Winklevoss Index

Terms of Use

Acceptance of Terms of Use

Copyright 2018 Winklevoss Index, LLC (“Winkdex” or “we”). All rights reserved.

By visiting, accessing, or using winkdex.com, or any subdomain, mobile version, or application thereof (collectively, the “Website”) or a Winkdex index (each, a “Winkdex Index”), you hereby agree to be legally bound by our terms and conditions (the “Terms of Use”). If any term or condition of our Terms of Use is unacceptable to you, please do not visit, access, or use our Website or any Winkdex Index.

By visiting, accessing, or using our Website or any Winkdex Index, you have affirmed that you are at least 18 years old, have the legal capacity to accept our Terms of Use, agree to be legally bound by our Terms of Use, and are authorized to use our Website and any of its content under all applicable laws and regulations.

Accessing Website Content and Winkdex Indices

You acknowledge and agree that you are not allowed to enter any restricted area of any computer or network of Winkdex or any of its affiliates under any circumstances, or perform any functions that are not expressly authorized by our Terms of Use.

Proprietary Rights and Limitations on Use

Copyright 2018 Winklevoss Index, LLC. All rights reserved.

Marks

Winkdex®, Winklevoss Index®, Gemini®, and Cboe® are registered trademarks. Winklevoss Blended Bitcoin Index, WBBI, Winklevoss Blended Ethereum Index, WBEI, and XBT are proprietary marks. These registered trademarks and proprietary marks (collectively, the “Marks”) have been licensed to Winkdex. None of the content contained on the Website shall be construed as granting any license or other right to use or display any Mark without the express written permission of Winkdex or the applicable owner thereof. All unauthorized uses or displays of the Marks are strictly prohibited.

You agree not to use or display any of the Marks in connection with the creation, issuance, sale, offer for sale, trading, distribution, solicitation, marketing, or promotion of any investment products (e.g., securities, commodities, investment or trading products, derivatives, structured products, investment funds, investment portfolios, commodity pools, swaps, securitizations, or synthetic products or securities), including where the price return, and/or performance of the investment product is based on, derived from, or related to a Winkdex index, without a separate written agreement with Winkdex.

Website and Content

All of the content on our Website, including any Winkdex Index, is the exclusive property of Winkdex, its affiliates, or its third party licensors and may be protected by copyright, patent, or other intellectual property laws. You agree not to (i) copy, download, reproduce, modify, store, display, perform, publish, distribute, transmit, broadcast, circulate, reverse-engineer, or create derivative works of any Website content or Winkdex Index without the prior written consent of Winkdex, (ii) commingle any Website content or Winkdex Index with any other website or content, or (iii) use or exploit any Website content or Winkdex Index for any unlawful or unauthorized purpose.

Winkdex hereby grants you a limited, personal, non-exclusive, non-transferable license to use the Website solely as set forth in these Terms of Use.

Disclaimer of Warranties and Liability

None of our Website content or Winkdex Indices are tailored to the needs of any person, entity, or group of persons. Winkdex and/or its affiliates may receive compensation in connection with licensing a Winkdex Index to third parties and providing custom calculation services. Past performance of a Winkdex Index is not an indication or guarantee of future results or values.

As with any index, it is not possible to invest directly in a Winkdex Index. Exposure to an asset class represented by a Winkdex Index may be available through investable instruments based on a Winkdex Index. Winkdex does not issue, sponsor, endorse, sell, promote or manage any investment fund, indexed security or other investment vehicle that is offered by third parties and that seeks to provide an investment return based on the performance of a Winkdex Index; however, Winkdex and/or its affiliates may participate in one or more of such activities in connection with the marketing or promotion of such instruments issued or sponsored by third parties.

