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Terms of Use

Last Updated: May 2023
THE HERCULES INTERFACE (AS DEFINED BELOW) IS NOT AVAILABLE TO PERSONS OR ENTITIES WHO RESIDE IN, ARE INCORPORATED IN, OR HAVE A REGISTERED OFFICE IN THE UNITED STATES OR CANADA (COLLECTIVELY, "BLOCKED PERSONS"). FURTHER, NO SERVICES (AS DEFINED BELOW) ARE OFFERED TO PERSONS OR ENTITIES WHO RESIDE IN, ARE CITIZENS OF, ARE LOCATED IN, ARE INCORPORATED IN, OR HAVE A REGISTERED OFFICE IN ANY RESTRICTED TERRITORY (AS DEFINED BELOW, AND ANY SUCH PERSON OR ENTITY FROM A RESTRICTED TERRITORY, A "RESTRICTED PERSON"). THE HERCULES INTERFACE DOES NOT MAKE EXCEPTIONS; THEREFORE, IF YOU ARE A BLOCKED PERSON, THEN DO NOT ATTEMPT TO USE THE HERCULES INTERFACE AND IF YOU ARE A RESTRICTED PERSON, THEN DO NOT ATTEMPT TO USE ANY OF THE SERVICES. USE OF A VIRTUAL PRIVATE NETWORK ("VPN2) TO CIRCUMVENT THE RESTRICTIONS SET FORTH HEREIN IS PROHIBITED.

1. INTRODUCTION

1.1 These terms of use, together with any documents and additional terms they expressly incorporate by reference, which includes any other terms and conditions or other agreement that are published by the Hercules Interface ("Hercules") (collectively, these "Terms"), are entered into between Hercules and you concerning you use of, and access to:
Hercules´ websites, including XXXX (and any respective subdomains); web applications, mobile applications, and all associated sites linked thereto by Hercules (collectively the "Site"); and all products and features available via the Site, including any order book, matching engine, smart contract, decentralized applications, APIS, and all other software that Hercules or a third party has deployed by Hercules or a third party for trading digital assets (collectively, "Digital Assets"), including exchanging one Digital Asset for another Digital Asset through the Hercules Interface, or interacting or participating using the Hercules launchpad (collectively the "Hercules Interface").
Collectively the Site and the Hercules Interface, the "Services".
1.2 Please read these Terms carefully, as these Terms govern your use of the services. These Terms expressly apply to your rights and obligations, and Hercules issued disclaimers and limitations of legal liability, relating to your use of, and access to, the Services. By using, interacting, participating, or accessing the Site or Services, or acknowledging these Terms by other means, you accept and agree to be bound by and to comply with these Terms, including the mandatory arbitration provision in Section X. If you do not agree to these Terms, then you must not access or use the Services.
1.3 PLEASE CAREFULLY REVIEW THE DISCLOSURES AND DISCLAIMERS SET FORTH IN SECTION 12 BEFORE USING THE INTERFACE AND SITE DEPLOYED BY HERCULES. BY ACCESSING OR USING THE SERVICES ON THE HERCULES INTERFACE, YOU EXPRESSLY ACKNOWLEDGE, UNDERSTAND AND AGREE THAT SERVICES PROVIDED BY THE HERCULES INTERFACE ARE DECENTRALIZED, NON CUSTODIAL, AND FACILITATED BY SMART CONTRACTS. YOU EXPRESSLY ACKNOWLEDGE, UNDERSTAND AND AGREE THAT HERCULES IS NOT RESPONSIBLE FOR EXECUTION, SETTLEMENT, OR CLEARING OF ANY TRANSACTIONS THAT ARE ALL AUTOMATED THROUGH THE HERCULES INTERFACE.

