grant us the license described above. You represent and warrant that your User Content, and our use of such content as permitted by these Terms, will not violate any rights of or cause injury to any person or entity. Although we have no obligation to screen, edit or monitor User Content, we may delete or remove User Content at any time and for any reason with or without notice.
You will not violate any applicable law, contract, intellectual property right or other third-party right or commit a tort, and you are solely responsible for your conduct while using our Services. You will not:
You may also post or otherwise share only User Content that is nonconfidential and that you have all necessary rights to disclose. You may not create, post, store or share any User Content that:
Enforcement of this Section 6 is solely at our discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. In addition, this Section 6 does not create any private right of action on the part of any third party or any reasonable expectation that the Services will not contain any content that is prohibited by such rules.
The Services, including the text, graphics, images, photographs, videos, illustrations and other content contained therein, are owned by Benthos or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Services are reserved by us or our licensors. Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services for your own personal use. Any use of the Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited, will terminate the license granted herein and violate our intellectual property rights.
SHRIMPY.IO and our logos, our product or service names, our slogans and the look and feel of the Services are trademarks of Benthos and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Services are the property of their respective owners. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by us.
You may voluntarily post, submit or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials or other information about Benthos or our Services (collectively, “Feedback”). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including, without limitation, to develop, copy, publish, or improve the Feedback in Benthos’s sole discretion. You understand that Benthos may treat Feedback as nonconfidential.
In accordance with the Digital Millennium Copyright Act and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, the accounts of users who repeatedly infringe the intellectual property rights of others. If you believe that anything on our Services infringes any copyright that you own or control, you may notify Benthos’s designated agent as follows:
Designated Agent: Michael McCarty
Address: 2975 Bowers Ave, Santa Clara, CA 95051
Telephone Number: 628-400-1753
E-Mail Address: firstname.lastname@example.org
Please see 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material on our Services is infringing, you may be liable to Benthos for certain costs and damages.
We may provide information about third-party products, services, activities or events, or we may allow third parties to make their content and information available on or through the Services (collectively, “Third-Party Content”). We provide Third-Party Content as a service to those interested in such content. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party. Benthos does not control or endorse, and makes no representations or warranties regarding, any Third-Party Content, and your access to and use of such Third-Party Content is at your own risk.
To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless Benthos and our subsidiaries and affiliates, and each of our respective officers, directors, agents, partners and employees (individually and collectively, the “Benthos Parties”) from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising out of or related to (a) your access to or use of the Services; (b) your User Content or Feedback; (c) your violation of these Terms; (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with the Services. You agree to promptly notify Benthos Parties of any third-party Claims, cooperate with Benthos Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys' fees). You also agree that the Benthos Parties will have control of the defense or settlement, at Benthos's sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Benthos or the other Benthos Parties.
Your use of our Services is at your sole risk. Except as otherwise provided in a writing by us, our Services and any content therein are provided “as is” and “as available” without warranties of any kind, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, Benthos does not represent or warrant that our Services are accurate, complete, reliable, current or error-free. While Benthos attempts to make your use of our Services and any content therein safe, we cannot and do not represent or warrant that our Services or servers are free of viruses or other harmful components. You assume the entire risk as to the quality and performance of the Services.
NEITHER BENTHOS NOR THE SERVICES ARE INTENDED TO PROVIDE LEGAL, TAX OR FINANCIAL ADVICE. BENTHOS IS NOT A FINANCIAL PLANNER, BROKER OR TAX ADVISOR. The Services are intended only to assist you in your Token organization and decision-making and is broad in scope. Accordingly, before making any final decisions or implementing any Token strategy, you should consider obtaining additional information and advice from your accountant or other financial advisers who are fully aware of your individual circumstances.
To the fullest extent permitted by applicable law, Benthos and the other Benthos Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, strict liability, warranty, or otherwise—for any indirect, consequential, exemplary, incidental, punitive or special damages or lost profits, even if Benthos or the other Benthos Parties have been advised of the possibility of such damages.
The total liability of Benthos and the other Benthos Parties for any claim arising out of or relating to these Terms or our Services, regardless of the form of the action, is limited to the greater of $100 or the amount paid by you to use our Services.
The limitations set forth in this Section 14 will not limit or exclude liability for the gross negligence, fraud or intentional misconduct of Benthos or the other Benthos Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.
To the fullest extent permitted by applicable law, you release Benthos and the other Benthos Parties from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which provides: “A general release does not extend to claims which the creditor 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.”
