PLEASE READ THESE TERMS OF SERVICE (THESE “TERMS”) CAREFULLY. THESE TERMS APPLY TO THE WWW.STOAEXCHANGE.COM WEBSITE AND ALL SUBDOMAINS THEREOF (THE “WEBSITE”) AND THE MARKETPLACE AND ALL SERVICES AND RESOURCES AVAILABLE ON OR ENABLED VIA THE WEBSITE, APPLICATION, OR API (COLLECTIVELY, THE “SERVICES”), WHICH ARE OWNED AND OPERATED BY STOA MARKETS, INC. (“STOA,” “WE,” “US,” OR “OUR”).
THE SERVICES PROVIDE AN INSTITUTIONAL MARKETPLACE THAT CONNECTS ENTITIES THAT ORIGINATE REQUESTS FOR QUOTATION (“CLIENTS”) WITH ENTITIES THAT RESPOND TO THEM (“DEALERS”) TO FACILITATE THE PURCHASE AND SALE OF HIGH-PERFORMANCE ARTIFICIAL INTELLIGENCE AND COMPUTING HARDWARE, INCLUDING GRAPHICS PROCESSING UNITS AND OTHER HARDWARE AND EQUIPMENT (COLLECTIVELY, “PRODUCTS”). IN ANY TRANSACTION, EITHER A CLIENT OR A DEALER MAY BE THE PURCHASING PARTY OR THE SELLING PARTY. STOA IS SOLELY AN INTERMEDIARY. STOA DOES NOT BUY, SELL, PROVIDE, OWN, HOLD, SHIP, DELIVER, INSPECT, OR TAKE TITLE TO ANY PRODUCTS, AND IS NOT A PARTY TO ANY TRANSACTION BETWEEN A CLIENT AND A DEALER.
BY ACCESSING OR USING THE SERVICES IN ANY WAY, INCLUDING BY CLICKING ANY “ACCEPT” OR SIMILAR BUTTON, COMPLETING REGISTRATION, OR BROWSING, LISTING, OFFERING, PURCHASING, OR SELLING PRODUCTS, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS; (2) YOU ARE ACTING ON BEHALF OF AN ENTITY; AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THESE TERMS ON BEHALF OF, AND TO BIND, THAT ENTITY. THE TERM “YOU” REFERS TO THE ENTITY ON WHOSE BEHALF THESE TERMS ARE ACCEPTED, WHETHER IT USES THE SERVICES AS A CLIENT OR AS A DEALER, AND, WHERE IT IS REGISTERED IN BOTH CAPACITIES, IN EACH SUCH CAPACITY. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES.
THESE TERMS INCLUDE (1) YOUR AGREEMENT THAT STOA HAS NO LIABILITY REGARDING THE PRODUCTS OR ANY TRANSACTION; (2) YOUR AGREEMENT THAT THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTY; (3) YOUR RELEASE OF STOA FROM LIABILITY; AND (4) YOUR AGREEMENT TO INDEMNIFY STOA.
SECTION 16 (DISPUTE RESOLUTION) CONTAINS A BINDING ARBITRATION AGREEMENT AND A CLASS ACTION WAIVER THAT GOVERN HOW DISPUTES BETWEEN YOU AND STOA ARE RESOLVED. PLEASE READ IT CAREFULLY.
Stoa may modify these Terms from time to time in its sole discretion. When Stoa does so, it will post the updated Terms on the Website and update the “Last Updated” date above. Any changes are effective when posted (or as otherwise stated in the notice), and your continued use of the Services after the changes take effect constitutes your acceptance of the updated Terms. If you do not agree to any change, you must stop using the Services.
1. The marketplace.
(a) Marketplace; Intermediary Role. Stoa provides an online marketplace on which Clients and Dealers negotiate and complete purchases and sales of Products, in which either may act as the selling party or the purchasing party. Which party sells and which party purchases is determined for each purchase and sale as set out in the Stoa Terms of Sale, regardless of which party is registered as a Client or a Dealer. As a marketplace, Stoa does not offer, sell, provide, own, hold, ship, deliver, inspect, or take title to any Products, and any purchase and sale of Products (a “Transaction”) is directly between the applicable Client and Dealer. All matters concerning the Products and any Transaction–including price, payment, title, transfer, risk of loss, packaging, shipment, delivery, import, export, condition, authenticity, inspection, acceptance, quantity, quality, warranties, guarantees, and performance–are solely between the Client and the Dealer. Stoa is not a party to any Transaction, whether or not Stoa receives a Fee (defined below) in connection with it, and Stoa will not be liable for any cost, loss, or damage arising out of or relating to any Transaction, any Product, or any dealing between a Client and a Dealer.
