DYDX SOFTWARE TERMS OF USE

DYDX SOFTWARE TERMS OF USE

NOTICE ON PROHIBITED USE 

THE DYDX PROTOCOL SOFTWARE, INCLUDING THE V4 PROTOCOL, DYDX CHAIN AND ASSOCIATED SOFTWARE AND DOCUMENTATION INCLUDING THE DYDX MATERIALS (AS DEFINED BELOW) (TOGETHER “DYDX SOFTWARE”) WAS NOT DEVELOPED FOR, MAY NOT BE USED BY, AND IS NOT AVAILABLE TO PERSONS OR ENTITIES WHO RESIDE IN, ARE CITIZENS OF, ARE LOCATED IN, ARE INCORPORATED IN, OR HAVE A REGISTERED OFFICE OR PRINCIPAL PLACE OF BUSINESS IN ANY JURISDICTION WHERE THE DYDX SOFTWARE IS INELIGIBLE FOR USE (INCLUDING WITHOUT LIMITATION THE UNITED STATES OF AMERICA,CANADA) OR ANY OTHER RESTRICTED TERRITORY (AS DEFINED BELOW) (COLLECTIVELY, “RESTRICTED PERSONS”). THERE ARE NO EXCEPTIONS. 

IF YOU ARE A RESTRICTED PERSON, THEN DO NOT USE OR ATTEMPT TO USE DYDX SOFTWARE. USE OF ANY TECHNOLOGY OR MECHANISM, SUCH AS A VIRTUAL PRIVATE NETWORK (“VPN”) TO CIRCUMVENT THE RESTRICTIONS SET FORTH HEREIN IS PROHIBITED. 

EACH TIME YOU ACCESS OR USE THE DYDX SOFTWARE, YOU CONFIRM THAT (A) YOU ARE NOT A RESTRICTED PERSON; (B) YOU (INCLUDING, IF APPLICABLE, YOUR INDIVIDUAL OWNERS, REPRESENTATIVES, EMPLOYEES) WILL NOT COORDINATE, CONDUCT OR CONTROL (INCLUDING BY, IN SUBSTANCE OR EFFECT, MAKING DECISIONS WITH RESPECT TO) YOUR USE OF DYDX SOFTWARE FROM WITHIN THE UNITED STATES OF AMERICA, CANADA OR ANY RESTRICTED TERRITORY; AND (C) IF YOU ARE DEPLOYING DYDX SOFTWARE FOR PUBLIC USE THROUGH A WEBSITE INTERFACE OR OTHERWISE, YOU WILL TAKE ALL REASONABLE STEPS TO ENSURE YOUR USERS’ COMPLIANCE WITH THESE TERMS, INCLUDING THE RESTRICTIONS REGARDING RESTRICTED PERSONS. 

YOU ACKNOWLEDGE, UNDERSTAND AND AGREE THAT (I) YOU MUST NOT MODIFY, DISASSEMBLE, DECOMPILE, ADAPT, ALTER, TRANSLATE, REVERSE ENGINEER OR CREATE DERIVATIVE WORKS OF DYDX SOFTWARE TO MAKE SUCH DYDX SOFTWARE OR DERIVATIVES OF SUCH SOFTWARE AVAILABLE TO ANY RESTRICTED PERSONS; AND (II) DTI (DEFINED BELOW) DOES NOT AND WILL NOT HAVE CONTROL OVER THE DEVELOPMENT, GROWTH, MAINTENANCE OR OPERATIONS OF ANY WEBSITE INTERFACE OR PROTOCOL USING THE DYDX SOFTWARE.

DTI MAY FURTHER RESTRICT USE OF THE DYDX SOFTWARE DUE TO CHANGES IN LAWS REGULATIONS OR BUSINESS CONSIDERATIONS IN ITS SOLE DISCRETION AND DTI WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE RESULTING FROM THE TEMPORARY OR PERMANENT LOSS OF USE OF THE DYDX SOFTWARE

ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 11 (Dispute Resolution and Arbitration), you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND DTI ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING.  

These dYdX Software Terms of Use, (including its annexes), together with the Privacy Policy, and any other documents and additional terms they expressly incorporate by reference, which includes any other terms and conditions or other agreement that dYdX Trading Inc. and its affiliates (“DTI,” “we,” “us” and “our”) posts publicly or makes available to you or the company or other legal entity you represent (“you” or “your”) (collectively, these “Terms”), are entered into between DTI and you when you use or  access the dYdX Software. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU MUST NOT ACCESS OR USE THE DYDX SOFTWARE. 

Please review these Terms carefully to understand your rights and obligations, including with respect to governing law, arbitration, venue for dispute resolution and other dispute resolution matters, prohibited activities, indemnification, disclosures and disclaimers, limitations of liability, and exclusions of consequential damages and other claims. 

1.  Modifications to These Terms

We may update the Terms from time to time in our sole discretion. If we do, we will let you know  by updating the “Last Updated” date at the top of these Terms. You agree to consult these Terms regularly to stay apprised of any changes.  Unless we state otherwise in our notice, all such modifications are effective immediately, and your continued access to and use of dYdX Software after we provide that notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, then you must stop using dYdX Software. We may change or discontinue supporting dYdX software at any time and without notice at our sole discretion. 