Winkdex provides no assurance that investment products based on a Winkdex Index will accurately track the Winkdex Index performance or provide positive investment returns. In addition, Winkdex provides no assurance that a Winkdex Index will accurately track the performance of any underlying digital asset market. Winkdex is not an investment advisor, and Winkdex makes no representation regarding the advisability of investing in any investment fund, indexed security, or other investment vehicle. A decision to invest in any investment fund, indexed security, or other investment vehicle should not be made in reliance on any of the statements set forth in this document. Prospective investors are cautioned not to make an investment in any fund, security, or other investment vehicle unless they have carefully considered the risks associated with investing in such fund, security. or vehicle as detailed in an offering memorandum or similar document prepared by or on behalf of the issuer of such fund, security, or vehicle.

Winkdex is not a tax advisor. A tax advisor should be consulted to evaluate the impact of any securities or other instruments on portfolios and the tax consequences of making any particular investment decision. Inclusion of a financial instrument or product on our Website is not a recommendation by Winkdex to buy, sell, or hold such financial instrument or product nor is it considered to be investment advice.

These materials have been prepared solely for informational purposes based upon information generally available to the public and from sources believed to be reliable by Winkdex. Winkdex does not guarantee the accuracy, completeness, timeliness, or availability of any Website content or Winkdex Index. Winkdex is not responsible for any errors or omissions, regardless of the cause, for the results obtained from the use of any Website content or Winkdex Index, or any investments in instruments indexed to or referencing a Winkdex Index. ALL WINKDEX CONTENT AND WINKDEX INDICES ARE PROVIDED ON AN “AS IS” BASIS. WINKDEX DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, OR OF NON-INFRINGEMENT OR ANY OTHER VIOLATION OF ANY THIRD PARTY INTELLECTUAL PROPERTY OR OTHER RIGHTS. In no event shall Winkdex or any affiliate or associated entity be liable to any party for any direct, indirect, incidental, exemplary, compensatory, punitive, special or consequential damages, costs, expenses, legal fees, or losses (including lost income or lost profits and opportunity costs) in connection with the use of any Website content or Winkdex Index, even if advised of the possibility of such damages.

You should not rely on any Website content or Winkdex Index in connection with making any investment or other business decision. Our Website, its content, or a Winkdex Index is not a substitute for the skill, judgment, and experience of you, your management, employees, advisors, and/or clients in making any investment or other business decision. While Winkdex has obtained information from sources it believes to be reliable, Winkdex does not perform an audit or undertake any duty of due diligence or independent verification of any information it receives.

Risks

Please note the following risks in accessing or using a Winkdex Index:

  • The risk of loss in trading digital assets (sometimes called “virtual currencies” or “digital currencies”) or instruments linked by or to, or otherwise referenced in or referencing a Winkdex Index may be substantial and losses may occur over a short period of time;
  • The markets for digital assets are highly volatile. The price and liquidity of digital assets have been subject to extreme fluctuations in short periods of time in the past and may be subject to further extreme fluctuations in the future. Such fluctuations may adversely affect the level of the a Winkdex Index;
  • Legislative and regulatory changes or actions at the state, federal, or international level may adversely affect the use, transfer, exchange, and value of digital assets and a Winkdex Index;
  • Digital assets are not legal tender and are not backed by the government, which could adversely affect their value and the level of a Winkdex Index;
  • Transactions in digital assets are generally irreversible, and, accordingly, losses due to fraudulent or accidental transactions may not be recoverable, and this may adversely impact the level of a Winkdex Index;
  • The value of digital assets is derived in large part from the continued willingness of market participants to exchange fiat currency or digital assets for digital assets, which may result in the potential for permanent and total loss of value of a particular digital asset should the market for that digital asset disappear, which may adversely impact the level of a Winkdex Index; and
  • The nature of digital assets may lead to an increased risk of fraud or cyber attack, and this may adversely impact the level of a Winkdex Index.