2. USE OF SERVICES

2.1 As a condition to your access or use of the Services, you represent and warrant to Hercules the following:
  1. 1.
    you understand and acknowledge that Hercules Interface is a decentralized application programmed via smart contracts to autonomously provide its Services directly to users who access the Sites. The Hercules Interface autonomously provides, without any intermediary: deposits; execution; settlement; transaction clearing; trading data provision; and other Services. In addition, users maintain self-custody of their Digital Assets at all times.
  2. 2.
    you are of legal age in the jurisdiction in which you reside and have legal capacity to enter into these Terms and be bound by them;
  3. 3.
    you are not a Blocked Person, and you are not accessing the Hercules Interface from the United States or Canada ("Blocked Countries").
  4. 4.
    you are not a resident, citizen, agent, incorporated in the following countries or regions: Iran, Cuba, North Korea, Syria, Myanmar, the regions of Crimea, Donetsk or Luhansk, Russia, or any other country or region that is subject of economic sanctions by the United States or European Union (collectively, the "Restricted Territories") ;
  5. 5.
    you are not the subject of economic or trade sanctions enforced by any governmental authority (“Sanctioned Person”).
  6. 6.
    You do not intend to transact with or on behalf of any Restricted Person or Sanctioned Person.
  7. 7.
    you do not, and will not, use a VPN or any other privacy or anonymization tools or techniques to circumvent, or attempt to circumvent, any restrictions that apply under these Terms of Use.
  8. 8.
    your access to the Services is not prohibited by and does not otherwise violate or assist you to violate any domestic or foreign law, regulation, statute, order, protocol, code, directive, guideline, or other applicable law that may apply to you that relates to your use of the Services;
  9. 9.
    and your access does not contribute to or facilitate any illegal activity.
2.2 If you access or use the Services you expressly acknowledge, understand and agree the following:
  1. 1.
    At any time, the Services may be inaccessible or inoperable for any reason due to causes beyond the reasonable control of Hercules, or that could not be reasonably foreseen. There may be disruptions, temporary or permanent interruptions or unavailability of underlying infrastructure to the software, hosting, or blockchain and smart contract functions of the Services. Services provided to third parties may be unavailable for any reason beyond the control of Hercules. In any of the aforementioned circumstances, you acknowledge and agree that Hercules is not responsible or liable for restrictions or limitations to your access to Hercules Interface.
  2. 2.
    You are solely responsible for your use of the Services, including all of your management and actions taken with respect to your Digital Assets. Hercules does not have control over, or liability for, the delivery, quality, safety, legality, or any other aspect of any Digital Assets, trades, or other interactions that you may take to or from using the Services or from a third party, and Hercules is responsible for ensuring that a person or entity whom with you transact completes the transaction or is authorized to do so, and if you experience a problem with any transactions or interactions in Digital Assets or trades using the Services, then you bear the entire risk and liability.
  3. 3.
    Your access to the Services may be disabled or modified, including restricted, if at any time there is an event of breach of these Terms. Hercules will not be liable to you for any losses or damages you may suffer as a result of or in connection with the Services being inaccessible to you at any time or for any reason.
  4. 4.
    The Services may evolve, or be subject to new regulatory changes which may result in changes to, replacements, updates, or the discontinuation temporarily or permanently of the Services at any time;
  5. 5.
    There is no central manager, agent, or advisor to you or any other users of the Services;
  6. 6.
    Hercules Interface is a decentralized application meaning you and other users maintain self-custody of your Digital Assets at all times, as such, you are solely responsible for your use of the Services, and to the fullest extent not prohibited by applicable laws, Hercules does not owe any fiduciary duties or liabilities to you or any other party, and to the extent that any such duties or liabilities may exist at law or in equity, you hereby irrevocably disclaim, waive, and eliminate any and all of those duties and liabilities as they may apply to Hercules;
  7. 7.
    To the extent provided by applicable laws, you are solely responsible for reporting and paying any taxes applicable to your use of the Services;
  8. 8.
    Third Parties may publish promotions and contests or other promotional activities for and on behalf of Hercules (“Marketing and Promotions”). Marketing and Promotions may be governed by separate terms and conditions and rules. You are responsible for reading all of the terms and conditions and rules to determine whether you are eligible to participate. Marketing and Promotions are optional and you should not enter if you do not agree with any of the relevant terms.
2.3 If you access or use any part of the Services, you expressly covenant and agree to Hercules:
  1. 1.
    You will only interact with the Services using legally obtained Digital Assets that belong to you. Any Digital Assets you use in connection with the Services are either owned by You will obey all applicable laws relevant to your use of the Services, and you will not use the Services if the applicable laws of your country, or any other applicable law, prohibit you from doing so;
  2. 2.
    You will ensure that at all times, all information that you provide on the Hercules Interface is current, complete, and accurate, and that you maintain the security and confidentiality of your private keys and passwords.