2.   License

Any dYdX code, software or documentation, including the dYdX Chain Documentation , the dydxprotocol Github repository, and the dydx.exchange site (the “Site”) (collectively, the “dYdX Materials”) is subject to the applicable license (the "License") set forth in the applicable GitHub repository or other location where we provide such dYdX Materials. If no license is set forth therein, or if there is any ambiguity as to what license applies in any applicable GitHub repository (or submodule within any such repository) or other location where we provide such dYdX Materials, then such dYdX Materials are subject to the following license:  https://dydx.exchange/gnu-agpl-license?

3.   Restricted Persons

The following categories of persons (collectively, “Restricted Persons”) are prohibited from using dYdX Software:

• Persons or entities who reside in, are located in, are incorporated in, have a registered office in, or are operated or controlled from the United States or Canada;  

• Persons or entities who reside in, are citizens of, are located in, are incorporated in, have a registered office in, or are operated or controlled from Iran, Cuba, North Korea, Syria, Myanmar (Burma), the regions of Crimea, Donetsk or Luhansk, or any other country or region that is the subject of comprehensive country-wide or region-wide economic sanctions by the United States; 

• Persons or entities subject to any economic or trade sanctions administered or enforced by any governmental authority or otherwise designated on any list of prohibited or restricted parties (including the list maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury);

• Any other persons or entities whose use of dYdX Software is contrary to any applicable law.  

4.   Software Deployers

DTI does not deploy dYdX Software for public use or operate any infrastructure or website interface for any public deployments of dYdX Software.  Parties who choose to deploy and make available for public use dYdX Software or derivative works of dYdX Software (“Deployers”) via operation of a public front-end must provide their users sufficient notice of and a link to these Terms and reproduce and obtain their users agreement to the terms and conditions provided in Annex A (Perpetual Contracts), Annex B (MegaVault),  Annex C (Affiliates), and Annex D (Instant Market Listings)  as applicable if the front-end Deployer is using those dYdX Software features.  Nothing in this section is intended to preclude Deployers from implementing their own terms and conditions, so long as such terms do not conflict with these Terms or the applicable Annex A, Annex B,  Annex C or Annex D terms.  

5.  Use of dYdX Software

As a condition to accessing or using dYdX Software, you acknowledge, understand, and agree to the following:

• you must not modify, alter or create derivative works of dYdX Software that impairs the default detection and prevention mechanisms with respected to Restricted Persons incorporated in dYdX Software;

• if you are a Deployer making dYdX Software or derivative works of dYdX Software available for public use, you are solely responsible for ensuring that you do not permit use of dYdX Software by Restricted Persons, and that your users’ use of dYdX Software or derivatives of such software complies with these Terms and applicable law, and you agree to indemnify and hold harmless DTI against any losses arising from your users’ failure to comply with these Terms;

• you are responsible for auditing and reviewing any dYdX Software prior to using such dYdX Software or making it available to others;

• any use or interaction with dYdX Software requires a comprehensive understanding of applied cryptography and computer science to appreciate the inherent risks, including those listed above. You represent and warrant that you possess relevant knowledge and skills. Any reference to a type of Digital Asset during the use of dYdX Software does not indicate approval or disapproval of the technology on which the Digital Asset relies, and should not be used as a substitute for your understanding of the risks specific to each type of Digital Asset.

• DTI does not, and will not operate, run or deploy dYdX Software for public use.  If you are using a public deployment of dYdX Software or a derivative work of dYdX Software offered by a Deployer, you are responsible for conducting your own due diligence on such Deployer;

• DTI may, in its sole discretion, provide updates, new releases or security upgrades to dYdX Software from time to time and it is your obligation and discretion to track the foregoing and keep your deployment of dYdX Software up-to-date; 

• DTI does not have any obligation to provide any user, technical or other support with respect to dYdX Software; provided, however, that DTI may, in our sole discretion, provide such services to any persons at any time and the provision of such services does not establish any precedent, policy, procedure, course of dealing or plan of general application irrespective of any similarity in facts or circumstances involving any other persons;

• the use of dYdX Software or derivative works of dYdX Software to facilitate trading of any contract or other product is not an endorsement by DTI of such contract or other product or of any underlying asset referenced by such contract or other product, nor does it constitute financial advice, trading advice or any other type of advice or recommendation; 

• DTI does not recommend the purchase, sale, or use of any contract or other product that may become supported by live deployments of dYdX Software or derivative works of dYdX Software and will not be held responsible for any trading decisions made by you;

• the use of dYdX Software or derivative works of dYdX Software to facilitate trading or use of any contract or other product is not a representation by DTI that the trading or use of such contract or other product or any underlying asset referenced by such contract or other product is permitted under the laws of the jurisdiction in which you reside or other applicable law; you are responsible for ensuring that your use of the dYdX Software complies with applicable law;

• certain dYdX Software includes a x/gov module that facilitates the modification of certain default parameters in such dYdX Software, and all other default parameters will be determined by dYdX in our sole discretion irrespective of actions by any applicable governance community; provided, however, that, subject to the License, you may fork dYdX Software and make changes in the code to modify any parameters that cannot be modified using the x/gov module;

• the applicable governance community or set of validators for any public deployment of dYdX Software or derivative work of dYdX Software, as applicable, will determine in their sole discretion whether to adopt any hard fork or other significant software updates to dYdX Software by DTI;

• you hereby expressly assume the risks set forth in these Terms of Use, including Section 6 and Annexes A, B, C and D, and acknowledge and agree that DTI will have no responsibility or liability for the risks set forth; and

• you hereby irrevocably waive, release and discharge all claims, whether known or unknown to you, against DTI and our Representatives (defined below) related to any of the risks set forth in these Terms, including Section 6 and Annexes A, B, C and D.

