PLEASE READ THE AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THE AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION PROVISION IN SECTION 12 (DISPUTE RESOLUTION; ARBITRATION) THAT REQUIRES, UNLESS YOU OPT OUT PURSUANT TO THE INSTRUCTIONS IN SECTION 12, THE EXCLUSIVE USE OF FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES BETWEEN YOU AND US, INCLUDING ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE YOU AGREED TO THESE TERMS. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU EXPRESSLY WAIVE YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS, AS WELL AS YOUR RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, COLLECTIVE, PRIVATE ATTORNEY GENERAL OR REPRESENTATIVE ACTION OR PROCEEDING.
Smeisty creates, and allows artists, professional athletes and other individuals (Smeisty, together with such artists and other individuals, "Creators”) and collectors ("Collectors”) the opportunity to showcase, sell, purchase, collect, exchange, list for auction, make offers, and bid on (each a "Transaction”) unique digital tradeable video clip content represented on a non-fungible token implemented on the Ethereum blockchain platform (the "Ethereum Platform”) through the use of a smart contract (a video clip or set of video clips, a "Digital Collectible”). ANY AND ALL DIGITAL COLLECTIBLES PURCHASED THROUGH A TRANSACTION, ON THE SITE OR THROUGH THE SERVICES, WILL ENTITLE THE BUYER ONLY TO A LIMITED NONSUBLICENSABLE RIGHT TO THE CONTENT. FOR THE AVOIDANCE OF DOUBT, BUYERS AND COLLECTORS MAY NOT RELICENSE OR SUBLICENSE ANY DIGITAL COLLECTIBLE OR ASSOCIATED CONTENT THEREIN.
Registered Accounts (as defined below) may participate in a Transaction in three ways: (a) by purchasing packs of Digital Collectibles from Smeisty (each, a "Pack Drop”); (b) by purchasing Digital Collectibles from other users or Collectors on the Site’s marketplace; or (c) by bidding on a onetime Pack Drop auction (each, a "Auction Drop”). There are different types of Pack Drops available for purchase on the Site, and we reserve the right to modify the types, prices and numbers of Pack Drops available at our discretion. We strongly encourage you not to purchase Digital Collectibles other than in Pack Drops on the Site’s marketplace. If you decide to purchase Digital Collectibles in any other way, you understand that such purchases will be entirely at your sole risk.
We may use third party service providers for payment services, and by using our Services you agree to be bound by such service terms. All payments or financial transactions that you engage in via the Site will be conducted through either the Ethereum Platform or other third party payment service providers. We have no control over these payments or transactions, nor do we have the ability to reverse any payments or transactions. We do not provide refunds for any purchases that you might make on or through the Site – whether for Digital Collectibles, Pack Drops, Auction Drops or anything else. All information that you provide us, the Ethereum Platform or any third party payment service provider in connection with a purchase, Transaction or other monetary transaction interaction with or through our Service must be accurate, complete, and current. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method ("Payment Method”) used in connection with a purchase or transaction or other monetary transaction interaction with our Service at the prices in effect when such charges are incurred. You must provide us with a current, valid, accepted Payment Method.
Before engaging in a Transaction or putting up your unique digital asset for showcasing, or putting in any offer to purchase a unique Digital Collectible from another user, we may ask you to download a supported electronic wallet extension, and connect and unlock your digital wallets with that extension. Once you submit an order to sell or purchase a Digital Collectible, your order is passed on to the applicable extension, which completes the transaction on your behalf.
ANY TRANSACTION, PURCHASE OR SALE YOU MAKE, ACCEPT OR FACILITATE OUTSIDE OF THE SITE WILL BE ENTIRELY AT YOUR OWN RISK. WE DO NOT CONTROL OR ENDORSE PURCHASES OR SALES OUTSIDE OF THIS SITE. WE EXPRESSLY DENY ANY OBLIGATION TO INDEMNIFY YOU OR HOLD YOU HARMLESS FOR ANY LOSSES YOU MAY INCUR BY TRANSACTING, OR FACILITATING TRANSACTIONS, OUTSIDE OF THIS SITE.