By using our Website or investing in any instrument indexing or linked to a Winkdex Index, you acknowledge and agree that you are solely responsible for determining the nature, potential value, suitability, and appropriateness of these risks for yourself, and that Winkdex does not give advice or recommendations regarding digital assets, including the suitability and appropriateness of, and investment strategies for, digital assets and related funds, vehicles, and products. You acknowledge and agree that you observe, utilize and reference a Winkdex Index, and invest in financial products and instruments indexing or referencing a Winkdex Indexat your own risk. This brief statement does not disclose all of the risks associated with digital assets and using or referencing a Winkdex Index. Therefore, you should carefully consider whether such use is suitable for you in light of your circumstances and financial resources. You acknowledge and agree that under certain market conditions, it may be difficult or impossible to liquidate a position in a fund, security vehicle, digital asset, or other product that is indexed to, references, or otherwise relates to a Winkdex Index.

For additional information regarding futures trading risks, see the Risk Disclosure Statement set forth in CFTC Regulation §1.55(b) (17 CFR section 1.55(b)).

Privacy

By visiting, accessing, or using the Website, you consent to the policies and practices set forth in our Privacy Policy. For more information regarding the information that we collect and how we use it, please see our Privacy Policy here.

If any policy or practice of the Privacy Policy is unacceptable to you, please do not visit, access, or use the Website.

Anti-Hacking

You expressly agree not to do, or assist any third party in doing, any of the following:

  • Use the Website for any purpose that is prohibited by any law or regulation, or to facilitate the violation of any law or regulation;
  • Use or attempt to use any “deep-link,” “scraper,” “robot,” “bot,” “spider,” “data mining,” “computer code,” or any other automated device, program, tool, algorithm, process, or methodology, or manual process having similar processes or functionality, to access, acquire, copy, or monitor any portion of the Website or its content without the prior written consent of Winkdex;
  • Obtain or attempt to obtain through any means any materials or information on the Website that have not been intentionally made publicly available either by public display on the Website or through accessibility by a visible link on the Website;
  • In any way bypass or circumvent any other measure employed to limit or prevent access to the Website or its content;
  • Violate the security of the Website or attempt to gain unauthorized access to the Website, data, materials, information, computer systems, or networks connected to any server associated with this Website through hacking, password mining, or any other means;
  • Interfere or attempt to interfere with the proper working of the Website or any activities conducted on or through the Website, including accessing any data, content, or other information prior to the time that it is intended to be available to the public on the Website;
  • Exceed 3,000 symbol calls in any single request for data, or request the same data more frequently than once every 60 seconds; or
  • Take or attempt any action that, in the sole discretion of the Website’s operators, imposes or may impose an unreasonable or disproportionately large load or burden on the Website or any Winkdex Index or their operation or infrastructure.

Third Party Websites

As a convenience, Winkdex may link the Website to other websites that are operated by third parties, and such other websites may link to the Website. The existence of any such links does not constitute an endorsement of such websites, their content or their third party operators by Winkdex or any of its affiliates. You acknowledge and agree that Winkdex has no control over such websites and content and Winkdex shall not be liable for any claims, actions, suits, or other proceedings arising out of or related to any such website, content, or any third party that owns or operates any such website or content.

Force Majeure

You acknowledge and agree that in no event shall Winkdex or any of its affiliates be liable for delays, failure in performance, or interruption of service which result directly or indirectly from any cause or condition beyond our control, including any delay or failure due to any act of God, act of civil or military authorities, act of terrorists, civil disturbance, war, strike, or other labor dispute, fire, interruption in telecommunications or Internet services or network provider services, failure of equipment and/or software, or any other catastrophe or occurrence that is beyond our control.

Indemnity

In no event shall Winkdex or any of its affiliates be liable for any act, omission, error of judgment, or loss suffered by you in connection with any Winkdex Content, including any use or attempted use of the Website or a Winkdex Index. You agree to indemnify, defend and hold harmless Winkdex and its affiliates from and against all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including attorneys’ fees), claims, disbursements or actions of any kind and injury (including death) arising out of, or relating to, your use of the Website or any Winkdex Index, including all costs and expenses relating to any regulatory inquiry, legal action, litigation, dispute or investigation that relate to you or your use of the Website or any Winkdex Index.

If you are a California resident, you waive your rights under California Civil Code Section 1542, which provides the following:

“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTIVE THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY HIS OR HER SETTLEMENT WITH THE DEBTOR.”

