This Terms and Conditions (“T&C”) constitute a legally binding agreement made between the user (“you”), whether personally or on behalf of an entity and GuacBlocks LLC, which is domiciled in Delaware, United States (hereafter referred to as “GB”, “we”, or “us”) concerning your access to and use of the www.ethlings.com website and the smart-contract based Ethlings application (“App” or “Application”) as well as any other media form, media channel, mobile website or mobile application, smart contracts related, linked, or otherwise connected thereto (the “website”, Site” and the “App”).
Ethlings is a distributed application that runs on the Ethereum and Polygon networks, using uniquely coded smart contracts (each, a “Smart Contract”) that allow users to acquire, buy and sell own and transfer, the digital characters known as Ethlings along with items they can wear (together, hereafter “Ethlings”, and each represented by a non-fungible token, “NFT”) located at ethlings.com (the “Site”). In addition, each NFT accumulates a utility token (“Ethlings Token”, or “ET”), which serves only one purpose: to alter the customizability of Ethlings. There are no other functionalities of the ET token. The ET utility token cannot be purchased, but it can be freely accumulated by holding an NFT. The Company does not provide or intend to provide a secondary market place for the NFTs or ET.
The Smart Contracts and the Site are collectively referred to in these T&C as the “App”. Using the App, users can view their Ethlings, and use the Smart Contracts to acquire, buy, sell, own, trade and transfer Ethlings on the Ethereum and Polygon networks.
GB is the party making the App available for you to use. Before using the App, the Smart Contracts, or the Site, you must agree to this T&C and any other terms and conditions incorporated or referenced herein (the T&C and any other terms and conditions incorporated or referenced herein are collectively referred to as the “Terms”). PLEASE READ THIS T&C CAREFULLY BEFORE USING THE APP, THE SMART CONTRACTS, OR THE SITE. THIS T&C GOVERN YOUR USE OF THE APP, THE SMART CONTRACTS, AND THE SITE, UNLESS GB HAS AGREED TO DIFFERENT WRITTEN AGREEMENT WITH YOU TO THE CONTRARY, SIGNED BY BOTH PARTIES. GB IS ONLY WILLING TO MAKE THE APP, THE SMART CONTRACTS, AND THE SITE AVAILABLE TO YOU IF YOU ACCEPT ALL OF THIS T&C. BY USING THE APP, THE SMART CONTRACTS, THE SITE, OR ANY PART THEREOF, YOU ARE CONFIRMING THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY ALL OF THE TERMS CONTAINED HEREIN. IF YOU ARE ACCEPTING THIS T&C ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO ACCEPT THIS T&C ON THAT ENTITY’S BEHALF, IN WHICH CASE “YOU” WILL MEAN THAT COMPANY OR LEGAL ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT ACCEPT ALL OF THIS T&C, THEN WE ARE NOT WILLING TO MAKE THE APP, THE SMART CONTRACTS, OR THE SITE AVAILABLE TO YOU. IF YOU DO NOT FULLY AGREE TO THIS T&C, YOU ARE NOT PERMITTED TO ACCESS OR USE THE APP, THE SMART CONTRACTS, OR THE SITE.
1. THE APP. (a) To use the App, you will need to have a web browser and Metamask. (b) All transactions regarding Ethlings are managed and confirmed via the Ethereum or Polygon blockchains. You understand that your Ethereum/Polygon public address may be made publicly visible whenever you engage in a transaction. (c) We do not own nor control your web browser, your Ethereum wallet, the Ethereum network, the Polygon network, or any other third-party site, product, or service that you might access, visit, or use for the purpose of enabling you to perform a transaction with your Ethlings. We are not be liable for the acts or omissions of any such third parties, nor will we be liable for any damage that you may suffer as a result of your transactions or any other interaction with any such third parties. (d) You may be able to create an account on the Site. If so, you agree to provide true, accurate and complete information about yourself. If you become aware of any unauthorized use of your account, contact us immediately. (e) The App may show certain pricing data that has been loaded and collected from the Ethereum or Polygon blockchains. We are not liable for any incorrect information or typographical errors of any kind, including any incorrect information that is due to a coding error, blockchain code errors or due to a data outage. It is your duty and obligation to confirm any and all pricing data on your own and base any decisions you make on your own information and data. (f) Any calculations that are displayed on the App are for information purposes only. These calculations are in no way predictions of value and you agree that you will not construe these calculations as predictions of future prices or values in any way or that we are giving you any advice on what to purchase or not to purchase. All such decisions are made in your sole discretion without reliance on any information provided on the App. (g) We are not responsible or liable for any transactions that are cancelled by a seller.