WE ARE NOT A BROKER, FINANCIAL INSTITUTION, OR CREDITOR. THE SITE IS AN ADMINISTRATIVE PLATFORM ONLY. WE FACILITATE TRANSACTIONS BETWEEN BUYERS, COLLECTORS, SELLERS AND CREATORS BUT IS NOT A PARTY TO ANY AGREEMENT BETWEEN THEM OR BETWEEN ANY USERS.
Account Registration. In order to participate in a Transaction you must create and register your account ("Registered Account”). By creating a Registered Account, you agree to (a) provide accurate, current and complete information about yourself, (b) maintain and promptly update from time to time as necessary your information, (c) maintain the security of your password and accept all risks of unauthorized access to your Registered Account and the information you provide to us, and (d) immediately notify us if you discover or otherwise suspect any security breaches related to the Site, the Services or your Registered Account. You further agree to not (w) create another account if we’ve disabled one you had unless you have our written permission first, (x) buy, sell, rent or lease access to your Registered Account or username unless you have our written permission first, (y) share your Registered Account password with anyone; or (z) log in or try to log in to access the Site through unauthorized third party applications or clients.
We may require you to provide additional information and documents at the request of any competent authority or in accordance with any applicable law or regulation, including laws related to anti-laundering (legalization) of incomes obtained by criminal means, or for counteracting financing of terrorism. We may also require you to provide additional information and documents in cases where we have reasons to believe that (i) your Registered Account is being used for money laundering or for any other illegal activity, (ii) you have concealed or reported false identification information and other details; or (iii) transactions effected via your Registered Account were effected in breach of the Agreement. In such cases, Smeisty, in its sole discretion, may pause or cancel your participation in Transactions until such additional information and documents are reviewed by Smeisty and accepted as satisfying the requirements of applicable law.
By creating a Registered Account, you consent to receive electronic communications from Smeisty (e.g., via email or by posting notices to the Site). These communications may include notices about your Registered Account (e.g., password changes and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy. We may also send you promotional communications via email, including, but not limited to, newsletters, special offers, surveys and other news and information we think will be of interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided therein.
You must provide all equipment and software necessary to connect to the Site. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Site or using the Services.
Content Ownership. Unless otherwise indicated in writing by us, the Site and all content and other materials contained therein, including, without limitation, the Smeisty logos and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, "Content”) are the proprietary property of Smeisty or our affiliates, licensors or users, as applicable. Notwithstanding anything to the contrary in the Agreement, the Site, Services and Content may include software components provided by Smeisty or its affiliates or a third party that are subject to separate license terms, in which case those license terms will govern such software components.
The Smeisty logos and any Smeisty product or service names, logos or slogans that may appear on the Site are trademarks of Smeisty or our affiliates and may not be copied, imitated or used, in whole or in part, without our prior written permission. You may not use any metatags or other "hidden text” utilizing "Smeisty” or any other name, trademark or product or service name of Smeisty or our affiliates without our prior written permission. All other trademarks, registered trademarks, product names and Smeisty names or logos mentioned on the Service are the property of their respective owners and may not be copied, imitated or used, in whole or in part, without the permission of the applicable trademark holder. Reference to any products, services, processes or other information by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by Smeisty.
