Red Balloon Security logo wordmark

Bitwise Cloud – Terms of Service

As of February 27, 2025

1. Acceptance of Terms

By accessing or using Bitwise Cloud or any related products, content, software services and applications (collectively, the “Service” or “Services”) in any manner and as provided by or on behalf of Red Balloon Security, Inc. (“we”, “us”, “RBS” or “our”), you agree to comply with and be bound by the following Terms of Service (“Terms”) which is a binding contract between you and us. If you do not agree to these Terms, you must not use the Service. These Terms will remain in effect while you use the Service. Please read these Terms carefully. They cover important information about Services provided to you and any charges, taxes, and fees we bill you. These Terms include information about changes to these Terms, limitations of liability, a class action waiver and resolution of disputes by arbitration instead of in court as detailed in Arbitration Agreement (as defined below). PLEASE NOTE YOUR USE OF AND ACCESS TO OUR SERVICE ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICE IN ANY MANNER.

IMPORTANT ARBITRATION NOTICE AND CLASS ACTION WAIVER: PLEASE REVIEW THE ARBITRATION NOTICE AND CLASS ACTION WAIVER IN SECTION 13 BELOW CAREFULLY (THE “ARBITRATION AGREEMENT”), AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES BETWEEN YOU AND US BY BINDING, INDIVIDUAL ARBITRATION EXCEPT FOR EXCLUDED DISAGREEMENTS (AS DEFINED IN THE ARBITRATION AGREEMENT BELOW). YOU ACKNOWLEDGE AND AGREE THAT (1) YOU AND WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AND (2) YOU WAIVE YOUR RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION LAWSUIT, CLASS-WIDE ARBITRATION, OR REPRESENTATIVE PROCEEDING AGAINST US. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD, AND AGREE TO BE BOUND BY, ALL OF THE TERMS AND CONDITIONS OF THIS ARBITRATION AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.

2. Service Access

Subject to these Terms, we grant you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Service solely for personal or business purposes, only as provided herein and only in accordance with any applicable official user documentation for such Service, and not on behalf of or for the benefit of any third party. You are responsible for ensuring that your use of the Service complies with all applicable laws, rules, regulations, and third-party rights. You represent and warrant that you are an individual of legal age to form a binding contract If you’re agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization’s or entity’s behalf and bind them to these Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to that organization or entity).

3. Account Registration

In order to use the Service, you are required to create an account (“User ID”). You agree to provide accurate, current, and complete information during the registration process and to keep your User ID’s account information up to date. You are responsible for maintaining the confidentiality and security of your User ID’s account credentials and for all activities that occur under your User ID. You may not select as your User ID a name that you do not have the right to use, or another person’s name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission.

4. Restrictions

You represent, warrant and agree that you will not use or interact with the Services including, without limitation, by providing, uploading or submitting any data, information or material to the Service, including any FPGA bitstreams (“User Submissions”), in order to or in a manner which would:

A violation of any of the foregoing is grounds for termination of your right to access or use the Service.

5. Cloud Hosting and Availability

The Service is hosted in the cloud, and as such, its availability may be subject to downtime or outages, whether due to maintenance, technical failures, or other reasons beyond our control. We do not guarantee uninterrupted availability of the Service and are not liable for any loss or damage resulting from such downtime. Without limiting the foregoing, you acknowledge and agree that the Service may operate on, with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”), including without limitation through integrations or connectors to such Third Party Services that are provided by us. We are not responsible for the operation of any Third Party Services nor the availability or operation of the Service to the extent such availability and operation is dependent upon Third Party Services. You are solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof. We do not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between you and a third party provider is solely between you and such third party provider and is governed by such third party’s terms and conditions.

6. Data Privacy

By using the Service, you agree to our Privacy Policy, which governs the collection, use, and storage of your Personal Data (as defined therein) including, without limitation, to the extent such Personal Data is embodied in your User Submissions. You acknowledge that data transmitted over the internet may be subject to security breaches, and while we take reasonable precautions to protect your data, we cannot guarantee its absolute security. By registering for a User ID and providing, submitting or uploading User Submissions, you will have access to use the Service. We are allowed to use the User Submissions as well as your session activity or other usage-based telemetry or other metadata submitted to, collected by or generated by you (“Usage Data”) in connection with your access and use of the Service as provided for hereunder and in accordance with our Privacy Policy. If you do not agree to this, then please do not use or discontinue use of the Service.