2. THE ETHLINGS. (a) Number of Ethlings. There will be a total of 7,777 Ethlings initially minted. (b) Purchasing Ethlings. You can purchase an Ethling on the Site using MetaMask, which is the only wallet we support. OTHER WALLETS OR LEDGERS MAY OR MAY NOT WORK WITH THE SITE. All sales are final and we do not guarantee that all interested buyers will be able to purchase a Ethling before they are sold out. We disclaim all liability in connection with the purchase of any Ethlings. It is your responsibility to ensure that your purchase of any Ethlings has been completed. We reserve the right to terminate or end the initial sale of Ethlings at any time. Once the initial Ethlings have sold out, you can use the Site to help you buy, sell, trade and transfer Ethlings with others.
3. OWNERSHIP; LICENSE; RESTRICTIONS.
(a) Definitions. (i) “Art” means any art, design, and drawings that may be associated with an Ethling or Ethlings Wearable that you Own. (ii) “Own” means, with respect to a Ethling, an Ethling that you have purchased or otherwise rightfully acquired from a legitimate source, where proof of such purchase is recorded on the relevant Ethereum or Polygon blockchain. (iii) “Purchased Ethling” means a Ethling that you Own. (iv) “Third Party IP” means any third-party patent rights, copyrights, trade secrets, trademarks, know-how or any other intellectual property rights recognized in any country or jurisdiction in the world.
(b) Ownership. (i) When you purchase an Ethling or Ethlings Wearable, you own only the NFT, not any associated Art or Ethlings Materials (as that term is defined below), or any Third Party IP. You can trade the NFT, sell it, or give it away for free. Ownership of the NFT is governed solely by the Smart Contract and the Ethereum and Polygon networks. (ii) We own the App, and the App includes the Art. You acknowledge and agree that GB (or, as applicable, our licensors) owns all legal right, title and interest in and to all other elements of the App, and all intellectual property rights therein (including, without limitation, all Art, designs, names, copyrights, trademarks, patents, systems, methods, information, computer code, software, services, “look and feel”, organization, compilation of the content, code, data, and all other elements of the App (collectively, the “Ethlings Materials”)). Other than expressly stated in this T&C, you do not have any other rights in the Ethlings Materials. You acknowledge that the Ethlings Materials are protected by, as applicable, copyright, trade dress, patent, and trademark laws, international conventions, other relevant intellectual property and proprietary rights, and applicable laws. All Ethlings Materials are the copyrighted property of GB or its licensors, and all trademarks, service marks, and trade names associated with the App or otherwise contained in the Ethlings Materials are proprietary to GB or its licensors. You may not use the Ethlings name without our prior written consent. Except as expressly set forth herein, your use of the App does not grant you ownership of or any other rights with respect to any Art, content, code, data, or other Ethlings Materials that you may access on or through the App. We reserve all rights in and to the Ethlings Materials that are not expressly granted to you in this T&C. For the avoidance of doubt, you understand and agree: (a) that your acquisition or purchase of a Ethling, whether via the App or otherwise, does not give you any rights or licenses in or to the Ethlings Materials (including, without limitation, our copyright in and to the associated Art or the Ethlings name/trademark) other than those expressly contained in this T&C; (b) that you do not have the right, except as otherwise set forth in this T&C, to reproduce, distribute, or otherwise commercialize any elements of the Ethlings Materials (including, without limitation, any Art) without our prior written consent in each case, which consent we may withhold in our sole and absolute discretion; and (c) that you will not apply for, register, or otherwise use or attempt to use any Ethlings trademarks or service marks, or any confusingly similar marks, anywhere in the world without our prior written consent in each case, which consent we may withhold in our sole and absolute discretion.