If you are a resident of any state or other jurisdiction that has a comparable statute or doctrine, you waive your rights under such statute or doctrine.

Injunctive Relief

You acknowledge and agree that your obligations under the Terms of Use are necessary and reasonable in order to protect Winkdex and our business and our affiliates. You acknowledge and agree that due to the unique nature of Winkdex’s business, monetary damages would be inadequate to compensate Winkdex for any breach or violation by you of your obligations under our Terms of Use. Accordingly, you acknowledge and agree that any such breach or violation or threatened breach or violation could cause irreparable injury to Winkdex and that, in addition to any other remedies that may be available to Winkdex in law, in equity or otherwise, Winkdex shall be entitled to obtain injunctive relief against you for any such breach or violation or threatened breach or violation, without the necessity of proving actual damages.

Governing Law

Our Terms of Use and your rights and obligations with respect to the Website and any Winkdex Index, shall be governed by the federal laws of the United States of America and the laws of the State of New York, without giving effect to any conflict of law principles thereof, as if our Terms of Use are a contract wholly entered into and wholly performed within the State of New York, regardless of your location.

Dispute Resolution

You agree and understand that any controversy, claim, or dispute arising out of or relating to our Terms of Use or the breach thereof shall be settled solely and exclusively by binding arbitration held in New York, New York, administered by JAMS and conducted in English, rather than in court. You expressly agree that any dispute about the scope of our Terms of Use to arbitrate and/or the arbitrability of any particular dispute shall be resolved in arbitration in accordance with this section. In the event that you threaten to litigate a dispute in court, we may institute arbitration to enjoin you from filing a complaint or petition in court. You expressly agree that an arbitrator may issue all appropriate declaratory and injunctive relief necessary to ensure the arbitration of disputes.

You agree that the arbitrator shall have the authority to order any remedies, legal or equitable, which a party could obtain from a court of competent jurisdiction based on the claims asserted, and nothing more. The arbitrator shall not award punitive or exemplary damages to either party.

You agree that any such arbitration shall be conducted in accordance with the then prevailing JAMS Comprehensive Arbitration Rules & Procedures (the “Rules”), with the following exceptions to such Rules if in conflict:

  • Any arbitration must be commenced within one year after the claim or cause of action arises;
  • The arbitration shall be conducted by one neutral arbitrator;
  • You agree that service of a demand for arbitration via Written Notice constitutes sufficient written notice of the Demand for Arbitration;
  • Arbitration may proceed in the absence of any party if that party has been given Written Notice of the arbitration, as specified in this Agreement and/or the Rules; and
  • Each side agrees to bear its own attorney’s fees, costs, and expenses.

You agree to abide by all decisions and awards rendered in such proceedings and you agree that such decisions and awards rendered by the arbitrator shall be final and conclusive.

To the extent you seek emergency relief in connection with any controversy, claim, or dispute arising out of or relating to our Terms of Use or the breach thereof, you agree that the “Emergency Relief Procedur” provision of the Rules, currently Rule 2(c), shall govern. You agree and understand that our Terms of Use restricts you from seeking emergency relief from any court, including without limitation temporary restraining orders and/or preliminary injunctions, and you agree that, to the extent you breach our Terms of Use by seeking such relief from a court, you shall be responsible for paying our attorneys’ fees in opposing such relief, and the arbitrator shall render an award of such attorneys’ fees at the earliest possible time after such fees are incurred.

You agree that you or we may, without inconsistency with this arbitration provision, apply to any court for an order enforcing the arbitral award. You irrevocably and unconditionally agree to waive any objection that you may now or hereafter have to the laying of venue of any action or proceeding relating to enforcement of the arbitral award in the federal or state courts located in the State of New York.

You agree that all such controversies, claims, or disputes shall be settled in this manner in lieu of any action at law or equity.