7. Intellectual Property

All intellectual property and moral rights in the Service, including but not limited to software, products, works, trademarks, logos, Usage Data, and content, are owned and retained by us or our licensors (collectively, “RBS Background IP”). You are granted no right, title, interest or ownership in any RBS Background IP other than the limited license to use the Service as provided for in these Terms. For all User Submissions, you hereby grant us a license to (i) use and display such User Submissions to provide the Service; and (ii) freely use, retain and make available User Submissions for solely the purpose of improving, testing, training and operating our products and services. Other than the foregoing license granted by you to us, as between us, you retain all other right, title and interest in your User Submissions.

8. Payments

The Service may be free, discounted (as detailed below) or we may charge a fee for using the Service. If you are using a free version of the Service, we will notify you before any Service you are then using begin carrying a fee, and if you wish to continue using such Service, you must pay all applicable fees for such Service. For any Service which is subject to payments now or in the future (“Paid Service”), a description of such Paid Service is available through the Service.

If indicated through the Service, such fees shall correspond to the volume or manner of your use of the Service (“Credits”). In the event that your use of the Service would exceed your available Credits, then you will be required to purchase additional Credits which correspond to the aggregate number of Credits necessary to accommodate your use of the Service at the rates set forth through the Service or, if no rates are set forth therein, at then-current standard rates for the purchase of Credits necessary to accommodate such use.

Any free trial or other promotion that provides access to a Paid Service including, without limitation, if we provide you with any Credits at a discounted rate or for no charge, must be used within the specified time or in accordance with any restrictions presented to you through the Service. You must stop using a Paid Service before the end of the trial or discount period, or as otherwise required through the Service, in order to avoid being charged for that Paid Service.

Please note that any payment terms presented to you in the process of using or signing up for a Paid Service are deemed part of these Terms. We use a third-party payment processor (the “Payment Processor”) to bill you through a payment account linked to your account on the Service (your “Billing Account”) for use of the Paid Service. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to these Terms. Currently, we use Stripe, Inc. as our Payment Processor. You can access Stripe’s Terms of Service at https://stripe.com/us/checkout/legal and their Privacy Policy at https://stripe.com/us/privacy. We are not responsible for any error by, or other acts or omissions of, the Payment Processor. By choosing to use a Paid Service, you agree to pay us, through the Payment Processor, all charges at the prices then in effect for any use of such Paid Service in accordance with the applicable payment terms, and you authorize us, through the Payment Processor, to charge your chosen payment provider (your “Payment Method”). You agree to make payment using that selected Payment Method. We reserve the right to correct any errors or mistakes that the Payment Processor makes even if it has already requested or received payment. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.

A Paid Service may consist of an initial period, for which there is a one-time charge, followed by recurring period charges as agreed to by you. By choosing a recurring payment plan, you acknowledge that such Service has an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSOR IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF PAID SERVICES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR PAID SERVICES.

If the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.

9. Termination

We reserve the right to suspend or terminate your access to the Service at our discretion, without notice, for any reason, including but not limited to violations of these Terms. We have the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms. Upon termination, your right to use the Service will immediately cease, and you must stop using the Service. In addition, termination may result in the destruction of any User Submissions associated with your User ID. Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us, including without limitation the arbitration agreement.

10. Disclaimer of Warranties

The Service is provided on an “as is” and “as available” basis without any warranties or representations, express or implied. Without limiting the foregoing, We nor our licensors, suppliers, partners, parent, subsidiaries or affiliated entities, and each of their respective officers, directors, members, employees, consultants, contract employees, representatives and agents, and each of their respective successors and assigns (collectively, the “RBS Parties”) do not represent or warrant that the Service will meet your requirements, be error-free, or be available without interruptions. To the fullest extent permitted by law, we hereby disclaim all warranties including, but not limited to, implied warranties of merchantability, fitness for a particular purpose and non-infringement.