(c) License to Art. (i) General Use. Subject to your full and continued compliance with this T&C, GB grants you a limited worldwide, non-exclusive, non-transferable, royalty-free license to use, copy, and display the Art of your Purchased Ethlings solely for the following purposes, all subject to your continued compliance with the T&C:
(i) Personal Use: (i) for your own personal, non-commercial use; (ii) as part of a marketplace that permits the purchase and sale of your Ethling or Ethlings Wearable NFTs, provided that the marketplace cryptographically verifies each NFT owner’s rights to display the Art, and provided that the Art is no longer visible once the owner of the Ethling leaves the website/application; or (iii) as part of a third party website or application that permits the inclusion, involvement, or participation of your Ethling or Ethlings Wearable, provided that the marketplace cryptographically verifies each NFT owner’s rights to display the Art, and provided that the Art is no longer visible once the owner of the Ethling leaves the website/application.
(ii) Commercial Use: GB grants you an unlimited, worldwide, exclusive, license to use, copy, and display the the Art for the purpose of creating derivative works based upon the art (“Commercial Use”). Examples of such Commercial Use would e.g. be the use of the art to produce and sell merchandise products (T-Shirts etc.) displaying copies of the art. For the sake of clarity, nothing in this Section will be deemed to restrict you from earning revenue from Commercial Use. Furthermore, you may only engage in Commercial while you are the owner of the NFT.
(d) Other Terms of License. The license granted in Section 3.C above applies only to the extent that you continue to own the applicable purchased Ethling or Ethlings Wearable. If at any time you sell, trade, donate, give away, transfer, or otherwise dispose of the NFT for any reason, the license granted in Section 3.C will immediately expire with respect to you and that NFT without requiring notice, and you will have no further rights in or to the art for that NFT.
(e) Feedback. You may submit comments, bug reports, ideas or other feedback about the App (collectively, “Feedback”). You hereby grant us a perpetual, irrevocable, nonexclusive, worldwide license under all rights necessary for us to incorporate and use your Feedback for any purpose. By submitting Feedback, you agree that we are free to use such Feedback at our discretion and without additional compensation to you, and to disclose such Feedback to third parties.
(f) Use of the Ethling or Ethlings name. Notwithstanding any contained in this T&C, You agree that you will not use the Ethling or Ethlings name for any purpose without obtaining our prior written consent. Approval shall be determined in our sole discretion. Furthermore, non-response to a request for such approval shall not be deemed an approval.
(g) Your Obligations. You agree that you are responsible for your own conduct while accessing or using the App, and for any consequences thereof. You agree to use the App only for purposes that are legal, proper and in accordance with this T&C and any applicable laws or regulations. By way of example, and not as a limitation, you may not, and may not allow any third party to: (i) send, upload, distribute or disseminate any unlawful, defamatory, harassing, abusive, fraudulent, obscene, or otherwise objectionable content; (ii) distribute viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or any other items of a destructive or deceptive nature; (iii) impersonate another person (via the use of an email address or otherwise); (iv) upload, post, transmit or otherwise make available through the App any content that infringes the intellectual proprietary rights of any party; (v) use the App to violate the legal rights (such as rights of privacy and publicity) of others; (vi) engage in, promote, or encourage illegal activity (including, without limitation, money laundering); (vii) interfere with other users' enjoyment of the App; (viii) exploit the App for any unauthorized commercial purpose; (ix) modify, adapt, translate, or reverse engineer any portion of the App; (x) remove any copyright, trademark or other proprietary rights notices contained in or on the App or any part of it; (xi) reformat or frame any portion of the App; (xii) display any content on the App that contains any hate-related or violent content or contains any other material, products or services that violate or encourage conduct that would violate any criminal laws, any other applicable laws, or any third party rights; (xiii) use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the App or the content posted on the App, or to collect information about its users for any unauthorized purpose; (xiv) create user accounts by automated means or under false or fraudulent pretenses; or (xv) access or use the App for the purpose of creating a product or service that is competitive with any of our products or services. If you engage in any of the activities prohibited by this Section, we may, at our sole and absolute discretion, without notice to you, and without limiting any of our other rights or remedies at law or in equity, immediately suspend or terminate your account and/or prohibit your access to the App and the Site.