6. Risks of Using dYdX Software

By accessing or using dYdX Software or a derivative work of dYdX Software, you understand and agree that you expressly assume the following risks:

• dYdX Software provides for a standalone blockchain built using Cosmos SDK and CometBFT, which can be deployed to power a decentralized exchange offering perpetual contracts trading and other features.  You understand that dYdX Software, as well as Cosmos SDK and CometBFT, are highly experimental and remain under development, which creates technological and security risks when using such dYdX Software in addition to uncertainty relating to blockchain-based applications, blockchain-based assets (“Digital Assets”) and transactions therein;

• DTI does not have any control, influence or endorse any Deployers of dYdX Software, including any Deployers referenced or listed in public documentation made available by DTI, and you hereby expressly assume the risks of interacting with such Deployers and any dYdX Software, or modifications, adaptations, alterations, translations, or other derivative works thereof provided by such Deployers;

• By accessing or using dYdX Software, you understand and agree to the inherent risks associated with cryptographic systems and blockchain-based networks; Digital Assets, including the usage and intricacies of native Digital Assets, like ether (ETH) or USD Coin (USDC); smart contract-based tokens, including fungible tokens and NFTs; and systems that interact with blockchain-based networks. DTI does not own or control any of the underlying software through which blockchain networks are formed. In general, the software underlying blockchain networks, including any blockchain using dYdX Software, is open source, such that anyone can use, copy, modify, and distribute it. By using dYdX Software, you acknowledge and agree (a) that DTI is not responsible for the operation of the blockchain-based software and networks underlying dYdX Software or that dYdX Software is designed to interact with, (b) that there exists no guarantee of the functionality, security, or availability of dYdX Software and related blockchain-based networks, and (c) that the underlying blockchain-based networks are subject to sudden changes in operating rules, such as those commonly referred to as “forks,” which may materially affect dYdX Software. Blockchain networks use public and private key cryptography; 

• you alone are responsible for securing your private key(s) when accessing or using dYdX Software. DTI does not have access to your private key(s). Losing control of your private key(s) will permanently and irreversibly deny you access to Digital Assets on the Cosmos blockchain or other blockchain-based networks. Neither DTI nor any other person or entity will be able to retrieve or protect your Digital Assets. If your private key(s) are lost, then you will not be able to transfer your Digital Assets to any other blockchain address or wallet. If this occurs, then you will not be able to realize any value or utility from the Digital Assets that you may hold.  You alone are responsible for being aware of and taking reasonable precautions against how a third party might compromise your private keys; for example, a copy of your private keys may be stored locally in plaintext when you use the “Remember me” feature; 

• dYdX Software and your Digital Assets could be impacted by one or more regulatory inquiries or regulatory actions, which could impede or limit the ability of DTI to continue to make available our proprietary software and could impede or limit your ability to access or use dYdX Software;

• cryptography is a progressing field with advances in code cracking or other technical advancements, such as the development of quantum computers, which may present risks to Digital Assets and dYdX Software, and could result in the theft or loss of your Digital Assets;

• the cost of transacting on any blockchain supported by or interacting with dYdX Software is variable and may increase at any time causing impact to any activities taking place on the blockchain, which may result in price fluctuations or increased costs when using dYdX Software;

• dYdX Software may be subject to flaws and that you are solely responsible for evaluating any code provided. This warning and other warnings that DTI provides in these Terms are in no way evidence or represent an on-going duty to alert you to all of the potential risks of utilizing dYdX Software;

• Information displayed via dYdX Software may not always be entirely accurate, complete, or current and may also include technical inaccuracies or typographical errors. Accordingly, you acknowledge and understand that you should verify all information before relying on it, and all decisions based on information contained on the Site or as part of the Services are your sole responsibility. No representation is made as to the accuracy, completeness, or appropriateness for any particular purpose of any pricing information distributed via dYdX Software. Prices and pricing information may be higher or lower than prices available on platforms providing similar services.

• We must comply with applicable law, which may require us to, upon request by government agencies, take certain actions or provide information. You acknowledge and understand that DTI may in its sole discretion take any action it deems appropriate to cooperate with government agencies or comply with applicable law.

• You hereby assume the risks set forth in this Section 6 and Annexes A, B, C and D, and acknowledge and agree that DTI will have no responsibility or liability for the risks set forth. You hereby irrevocably waive, release and discharge all claims, whether known or unknown to you, against dYdX and our shareholders, members, directors, officers, employees, agents, and representatives, suppliers, and contractors (“Representatives”) related to any of the risks set forth in this Section 6 and Annexes A, B, C and D.  

7. Disclosures; Disclaimers 

To the maximum extent permitted under applicable law, dYdX Software and the Licensed Code provided by or on behalf of us is provided on an “AS IS” and “AS AVAILABLE” basis, and we expressly disclaim, and you hereby waive, any representations, conditions or warranties of any kind, whether express or implied, legal, statutory or otherwise, or arising from statute, otherwise in law, course of dealing, or usage of trade, and whether or not known or discoverable, including the implied or legal warranties and conditions of merchantability, merchantable quality, quality or fitness for a particular purpose, title, security, availability, reliability, accuracy, quiet enjoyment and non-infringement of third party rights. Without limiting the foregoing, we do not represent or warrant that dYdX Software (including any data relating thereto) will be uninterrupted, available at any particular time, or error-free. Further, we do not warrant that errors in dYdX Software or the Licensed Code are correctable or will be correctable.