In order for us to provide our Services, you agree that we may process, transfer and store information about you in the United States and other countries, where you may not have the same rights and protections as you do under local law.
Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Benthos and limits the manner in which you can seek relief from us, unless you opt out of arbitration by following the instructions set forth below. No class or representative actions or arbitrations are allowed under this arbitration agreement. In addition, arbitration precludes you from suing in court or having a jury trial.
No Representative Actions. You and Benthos agree that any dispute arising out of or related to these Terms or our Services is personal to you and Benthos and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action or any other type of representative proceeding.
Arbitration of Disputes. Except for small claims disputes in which you or Benthos seeks to bring an individual action in small claims court located in the county of your billing address or disputes in which you or Benthos seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and Benthos waive your rights to a jury trial and to have any dispute arising out of or related to these Terms or our Services resolved in court. Instead, for any dispute or claim that you have against Benthos or relating in any way to the Services, you agree to first contact Benthos and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to Benthos by email at email@example.com or by certified mail addressed to 2975 Bowers Ave, Santa Clara, CA 95051. The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the claim; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and Benthos cannot reach an agreement to resolve the claim within thirty (30) days after such Notice is received, then either party may submit the dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court. All disputes submitted to JAMS will be resolved through confidential, binding arbitration before one arbitrator. Arbitration proceedings will be held in Santa Clara, California or may be conducted telephonically or via video conference for disputes alleging damages less than $100, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”). The most recent version of the JAMS Rules are available on the JAMS website and are hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason.
You and Benthos agree that these Terms affect interstate commerce and that the enforceability of this Section 17 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
The arbitrator, Benthos, and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including, but not limited to, all information gathered, prepared and presented for purposes of the arbitration or related to the dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.
You and Benthos agree that for any arbitration you initiate, you will pay the filing fee and Benthos will pay the remaining JAMS fees and costs. For any arbitration initiated by Company, Benthos will pay all JAMS fees and costs. You and Benthos agree that the state or federal courts of the State of California and the United States sitting in Santa Clara, California have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
Any claim arising out of or related to these Terms or our Services must be filed within one year after such claim arose; otherwise, the claim is permanently barred, which means that you and Benthos will not have the right to assert the claim.
You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section 17 by emailing us at firstname.lastname@example.org. In order to be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 18.
If any portion of this Section 17 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 17 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 17; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 17 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 17 will be enforceable.
Any dispute arising from these Terms and your use of the Services will be governed by and construed and enforced in accordance with the laws of California, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of California and the United States, respectively, sitting in Santa Clara, California.
We reserve the right to modify our Services or to suspend or stop providing all or portions of our Services at any time. You also have the right to stop using our Services at any time. We are not responsible for any loss or harm related to your inability to access or use our Services.
If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.
The definitions and rules of interpretation in this clause apply in this Agreement and in any other agreement between the parties.
Customer: you or any person, firm, company or other organisation whatsoever to whom Benthos has supplied goods or services.
Customer User: any employee of the Customer authorised by the Customer to access and use the Services (wholly or in part).
Data: the data or information, in whatever form including images, still and moving, and including financial and market research information, the provision of which comprises the Services (wholly or in part).
Materials: any documents or software supplied by the Supplier under these Terms.
Release: generally available upgrades and enhancements to the Data.
Software: any software provided by Benthos to enable the Services to be used including any Releases.
The Customer shall:
These Terms constitute the entire agreement between you and Benthos relating to your access to and use of our Services. Notwithstanding any other provisions of these Terms, Sections 6, 9, 12, 13, 14, 15, 17, 18, 21 and 22 survive any expiration or termination of these terms. The failure of Benthos to exercise or enforce any right or provision of these Terms will 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. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. You agree that communications and transactions between us may be conducted electronically. We will have no responsibility or liability for any failure or delay in performance of any Services, or any loss or damage that you may incur, due to any circumstance or event beyond our reasonable control, including without limitation any flood, extraordinary weather conditions, earthquake, or other act of God, fire, war, insurrection, riot, labor dispute, accident, action of government, communications, power failure, or equipment or software malfunction. These Terms may not be transferred, assigned or delegated by you, by operation of law or otherwise, without our prior written consent, and any attempted transfer, assignment or delegation without such consent will be void and without effect. We may freely transfer, assign or delegate these Terms or the Services, in whole or in part, without your prior written consent. Under California Civil Code Section 1789.3, California consumers are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N-112, Sacramento, California 95834, or by telephone at 1 (800) 952-5210.