4. ETHEREUM FEES AND PAYMENTS.
(a) Any final acquisition, purchase, trade, or sale of Ethlings will be conducted solely through the Ethereum or Polygon network, though the Site may serve as a platform that facilitates such transactions. We have no control over these transactions as or once they occur, nor do we have the ability to reverse any transactions. You agree that we will have no liability to you or to any third party for any claims or damages that may arise as a result of any transactions pertaining to the Smart Contracts, or any other transactions that conducted via the Ethereum or Polygon network.
(b) We may require you to provide additional information and documents at the request of any competent authority or in case of application of any applicable law or regulation, including laws related to anti-laundering (legalization) of incomes obtained by criminal means, or for counteracting financing of terrorism. GB may also require you to provide additional information and documents in cases where it has reasons to believe that: (i) Your are using the App (or any portion thereof) for money laundering or for any other illegal activity; (ii) You have concealed or reported false identification information and other details; and/or (iii) transactions effected by you were effected in breach of this T&C. In such cases, GB, in its sole discretion, may pause or cancel your transactions until such additional information and documents are reviewed by us and accepted as satisfying the requirements of applicable law. If you do not provide complete and accurate information and documents in response to such a request, GB may refuse to provide you with further access to the Site and/or the App.
(c) Ethereum and Polygon require the payment of a transaction fee (a “Gas Fee”) for every transaction that occurs on their networks. You will be solely responsible to pay any and all sales, use, value-added and other taxes, duties, and assessments (except taxes on our net income) now or hereafter claimed or imposed by any governmental authority (collectively, “Taxes”) associated with your use of the App (including, without limitation, any Taxes that may become payable as the result of your ownership or transfer of any of your Ethlings or Ethlings Wearables). Except for income taxes levied on Ethlings or Ethlings Wearables, you: (i) will pay or reimburse us for all national, federal, state, local or other taxes and assessments of any jurisdiction, including value added taxes and taxes as required by international tax treaties, customs or other import or export taxes, and amounts levied in lieu thereof based on charges set, services performed or payments made hereunder, as are now or hereafter may be imposed under the authority of any national, state, local or any other taxing jurisdiction; and (ii) shall not be entitled to deduct the amount of any such taxes, duties or assessments from payments made to us pursuant to these T&C.
5. TERMINATION. We may terminate your access to all or any part of the App at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with your account, and that we will not be liable to you or to any third party for any such suspension or termination. All provisions of these T&C, which by their nature should survive termination, shall survive termination, including without limitation ownership provisions, warranty disclaimers, indemnity and limitations of liability. If we terminate these T&C or suspend or terminate your access to or use of the App due to your breach of these T&C or any suspected fraudulent, abusive, or illegal activity, then termination of these T&C will be in addition to any other remedies we may have at law or in equity.