License to Access and Use Our Services and Content. You are hereby granted a limited, nonexclusive, nontransferable, nonsublicensable, and personal license to access and use the Site; provided, however, that such license is subject to terms if the Agreement and does not include any right to (a) sell, resell or use commercially the Site, Services or Content, (b) distribute, publicly perform or publicly display any Content, (c) modify or otherwise make any derivative uses of the Service or Content, or any portion thereof, (d) use any data mining, scraping, robots or similar data gathering or extraction methods, (e) download (other than page caching) any portion of the Service or Content, except as expressly permitted by us, and (f) use the Service or Content other than for their intended purposes. Furthermore, you are granted a limited, nonexclusive, nontransferable right to create a text hyperlink to the Site for noncommercial purposes, provided that such link does not portray Smeisty or our affiliates or any of our products or services in a false, misleading, derogatory or otherwise defamatory manner, and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time. You may not use a logo or other proprietary graphic of Smeisty to link to the Site without our express written permission. Further, you may not use, frame or utilize framing techniques to enclose any Smeisty trademark, logo or other proprietary information, including the images found on the Service, the content of any text or the layout or design of any page, or form contained on a page, on the Site without our express written consent.
The Site and Services may contain links to third-party websites ("Third-Party Websites”) and applications ("Third-Party Applications”). When you click on a link to a Third-Party Website or Third-Party Application, we will not warn you that you have left our Service and are subject to the Terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites and Third-Party Applications and are not under the control of Smeisty. Smeisty is not responsible for any Third-Party Websites or Third-Party Applications. Smeisty provides these Third-Party Websites and Third-Party Applications only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites or Third-Party Applications, or their products or services. You use all links in Third-Party Websites, and Third-Party Applications at your own risk. When you leave our Service, our Terms and policies no longer govern. You should review all applicable agreements and policies, including privacy and data gathering practices, of any Third-Party Websites or Third-Party Applications, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
You agree that you will not violate any law, contract, intellectual property or other third party right, and that you are solely responsible for your conduct, while accessing or using the Site or participating in any Transaction. You agree that you will abide by the Agreement and will not (a) provide false or misleading information to Smeisty, (b) use or attempt to use another user’s Account without authorization from such user and Smeisty, (c) create or list counterfeit items, (d) pose as another person or create a misleading username, (e) use the Service in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Service, or that could damage, disable, overburden or impair the functioning of the Service in any manner, (f) develop, utilize, or disseminate any software, or interact with any API in any manner, that could damage, harm, or impair the Service, (g) reverse engineer any aspect of the Service, or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any Service, area or code of the Service, (h) attempt to circumvent any content-filtering techniques we employ, or attempt to access any feature or area of the Service that you are not authorized to access, (i) use any robot, spider, crawler, scraper, script, browser extension, offline reader or other automated means or interface not authorized by us to access the Service, extract data or otherwise interfere with or modify the rendering of Service pages or functionality, (j) Use data collected from our Service to contact individuals, companies, or other persons or entities, (k) Use data collected from our Service for any direct marketing activity (including without limitation, email marketing, SMS marketing, telemarketing, and direct marketing), (l) bypass or ignore instructions that control all automated access to the Service, (m) use the Service for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms, (n) use the Ethereum Platform to carry out any illegal activities, including but not limited to money laundering, terrorist financing or deliberately engaging in activities designed to adversely affect the performance of the Ethereum Platform, or the Service, (o) engage in wash trading or other deceptive or manipulative trading activities, (p) place misleading bids or offers, (q) spam listings for the purpose of causing a listing to appear at the top of the search results, (r) engage in behaviors that have the intention or the effect of artificially increasing view counts, favorites, volume, or other metrics that Smeisty might use to sort search results, (s) use the Service to carry out any financial activities subject to registration or licensing, including but not limited to creating, listing, or buying securities, commodities, options, real estate, or debt instruments; or (t) use the Service from a country sanctioned by the government of the United States.
Any and all Digital Collectibles, assets, listings, smart contracts, or collections that Smeisty deems inappropriate, disruptive, or illegal are prohibited on Smeisty. Smeisty reserves the rights to determine the appropriateness of listings on the Site and remove any listing at any time. If you create or offer an asset, listing, smart contract, or collection in violation of these policies, we will take corrective actions, as appropriate, including but not limited to removing the asset, listing, smart contract, or collection, deleting your Smeisty account or Registered Account, and permanently withholding referral payments and revenue sharing fees.