You acknowledge that data you provide while accessing or using dYdX Software or the Licensed Code may become irretrievably lost or corrupted or temporarily unavailable due to a variety of causes, and agree that, to the maximum extent permitted under applicable law, we will not be liable for any loss or damage caused by denial-of-service attacks, software failures, viruses or other technologically harmful materials (including those which may infect your computer equipment), protocol changes by third-party providers, Internet outages, force majeure events or other disasters, scheduled or unscheduled maintenance, or other causes either within or outside of our control.

DTI reserves the right at any time and from time to time to modify, suspend or discontinue, temporarily or permanently, for any reason whatsoever, dYdX Software or the Licensed Code (or any part thereof) with or without notice. DTI shall not be liable to you or to any third party for any modification, suspension or discontinuance of dYdX Software or the Licensed Code.

8. Indemnification

You will defend, indemnify, and hold harmless DTI and our Representatives (collectively, “Indemnified Parties”) from any claim, demand, lawsuit, action, proceeding, investigation, liability, damage, loss, cost or expense, including reasonable attorneys’ fees, arising out of or relating to (a) your or your affiliates’ or designees’ or succcessor’s use of, or conduct in connection with dYdX Software; (b) Digital Assets associated with your wallet address(es); (c) any feedback or user content you provide to DTI, if any, concerning dYdX Software; (d) your violation of these Terms; or (e) your infringement or misappropriation of the rights of any other person or entity. If you are obligated to indemnify any Indemnified Party, DTI (or, at our sole discretion, the applicable Indemnified Party) will have the right, in our or its sole discretion, to control any action or proceeding and to determine whether DTI wishes to settle, and if so, on what terms, and you agree to cooperate with DTI in the defense.

9. Limitation of Damages; Exclusion of Consequential and Related Damages 

Without limitation of any other provision of these Terms, you hereby agree that neither DTI nor any of its Representatives will have any responsibility or liability whatsoever for any loss or injury sustained by you or any third parties as a result of (a) any equipment or technology or other infrastructure delay, inaccessibility, or malfunctions; (b) periodic maintenance procedures or repairs that DTI or any of our suppliers or contractors may undertake from time to time; (c) causes beyond DTI’s control or that DTI could not reasonably foresee; (d) disruptions and temporary or permanent unavailability of underlying blockchain infrastructure; or (e) unavailability of third-party service providers or external partners for any reason. Under no circumstances will DTI or its Representatives have any liability for any such loss or injury caused by any of the foregoing events, including but not limited to any obligation to cover or reimburse any damages or losses caused by such events. You expressly acknowledge that any risk of loss resulting from such events shall be borne by you, and you expressly assume any and all such risks.

In no event will DTI, our suppliers and contractors, or our suppliers’ and contractors’ respective stockholders, members, directors, officers, managers, employees, attorneys, agents, representatives, suppliers and contractors be liable for any incidental, indirect, special, punitive, consequential or similar damages or liabilities whatsoever (including damages for loss of fiat, assets, data, information, revenue, opportunities, use, goodwill, profits or other business or financial benefit) arising out of or in connection with dYdX Software or the Licensed Code (and any of their respective content and functionality), any execution or settlement of a transaction, any performance or non-performance of dYdX Software, the Licensed Code or any other product, service or other item provided by or on behalf of DTI, whether under contract, tort (including negligence), civil liability, statute, strict liability, breach of warranties or under any other theory of liability and whether or not we have been advised of, knew of or should have known of the possibility of such damages and, notwithstanding any failure of the essential purpose of these Terms or any limited remedy hereunder, nor is DTI in any way responsible for the execution or settlement of transactions between users of dYdX Software or the Licensed Code.

10. Limitation of Liability

Without limitation of any provision of these Terms, in the event that DTI or any related party is found liable under these Terms, the aggregate liability of DTI (together with our equity owners, members, directors, managers, officers, employees, attorneys, agents, representatives, suppliers, or contractors), arising out of or in connection with your use of dYdX Software or derivative works thereof (and any of their content and functionality), any performance or nonperformance of dYdX Software, the Licensed Code or any other product, service or other item provided by or on behalf of DTI, whether under contract, tort (including negligence), civil liability, statute, strict liability or other theory of liability, will not exceed the amount of fees paid by you to DTI or a Deployer of dYdX Software or derivative work thereof, if any, in the two (2) month period immediately preceding the event giving rise to the claim for liability.

11. Dispute Resolution and Arbitration

PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT MAY SIGNIFICANTLY IMPACT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO BRING A LAWSUIT AGAINST DTI IN ANY COURT OR OTHER GOVERNING AUTHORITY. EXCEPT AS EXPRESSLY PROVIDED BELOW, THIS SECTION REQUIRES YOU TO SUBMIT ANY DISPUTE, CLAIM, OR DISAGREEMENT (EACH A “DISPUTE”) ARISING OUT OF THESE TERMS OR THE SERVICES, INCLUDING ANY DISPUTE THAT AROSE BEFORE THE EFFECTIVE DATES OF THESE TERMS, TO BINDING INDIVIDUAL ARBITRATION. THIS SECTION EXTENDS TO DISPUTES THAT AROSE OR INVOLVE FACTS OCCURING BEFORE THE EXISTENCE OF THIS OR ANY PRIOR VERSIONS OF THESE TERMS AS WELL AS DISPUTES THAT MAY ARISE AFTER THE TERMINATION OF THESE TERMS.