6. DISCLAIMERS. (a) YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR ACCESS TO AND USE OF THE APP IS AT YOUR SOLE RISK, AND THAT THE APP IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, GB, OUR SUBSIDIARIES, AFFILIATES, AND LICENSORS MAKE NO EXPRESS WARRANTIES AND HEREBY DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE APP AND ANY PART OF IT (INCLUDING, WITHOUT LIMITATION, THE SITE, ANY SMART CONTRACT, OR ANY EXTERNAL WEBSITES), INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, CORRECTNESS, ACCURACY, OR RELIABILITY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, GB, OUR SUBSIDIARIES, AFFILIATES, AND LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (I) YOUR ACCESS TO OR USE OF THE APP WILL MEET YOUR REQUIREMENTS, (II) YOUR ACCESS TO OR USE OF THE APP WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR (INCLUDING ANY BLOCKCHAIN CODE ERRORS), (III) USAGE DATA PROVIDED THROUGH THE APP WILL BE ACCURATE, (III) THE APP OR ANY CONTENT, SERVICES, OR FEATURES MADE AVAILABLE ON OR THROUGH THE APP ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (IV) THAT ANY DATA THAT YOU DISCLOSE WHEN YOU USE THE APP WILL BE SECURE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. (b) YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET, AND AGREE THAT GB HAS NO LIABILITY OR RESPONSIBILITY FOR ANY BREACH OF SECURITY UNLESS IT IS DUE TO OUR GROSS NEGLIGENCE. (c) GB WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSSES YOU INCUR AS THE RESULT OF YOUR USE OF THE ETHEREUM NETWORK OR POLYGON NETWORK OR ANY ETHEREUM WALLET OR ANY POLYGON WALLET OR OTHER ELECTRONIC WALLET, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (i) USER ERROR, SUCH AS FORGOTTEN PASSWORDS OR INCORRECTLY CONSTRUED SMART CONTRACTS OR OTHER TRANSACTIONS; (ii) SERVER FAILURE OR DATA LOSS; (iii) CORRUPTED WALLET FILES; OR (iv) UNAUTHORIZED ACCESS OR ACTIVITIES BY THIRD PARTIES, INCLUDING BUT NOT LIMITED TO THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK AGAINST THE APP, ETHEREUM NETWORK, POLYGON NETWORK OR ANY ELECTRONIC WALLET. (d) ETHLINGS AND ETHLINGS WEARABLES ARE INTANGIBLE DIGITAL ASSETS THAT EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE ETHEREUM OR POLYGON NETWORK. ALL SMART CONTRACTS ARE CONDUCTED AND OCCUR ON THE DECENTRALIZED LEDGER WITHIN THE ETHEREUM OR POLYGON PLATFORM. WE HAVE NO CONTROL OVER AND MAKE NO GUARANTEES OR PROMISES WITH RESPECT TO SMART CONTRACTS. (e) GB IS NOT RESPONSIBLE FOR LOSSES DUE TO BLOCKCHAINS OR ANY OTHER FEATURES OF THE ETHEREUM NETWORK OR ANY ETHEREUM WALLET OR OTHER ELECTRONIC WALLET OR POLYGON NETWORK, INCLUDING BUT NOT LIMITED TO LATE REPORT BY DEVELOPERS OR REPRESENTATIVES (OR NO REPORT AT ALL) OF ANY ISSUES WITH THE BLOCKCHAIN SUPPORTING THE ETHEREUM NETWORK OR POLYGON NETWORK, INCLUDING FORKS, TECHNICAL NODE ISSUES, OR ANY OTHER ISSUES HAVING FUND LOSSES AS A RESULT.
7. LIMITATION OF LIABILITY. (a) YOU UNDERSTAND AND AGREE THAT GB, OUR SUBSIDIARIES, AFFILIATES, AND LICENSORS WILL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES WHICH YOU MAY INCUR, HOWSOEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF PROFITS (WHETHER INCURRED DIRECTLY OR INDIRECTLY), LOSS OF GOODWILL OR BUSINESS REPUTATION, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR ANY OTHER INTANGIBLE LOSS, EVEN IF GB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. (b) YOU AGREE THAT OUR TOTAL, AGGREGATE LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATING TO THIS T&C OR YOUR ACCESS TO OR USE OF (OR YOUR INABILITY TO ACCESS OR USE) ANY PORTION OF THE APP, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, IS LIMITED TO $100. (c) YOU ACKNOWLEDGE AND AGREE THAT GB HAS MADE THE APP AVAILABLE TO YOU AND ENTERED INTO THIS T&C IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN, WHICH REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN THE PARTIES AND FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN US. GB WOULD NOT BE ABLE TO PROVIDE THE APP TO YOU WITHOUT THESE LIMITATIONS. (d) SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, AND SOME JURISDICTIONS ALSO LIMIT DISCLAIMERS OR LIMITATIONS OF LIABILITY FOR PERSONAL INJURY FROM CONSUMER PRODUCTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO PERSONAL INJURY CLAIMS.