(b) Disclaimer of Products and Transactions; Release. Stoa has no control over, and does not guarantee, the existence, quality, safety, authenticity, or legality of any Product; the truth or accuracy of any listing, RFQ, quote, or other User content; the ability of any Client or Dealer to sell, deliver, or pay for Products; or that the parties to any Transaction will complete or perform it. NEITHER STOA NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICES, AND YOU AGREE THAT STOA WILL NOT BE LIABLE FOR ANY CLAIM, INJURY, OR DAMAGE ARISING IN CONNECTION WITH ANY PRODUCT OR TRANSACTION OR ANY DISPUTE BETWEEN YOU AND ANY OTHER USER, WHICH MUST BE RESOLVED DIRECTLY BETWEEN THE CLIENT AND THE DEALER. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU RELEASE STOA AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND LICENSORS (THE “STOA PARTIES”) FROM ALL CLAIMS, DEMANDS, AND DAMAGES OF EVERY KIND, KNOWN OR UNKNOWN, ARISING OUT OF OR CONNECTED WITH ANY PRODUCT, TRANSACTION, OR DISPUTE BETWEEN YOU AND ANY OTHER USER. If you are a California resident, you waive California Civil Code Section 1542, which states: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
(c) RFQs; Quotes; Binding Transactions. Stoa may facilitate Transactions through requests for quotation (“RFQs”), responsive quotes, bids, order matching, or such other protocols as Stoa may make available (the “Procurement Process”). Stoa maintains sole control over the Procurement Process and may, in its sole discretion and with no obligation to have regard to your interests, suspend, vary, or modify any aspect of a Procurement Process, evaluate or disregard any quote or other materials, and elect whether or not to transmit any quote to any User. A Transaction is formed, and an RFQ is “Executed,” at the moment a Client and a Dealer agree to a Transaction through the Services (including where a Client accepts a Dealer’s quote or a Dealer accepts a Client’s bid). Where the disclosed terms of an RFQ or listing state a fill policy permitting partial fills, split awards among multiple counterparties, or both: each responsive quote, bid, or offer constitutes a firm offer to transact any quantity of the Products between its stated minimum fill quantity (or one unit, if none is stated) and its stated available quantity, at its stated unit price and otherwise on its terms; the requesting party’s execution of an allocation against one or more such quotes, bids, or offers accepts each allocated portion; a single execution act may form multiple separate Transactions, one for each allocated portion, each Executed at that moment on the terms of the Executed RFQ and its own allocated quantity; and where the disclosed fill policy states an overfill tolerance, the aggregate allocated quantity may exceed the requested quantity by up to that tolerance. UPON EXECUTION, THE TRANSACTION IS FINAL, BINDING, AND IRREVOCABLE: the party purchasing (the “Buyer,” as determined under the Stoa Terms of Sale) is obligated to purchase and pay for, and the party selling (the “Seller,” as so determined) is obligated to sell and deliver, the Products on the terms of the Executed RFQ, and neither party may cancel, rescind, revoke, withdraw from, repudiate, or refuse to perform the Transaction. You acknowledge that Stoa and the other party rely on the finality of each Executed RFQ.
(d) Seller Obligations. When you offer or sell Products through the Services, whether you are registered as a Client or a Dealer, you represent and warrant that: (i) the Products conform to your listings, descriptions, and any commitments you make in connection with the Transaction; (ii) you have good and valid title to the Products and the right to sell and transfer them free and clear of all liens and encumbrances; and (iii) you are licensed, registered, and otherwise permitted, to the extent required under applicable law, to offer, sell, transfer, and export the Products as contemplated by the Transaction.
(e) Restrictions. You may not use the Services to solicit, advertise for, or contact any User for any purpose not related to the Services, or to collect the names, e-mail addresses, or other information of Users by electronic or other means, in each case without Stoa’s prior written consent.