You and DTI agree that any Dispute arising out of or related to these Terms or the dYdX Software is personal to you and DTI and that any Dispute will be resolved solely through individual arbitration, and will not be brought as a class arbitration, class action, or any other type of representative proceeding.

Nothing in this Section precludes you or DTI from bringing an individual action for damages in a small claims court if such claims qualify and remain in small claims court, or from seeking injunctive or other equitable relief in court for infringement or other alleged misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). 

Except as specified above, you and DTI waive your rights to a judge or jury trial or to have any Dispute arising out of or related to these Terms or the dYdX Software resolved in court. Instead, for any Dispute that you have against DTI or relating in any way to the dYdX Software, you agree to first contact DTI and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to DTI by email at legal@dydx.exchange. 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 DTI 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 San Francisco, California, under 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 DTI agree that these Terms affect interstate commerce and that the enforceability of this Section 15 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, DTI, and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including 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 agree that for any arbitration you initiate, you will pay the filing fee and all other JAMS fees and costs. For any arbitration initiated by DTI, DTI will pay all JAMS fees and costs. You and DTI agree that the state or federal courts of the State of California and the United States sitting in San Francisco, California have exclusive jurisdiction over the enforcement of an arbitration award.

Any claim arising out of or related to these Terms or dYdX Software must be filed within one (1) year after such claim arose; otherwise, the claim is permanently barred, which means that you and DTI will not have the right to assert the claim.

If any portion of this Section 15 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision will be severed from these Terms; (b) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of this Section 15 or the parties’ ability to compel arbitration of any remaining claims on an individual basis under this Section 15; 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 will be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 15 is found to prohibit an individual claim seeking public injunctive relief, then 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 15 will be enforceable.

12. Governing Law

The interpretation and enforcement of these Terms, and any Dispute related to these Terms or dYdX Software, will be governed by and construed and enforced under the laws of the State of California, as applicable, without regard to conflict of law rules or principles (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. You agree that we may initiate a proceeding related to the enforcement or validity of our intellectual property rights in any court having jurisdiction. For any other proceeding that is not subject to arbitration under these Terms, the state and federal courts located in San Francisco, California will have exclusive jurisdiction. You waive any objection to venue in any such courts

13.   General

Unless the context expressly otherwise requires, for purposes of these Terms, (a) wherever the word “include,” “includes” or “including” is used in these Terms, it will be deemed to be followed by the words “without limitation”; and (b) the word “or” will not be exclusive.

Please refer to our privacy policy, which is incorporated herein by reference and available at https://dydx.exchange/privacy/, for information about how we collect, use, share and otherwise process information about you.

You consent to receive all communications, agreements, documents, receipts, notices, and disclosures electronically (collectively, our “Communications”) that we provide in connection with these Terms or dYdX Software. You agree that we may provide our Communications to you by posting them on the Site. You should maintain copies of our Communications by printing a paper copy or saving an electronic copy. You may also contact us with questions, complaints, or claims concerning the Services at legal@dydx.exchange.

Any right or remedy of DTI set forth in these Terms is in addition to, and not in lieu of, any other right or remedy whether described in these Terms, under applicable law, or in equity. The failure or delay of dYdX in exercising any right, power, or privilege under these Terms will not operate as a waiver thereof.

The invalidity or unenforceability of any of these Terms will not affect the validity or enforceability of any other of these Terms, all of which will remain in full force and effect.

We will have no responsibility or liability for any failure or delay in performance of any acts in relation to dYdX Software, or any loss or damage that you may incur, due to any circumstance or event beyond our control, including 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.

You may not assign or transfer any right to use dYdX Software, or any of your rights or obligations under these Terms, without our express prior written consent, including by operation of law or in connection with any change of control. We may assign or transfer any or all of our rights or obligations under these Terms, in whole or in part, with or without notice or obtaining your consent or approval.

Except to the extent otherwise provided or unless the context otherwise requires, for the purposes of these Terms: (a) headings of sections are for convenience only and will not be used to limit or construe such sections; (b) whenever the words “include,” “includes” or “including” are used in these Terms, they are deemed to be followed by the words “without limitation”; and (c) the use of “or” is not intended to be exclusive.

These Terms contain the entire agreement between you and DTI, and supersede all prior and contemporaneous understandings between the parties with respect to the dYdX Software.

In the event of any conflict between these Terms and any other agreement you may have with us, these Terms will control unless such other agreement specifically identifies these Terms and declares that such other agreement supersedes these Terms.

You agree that, except as otherwise expressly provided in this Agreement, there are no third-party beneficiaries to the Agreement other than the Indemnified Parties.