Assets, listings, smart contracts, and collections that include metadata that violates international or United States intellectual property laws, promotes suicide or self-harm, incites hate or violence against others, degrades or doxes another individual, depicts minors in sexually suggestive situations, or is otherwise illegal in the United States are prohibited and will be removed.
Assets, listings, smart contracts, and collections with a primary or substantial purpose in a game or application that violates international or United States intellectual property laws, promotes suicide or self-harm, incites hate or violence against others, degrades or doxes another individual, depicts minors in sexually suggestive situations, or is otherwise illegal in the United States are prohibited on Smeisty and will be removed.
Assets, listings, smart contracts, and collections created or used primarily or substantially for the purpose of raising funds for the known terrorist organizations listed on https://www.state.gov/foreign-terrorist-organizations/ are prohibited on Smeisty and will be removed.
The sale of stolen assets, assets taken without authorization, and otherwise illegally obtained assets on Smeisty is prohibited. If you have reason to believe that an asset listed on Smeisty was illegally obtained, please contact us immediately. Listing illegally obtained assets may result in your listings being cancelled, your assets being hidden, or your account being suspended.
We require all users to be 18 years old or older. If you are under 18, you may use a parent or guardian's Smeisty account, but only with involvement of the account holder. However, the account holder is responsible for everything done with that account.
If you become aware of the creation, listing, or buying of assets in violation of any of the terms specified in this section, you shall contact us here to report it. Creators bear special responsibility for informing Smeisty of the existence of their collections, contracts, and assets that violate these terms.
You are solely responsible for your use of the Services and for any User Information (as defined below) you provide, including compliance with applicable laws, rules, and regulations. You retain your rights to any such User Information you submit, post, or display using the Services. However, by submitting, posting or displaying User Information on or through the Services, you grant us a worldwide, non-exclusive, sublicensable, royalty-free license to use, copy, modify, and display any text, content, files, communications, comments, feedback, suggestions, ideas, concepts, questions, data or other content that you submit or post on or through the Site or Services (collectively "User Information”) for our lawful business purposes, including to provide, promote, and improve the Services.
You represent and warrant that you have, or have obtained, all rights, licenses, consents, permissions, power and/or authority necessary to grant the rights granted herein for any User Information that you submit, post or display on or through the Services. You agree that such User Information will not contain material subject to copyright or other proprietary rights, unless you have necessary permission or are otherwise legally entitled to post the material and to grant Smeisty the license described above. Smeisty reserves the right to remove User Information without prior notice. Smeisty will take down works in response to formal infringement claims and will terminate a user's access to the Services if the user is determined to be a repeat infringer.
If you believe that your content has been copied in a way that constitutes copyright infringement, please report this by contacting our designated copyright agent at:
Attn: Legal Dept. Email: [email protected]
Formal infringement claims regarding content on the Services must include: (a) a written communication delivered to the agent designated above, (b) a physical or electronic signature of someone authorized to act on behalf of the copyright owner, (c) identification of the copyrighted work(s) allegedly infringed, (d) identification of material claimed to be infringing, reasonably sufficient to permit Company to locate the material, (e) information reasonably sufficient to permit Company to contact the complaining party (this can be an address, phone number, email address, or other suitable method of contact), (f) a statement that the "complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (g) a statement that the information in the notice is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of copyright owner.
If you believe that your likeness has been used in a way that violates your personality rights, please report this by contacting our designated personality rights agent at:
Attn: Legal Dept. Email: [email protected]
Formal claims regarding content on the Services must include (a) a written communication delivered to the agent designated above, (b) a physical or electronic signature of someone authorized to act on behalf of the person or the estate affected, (c) identification of material claimed to be violating, reasonably sufficient to permit Company to locate the material, (d) information reasonably sufficient to permit Company to contact the complaining party. This can be an address, phone number, email address, or other suitable method of contact, (e) a statement that the "complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the person or the estate affected, its agent or the law; and (f) a statement that the information in the notice is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the person or the estate.