(f) Disputes. Stoa is not a party to, and has no responsibility for, any interaction, dealing, or dispute between Users. While Stoa may, in its sole discretion, help facilitate the resolution of disputes, it has no obligation to do so.
(g) No Regulated Activity. You acknowledge that the Services are not provided pursuant to, and are not required to be provided under, any regulatory licensing regime, and that Stoa does not act as a broker-dealer, exchange, money transmitter, or fiduciary.
(h) Stoa Participation. Notwithstanding anything else in these Terms (including Section 3), Stoa or an affiliate may register for and use the Services as a Client or a Dealer (a “Stoa Participant Account”), including to place RFQs, quotes, bids, or listings as agent for, or for resale to, a person that is not a User. When transacting through a Stoa Participant Account, Stoa acts in a participant capacity: it is a party to each resulting Transaction and is bound by these Terms and the Stoa Terms of Sale on the same basis as any other User, and the descriptions of Stoa’s role elsewhere in these Terms and in the Stoa Terms of Sale (including “solely an intermediary” and “not a party to any Transaction”) describe Stoa in its operator capacity only. The releases and limitations of liability that protect the Stoa Parties (including Sections 1(b) and 12) apply to Stoa in its operator capacity and do not limit the obligations of a Stoa Participant Account as a party to its Transactions. Where a Stoa Participant Account is a party to a Transaction, any Claim or dispute relating to that Transaction will be resolved under Section 16 (Dispute Resolution), and not through the Resolution Process under the Stoa Terms of Sale.
2. Verification; know-your-business.
Stoa reserves the right to obtain, verify, and record information that identifies each entity that has an Account, and its beneficial owners and authorized Users, before and during your use of the Services. You agree to provide, upon request, information and documentation reasonably requested by Stoa or its Payment Service Provider (defined below), including your legal entity name, jurisdiction of formation, business address, beneficial ownership, authorized signatories, and government-issued or formation documents, and you authorize Stoa and its Payment Service Provider to verify such information, including through third-party sources. Failure to provide requested information, or any other violation of these Terms, may result in suspension or termination of your access to the Services.
3. Accounts and registration.
To access certain features, you must register for an account (“Account”). You agree to provide true, accurate, current, and complete information and to keep it updated. You are responsible for all activity under your Account and for maintaining the confidentiality of your credentials, and you agree to notify Stoa immediately of any unauthorized use. You may not share your Account, create an Account using false information or on behalf of another, or create an Account if you have previously been removed from the Services. You acknowledge that you have no ownership interest in your Account. Each individual who accesses the Services under your Account (a “User”) must be authorized by you, and you are responsible for your Users’ compliance with these Terms.
4. Fees and payment.
(a) Fees. Stoa charges fees for use of the Services (the “Fees”). The Fees applicable to you, whether as a Client or a Dealer, will be separately disclosed to you either (i) at the time you register or connect to the Services, or (ii) in a separate written agreement between you and Stoa. Stoa may change the Fees from time to time, with the changed Fees applying to any RFQ Executed after the change takes effect. The Fees applicable to a Transaction are earned by Stoa upon Execution of the applicable RFQ and are payable by each party to which they apply regardless of the settlement method, settlement location, or collection mechanism used for the Transaction; completing payment for the Products outside the Services, whether or not Stoa has recorded or permitted that arrangement, does not reduce, defer, or extinguish the Fees. Except as expressly set forth in these Terms, all Fees are non-refundable.
(b) Payment Between Client and Dealer. The buying party in each Transaction is responsible for paying the selling party for all Products purchased. Except where platform-facilitated payment is enabled for a Transaction, all payment for Products is made directly between the applicable Client and Dealer. Where platform-facilitated payment is enabled for a Transaction, the buying party funds the purchase price through the Payment Service Provider, those funds are held by the Payment Service Provider in an account associated with the party selling the Products in that Transaction (as the parties’ roles are determined under the Stoa Terms of Sale), and Stoa directs only the timing and direction of movements of those funds between the parties, including release to the selling party upon acceptance or deemed acceptance, and refund to the buying party or allocation between the parties, in each case in accordance with the Stoa Terms of Sale, which govern platform-facilitated payment. Stoa does not provide or sell Products, does not set the price of any Product, and is not paid by Clients or Dealers for Products. Stoa does not itself receive, hold, escrow, or take custody of any portion of the purchase price in its own accounts; any amounts funded through the Payment Service Provider are held and moved by the Payment Service Provider, and not by Stoa. For clarity, the Payment Service Provider, and not Stoa, receives, holds, and transmits the purchase price, and Stoa does not act as a money transmitter with respect to it.