ANNEX A.  RISKS ASSOCIATED WITH PERPETUAL CONTRACTS 

By using dYdX Software to enter into Perpetual Contracts, you understand and agree that you expressly assume the following risks:  

• Use of dYdX Software in particular for entering into Perpetual Contracts carries significant financial risk. Digital Assets, especially in connection with Perpetual Contracts, are, by their nature, highly experimental, risky, and volatile. Transactions entered into using dYdX Software are irreversible, final and there are no refunds. You acknowledge and agree that you will access and use dYdX Software at your own risk. The risk of loss in trading Digital Assets, especially entering into Perpetual Contracts, can be substantial. You should, therefore, carefully consider whether such trading is suitable for you in light of your circumstances and financial resources. By using dYdX Software, you represent and warrant that you have been, are, and will be solely responsible for making your independent appraisal and investigations into the risks of a given transaction and the underlying Digital Assets, including Perpetual Contracts. You represent that you have sufficient knowledge, market sophistication, professional advice, and experience to make your evaluation of the merits and risks of any transaction conducted in connection with dYdX Software or any Digital Asset. You accept all consequences of using dYdX Software, including the risk that you may lose access to your Digital Assets indefinitely. All transaction decisions are made solely by you. Notwithstanding anything in these Terms, we accept no responsibility whatsoever for, and will in no circumstances be liable to you for any loss or injury sustained by you or any third parties in connection with, your use of dYdX Software for performing Digital Asset transactions, including entering into Perpetual Contracts.

• You understand and accept the risks and potential for loss of funds arising from the underlying mechanics of Perpetual Contracts and the dYdX Software protocol; including, without limitation, (i) the risk of positions forcibly being liquidated due to insufficient collateral, (ii) the risk of losses from payment of funding rates, (iii) the risk of loss as a result of protocol deleveraging mechanisms, including that your expected trading returns could be reduced to offset under-collateralized positions of other traders; (iv) risks arising from disruption of trading activities due to exchange issues such as downtime, technical glitches, or hacks.   

• You understand that dYdX Software remains under development, which creates technological, trading, and other risks when using dYdX Software. These risks include, among others, delays in trades, withdrawals, and deposits resulting from errors in dYdX Software source code, the servers of Deployers being offline, or Deployers’ software deployment being out of date or incorrectly configured. You acknowledge that these risks may have a material impact on your transactions using dYdX Software, which may result in, among other things, failing to fulfill transactions at your desired price or at all.

• You understand that you are responsible for all trades you place, including any erroneous orders that may be filled. No action will be taken to resolve erroneous trades that result from your errors.

ANNEX B.  MEGAVAULT TERMS 

By choosing to use the dYdX Chain MegaVault software feature (MegaVault) you agree that you are not a person based in, and MegaVault may not be used in, the United States or other restricted jurisdiction. You  will comply with all applicable terms.  

You are not a person or entity who resides in, is located in, is incorporated in, or has a registered office in the United States or Canada, or any other jurisdiction restricted pursuant to this Site’s [Terms of Use], including Iran, Cuba, North Korea, Syria, Myanmar (Burma), the regions of Crimea, Donetsk or Luhansk, or any other country or region that is the subject of economic sanctions, or any other person or entity restricted by this Site’s [Terms of Use] (each a “Restricted Jurisdiction”).  MegaVault may not be used in any Restricted Jurisdiction.

Your use of this software is subject to [name of front-end deployer]’s (the “Deployer”) [Terms and Conditions], and utilizes certain software open sourced by dYdX Trading Inc. (the “Software Developer”), subject to its Terms of Use.  By using this software, you acknowledge and agree that you are bound by, and will use MegaVault in compliance with, both such terms. 

By choosing to use MegaVault you agree that deposited assets will be used to support liquidity on the protocol; you are not relying on any publicly described APR or other expectation of profit to induce your deposit.  You understand that MegaVault is a liquidity provider and trades based on pre-configured algorithms.  

You understand that assets deposited to MegaVault will be allocated so as to support protocol liquidity, and may not maximize trading returns.  Any APR shown is an estimate and provided for informational purposes only and could vary significantly. MegaVault has no investment track record, and any historical performance is not indicative of future performance, or actual results. 

The Deployer and the Software Developer do not make any representations or warranties on the accuracy, reliability or completeness of any public representations related to MegaVault, and do not accept any liability for any loss (whether direct or indirect) arising from public representations of APR. 

By choosing to use MegaVault you agree that there could be significant slippage or loss on your deposit 

There is material risk of economic loss in MegaVault and no return is guaranteed. 

You are solely responsible for any loss or liability from MegaVault. 

MegaVault provides liquidity in highly illiquid and volatile markets and you may experience material slippage (difference between what you expect to receive and actual outcome on withdrawal) on withdrawal.

By choosing to use MegaVault you agree that the Deployer and the Software Developer are not responsible for your losses 

The Deployer and the Software Developer:

• do not operate MegaVault and are not responsible for your losses or liability;

• have not recommended that you deposit funds into MegaVault; 

• do not custody or manage the funds you deposit into MegaVault; 

• do not have any ongoing oversight or responsibility for MegaVault. MegaVault operates without oversight and is subject to errors that can cause MegaVault to malfunction (e.g. coding errors and  security vulnerabilities). The Software Developer is not responsible for any losses that result from software “bugs” or “hacks” of MegaVault;

• do not select the market specific “sub-vaults” to which deposits are allocated. You have, together with your advisors, researched the “sub-vaults” and the risks (e.g. volatility, low liquidity, possible impermanent loss) of the “sub-vaults”; and 

• are not subject to oversight by any government or regulatory authority and your deposits into MegaVault are not covered by any investor protection funds.    