11. Limitation of Liability

WE AND ANY PAST, PRESENT OR FUTURE RBS PARTIES WILL NOT BE LIABLE FOR (A) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL , EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA, USE, GOODWILL, OR OTHER LOSSES, RESULTING FROM (I) YOUR ACCESS TO, USE OF, OR INABILITY TO ACCESS OR USE THE SERVICE OR DATA; (II) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (III) ANY CONTENT OBTAINED FROM THE SERVICE; AND (IV) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR USER SUBMISSIONS, UPLOADS, OR DATA CONTENT, (B) ANY SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR (C) ANY MATTER BEYOND OUR REASONABLE CONTROL, WHETHER ANY OF THE FOREGOING (A) THROUGH (C) ARE BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.

THE FOREGOING LIMIT OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

12. Indemnification

You agree to indemnify and hold harmless RBS Parties from and against any and all claims, damages (actual and consequential), liabilities, costs, and expenses (including reasonable legal fees) arising from or in any way related to your use of the Service, your violation of these Terms, or your infringement of any third-party rights.

13. ARBITRATION AGREEMENT

A. DISPUTE RESOLUTION; BINDING ARBITRATION; JURY TRIAL; AND CLASS ACTION WAIVER

PLEASE READ THIS SECTION CAREFULLY. IT CONTAINS THE ARBITRATION AGREEMENT, WHICH MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. THIS ARBITRATION AGREEMENT CONTAINS PROCEDURES FOR FINAL AND BINDING INDIVIDUAL ARBITRATION AND A WAIVER OF ANY AND ALL RIGHTS TO PROCEED IN A CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE ACTION (COLLECTIVELY, A “CLASS ACTION”) IN ARBITRATION OR LITIGATION.

YOU AND RBS ARE GIVING UP THE RIGHT TO HAVE A JURY TRIAL TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW AND TO FILE OR PARTICIPATE IN A CLASS ACTION SUBJECT TO THE LIMITED EXCLUSION BELOW. IN ARBITRATION, DISPUTES ARE RESOLVED BY AN ARBITRATOR, NOT A JUDGE OR JURY, AND THERE IS LESS DISCOVERY AND APPELLATE REVIEW THAN IN COURT.

Most customer concerns can be resolved by emailing us at [email protected]. In the event we are unable to resolve a complaint to your satisfaction, this section explains how any Dispute (as defined below) will be resolved.

For purposes of this section, the terms “RBS”, “our,” “we,” or “us” includes Red Balloon Security, Inc. as well as any of their respective present or future affiliates or subsidiaries, and any persons or entities (including agents, representatives, or employees) related to RBS or its present or future affiliates or subsidiaries. Both you and RBS acknowledge and agree that for the purpose of any dispute arising out of relating to the subject matter of these Terms, RBS’s officers, directors, employees, and independent contractors (“Personnel”) are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary hereof.

YOU AND RBS AGREE THAT ANY DISPUTE (DEFINED BELOW) SHALL BE RESOLVED BY FINAL AND BINDING INDIVIDUAL ARBITRATION EXCEPT AS OTHERWISE PROVIDED HEREIN. NOTWITHSTANDING THE FOREGOING, EITHER PARTY MAY ELECT TO HAVE INDIVIDUAL CLAIMS HEARD IN SMALL CLAIMS COURT IF THOSE CLAIMS QUALIFY FOR SMALL CLAIMS COURT AND SO LONG AS THE MATTER REMAINS IN SUCH COURT AND IS NOT REMOVED OR APPEALED TO A COURT OF GENERAL JURISDICTION AND ADVANCES ONLY ON AN INDIVIDUAL (NON-CLASS ACTION) BASIS. ANY DISPUTE OVER WHETHER CLAIMS QUALIFY FOR SMALL CLAIMS COURT IS FOR THE SMALL CLAIMS COURT TO DECIDE IN THE FIRST INSTANCE AND, IF NECESSARY, FOR A COURT OF COMPETENT JURISDICTION TO DECIDE.

You and RBS agree that these Terms affect interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq., and federal arbitration law apply to this Arbitration Agreement and govern all questions as to whether a Dispute is subject to arbitration.