IF FOR ANY REASON THIS ARBITRATION CLAUSE BECOMES NOT APPLICABLE OR FOR ANY OTHER REASON LITIGATION PROCEEDS IN COURT THEN YOU AGREE THAT YOU AND WE:

  • TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS AND REGULATIONS, HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS TERMS OF USE OR ANY OTHER MATTER INVOLVING US HERETO, AND
  • SUBMIT TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE FEDERAL OR STATE COURTS LOCATED IN NEW YORK COUNTY, NEW YORK AND YOU AGREE NOT TO INSTITUTE ANY SUCH ACTION OR PROCEEDING IN ANY OTHER COURT IN ANY OTHER JURISDICTION.

You agree to arbitrate solely on an individual basis, and agree and understand that this Terms of Use does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. The arbitral tribunal may not consolidate more than one User’s claims and may not otherwise preside over any form of a representative or class proceeding. In the event the prohibition on class arbitration is deemed invalid or unenforceable, then you agree and understand that the remaining portions of these arbitration provisions in this Terms of Use will remain in full force and effect.

You agree that this section of this Terms of Use has been included to rapidly and inexpensively resolve any disputes with respect to the matters described herein, and that this section shall be grounds for dismissal of any court action commenced by you with respect to a dispute arising out of such matters.

A printed version of this Terms of Use shall be admissible in judicial or administrative proceedings.

Waiver

The failure of Winkdex to insist upon strict compliance with any term or provision of our Terms of Use shall not be construed as a waiver for you to not comply with such term or provision.

Severability

You acknowledge and agree that if any provision of our Terms of Use, or application thereof, shall be determined to be invalid or unenforceable under any rule, law, or regulation or by any governmental agency, local, state, or federal, such provision will be changed and interpreted to accomplish the objectives of the provision to the greatest extent possible under any applicable law. You further acknowledge and agree that the validity of or enforceability of any other provision (or of such provision, to the extent its application is not invalid or unenforceable) of our Terms of Use shall not be affected.

Headings

Section headings in our Terms of Use are for convenience only, and do not govern the meaning or interpretation of any provision of our Terms of Use.

English Language Controls

Any translation of our Terms of Use is provided for your convenience. The meaning of our Terms of Use are subject to their definitions and interpretations in the English language.

Assignment and Change of Control

In the event that Winkdex or any of its affiliates is acquired by or merged with any third party or Winkdex or any of its affiliates sells all or substantially all of the assets to which the Website or any Winkdex Index relates to any third party, Winkdex has the right to transfer or assign the information it has collected from or about you to such third party, in connection with such merger, acquisition, sale, or other change of control transaction in accordance with the Privacy Policy set forth herein.

Notice

If Winkdex sends an email to the email address on record for you, you acknowledge and agree that this email constitutes ‘written notice’ from us to you. If you email contact@winkdex.com, this constitutes ‘written notice’ from you to us. For all notices made by email, the date of receipt is considered to be the date of transmission.

Additional Terms

You acknowledge and agree that your right to use the Website and any Winkdex Index is subject to any limits established by Winkdex in its sole discretion. Winkde may modify, amend, or completely remove any Website content or Winkdex Index or change its availability to you, at any time and for any reason in its sole and absolute discretion. Winkdex may modify or amend these Terms of Use at any time and for any reason in its sole and absolute discretion and any such modifications or amendments shall be effective immediately upon posting to the Website.

Entire Agreement

Our Terms of Use constitute the entire agreement between you and Winkdex relating to the Website and any Winkdex Index, and they supersede any and all other agreements, oral or in writing, with respect to the Website and any Winkdex Index. All rights not expressly granted herein are hereby expressly reserved.

Press and Media

Press and media are hereby authorized to refer to the Website or any value provided by a Winkdex Index, provided that the reference is accompanied by:

  • Attribution to the Winkdex Index;
  • A hyperlink to the Website, if applicable; and
  • A notification sent to Winkdex via contact@winkdex.com regarding such reference to the Winkdex index, including a hyperlink to such reference, if applicable.

Questions

If you have any questions or would like more information about the Website or any Winkdex Index, please contact us at contact@winkdex.com.