By choosing to use MegaVault you agree that MegaVault relies on experimental open source software

You acknowledge and agree that MegaVault is based on experimental open source software, which includes the use of automated smart contracts and trading algorithms which may yield unpredictable results in live markets.    

By choosing to use MegaVault you agree that you are not relying on Deployer or Software Developer 

You have made your own independent decision to deposit into MegaVault, based on advice from any advisors you deem necessary. You have, together with your advisors, researched the other uses or sources of earnings for your digital assets (e.g. staking with a validator, deposit with a centralized exchange to earn yield) before opting to participate in MegaVault.

You have conducted your own research and consulted a qualified professional to advise you on the legality, regulatory compliance, tax treatment, investment and financial suitability of MegaVault as it applies to you, in your location, and for your purposes. 

You are not relying on any communication (written or oral) from the Deployer, Software Developer, or any other party as investment advice or as a recommendation to make a deposit in MegaVault. Any information provided related to the operations of MegaVault were not considered investment advice or a recommendation to make deposits in MegaVault. 

Deployer and Software Developer are not acting as a fiduciary or adviser to you in respect of your decision to deposit into MegaVault. 

By choosing to use MegaVault you agree that the MegaVault Operator controls MegaVault

You understand that MegaVault depends on an operator (the “Operator”) who is responsible for ensuring correct functioning of the software.  

You understand that the Deployer and the Software Developer are not operating MegaVault. You understand that the Operator of MegaVault  was not selected by the Deployer or the Software Developer.  You understand that the Deployer and the Software Developer are not affiliated with the Operator and are not responsible for the Operator’s performance.  

The Operator responded to a community grants ecosystem request for proposal and was selected by a community vote available [here]. The Operator has little or no operating history and users should not place undue reliance on the community vote. 

You should independently review the Operator and determine if they are a suitable party to manage MegaVault. The Deployer and the Software Developer are not responsible for the actions of the Operator. 

By choosing to use MegaVault you agree that you are responsible for your funds

You understand that neither the Deployer, the Software Developer, or the Operator may take custody of or access your funds that are deposited to MegaVault.  You understand that MegaVault is a non-custodial solution. Accordingly, the private key associated with your wallet address is the only private key that can withdraw your assets from the MegaVault.  

By choosing to use MegaVault you agree that you are responsible for compliance with the law and indemnify the Deployer and the Software Developer for their losses as a result of your failure to comply with applicable laws 

You will ensure that when you make a deposit in, operate, or participate in MegaVault, your actions comply with all applicable laws and do not violate the rights of any party. The Deployer and the Software Developer make no representations (express or implied) about jurisdictions in which MegaVault is appropriate, and you are strongly encouraged  to review all applicable and local laws prior to using MegaVault. 

The Deployer and the Software Developer are not responsible for and you agree not to make any claim against them for any of your direct or indirect losses or liability arising from your use of MegaVault. You agree to indemnify, defend, and hold harmless the Deployer and the Software Developer against any claims or losses suffered by them as a result of your intentional or inadvertent non compliance with any applicable laws.

ANNEX C.  AFFILIATE FEATURE TERMS 

By using the affiliates feature or participating as an affiliate or VIP affiliate you agree that you are not a person based in, and the affiliate software may not be used in the United States or other restricted jurisdiction. You  will comply with all applicable terms.  

You are not a person or entity who resides in, is located in, is incorporated in, or has a registered office in the United States or Canada, or any other jurisdiction restricted pursuant to this Site's [Terms of Use], including Iran, Cuba, North Korea, Syria, Myanmar (Burma), the regions of Crimea, Donetsk or Luhansk, or any other country or region that is the subject of economic sanctions, or any other person or entity restricted by this Site’s [Terms of Use] (each a ”Restricted Jurisdiction”).  The affiliate software may not be used in a Restricted Jurisdiction. 

Your use of this software is subject to [name of front-end deployer]’s (the “Deployer”) [Terms and Conditions]. The Deployer utilizes certain software open sourced by dYdX Trading Inc. (the “Software Developer”), subject to the Software Developer’s Terms of Use.  By using this software, you acknowledge and agree that you are bound by and will use the affiliate feature in compliance with both such terms. 

By using the affiliates feature or participating as an affiliate or VIP affiliate you agree that you have no relationship with the Deployer or the Software Developer and are not marketing for them

Using the affiliate feature of the software does not create any contractual, partnership, fiduciary, sales, franchise, agency, representative, contractor, employment or other relationship between you and the Deployer or the Software Developer. 

You are not an affiliate for the Deployer or the Software Developer and are not marketing for the Deployer or the Software Developer.  

By using the affiliates feature or participating as an affiliate or VIP affiliate you agree that affiliate rewards are paid from protocol revenues and controlled by the governance community. 

You understand that affiliate rewards are paid solely from the protocol fees by operation of automated open source software.  No centralized party is responsible for determining or paying the amount of payments that you receive.   

You understand that affiliate rewards tiers are set by governance community vote, and could be changed in the future.  

By using the affiliates feature or participating as an affiliate or VIP affiliate you agree that the affiliate software feature relies on experimental open source software

You acknowledge and agree that the affiliate software feature is based on experimental open source software, which includes the use of automated smart contracts which may yield unpredictable results in live markets.    