For purposes of this Arbitration Agreement, “Dispute” shall include, but is not limited to, any claims or controversies between you and RBS that are related in any way to these Terms, including, but not limited to, your use of RBS’s Services, policies, privacy practices, advertising, and/or any communications between you and RBS (to the extent applicable to a dispute regarding RBS), whether occurring on the RBS application, website, or otherwise, even if the Dispute arises after the termination of your relationship with RBS. “Dispute” also includes, without limitation, claims that: (a) you bring against RBS; (b) RBS brings against you; (c) in any way relate to or arise out of any aspect of the relationship between you and RBS, whether based in contract, tort, statute, fraud, misrepresentation, advertising claims, or any other legal theory; (d) arose before you entered into these Terms or out of a prior agreement with RBS (including, without limitation, claims relating to advertising); (e) are subject to ongoing litigation where you are not a party or a member of a certified class; and/or (f) arise after the termination of these Terms. “Dispute” does not include any disagreement or dispute arising out of and relating to (1) your use of third-party services; (2) any breach of your privacy rights caused by a third party; (3) your reliance on claims or statements made by a third party; and (4) patents, copyrights, trademarks, and trade secrets, including piracy, infringement, or unauthorized use of intellectual property (collectively, “Excluded Disagreements”); provided further, with respect to (1) to (3) of the foregoing, you acknowledge and agree to release and hold us harmless from any and all liability arising from, made, or caused by an applicable third-party provider as set forth and described in these Terms with respect to Third Party Services. Excluded Disagreements shall not be subject to arbitration or the notice and informal process described below. The arbitrator shall decide all issues except for: (a) those that are specifically reserved for a court herein; (b) those issues relating to the scope, validity, and enforceability of the Arbitration Agreement or any of the provisions of this section; (c) any issues arising from or relating to the arbitrability of any Dispute and/or the forum in which a dispute should be arbitrated; and (d) whether the arbitration administrator cannot or will not administer the arbitration in accordance with this Arbitration Agreement—all of which are for a court of competent jurisdiction to decide. These Terms and this Arbitration Agreement do not prevent you from bringing your Dispute to the attention of any federal, state, or local government agency.

B. Mandatory Pre-Arbitration Informal Dispute Resolution

You and RBS agree to engage cooperatively, and in good faith, to try to resolve any Dispute prior to you or RBS initiating an arbitration proceeding. You or RBS must first send a written notice (“Pre-Arbitration Notice”) to the other party, and your Pre-Arbitration Notice to RBS must include the following: (a) a detailed description of the nature and the basis for the Dispute and any relief sought (including a detailed calculation of any damages); (b) your full name and the email address associated with your RBS account; and (c) sufficient information to enable you or us to identify any transaction and/or the applicable Services at issue . Your notice to us must be personally signed by you (and your attorney if you are represented by legal counsel).

Your Pre-Arbitration Notice to RBS must be sent to 639 11th Avenue, Floor 4, New York, NY 10036, with a copy via email to [email protected]. Our Pre-Arbitration Notice to you will be sent to the most recent contact information that you have provided to us.

For a period of 60 days from the date of receipt of a completed Pre-Arbitration Notice from the other party, you and we will work together using reasonable efforts to try to resolve the Dispute. If requested by us in connection with a Pre-Arbitration Notice initiated by you, you agree to personally participate in an individualized telephone settlement conference (and if you are represented by an attorney, your attorney may also participate) to discuss a potential early resolution of the matter. If the Dispute is not resolved within this 60-day period (which can be extended by agreement of the parties), you or RBS may commence arbitration consistent with the process set forth below. Compliance with this informal dispute resolution process is mandatory and a condition precedent to initiating arbitration.

Any applicable limitations period (including statutes of limitations) shall be tolled while the parties engage in this informal dispute resolution process.

This pre-arbitration process is essential so that you and RBS have a meaningful chance to resolve disputes informally. If the sufficiency of a Pre-Arbitration Notice or compliance with this informal dispute resolution process is at issue, such issue may be raised with and decided by a court of competent jurisdiction at either party’s election, and any arbitration shall be stayed pending resolution of the issue. The court shall have the authority to enforce this condition precedent to arbitration, which includes the power to enjoin the filing or prosecution of a demand for arbitration or the assessment or payment of arbitration fees. You or we may also elect to raise non-compliance with this informal dispute resolution process and seek relief in arbitration.

