Last Updated: February 17, 2022
THIS AGREEMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS, OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ THE AGREEMENT CAREFULLY.
THIS AGREEMENT WILL BE IN EFFECT AS OF THE “LAST UPDATED” DATE ABOVE AT THE TOP OF THIS PAGE. ANY CHANGES TO THIS AGREEMENT WILL BE IN EFFECT AS OF THE LAST UPDATED DATE. YOU SHOULD REVIEW THIS AGREEMENT BEFORE USING THE APPLICATION OR PURCHASING ANY PRODUCT OR USING ANY SERVICES THAT ARE AVAILABLE THROUGH THIS APPLICATION. YOUR CONTINUED USE OF THE APPLICATION AFTER THE LAST UPDATED DATE WILL CONSTITUTE YOUR ACCEPTANCE OF AND AGREEMENT TO SUCH CHANGES.
BY USING THE APPLICATION, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT AND USE THE APPLICATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MAY NOT USE THE APPLICATION.
2. License Restrictions. You shall not:
(a) copy the Application, except as expressly permitted by this license;
(b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application;
(c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;
(d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy thereof;
(e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time; or
(f) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Application.
3. Reservation of Rights. You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Company and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Application, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
6. Geographic Restrictions. The Content and Services are based in the United States and provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access all or some of the Content and Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Content and Services from outside the United States, you are responsible for compliance with local laws.
7. Updates. Company may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.
8. Third-Party Materials. The Application may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials”). You acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties' terms and conditions.
9. Term and Termination.
(a) The term of Agreement commences when you access the Application and will continue in effect until terminated by you or Company as set forth in this Section 8.
(b) You may terminate this Agreement by deleting the Application and all copies thereof from your Mobile Device.
(c) Company may terminate this Agreement at any time without notice if it ceases to support the Application, which Company may do in its sole discretion. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.
(d) Upon termination, all rights granted to you under this Agreement will also terminate, and you must cease all use of the Application and delete all copies of the Application from your Mobile Device and account.
(e) Termination will not limit any of Company's rights or remedies at law or in equity.
10. Disclaimer of Warranties. THE APPLICATION IS PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
11. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR:
(a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.
(b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
12. Indemnification. You agree to indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, arising from or relating to your use or misuse of the Application or your breach of this Agreement, including but not limited to the content you submit or make available through this Application.
13. Export Regulation. The Application may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Application available outside the US.
1.1 Use of the NFT Marketplace in the Application; Account Setup & Security
(a) Account and Wallet Set-Up. To use the Application most easily, you should first make sure to install a web browser (such as Google Chrome web browser). You will also need to use the SmartMedia Labs electronic wallet (“Wallet”) which will enable you to purchase, display, and store collectibles you collect or purchase via the Application. Each collectible is a Non-Fungible Token (an “NFT”) on the SmartMedia Labs Network (the “SMT Network”).
(b) Account Registration. You must provide accurate and complete registration information when you create an account for the Application. By creating an account, you agree to provide accurate, current, and complete account information about you, and to maintain and promptly update your account information as necessary. We reserve the right to reclaim usernames without liability to you.
(c) Account Security. You are responsible for the security of your account for the Application and for your Wallet. If you become aware of any unauthorized use of your password or of your account with the Company, you agree to notify us immediately at: email@example.com
(d) Account Transactions. You can use your Wallet to purchase, collect, display and store NFTs. You understand that your SMT Network public address will be made publicly visible whenever you engage in a transaction on the Application.
(e) Transaction Fees. You acknowledge and agree to pay all fees set forth herein and/or on the purchase page in the Application’s marketplace.
(f) Taxes. You acknowledge and agree to be solely responsible to pay any and all sales, use, value-added and other taxes, duties, and assessments (except taxes on the Company’s net income) now or hereafter claimed or imposed by any government authority (collectively, the “Taxes”) associated with your use of the Application.