3. PROHIBITED ACTIVITY ON THE SERVICES

3.1 In violation of any applicable laws including all anti-money laundering and anti-terrorist financing laws and sanction programs;
3.2 Improper or abusive trading practices, including but not limited to: i) any fraudulent act or scheme to defraud, trick or mislead; ii) any front running practices in whatever form engaged; iii) fraudulent trading; iv) accommodation trading; v) false transactions; vi) pre-arranged transactions; vii) cornering and attempted cornering, of any asset contracts supported by the Services; viii) spoofing, manipulation, or knowingly making any bid or trade or offer for the purpose of making a market price that does not reflect the true state of the market; ix) or entering orders for the purpose of entering into transactions without a net change in either party's open positions, but a resulting profit to one party and a loss to the other party, commonly known as a “money pass”;
3.3 Interference with, disruption of, inhibiting use of, negatively affecting user experience of, interaction and use of the Services. Do not engage in any activity which damages, disables, burdens, or impairs any Service function.
3.3 Any circumvention of content filtering, or security measures or access controls employed by the Hercules In, including through the use of a VPN.
3.4 Any bot/robot, spider, crawler, scraper, or other automated means or interface not provided by the Services to access or interact with the Services, that facilitates abusive activity including extract data, introduce malware, virus, Trojan horse, worm, logic bomb, drop-dead service, backdoor, shutdown mechanism, or other harmful material into the Services.
3.5 Providing false, inaccurate, or misleading information whilst using the Services, or engaging in activity that operates to defraud the Services, or other users of the Services, or any other person.
3.6 Use the Services for any other criminal activity or anyway, that is defamatory, obscene, pornographic, indecent, vulgar, harassing, stalking, hateful, threatening, offensive, discriminatory, fraudulent, deceptive or otherwise objectionable.
3.7 Use of the Services from a jurisdiction, including an IP in a jurisdiction, that is determined as prohibited under these Terms.

4. SERVICES INFORMATION, NO PROFESSIONAL ADVICE OR FIDUCIARY DUTIES

4.1 Services and Gas Fees:
In connection with your use of the Services, except as subject to any applicable promotion, you are required to pay all the fees necessary to interact and complete transactions on the Hercules Interface and the blockchain utilized by you to interact with the Services; and
The Hercules Interface will attempt to provide accurate fee information, this information will reflect the best estimate of fees, which may vary from the actual fees paid to use the Services, and any gas fees related to your blockchain transactions.
4.2 No Professional Advice or Fiduciary Duties:
All information provided in connection with your access and use of the Services is for informational purposes only, and should not be construed as professional, legal, or financial advice. Hercules is not an investment or financial advisor. Any information available, however so presented or accessed, should not be used by you in any way to direct or inform your use of the Services; and
Before you make any investment, financial, legal, or other decisions relating to your use of the Services, you should seek independent professional advice from an individual who is licensed and qualified in the area for which such advice would be appropriate for your use of the Services. These Terms do not create or impose any fiduciary duties on Hercules. You expressly agree that the limitation of the duties and obligations to you are set out in these Terms.

5. PROPRIETARY RIGHTS

5.1 You acknowledge that certain aspects of the Services may use, incorporate or link to certain open-source components and that your use of the Services is subject to, and you will comply with, any applicable open-source licenses that govern any such open-source components (collectively, the “Open-Source Licenses”). Without limiting the generality of the foregoing, you may not (a) resell, lease, lend, share, distribute, or otherwise permit any third party to use the Services; (b) use the Services for time-sharing or service bureau purposes; or (c) otherwise use the Services in a manner that violates the Open-Source Licenses where made available.
5.2. Excluding third-party software that the Services incorporates, as between you and Hercules, Hercules has deployed and owns the technology (where deployed as not Open Source) for Services, including all technology, content and other materials used, displayed or provided in connection with the Services (including all intellectual property rights subsisting therein, whether or not subject to the Open-Source Licenses), and hereby grants you a limited, non-exclusive, revocable, non-transferable, non-sub licensable license to access and use those portions of the Services that are proprietary to Hercules and not available pursuant to the Open-Source License.
5.3 Any of Services’s product or service names, logos, and other marks used on the Site or as a part of the Services, including Hercules's name and logo, are trademarks owned by Hercules or our licensors. You may not copy, imitate, or use them without the prior written consent of Hercules or the applicable licensors, and these Terms do not grant you any rights in those trademarks. You may not remove, obscure, or alter any legal notices displayed in or along with the Site or the Services.
5.4 The Services are non-custodial. When you deposit Digital Assets into any Hercules-deployed smart contract, you retain control over those Digital Assets at all times. The private key associated with the wallet address from which you transfer Digital Assets or the private key associated with Your wallet is the only private key that can control the Digital Assets you transfer into the Hercules-deployed smart contracts. In some cases, you may withdraw Digital Assets from any deployed smart contractS only to the address from which you deposited the Digital Assets.
The Services may provide, or third parties may provide, links to other World Wide Web or accessible sites, applications, or resources. You acknowledge and agree that Hercules is not responsible for the availability of such external sites, applications or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that the Hercules will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods, or Services available on or through any such site or resource.