(c) Payment of Fees. You authorize Stoa and its Payment Service Provider to charge and collect the Fees owed by you. Stoa will process the Fees applicable to a Transaction within ten (10) days after the applicable RFQ is Executed, excluding any period during which a Claim under the Stoa Terms of Sale is pending with respect to that Transaction. By providing your payment information, you authorize Stoa and its Payment Service Provider to charge your Fees when due without further notice or consent, and you agree to maintain accurate and current payment information and sufficient funds or credit to satisfy the Fees. Where no payment authorization is on file for you, or where Stoa does not collect the Fees through the Payment Service Provider, Stoa may invoice you for the Fees, and each invoice is due and payable within ten (10) days after the date of the invoice; Stoa will not issue an invoice for a Transaction during any period a Claim under the Stoa Terms of Sale is pending with respect to that Transaction. If any Fees remain unpaid when due, Stoa may suspend your access to the Services until they are paid in full, and suspension does not reduce or extinguish your obligation to pay the Fees or limit any other right or remedy of Stoa. Your failure to provide accurate payment information, your failure to pay any invoiced Fees when due, or Stoa’s inability to collect the Fees through a payment authorization you have provided, is a material breach of these Terms.
(d) Payment Service Provider. Stoa uses Stripe, Inc. and its affiliates as its third-party payment services provider (“Payment Service Provider”). You will provide your payment details and any additional required information directly to the Payment Service Provider, and you agree to be bound by Stripe’s Privacy Policy (currently at https://stripe.com/privacy) and the applicable Stripe services or connected account agreement (currently at https://stripe.com/legal), and you authorize Stoa and Stripe to share the information and payment instructions you provide to the extent necessary to process the Fees and platform-facilitated payments, including establishing and maintaining the accounts used to receive and disburse them. Stoa is not responsible for any act or omission of the Payment Service Provider or your card issuer.
(e) Taxes. The Fees are exclusive of any sales, use, value-added, excise, or similar taxes (“Taxes”), other than Taxes on Stoa’s net income. You are responsible for all Taxes associated with the Fees payable by you, and, except as provided in this Section 4(e), any Taxes arising in connection with the Products or any Transaction are solely between the applicable Client and Dealer. If Stoa is required to collect Taxes on the Fees, Stoa may charge, and you will pay, such Taxes in addition to the Fees. All prices for Products are exclusive of Taxes. Where Stoa reasonably determines that it is required by applicable law to collect and remit Taxes on a Transaction, including as a marketplace facilitator, Stoa (directly or through the Payment Service Provider) may collect such Taxes from the purchasing party in addition to the purchase price, the purchasing party will pay such Taxes, and Stoa will remit the amounts so collected to the applicable taxing authority. If you claim an exemption from any Tax, including a resale exemption, you will furnish Stoa with a valid and accurate exemption or resale certificate or other documentation acceptable to Stoa at or before the time of the applicable Transaction; you represent and warrant that all such documentation is accurate and that you will use the Products consistently with it; and you will indemnify the Stoa Parties for any Taxes, penalties, and interest arising from any inaccurate, invalid, or misused certificate or documentation. Stoa has no obligation to refund or credit Taxes collected before valid documentation is furnished. Where Stoa does not collect a Tax on a Transaction, the purchasing party remains solely responsible for self-assessing and remitting any applicable Taxes, including use tax. The selling party will not separately collect any Tax on a Transaction for which Stoa collects and remits Taxes. If any taxing authority determines that Taxes were due on a Transaction or on Fees and were not collected, Stoa may invoice you for, and you will pay within ten (10) days after the date of the invoice, such Taxes together with any associated penalties and interest, other than penalties and interest attributable to Stoa’s failure to remit amounts it actually collected.