C. Arbitration Rules and Procedures

If, after the foregoing informal negotiations, the parties cannot resolve the dispute, it shall be finally settled by binding arbitration in New York County, New York. The arbitration will proceed in the English language and shall be administered by the American Arbitration Association (the “AAA”) pursuant to its Consumer Arbitration Rules, and, if applicable, its Mass Arbitration Supplementary Rules, that are in effect at the time the arbitration is initiated (the “Rules”), as modified by the terms set forth in this Agreement. Copies of the Rules can be obtained at the AAA’s website (www.adr.org). Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the claims presented, the arbitrator shall have the discretion to select a different set of Rules, but in no event, unless you and RBS agree otherwise, shall the arbitrator consolidate more than one person’s claims, or otherwise preside over any form of representative, collective, or class proceeding. The parties may select a different arbitration administrator, forum, and/or third party neutral upon mutual written agreement.

To commence an arbitration proceeding, you must send an arbitration demand to the AAA and serve a courtesy copy to RBS, located at: 639 11th Avenue, Floor 4, New York, NY 10036, with an electronic copy sent to [email protected], or we must send an arbitration demand to AAA and serve a courtesy copy on you at the most current address we have on file. The physical courtesy copy must be accompanied by a certification of completion of the informal dispute resolution process and a copy of the notice.

Any complaint or arbitration demand must be accompanied by a copy of the Pre-Arbitration Notice, and a certification personally signed by you or your attorney, if you are represented by legal counsel (if you are initiating arbitration) or by an RBS representative or our attorney, if we are represented by legal counsel (if we are initiating arbitration). By filing a complaint or arbitration demand, the party and its attorney initiating the arbitration represent that to the best of their information, knowledge, and belief, formed after a reasonable inquiry that: (a) the arbitration demand is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (b) the claims or 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 (c) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after reasonable opportunity for further investigation or discovery. The arbitrator is expressly authorized to impose any sanctions available under Federal Rule of Civil Procedure 11 on represented parties and their counsel if the arbitrator determines that a frivolous and/or improper claim was initiated by parties and/or their counsel.

D. Cost of Arbitration

The Rules will govern payment of all arbitration fees as modified by this Arbitration Agreement, unless the parties mutually agree to a different arbitration provider. You and we agree that the parties have a shared interest in reducing the fees and costs and increasing the efficiencies associated with arbitration. Therefore, you or we may elect to engage with the AAA regarding fees, and you and we agree that the parties (and your and our counsel, if you and we are represented) will work together in good faith to ensure that arbitration remains cost-effective for all parties

The arbitration will be conducted by a single arbitrator who will apply these Terms as a court would and will adjudicate any Dispute according to applicable law and facts based upon the record only.

Although under some laws RBS may have a right to an award of attorneys' fees and non-filing fee expenses if it prevails in an arbitration, RBS will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous or that you or your counsel have violated the standards of Federal Rule of Civil Procedure 11, which the parties agree shall be applicable in arbitration. The cost-shifting provisions of Federal Rule of Civil Procedure 68 shall also apply and be enforced by the arbitrator after entry of an award. An award that has been satisfied may not be entered in court. RBS will consider a request to reimburse the consumer filing fee upon a demonstration of financial hardship.

UNLESS BOTH YOU AND WE AGREE OTHERWISE, ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, COLLECTIVE, OR PRIVATE ATTORNEY GENERAL BASIS. CLAIMS OF MORE THAN ONE PERSON CANNOT BE ARBITRATED JOINTLY OR BE CONSOLIDATED WITH THOSE OF ANY OTHER PERSON. ADDITIONALLY, YOU AND RBS AGREE THAT THE ARBITRATOR MAY AWARD INDIVIDUAL RELIEF AVAILABLE IN COURT (INCLUDING, WITHOUT LIMITATION, DAMAGES, DECLARATORY, INJUNCTIVE, OR OTHER EQUITABLE RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY'S PARTICULAR CLAIM. THE ARBITRATOR MAY NOT ISSUE A “PUBLIC INJUNCTION.” THE ARBITRATOR DOES NOT HAVE THE POWER TO VARY THESE CLASS ACTION WAIVER PROVISIONS. IF, FOR ANY REASON, A COURT OF COMPETENT JURISDICTION HOLDS THAT THESE RESTRICTIONS ARE UNENFORCEABLE WITH RESPECT TO A PARTICULAR CLAIM OR REQUEST FOR RELIEF (SUCH AS A REQUEST FOR PUBLIC INJUNCTIVE RELIEF OR ANY PRIVATE ATTORNEY GENERAL CLAIM), AND ALL APPEALS FROM THAT DECISION HAVE BEEN EXHAUSTED (OR THE DECISION IS OTHERWISE FINAL), THE PARTIES AGREE THAT THE PARTICULAR CLAIM OR REQUEST FOR RELIEF MAY PROCEED IN A COURT OF COMPETENT JURISDICTION BUT SHALL BE STAYED PENDING ARBITRATION OF ALL REMAINING CLAIMS AND REQUESTS FOR RELIEF.