7. RISKS

7.1. By utilizing the Services or interacting with the Site in any way, 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); smart contract-based tokens, including fungible tokens and NFTs; and systems that interact with blockchain-based networks. Hercules does not own or control any of the underlying software through which blockchain networks are formed. In general, the software underlying blockchain networks, including the Metis blockchain, is open source, such that anyone can use, copy, modify, and distribute it. By using the Services, you acknowledge and agree (a) that Hercules is not responsible for the operation of the blockchain-based software and networks underlying the Services, (b) that there exists no guarantee of the functionality, security, or availability of that software and networks, and (c) that the underlying blockchain-based networks subject to sudden changes in operating rules, such as those commonly referred to as “forks,” which may materially affect the Services. Blockchain networks use public and private key cryptography. You alone are responsible for securing your private key(s). Hercules doed 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 Metis blockchain or other blockchain-based network. Neither Hercules 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.
7.2 The Services and your Digital Assets could be impacted by one or more regulatory inquiries or regulatory actions, which could impede or limit the ability of the Hercules to continue to make available the software and could impede or limit your ability to access or use the Services.
7.3 You acknowledge and understand that 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 the Services, and could result in the theft or loss of your Digital Assets. To the extent possible, Hercules intends to update deployed smart contracts related to the Services to account for any advances in cryptography and to incorporate additional security measures necessary to address risks presented from technological advancements, but that intention does not guarantee or otherwise ensure full security of the Services.
7.4 You understand that the Metis blockchain remains under development, which creates technological and security risks when using the Services in addition to uncertainty relating to Digital Assets and transactions therein. You acknowledge that the cost of transacting on the Metis blockchain is variable and may increase at any time causing impact to any activities taking place on the Metis blockchain, which may result in price fluctuations or increased costs when using the Services.
7.5 You acknowledge that the Services are subject to flaws and that you are solely responsible for evaluating any code provided by the Services or Site. This warning and other warnings that Hercules 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 the Services or accessing the Site.
7.6 Although the Hercules Interface intends to provide accurate and timely information and data on the Site and during your use of the Services, the Site and other information available when using the Services may not always be entirely accurate, complete, or current and may also include technical inaccuracies or typographical errors. To continue to provide you with as complete and accurate information as possible, information may be changed or updated from time to time without notice, including information regarding our policies. Accordingly, 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 the Site or otherwise when using the Services. Prices and pricing information may be higher or lower than prices available on platforms providing similar Services.
7.7 Any use or interaction with the Services 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 on the Site or otherwise during the use of the Services does not indicate any Hercules´ 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.
7.8 Use of the Services, in particular for trading Digital Assets or participating in launchpad activities, may carry financial risk. Digital Assets, especially, are, by their nature, highly experimental, risky, and volatile. Transactions entered into in connection with the Services are irreversible, final and there are no refunds. You acknowledge and agree that you will access and use the Site and the Services at your own risk. The risk of loss in trading Digital Assets 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 the Services, 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. 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 the Services or any Digital Asset. You accept all consequences of using the Services, 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, Hercules accepts no responsibility whatsoever for, and will in no circumstances be liable to you in connection with, your use of the Services for performing Digital Asset transactions.
7.8 The Hercules Interface and Services must comply with Applicable Law, which may require the Hercules Interface to upon request by government agencies, take certain actions or provide information, which may not be in your best interests.
7.9 You understand that the Services remain under development, which creates technological, trading, and other risks when using the Services. These risks include, among others, delays in trades, withdrawals, and deposits resulting from the servers of Services or the operation of the Services being offline; an incorrect display of information on the Site in the case of server errors; or transactions using the Services being rolled back in the case of server errors. You acknowledge that these risks may have material impact on your transactions using the Services, which may result in, among other things, failing to fulfill transactions at your desired price or at all.
7.10 You understand that you are responsible for all trades you place, including any erroneous orders that may be filled. The Hercules Interface does not provide any services or any action to resolve erroneous trades that result from your errors.
7.11 You hereby assume and agree that the Hercules Interface will not have responsibility or liability for the risks set forth in this Section.
7.12 You hereby irrevocably waive, release and discharge all claims, whether known or unknown to you, against Hercules, the Services, the Site, or any related parties related to any of the risks set forth in this Section 7.

8. INDEMNIFICATION

8.1 You will defend, indemnify, and hold harmless Hercules, Hercules Interface, Services, and any Hercules related parties (collectively, “Indemnified Parties'') from any claim, demand, lawsuit, action, proceeding, investigation, liability, damage, loss, cost of expense, including reasonable attorneys’ fees, arising out of or relating to (a) your use of, or conduct in connection with, the the Services; (b) Digital Assets associated with your wallet address; (c) any feedback or user content you provide to the Services, if any, concerning the Site or the Services; (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 (or, at Hercules ́ 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 Indemnified Parties wishes to settle, and if so, on what terms, and you agree to cooperate with Indemnified Parties in the defense.