The Software Developer does not have any ongoing oversight or ongoing responsibility for the software. The software operates without oversight and is subject to errors that can cause the software to malfunction (e.g. coding errors and  security vulnerabilities). The Software Developer is not responsible for any losses that result from software “bugs” or “hacks”. 

By using the affiliates feature or participating as an affiliate or VIP affiliate you agree that you will not conduct any marketing targeted at the United States (US) or another Restricted Jurisdiction 

You agree that you will not market or advertise, directly or indirectly to users from the US, Canada or other Restricted Jurisdiction or suggest that any user from such jurisdiction use a VPN or other identity masking technology to access the protocol.

If the venue you use for marketing is available to persons who may reside in the US or other Restricted Jurisdiction, you are responsible for including appropriate disclaimers including that “dYdX is not available in the US and this post is not intended for US persons”.  

You agree to indemnify, defend, and hold harmless the Deployer and the Software Developer against any claims or losses suffered by them as a result of your intentional or inadvertent marketing to US or other Restricted Persons.  

By using the affiliates feature or participating as an affiliate or VIP affiliate you agree that you will not conduct any false or misleading marketing 

You will not engage in any false, deceptive, misleading, derogatory or defamatory marketing or create or publish any content that is unlawful, harmful or inaccurate. 

By using the affiliates feature or participating as an affiliate or VIP affiliate you agree that you are responsible for compliance with the law and indemnify the Deployer and the Software Developer for their losses as a result of your failure to comply with applicable laws 

You will ensure that your performance as an affiliate complies with all applicable laws and does not violate the rights of any party.

The Deployer and the Software Developer are not responsible for and you agree not to make any claim against them for any of your direct or indirect losses or liability arising from your use of the affiliates feature. 

The Deployer and the Software Developer make no representations (express or implied) about jurisdictions in which affiliate marketing is appropriate, and you are strongly encouraged to  review all applicable and local laws prior to acting as an affiliate. You agree to indemnify, defend, and hold harmless the Deployer and the Software Developer against any claims or losses suffered by them as a result of your intentional or inadvertent non compliance with any applicable laws.  

ANNEX D.  INSTANT MARKET LISTING TERMS 

By using the instant market listing software feature on dYdX protocol (“Instant Listing”), you agree that you are not a person based in, and Instant Listing may not be used in the United States or other restricted jurisdiction. You will comply with all applicable terms.  

You are not a person or entity who resides in, is located in, is incorporated in, or has a registered office in the United States or Canada, or any other jurisdiction restricted pursuant to this Site's [Terms of Use], including Iran, Cuba, North Korea, Syria, Myanmar (Burma), the regions of Crimea, Donetsk or Luhansk, or any other country or region that is the subject of economic sanctions, or any other person or entity restricted by this Site’s [Terms of Use] (each a ”Restricted Jurisdiction”).  Instant Listing may not be used in a Restricted Jurisdiction. 

Your use of this software is subject to [name of front-end deployer]’s (the “Deployer”) [Terms and Conditions]. The Deployer utilizes certain software open sourced by dYdX Trading Inc. (the “Software Developer”), subject to the Software Developer’s Terms of Use.  By using this software, you acknowledge and agree that you are bound by and will use Instant Listing in compliance with both such terms. 

By using Instant Listing you agree that that to create an Instant Listing, you have to make a large deposit that is subject to a long lock up period with material risk of loss and no guaranteed return.

The large deposit you make to create an  Instant Listing of a market has no guaranteed return and is subject to a long lock up period and material risk of loss. 

The deposit you make does not solely support liquidity for the market you listed. The deposit supports liquidity for all markets on the protocol.

The deposit you make will be deposited into a software feature called MegaVault which is operated by a vault operator. Accordingly, by creating an Instant Listing, you also deemed to  agree to the [MegaVault terms].

MegaVault provides liquidity in highly illiquid and volatile markets and you may experience material slippage (difference between what you expect to receive and actual outcome on withdrawal) on withdrawal.

By using Instant Listing you agree that you have no relationship with the Deployer or the Software Developer and are not listing markets for them. You have made an independent decision to list a market.

Using Instant Listing does not create any contractual, partnership, fiduciary, sales, franchise, agency, representative, contractor, employment or other relationship between you and the Deployer or the Software Developer. 

You have made your own independent decision to instant list a market using Instant Listing. You are not listing markets for the Deployer or the Software Developer. You have not relied on any communication (written or oral) from the Deployer or the Software Developer as advice or a recommendation to list a market using Instant Listing. 

By using Instant Listing you agree that you are responsible for compliance with the law and to indemnify the Deployer and the Software Developer for their losses as a result of your failure to comply with applicable laws 

You will ensure that when you instantly list a market through Instant Listing, your actions comply with all applicable laws and do not violate the rights of any party. The Deployer and the Software Developer make no representations (express or implied) about jurisdictions in which Instant Listing is appropriate, and you are strongly encouraged  to review all applicable and local laws prior to using Instant Listing. 

The Operator and the Software Developer are not responsible for and you agree not to make any claim against them for any of your direct or indirect losses or liability arising from your use of Instant Listing. You agree to indemnify, defend, and hold harmless the Deployer and the Software Developer against any claims or losses suffered by them as a result of your intentional or inadvertent non compliance with any applicable laws.