5. Your content and data.
(a) Your Content. “Your Content” means all information, data, listings, RFQs, quotes, bids, and other content that you make available through the Services, including all pricing, transaction volume, transaction terms, and other transaction-related information that you submit or generate through the Services. You are solely responsible for Your Content, and you represent and warrant that you own or have all rights necessary to Your Content and to grant the licenses in this Section, and that Your Content does not infringe or violate any third-party right or applicable law.
(b) License to Your Content. You grant Stoa a non-exclusive, transferable, sublicensable (through multiple tiers), worldwide, perpetual, irrevocable, fully paid-up, and royalty-free license to use, host, store, reproduce, modify, adapt, create derivative works from, publish, publicly display and perform, and distribute Your Content in connection with operating, providing, improving, promoting, and developing the Services and Stoa’s business.
(c) Data and Analytics. Without limiting the foregoing, Stoa may collect, use, and process Your Content and other information generated or collected through the Services–including pricing, bids, offers, transaction volumes, timestamps, and derived metrics, statistics, benchmarks, indices, price trends, and market patterns (collectively, “Market Data”)–to create, use, and commercialize statistical analyses, benchmarks, indices, market data, analytics, and other products and services, and to share, license, publish, and otherwise disclose such analyses and Market Data to third parties; provided that any Market Data or analyses that Stoa discloses or makes available to any third party will be in deidentified and/or aggregated form that does not identify, and could not reasonably be used to identify, any Client, Dealer, User, or other person. As between the parties, Stoa owns all right, title, and interest (including all intellectual property rights) in and to such Market Data and analyses. Stoa may use Your Content in identified form to the extent necessary to operate and provide the Services, to perform verification under Section 2, and to comply with applicable law.
(d) Feedback. If you provide Stoa any suggestions, comments, or ideas regarding the Services (“Feedback”), you grant Stoa a worldwide, perpetual, irrevocable, transferable, non-exclusive, royalty-free, fully paid-up, and sublicensable license to use and otherwise exploit the Feedback for any purpose, without restriction or any obligation to you.
6. Ownership.
(a) The Services. Except for Your Content, Stoa and its licensors own all right, title, and interest in and to the Services, including all software, content, and design, and all intellectual property rights therein. You may not remove, alter, or obscure any proprietary notices in or on the Services. All rights not expressly granted in these Terms are reserved by Stoa.
(b) Trademarks. “Stoa” and all related names, logos, and marks are trademarks of Stoa and may not be used without Stoa’s prior written consent. Other marks appearing on or in the Services are the property of their respective owners.
7. Non-circumvention.
(a) The value of the Services depends on Stoa’s marketplace connecting Clients and Dealers. It is a material breach of these Terms to arrange for, negotiate, or complete the purchase, sale, or payment for Products, or the payment of Fees, outside the Services for the purpose of circumventing the Fees otherwise payable to Stoa. For clarity, settling payment for a Transaction Executed through the Services outside the payment flow, under an arrangement recorded by Stoa or expressly permitted by Stoa in writing, is not itself a breach of this Section 7; the Fees for that Transaction remain payable in full under Section 4, and this Section 7 continues to apply in full, including to any arranging, negotiating, or completing of the purchase, sale, or payment for Products, or the payment of Fees, outside the Services for the purpose of circumventing the Fees otherwise payable to Stoa.
(b) Client Non-Circumvention. Except for Transactions completed through the Services, a Client shall not, and shall ensure that its Users, affiliates, agents, and representatives do not, directly or indirectly, purchase, lease, or otherwise obtain Products from, or sell, lease, or otherwise provide Products to, any Dealer (or any of its affiliates) that was introduced to the Client through, or that the Client became aware of through, the Services, where such transaction is substantially similar to any offered to or by the Client through the Services.
(c) Dealer Non-Circumvention. Except for Transactions completed through the Services, a Dealer shall not, and shall ensure that its Users, affiliates, agents, and representatives do not, directly or indirectly, sell, lease, or otherwise provide Products to, or purchase, lease, or otherwise obtain Products from, any Client (or any of its affiliates) that was introduced to the Dealer through, or that the Dealer became aware of through, the Services, where such transaction is substantially similar to any offered or proposed by or to the Dealer through the Services.