8. RISKS. You accept and acknowledge the following risks: (a) The prices of blockchain assets and cryptocurrencies are extremely volatile. Fluctuations in the price of other digital assets could materially and adversely affect the value of your Ethlings or Ethlings Wearables, which may also be subject to significant price volatility. We cannot guarantee that any purchasers of Ethlings or Ethlings Wearables will not lose money. (b) You are solely responsible for determining what, if any, taxes apply to your Ethlings-related transactions. Ethlings is not responsible for determining the taxes that apply to any of your transactions. (c) The App does not store, send, or receive Ethlings. Ethlings exist only by virtue of the ownership record maintained on the blockchain in the Ethereum network. Any transfer of Ethlings occurs within the supporting blockchain in the Ethereum or Polygon network. (d) There are risks associated with using an Internet-based currency, including, but not limited to, the risk of hardware, software and Internet connections, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to information stored within your wallet. You accept and acknowledge that GB will not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience when using the Ethereum network or Polygon network, however caused. (e) A lack of use or public interest in the creation and development of distributed ecosystems could negatively impact the Ethlings’ ecosystem, and therefore the potential utility or value of Ethlings. (f) The regulatory regime governing blockchain technologies, cryptocurrencies, and tokens is uncertain, and new regulations or policies may materially adversely affect the Ethlings’ ecosystem, and therefore the potential utility or value of Ethlings. (g) Upgrades or hard forks or changes in how transactions are confirmed by Ethereum or Polygonmay have unintended, adverse effects on all blockchains using the ERC-721, ERC-1155, or ERC-20 standards, including the Ethlings’ ecosystem.
9. INDEMNITY. You shall defend, indemnify and hold harmless GB and its subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners from and against any claim, liability, loss, damage (actual and consequential) of any kind or nature, suit, judgment, litigation cost, and attorneys’ fees arising out of or in any way related to (i) your breach of this T&C, (ii) your use or misuse of, or access to the App, Site, NFT, NCT, or any other materials that are part of the Ethlings project, (iii) misappropriation or infringement by you, of any intellectual property rights or other right of GB, or any person or entity or (iv) your violation of applicable laws, rules or regulations in connection with your access to or use of the App. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses.
10. THIRD PARTY SITES. The App may permit you to link to other websites, services or resources on the Internet, which are provided solely as a convenience to you. You access these third-party websites, services or resources at your own risk. These other websites, services or resources are not under our control and you acknowledge that we are not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of those websites, services or resources. The inclusion of any link to third party websites, services or resources does not imply our endorsement of them or any association with their operators. You acknowledge and agree that we shall not be responsible or liable (directly or indirectly) for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any content, goods or services available on or through any third party websites, services or resources.
11. CHANGES TO THE TERMS. We reserve the right, at our sole discretion, to modify or replace any of the Terms or to change, suspend or discontinue the App or Site at any time, by posting a notice on the Site or by sending you an email. We may also impose limits on certain features and services or restrict your access to parts or all of the App or Site without notice or liability. It is your responsibility to check this T&C periodically for changes. You can determine if any changes were made to this T&C by noting the date that this T&C were last updated. Your continued use of the App or Site following the posting of any changes to the Terms constitutes acceptance of those changes.
12. CHANGES TO THE APP. You acknowledge and agree that the form and nature of the App, and any part of it, may change from time to time without prior notice to you, and that we may add new features and change any part of the App at any time without notice. We also reserve the right to shut down the App in our sole discretion.