E. Additional Procedures for Coordinated Disputes/Filings

You and RBS agree that these procedures (in addition to all others provided in this section) shall also apply if your claim is part of a “Mass Filing” (defined below).

If 25 or more similar Disputes (including yours) are asserted against RBS by the same or coordinated counsel or are otherwise coordinated (“Mass Filing”), the AAA’s Mass Arbitration Supplementary Rules and the additional procedures set forth herein shall apply. You understand and agree that by choosing to be part of a Mass Filing, these additional procedures shall apply, and the resolution of your Dispute might be delayed. The parties agree that throughout this process, their counsel shall meet and confer in an effort to informally resolve the Disputes, streamline procedures, address the informal exchange of information, modify the number of Disputes to be adjudicated and to promote efficiency, conservation of resources, and the resolution of claims.

If your claim is part of a Mass Filing, the statute of limitations applicable to the claims and relief set forth in that Notice shall be tolled from the date the Pre-Arbitration Notice is received until your Dispute proceeds in arbitration or is settled, withdrawn, otherwise resolved, or opted out of arbitration pursuant to this section.

A court of competent jurisdiction shall have the authority to enforce these Additional Procedures for Coordinated Disputes/Filings section of the Arbitration Agreement, including by enjoining the Mass Filing, the prosecution or administration of arbitrations, and the assessment or collection of arbitration fees.

The Additional Procedures for Coordinated Disputes/Filings section of the Arbitration Agreement and each of its requirements are essential parts of this Arbitration Agreement. If, after exhaustion of all appeals, a court of competent jurisdiction decides that this section applies to your Dispute and is not enforceable, then your Dispute shall not proceed in arbitration and shall only proceed in a court of competent jurisdiction consistent with the remainder of the Terms.

STAGE ONE: Assuming there are at least 50 Disputes submitted as part of the Mass Filing, your counsel and our counsel shall each select 25 Disputes (per side) to proceed as cases in individual arbitration proceedings as part of an initial staged process. Alternatively, either side’s counsel may elect to have their 25 cases selected randomly. The number of Disputes to be selected to proceed as part of this initial staged process can be increased by agreement of counsel for the parties (and if there are fewer than 50 Disputes, all shall proceed individually in Stage One). Each of the 50 (or fewer) cases shall be assigned to a different arbitrator and proceed in individual arbitrations. If a case is withdrawn without the consent of both parties, then another Dispute shall be selected consistent with the selection process referenced above to proceed as part of this Stage One. The remaining Disputes shall not be filed or deemed filed in arbitration nor shall any arbitration fees be assessed or collected in connection with those claims until they are selected to proceed to individual arbitration proceedings as part of a staged process. If after this initial set of proceedings the parties are unable to informally resolve the remaining Disputes, they shall participate in a global mediation session with a retired federal or state court judge to be jointly selected by counsel for the parties in an effort to resolve the remaining Disputes (as informed by the adjudications of cases in Stage One), and RBS shall pay the mediator’s fee.

STAGE TWO: If the remaining Disputes have not been resolved at the conclusion of Stage One, counsel for the claimants and counsel for RBS shall each select 50 Disputes per side to be filed and to proceed as cases in individual arbitrations as part of a second staged process, subject to any procedural changes the parties agree to in writing following mediation or through continuing, good faith discussions. Alternatively, either side’s counsel may elect to have their 50 Disputes selected randomly. The number of Disputes to be selected to proceed as part of this second staged process can be increased by agreement of counsel for the parties (and if there are fewer than 100 Disputes, all shall proceed individually in Stage Two). No more than 3 cases may be assigned to a single arbitrator to proceed individually unless the parties agree otherwise. If a case is withdrawn without the consent of both parties, then another Dispute shall be selected consistent with the selection process referenced above to proceed as part of this Stage Two. The remaining Disputes shall not be filed or deemed filed in arbitration nor shall any arbitration fees be assessed or collected in connection with those claims. After this second set of staged proceedings is completed, the parties shall engage in a global mediation session of all remaining Disputes with a retired federal or state court judge to be jointly selected by counsel for the parties in an effort to resolve the remaining Disputes (as informed by the adjudications of cases in Stages One and Two), and RBS shall again pay the mediator’s fee.