To the fullest extent permitted by applicable law, you agree to indemnify, defend and hold harmless Smeisty, and our respective past, present and future employees, officers, directors, contractors, consultants, equity holders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors and assigns (individually and collectively, the "Smeisty Parties”), from and against all actual or alleged third party claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses (including, without limitation, attorneys’ fees and expenses) and costs (including, without limitation, court costs, costs of settlement and costs of pursuing indemnification and insurance), of every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise (collectively, "Claims”), including, but not limited to, damages to property or personal injury, that are caused by, arise out of or are related to (a) your use or misuse of the Site, Services, or User Information, (b) any feedback you provide, (c) your violation of these Terms, and (d) your violation of the rights of a third party, including another user. You agree to promptly notify Smeisty of any third party Claims and cooperate with the Smeisty Parties in defending such Claims. You further agree that the Smeisty Parties shall have control of the defense or settlement of any third party Claims. THIS INDEMNITY IS IN ADDITION TO, AND NOT IN LIEU OF, ANY OTHER INDEMNITIES SET FORTH IN A WRITTEN AGREEMENT BETWEEN YOU AND SMEISTY.
EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY SMEISTY, THE SITE, SERVICE, AND CONTENT CONTAINED THEREIN, AND DIGITAL COLLECTIBLES LISTED THEREIN ARE PROVIDED ON AN "AS IS” AND "AS AVAILABLE” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. SMEISTY (AND ITS SUPPLIERS) MAKE NO WARRANTY THAT THE SERVICE: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, COMPLETE, LEGAL, OR SAFE. SMEISTY DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE SERVICE, CONTENT CONTAINED THEREIN. SMEISTY DOES NOT REPRESENT OR WARRANT THAT CONTENT ON THE SERVICE IS ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. WE WILL NOT BE LIABLE FOR ANY LOSS OF ANY KIND FROM ANY ACTION TAKEN OR TAKEN IN RELIANCE ON MATERIAL OR INFORMATION, CONTAINED ON THE SITE OR SERVICE. WHILE SMEISTY ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF THE SERVICE AND CONTENT SAFE, SMEISTY CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICE, CONTENT, AND ANY DIGITAL COLLECTIBLES LISTED ON OUR SERVICE OR OUR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE CANNOT GUARANTEE THE SECURITY OF ANY DATA THAT YOU DISCLOSE ONLINE. YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET AND WILL NOT HOLD US RESPONSIBLE FOR ANY BREACH OF SECURITY UNLESS IT IS DUE TO OUR GROSS NEGLIGENCE.
WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSS AND TAKE NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO YOU FOR, ANY USE OF DIGITAL COLLECTIBLES, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (A) USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED ADDRESSES; (B) SERVER FAILURE OR DATA LOSS; (C) CORRUPTED WALLET FILES; (D) UNAUTHORIZED ACCESS TO APPLICATIONS; (E) ANY UNAUTHORIZED THIRD PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK AGAINST THE SERVICE OR DIGITAL COLLECTIBLES.
DIGITAL COLLECTIBLES ARE INTANGIBLE DIGITAL ASSETS. THEY EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE FLOW NETWORK. ANY TRANSFER OF TITLE THAT MIGHT OCCUR IN ANY UNIQUE DIGITAL ASSET OCCURS ON THE DECENTRALIZED LEDGER WITHIN THE FLOW PLATFORM. WE DO NOT GUARANTEE THAT SMEISTY OR ANY SMEISTY PARTY CAN EFFECT THE TRANSFER OF TITLE OR RIGHT IN ANY DIGITAL COLLECTIBLES.