13. CHILDREN. You affirm that you are over the age of 13, as the App is not intended for children under 13. IF YOU ARE 13 OR OLDER BUT UNDER THE AGE OF 18, OR THE LEGAL AGE OF MAJORITY WHERE YOU RESIDE IF THAT JURISDICTION HAS AN OLDER AGE OF MAJORITY, THEN YOU AGREE TO REVIEW THIS T&C WITH YOUR PARENT OR GUARDIAN TO MAKE SURE THAT BOTH YOU AND YOUR PARENT OR GUARDIAN UNDERSTAND AND AGREE TO THIS T&C. YOU AGREE TO HAVE YOUR PARENT OR GUARDIAN REVIEW AND ACCEPT THIS T&C ON YOUR BEHALF. IF YOU ARE A PARENT OR GUARDIAN AGREEING TO THE TERMS FOR THE BENEFIT OF A CHILD OVER 13, THEN YOU AGREE TO AND ACCEPT FULL RESPONSIBILITY FOR THAT CHILD'S USE OF THE APP, INCLUDING ALL FINANCIAL CHARGES AND LEGAL LIABILITY THAT HE OR SHE MAY INCUR.
15 Dispute Resolution; Arbitration. Please read this Section 15 carefully. It requires you to arbitrate disputes with GB, and limits the manner in which you can seek relief from us. A printed version of this T&C and any notice given in electronic form shall be admissible in judicial or administrative proceedings based on or relating to the Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You and GB agree that any cause of action arising out of or related to the App must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred. The Terms shall be governed by and construed in accordance with the laws of the State of Delaware, excluding its conflicts-of-law rules, and the United States of America. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in Delaware under the Arbitration Rules of the American Arbitration Association then in effect, by one commercial arbitrator with substantial experience in resolving intellectual-property and commercial contract disputes, who shall be selected from the appropriate list of AAA arbitrators in accordance with AAA rules. The prevailing party in any arbitration or other proceeding arising under this T&C shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert-witness fees and all other expenses) incurred in connection with the proceeding. Judgment on the award may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the above, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For the purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts or state courts located in Delaware. Use of the App is not authorized in any jurisdiction that does not give effect to all provisions of the Terms, including without limitation this section. WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATED TO THIS T&C, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THE APP, THE SITE, THE SMART CONTRACTS: (I) YOU HEREBY EXPRESSLY GIVE UP YOUR RIGHT TO HAVE A TRIAL BY JURY; AND (II) YOU HEREBY EXPRESSLY GIVE UP YOUR RIGHT TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS IN ANY LAWSUIT, INCLUDING BUT NOT LIMITED TO CLASS ACTION LAWSUITS INVOLVING ANY SUCH DISPUTE.
16. General. this T&C (including those terms incorporated herein by reference) are the entire Agreement between you and us with respect to the App, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic, including all direct or mass communications on social media platforms like Twitter and Discord) between you and us with respect to the App. Other communications outside of the T&C are not part of the agreement between you and us. If any provision of the Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary for the rest of the Terms to remain enforceable. Our failure to enforce any part of this T&C shall not constitute a waiver of our right to later enforce that or any other part of this T&C. For any waiver of compliance with this T&C to be binding on us, one of our authorized representatives must provide you with written notice of that waiver. There are no third-party beneficiaries to this T&C. Nothing in this T&C create any agency, partnership, or joint venture. The language in this T&C will be interpreted as to its fair meaning, and not strictly for or against any party. You may not assign any or your rights or obligations under this T&C, whether by operation of law or otherwise, without our prior written consent. We may assign our rights and obligations under this T&C in our sole discretion to an affiliate, or in connection with an acquisition, sale or merger. this T&C will be governed by and construed in accordance with the laws of the State of Delaware, and the federal laws of United States applicable therein, excluding its conflicts of law rules and principles. Subject to Section 15, any legal action or proceeding arising under this T&C will be brought exclusively in the State or Federal courts located in Delaware, and the parties irrevocably consent to the personal jurisdiction and venue there. We shall not be liable for any failure to perform our obligations here where such failure results from any cause beyond our reasonable control, including without limitation mechanical, electronic or communications failure or degradation (including “line-noise” interference). All notices under these T&C shall be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return-receipt requested; when receipt is electronically confirmed, if transmitted by email; or the day after it is sent, if sent for next-day delivery by recognized overnight delivery service.