(g) No Known Fraud. If you believe an NFT on the marketplace is fraudulent or otherwise would constitute a violation of this Agreement you may not transact with it in the marketplace. You agree to report any violations to: firstname.lastname@example.org
(i) NFT Ownership. If you purchase a NFT you own a personal property interest in the underlying NFT completely but do not acquire any rights in or to the Application (including all intellectual property rights therein) or intellectual property owned by third parties which may be incorporated into the Application (including, without limitation, a NFT).
1.2 NFT Marketplace Rules
(a) Use Restrictions: you acknowledge and agree to not use the Application (including, without limitation, its marketplace) to collect, upload, transmit, display, or distribute content and/or NFT that:
(1) violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right;
(2) is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable;
(3) is harmful to minors in any way; or
(4) is in violation of any law, regulation, or obligations or restrictions imposed by any third party.
(b) Further Use Restrictions: you acknowledge and agree not to:
(1) upload, transmit, or distribute to or through the Application (including, without limitation, its marketplace) any computer viruses, worms, or any software intended to damage or alter a computer system or data;
(2) modify a NFT in any way;
(3) send through the Application (including, without limitation, its marketplace) unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise;
(4) use the Application (including, without limitation, its marketplace) to harvest, collect, gather, or assemble information or data regarding other users, including email addresses, without their consent;
(5) interfere with, disrupt, or create an undue burden on servers or networks connected to the Application (including, without limitation, its marketplace), or violate the regulations, policies, or procedures of such networks;
(6) attempt to gain unauthorized access to the Application (including, without limitation, its marketplace) or to other computer systems or networks connected to or used together with the Application (including, without limitation, its marketplace), whether through password mining or any other means;
(7) harass or interfere with any other user’s use and enjoyment of the Application (including, without limitation, its marketplace);
(8) use software or automated agents or scripts to produce multiple accounts on the Application (including, without limitation, its marketplace), or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Application (including, without limitation, its marketplace); provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Application’s marketplace for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file;
(9) utilize the Application (including, without limitation, its marketplace) to transact in securities, commodities futures, trading of commodities on a leveraged, margined or financed basis, binary options (including prediction-market transactions), real estate or real estate leases, equipment leases, debt financings, equity financings or other similar transactions or use the Application or to buy, sell, or advertise personal, professional, or business services.
(A) Assumption of Risk
- NO RESPONSIBILITY FOR COLLECTIBLES; NO GUARANTEE OF UNIQUENESS OR INTELLECTUAL PROPERTY. THE COMPANY HAS NO RESPONSIBILITY FOR THE COLLECTIBLES CREATED OR TRADED BY USERS ON THE APPLICATION (INCLUDING, WITHOUT LIMITATION, ITS MARKETPLACE). THE COMPANY DOES NOT INVESTIGATE AND CANNOT GUARANTEE OR WARRANT THE AUTHENTICITY, ORIGINALITY, UNIQUENESS, MARKETABILITY, LEGALITY OR VALUE OF ANY COLLECTIBLE CREATED OR TRADED BY USERS ON THE APPLICATION (INCLUDING, WITHOUT LIMITATION, ITS MARKETPLACE).
- VALUE AND VOLATILITY. THE PRICES OF COLLECTIBLE BLOCKCHAIN ASSETS ARE EXTREMELY VOLATILE AND SUBJECTIVE AND COLLECTIBLE BLOCKCHAIN ASSETS HAVE NO INHERENT OR INTRINSIC VALUE. FLUCTUATIONS IN THE PRICE OF OTHER DIGITAL ASSETS COULD MATERIALLY AND ADVERSELY AFFECT THE VALUE OF YOUR NFTS, WHICH MAY ALSO BE SUBJECT TO SIGNIFICANT PRICE VOLATILITY. WE CANNOT GUARANTEE THAT ANY NFTS PURCHASED WILL RETAIN THEIR ORIGINAL VALUE, AS THE VALUE OF COLLECTIBLES IS INHERENTLY SUBJECTIVE AND FACTORS OCCURRING OUTSIDE OF THE ECOSYSTEM MAY MATERIALLY IMPACT THE VALUE AND DESIRABILITY OF ANY PARTICULAR NFT.