9. DISCLOSURES; DISCLAIMERS

9.1 The Services have been deployed by the Hercules contracted developers. The contracted developers do not operate a Digital Asset exchange platform or offer trade execution or clearing Services and have no oversight, involvement, or control concerning your transactions using the Services. All transactions between users of the Services or developed software are executed peer-to-peer directly between the users’ wallet addresses through a smart contract.
9.2 You are responsible for complying with all Applicable Laws that govern your use of the Services. As a result of jurisdictional restrictions under local regulations, you may not be permitted to use or access the Services.
9.3 You understand that neither the Services are not registered or licensed by any regulatory agency or authority. No such agency or authority has reviewed or approved the use of the developed software or technology deployed for the Services.
9.4 To the maximum extent permitted under Applicable Law, the Site and the Services (and any of their content or functionality) provided by or on behalf of Hercules are provided on an “AS IS” and “AS AVAILABLE” basis, and Hercules hereto expressly disclaims, 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, 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, Hercules does not represent or warrant that the Site or the Services (including any data relating thereto) will be uninterrupted, available at any particular time, or error-free. Further, Hercules does not warrant that errors in the Site or the Service are correctable or will be correctable.
9.5 You acknowledge that your data on the Site 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, Hercules 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 the control of Hercules.
9.6 The disclaimer of implied warranties contained herein may not apply if and to the extent such warranties cannot be excluded or limited under the Applicable Law of the jurisdiction in which you reside.
In no event will Hercules, the Services, any suppliers and contractors, and any of the suppliers’ and contractors’ respective stockholders, members, directors, officers, managers, employees, attorneys, agents, representatives, suppliers and contractors (collectively, the “Risk” Limited Parties”) 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 the Site and the Services (and any of their content and functionality), any execution or settlement of a transaction, any performance or non-performance of the Services, your Digital Assets, or any other product, service or other item provided by or on behalf of Hercules, 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, Hercules is in any way responsible for the execution or settlement or transactions between users of the Services.

11. LIMITATION OF LIABILITY

In no event will Hercules´ aggregate liability (together any related or affiliated third parties) arising out of or in connection with the Site and the Services (and any of their content and functionality), any performance or nonperformance of the Services, your Digital Assets, or any other product, service or other item provided by or on behalf of Hercules, whether under contract, tort (including negligence), civil liability statute, strict liability or other theory of liability exceed the amount of fees paid by you to Hercules under these Terms, if any, in the two (2) month period immediately preceding the event giving rise to the claim for liability.

12. DISPUTE RESOLUTION AND ARBITRATION

12.1 Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Hercules and limits how you can seek relief from Hercules. Also, arbitration precludes you from suing in court or having a jury trial.
12.2 You and Hercules agree that any dispute arising out of or related to these Terms or the Services is personal to you and Hercules and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action, or any other type of representative proceeding.
12.3 Except for small claims disputes in which you or Hercules seeks to bring an individual action in small claims court located in the county of your billing address or disputes in which you or Hercules seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and Hercules waive your rights to a jury trial and to have any dispute arising out of or related to these Terms or the Services resolved in court. Instead, for any dispute or claim that you have against Hercules or relating in any way to the Services, you agree to first contactHercules and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to Hercules by email at XXXX. 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 Hercules 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 an arbitrator appointed by Hercules.
12.4 You and Hercules agree that the appointed 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.
12.5 The arbitrator, Hercules , 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.
12.6 You and Hercules agree that for any arbitration you initiate, you will pay the filing fee and all other arbitration fees and costs. For any arbitration initiated by Hercules , Hercules will pay all arbitration fees and costs. You and Hercules agree that the jurisdiction and governing law of the appointed arbitrator have exclusive jurisdiction over the enforcement of an arbitration award.
12.7 Any claim arising out of or related to these Terms or the Services must be filed within one (1) year after such claim arose; otherwise, the claim is permanently barred, which means that you and Hercules will not have the right to assert the claim.
12.8 If any portion of this Section 12 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 12 or the parties’ ability to compel arbitration of any remaining claims on an individual basis under this Section 12; 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.
12.9 Further, if any part of this Section 12 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 12 will be enforceable.

13. GOVERNING LAW

The interpretation and enforcement of these Terms, and any dispute related to these Terms, the Site or the Services, will be governed by and construed and enforced under the applicable laws relating to Hercules. You agree that Hercules 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 courts of the jurisdiction applicable to the Hercules shall have exclusive jurisdiction.