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Accessing Website Content and Winkdex Indices
Proprietary Rights and Limitations on Use
Copyright 2020 Winklevoss Index, LLC. All rights reserved.
Winkdex®, Winklevoss Index®, and Gemini® 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.
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.
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)).
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.
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.
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.
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.
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:
- 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.
English Language Controls
Assignment and Change of Control
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 firstname.lastname@example.org, 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.
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 email@example.com regarding such reference to the Winkdex index, including a hyperlink to such reference, if applicable.
If you have any questions or would like more information about the Website or any Winkdex Index, please contact us at firstname.lastname@example.org.