(d) Survival; Circumvention Fee. The obligations in this Section 7 survive for twelve (12) months after the applicable introduction or offering through the Services. In the event of a breach of this Section 7, you agree that Stoa is entitled to compensation equal to one hundred percent (100%) of the Fees Stoa would have earned from the circumvented transaction(s), based on Stoa’s standard fee structure, for the first three (3) years of your engagement with the applicable Client or Dealer. You acknowledge that the actual damages resulting from circumvention would be difficult to determine and that the foregoing is a reasonable estimate of Stoa’s damages and not a penalty. This remedy is in addition to, and not in lieu of, Stoa’s right to equitable relief under Section 17(c) and any other remedy available at law or in equity.
8. Prohibited conduct.
As a condition of your use of the Services, you agree not to, and not to permit any User or third party to: (a) use the Services in violation of any applicable law, regulation, or self-regulatory requirement, or for any unlawful, fraudulent, or unauthorized purpose, including money laundering, terrorist financing, sanctions evasion, or fraud; (b) engage in any form of market abuse or manipulation, including wash trading, spoofing, layering, or any activity intended to create a false or misleading appearance of market activity, price, or liquidity; (c) submit any listing, RFQ, quote, bid, or other content that is deceptive, misleading, manipulative, fraudulent, infringing, or unlawful; (d) license, sell, rent, lease, or otherwise commercially exploit the Services or any portion thereof except as expressly permitted; (e) use any robot, spider, scraper, or other automated means to access or collect data from the Services; (f) reverse engineer, decompile, or disassemble any portion of the Services, except to the extent such restriction is prohibited by applicable law; (g) circumvent, disable, or interfere with any security or access-control feature of the Services; or (h) interfere with or disrupt the integrity, performance, or availability of the Services. Stoa reserves the right, in its sole discretion and without liability, to remove or disable any content, or to reject, cancel, suspend, or delay any RFQ, bid, offer, or Transaction, as Stoa deems appropriate to protect the integrity of the Services or to comply with applicable law.
9. Monitoring.
Stoa may, but is not obligated to, investigate, monitor, pre-screen, review, or remove any content (including Your Content) at any time. You consent to such monitoring and acknowledge that you have no expectation of privacy in the content you make available through the Services. Stoa reserves the right to disclose any information as it deems necessary or appropriate to comply with applicable law or legal process, to enforce these Terms, to respond to claims that content violates the rights of third parties, or to protect the rights, property, or safety of Stoa, its Users, or the public.
10. Representations, warranties, and covenants.
Each time you or any of your Users accesses or uses the Services, you represent, warrant, and covenant that:
(a) Compliance with Law. You and your Users are, and will remain, in compliance with all laws and regulations applicable to your use of the Services, and you will not use the Services for any unlawful, unauthorized, or improper purpose.
(b) Sanctions. Neither you, nor any beneficial owner, User, affiliate, director, officer, employee, or agent of yours, is a person or entity with whom or which transactions are prohibited or limited under any economic sanctions or export controls laws, rules, or regulations, including those administered by the U.S. government (including, without limitation, the Department of Treasury’s Office of Foreign Assets Control, the Department of State, or the Department of Commerce), the United Nations Security Council, the European Union, or the United Kingdom.
(c) Export Controls. Your listing, purchase, sale, transfer, export, reexport, and use of Products will comply with all applicable export control and sanctions laws, including the U.S. Export Administration Regulations, and you will not export, reexport, transfer, or divert any Product to any restricted party, destination, or end use without required governmental authorization. Stoa is not responsible for any party’s compliance with export control or sanctions laws.
(d) Neither you nor your Users will (1) use the Services in connection with, or by, for, or on behalf of, any person, government, or entity located, incorporated, organized, or headquartered in China, Hong Kong, or Macau (collectively, “Countries of Concern”), or whose primary location where its activities are directed, controlled, or coordinated is a Country of Concern (collectively, “Persons of Concern”), or (2) send, transmit, export, reexport, or otherwise provide any Products to a Person of Concern or to any other person with knowledge the Products would be provided to a Person of Concern.
(e) Authority. You have the legal capacity and authority to accept these Terms and to bind the entity on whose behalf you act.