- TAX CALCULATIONS. YOU ARE SOLELY RESPONSIBLE FOR DETERMINING WHAT, IF ANY, TAXES APPLY TO YOUR TRANSACTIONS. WE ARE NOT RESPONSIBLE FOR DETERMINING THE TAXES THAT APPLY TO YOUR TRANSACTIONS ON THE APPLICATION (INCLUDING, WITHOUT LIMITATION, ITS MARKETPLACE).
- INHERENT RISKS WITH BLOCKCHAIN TECHNOLOGY. THERE ARE RISKS ASSOCIATED WITH USING AN INTERNET-BASED BLOCKCHAIN, 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 ELECTRONIC WALLET. YOU ACCEPT AND ACKNOWLEDGE THAT WE WILL NOT BE RESPONSIBLE FOR ANY COMMUNICATION FAILURES, DISRUPTIONS, ERRORS, DISTORTIONS OR DELAYS YOU MAY EXPERIENCE WHEN USING THE APPLICATION (INCLUDING, WITHOUT LIMITATION, ITS MARKETPLACE), HOWEVER CAUSED.
- REGULATORY UNCERTAINTY. THE REGULATORY REGIME GOVERNING BLOCKCHAIN TECHNOLOGIES, CRYPTOCURRENCIES AND TOKENS IS UNCERTAIN, AND NEW REGULATIONS OR POLICIES MAY MATERIALLY ADVERSELY AFFECT THE DEVELOPMENT OF THE APPLICATION (INCLUDING, WITHOUT LIMITATION, ITS MARKETPLACE), AND THEREFORE THE POTENTIAL UTILITY OR VALUE OF YOUR NFT.
- SOFTWARE RISKS. UPGRADES, FORKS, OR A CHANGE IN HOW TRANSACTIONS ARE CONFIRMED ON THE BLOCKCHAIN NETWORK MAY HAVE UNINTENDED, ADVERSE EFFECTS ON BLOCKCHAIN-BASED NFT.
- NOT FOR INVESTMENT. NFT ARE FOR ENTERTAINMENT AND COLLECTIBLE PURPOSES ONLY. NFT ARE NOT SECURITIES OR ANY OTHER INVESTMENT INSTRUMENT.
- TECHNOLOGY RISKS. YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET AND AGREE THAT WE HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY BREACH OF SECURITY UNLESS IT IS DUE TO OUR GROSS NEGLIGENCE. WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSSES YOU INCUR AS THE RESULT OF YOUR USE OF THE NETWORK, OR YOUR 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, BRUTE-FORCING OR OTHER MEANS OF ATTACK AGAINST THE MARKETPLACE THE BLOCKCHAIN OR ANY ELECTRONIC WALLET. WE ARE NOT RESPONSIBLE FOR LOSSES DUE TO BLOCKCHAINS OR ANY OTHER FEATURES OF THE NETWORK, OR ANY ELECTRONIC WALLET, INCLUDING BUT NOT LIMITED TO LATE REPORT BY DEVELOPERS OR REPRESENTATIVES (OR NO REPORT AT ALL) OF ANY ISSUES WITH THE BLOCKCHAIN SUPPORTING THE APPLICATION (INCLUDING, WITHOUT LIMITATION, ITS MARKETPLACE), INCLUDING FORKS, TECHNICAL NODE ISSUES, OR ANY OTHER ISSUES HAVING FUND LOSSES AS A RESULT.
(B) Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
(C) Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Application shall be instituted exclusively in the federal courts of the United States or the courts of the State of Colorado in each case located in the State of Colorado. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
(E) Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.
(F) No Sweepstakes Liability. From time to time our clients and partners may offer sweepstakes, contests or similar promotional campaigns ("Sweepstakes"). Company is not a sponsor of any Sweepstakes. Company is not responsible for and disclaims all liability associated with Sweepstakes, including without limitation the payment of prizes, management of the campaign or compliance with applicable laws. Any Sweepstakes will be managed by and subject to the terms and conditions of the Sweepstakes sponsor.
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