Upon the completion of the global mediation session set forth in Stage Two, each remaining Dispute (if any) that is not settled or not withdrawn shall proceed with the adjudication of the remaining Disputes in individual arbitration proceedings consistent with the process set forth in Stage Two (except Disputes shall be randomly selected and mediation shall be elective by agreement of counsel for the parties) or through another mutually-agreeable process.

A court of competent jurisdiction shall have the authority to enforce this staging requirement of the Arbitration Agreement, including by enjoining the Mass Filing, the prosecution or administration of arbitrations, and the assessment or collection of arbitration fees.

F. Waiver of Jury Trial; Waiver of Class Actions

TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, YOU AND RBS WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. YOU AND RBS ALSO WAIVE ANY RIGHT TO BRING OR PARTICIPATE IN A CLASS ACTION IN ARBITRATION OR IN LITIGATION IN COURT. You and RBS are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and RBS over whether to vacate or enforce an arbitration award, YOU AND RBS WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.

NOTWITHSTANDING THE FOREGOING, THE PARTIES RETAIN THE RIGHT TO PARTICIPATE IN A CLASS-WIDE SETTLEMENT. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor RBS is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in below.

G. Opt-Out

You have the right to opt out of the provisions of this Section 13(g) by sending written notice of your decision to opt out to the following address: 639 11th Avenue, Floor 4, New York, NY, postmarked within thirty (30) days of first accepting these Terms. You must include (i) your name and residence address, (ii) the email address and/or telephone number associated with your account, and (iii) a clear statement that you want to opt out of this Agreement’s arbitration agreement.

H. Exclusive Venue; Governing Law

If you send the opt-out notice described in Section 13(g), and/or in any circumstances where the foregoing Arbitration Agreement permits either you or RBS to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party, and both you and RBS agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, New York County, New York, or the federal district in which that county falls.

I. Severability

Except as specifically provided in the Arbitration Agreement (e.g., the Additional Procedures for Coordinated Disputes/Filings), if any part or parts of this Arbitration Agreement is/are found by a court of competent jurisdiction to be invalid or unenforceable as to your Dispute, 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. This Arbitration Agreement will survive the termination of your relationship with RBS and/or these Terms.

J. Future Changes to Arbitration Agreement

If we make any future changes to this Arbitration Agreement (other than a change to our mailing address), you may reject any such change by sending your personally signed, written notice to the following address: 639 11th Avenue, Floor 4, New York, NY, postmarked within 30 days of the change. Such written notice does not constitute an opt-out of arbitration altogether. By rejecting any future change, you are agreeing that you will arbitrate any Dispute between you and RBS in accordance with this version of the Arbitration Agreement.

14. Miscellaneous

These Terms shall be governed by and construed under the Federal Arbitration Act, applicable federal law and in accordance with the laws of New York, without regard to its conflict of law principles thereof. We reserve the right to modify or update these Terms at any time. Any changes to these Terms will be effective upon posting the updated Terms on our website or notifying you via email or other communication methods. Your continued use of the Service after such changes constitutes your acceptance of the modified Terms. If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Service. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Service User ID, in any way (by operation of law or otherwise) without our prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Service, provided that the we may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms are found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and we agree that these Terms are the complete and exclusive statement of the mutual understanding between you and we, and that these Terms supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You acknowledge and agree that you are not an employee, agent, partner, or joint venture of us, and you do not have any authority of any kind to bind us in any respect whatsoever. Except as expressly set forth in the Arbitration Agreement, you and we agree there are no third-party beneficiaries intended under these Terms. If you have any questions or concerns about these Terms, please contact us at:

Red Balloon Security, Inc.
[email protected]
917-259-1057