11. Disclaimer of warranties.
THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS, AND THE STOA PARTIES DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, AND NON-INFRINGEMENT. THE STOA PARTIES MAKE NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. WITHOUT LIMITING THE FOREGOING, THE STOA PARTIES MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND REGARDING ANY PRODUCT, ANY DEALER OR CLIENT, OR ANY TRANSACTION, INCLUDING THE EXISTENCE, TITLE, CONDITION, AUTHENTICITY, QUALITY, SAFETY, LEGALITY, OR AVAILABILITY OF ANY PRODUCT, OR THE ABILITY OR WILLINGNESS OF ANY CLIENT OR DEALER TO SELL, DELIVER, OR PAY. YOU ASSUME ALL RISK ARISING FROM YOUR USE OF THE SERVICES AND ANY TRANSACTION.
12. Limitation of liability.
(a) TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE STOA PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, DATA, BUSINESS, OR GOODWILL, OR COST OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR RELATING TO THESE TERMS, THE SERVICES, OR ANY TRANSACTION, ON ANY THEORY OF LIABILITY, WHETHER OR NOT STOA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) TO THE FULLEST EXTENT PERMITTED BY LAW, THE STOA PARTIES’ TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICES WILL NOT EXCEED THE GREATER OF (i) THE TOTAL FEES EARNED BY STOA FROM TRANSACTIONS INVOLVING YOU DURING THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY, OR (ii) ONE HUNDRED U.S. DOLLARS ($100).
(c) TO THE FULLEST EXTENT PERMITTED BY LAW, YOU IRREVOCABLY RELEASE AND DISCHARGE THE STOA PARTIES FROM ALL CLAIMS, DEMANDS, CAUSES OF ACTION, AND LIABILITIES OF ANY KIND, WHETHER KNOWN OR UNKNOWN, ARISING OUT OF OR RELATING TO ANY PRODUCT OR TRANSACTION.
(d) THE LIMITATIONS IN THIS SECTION ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND STOA AND APPLY TO ALL CLAIMS UNDER ANY THEORY OF LIABILITY. CERTAIN JURISDICTIONS DO NOT ALLOW CERTAIN OF THESE EXCLUSIONS OR LIMITATIONS, WHICH MAY NOT APPLY TO YOU.
13. Indemnification.
You will indemnify, defend (with counsel reasonably acceptable to Stoa), and hold harmless the Stoa Parties from and against any and all claims, losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to: (a) Your Content; (b) your use of, or inability to use, the Services; (c) your breach of these Terms or of any representation, warranty, or covenant herein; (d) any Transaction or any Product purchased or sold by you; (e) your violation of any right of any third party, including any other User; or (f) your violation of any applicable law, rule, or regulation. Stoa may, at its own cost, assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which case you will cooperate with Stoa in asserting any available defenses. This Section survives termination of these Terms.
14. Term and termination.
These Terms commence when you first accept them or first use the Services and continue while you use the Services, unless terminated earlier. Stoa may suspend or terminate your access to the Services, or terminate these Terms, at any time, with or without notice, if Stoa reasonably believes you have breached these Terms or as necessary to protect the integrity of the Services or comply with applicable law. Sections 1(b), 1(f), 4, 5, 6, 7, 8, 10, 11, 12, 13, 15, 16, and 17 survive any termination or expiration of these Terms. Termination does not relieve you of any obligation to pay Fees, or to perform any Transaction Executed, before termination.
15. Confidentiality.
(a) Definition. “Confidential Information” means all non-public information disclosed by or on behalf of Stoa or a User in connection with the Services or any Transaction, including all RFQs, quotes, bids, offers, indicative and transaction pricing, and other information relating to the pricing of Products. All such pricing-related information constitutes the Confidential Information of both (i) the User that provided it and (ii) Stoa.
(b) Obligations. Each party will (i) hold Confidential Information in strict confidence using at least a reasonable degree of care; (ii) not disclose Confidential Information to any third party without the prior written consent of the disclosing party (and, for pricing-related information, Stoa); and (iii) use Confidential Information solely to evaluate, negotiate, enter into, and perform Transactions through the Services. The obligations in this Section do not apply to information that is or becomes publicly available other than through a breach of these Terms, was known to the receiving party without a duty of confidentiality prior to disclosure, is independently developed without use of the Confidential Information, or is rightfully received from a third party without restriction. If the receiving party is legally compelled to disclose Confidential Information, it will, to the extent legally permitted, provide prompt notice to the disclosing party and reasonably cooperate in seeking protective treatment. This Section survives for three (3) years after termination or expiration of these Terms.
(c) Data Rights. Nothing in this Section limits Stoa’s rights under Section 5 (Your Content and Data).
16. Dispute resolution.
(a) Informal Resolution. Before initiating arbitration, you and Stoa will attempt in good faith to resolve any dispute, claim, or controversy arising out of or relating to these Terms or the Services (a “Dispute”) through negotiation for at least thirty (30) days after written notice of the Dispute.
(b) Binding Arbitration. Any Dispute not resolved under Section 16(a) will be resolved by binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules then in effect, as modified by these Terms. The arbitration will be conducted in English by one arbitrator and seated in San Francisco, California. The Federal Arbitration Act governs the interpretation and enforcement of this Section. The arbitrator’s award is final and binding, and judgment on the award may be entered in any court of competent jurisdiction.
(c) Class Waiver. YOU AND STOA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, OR REPRESENTATIVE PROCEEDING. Unless you and Stoa agree otherwise in writing, the arbitrator may not consolidate more than one party’s claims or otherwise preside over any form of class or representative proceeding.
(d) Exceptions. Either party may (i) bring an individual action in small claims court; (ii) seek injunctive or other equitable relief in a court of competent jurisdiction to protect its intellectual property or Confidential Information or to enforce Section 7; and (iii) bring an issue to the attention of a governmental authority.
(e) Limitations Period. To the fullest extent permitted by law, any Dispute must be commenced within one (1) year after the cause of action accrues, or it is permanently barred.
17. General provisions.
(a) Governing Law. These Terms, and any Dispute or action related to them, are governed by and construed under the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any conflict-of-laws principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
(b) Venue. Subject to Section 16, any claim or action permitted to be brought in court will be brought exclusively in the state or federal courts located in San Francisco, California, and you consent to the personal jurisdiction of, and venue in, such courts.
(c) Equitable Relief. You acknowledge that a breach or threatened breach of Section 5, 6, 7, 8, or 15 would cause Stoa irreparable harm for which monetary damages would be inadequate, and that Stoa is entitled to seek equitable relief, including a restraining order, injunction, and specific performance, without any requirement to post a bond or other security or to prove actual damages, in addition to all other remedies available at law or in equity.
(d) Assignment. You may not assign or transfer these Terms, or any of your rights or obligations hereunder, whether voluntarily, by operation of law, or otherwise, without Stoa’s prior written consent, and any purported assignment or transfer in violation of this Section is null and void. Stoa may assign these Terms upon notice to you. These Terms bind and inure to the benefit of the parties and their respective permitted successors and assigns.
(e) Electronic Communications. You consent to receive communications from Stoa in electronic form, and you agree that all agreements, notices, disclosures, and other communications that Stoa provides to you electronically satisfy any legal requirement that such communications be in writing.
(f) Force Majeure. Stoa will not be liable for any delay or failure to perform resulting from causes beyond its reasonable control, including acts of God, war, terrorism, civil unrest, labor disputes, pandemic, fire, flood, or governmental action.
(g) Notices. Notices to Stoa must be sent in writing to [email protected]. Stoa may provide notice to you at the email address associated with your Account, and such notice will be deemed given when sent.
(h) Relationship of the Parties. The parties are independent contractors. Nothing in these Terms creates any partnership, joint venture, agency, fiduciary, or employment relationship between you and Stoa. There are no third-party beneficiaries of these Terms other than the Stoa Parties.
(i) Services Offered from the United States. The Services are controlled and operated by Stoa from the United States, and Stoa makes no representation that the Services are appropriate or available for use in other locations. Those who access the Services from other jurisdictions do so on their own initiative and are responsible for compliance with local law.
(j) Severability; Waiver; Entire Agreement. If any provision of these Terms is held invalid or unenforceable, that provision will be modified to the minimum extent necessary, and the remaining provisions will remain in full force and effect. Stoa’s failure to enforce any provision is not a waiver of that or any other provision. These Terms constitute the entire agreement between you and Stoa with respect to the Services and supersede all prior and contemporaneous agreements and understandings with respect to the subject matter.