Smeisty is not responsible for sustained casualties due to vulnerability or any kind of failure, abnormal behavior of software (e.g., wallet, smart contract), blockchains or any other features of the Digital Collectibles. Smeisty is not responsible for casualties due to late report by developers or representatives (or no report at all) of any issues with the blockchain supporting Digital Collectibles including any forks, technical node issues or any other issues having fund losses as a result. Nothing in these Terms shall exclude or limit liability of either party for fraud, death or bodily injury caused by negligence, violation of laws, or any other activity that cannot be limited or excluded by legitimate means.
You accept and acknowledge:
The prices of blockchain assets (such as and Digital Collectibles) are extremely volatile. Fluctuations in the price of other digital assets could materially and adversely affect the Digital Collectibles, which may also be subject to significant price volatility. We cannot guarantee that any purchasers of Digital Collectibles will not lose money.
You are solely responsible for determining what, if any, taxes apply to your Digital Collectibles transactions. Smeisty is not responsible for determining the taxes that apply to Digital Collectible Transaction or any Digital Collectible transaction.
Our Service does not store, send, or receive Digital Collectibles. This is because Digital Collectibles exist only by virtue of the ownership record maintained on its supporting blockchain. Any transfer of Digital Collectibles occurs within the supporting blockchain and not on this Service.
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 Smeisty will not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience when using the Digital Collectibles, however caused.
A lack of use or public interest in the creation and development of distributed ecosystems could negatively impact the development of those ecosystems and related applications, and could therefore also negatively impact the potential utility or value of Digital Collectibles.
The regulatory regime governing blockchain technologies, cryptocurrencies, and tokens is uncertain, and new regulations or policies may materially adversely affect the development of the Transaction and/or Service and the utility of Digital Collectibles.
The Service will rely on third-party platforms such as the Ethereum Platform to perform the Transactions and associated payments for Digital Collectibles. If we are unable to maintain a good relationship with such platform providers; if the terms and conditions or pricing of such platform providers change; if we violate or cannot comply with the terms and conditions of such platforms; or if any of such platforms loses market share or falls out of favor or is unavailable for a prolonged period of time, access to and use of the Service will suffer.
There are risks associated with purchasing user generated content, including but not limited to, the risk of purchasing counterfeit assets, mislabeled assets, assets that are vulnerable to metadata decay, assets on smart contracts with bugs, and assets that may become untransferable. Smeisty reserves the right to hide collections, contracts, and assets affected by any of these issues or by other issues. Assets you purchase may become inaccessible on Smeisty. Under no circumstances shall the inability to view your assets on Smeisty serve as grounds for a claim against Smeisty.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL SMEISTY BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM THESE TERMS, THE SERVICE, PRODUCTS OR THIRD PARTY SITES AND PRODUCTS, OR FOR ANY DAMAGES RELATED TO LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, OR LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE AND EVEN IF SMEISTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICES, PRODUCTS OR THIRD PARTY SITES AND PRODUCTS ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA RESULTING THEREFROM.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF SMEISTY ARISING OUT OF OR IN ANY WAY RELATED TO THE AGREEMENT, THE ACCESS TO AND USE OF THE SERVICE, CONTENT, DIGITAL COLLECTIBLES, OR ANY PRODUCTS OR SERVICES PURCHASED ON THE SERVICE EXCEED $100.
THE FOREGOING LIMITATIONS OF LIABILITY SHALL NOT APPLY TO LIABILITY OF SMEISTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A MEMBER OF SMEISTY’ NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A MEMBER OF SMEISTY’ FRAUD OR FRAUDULENT MISREPRESENTATION
We reserve the right in our sole discretion to modify, suspend or discontinue, temporarily or permanently, the Services (or any features or parts thereof) or suspend or discontinue the Digital Collectible or the Transaction at any time and without liability therefore.
Read this section carefully because it requires the you to arbitrate any disputes and limits the manner in which you can seek relief from Smeisty. This Section 12 (the "Arbitration Agreement”) applies to and governs any dispute, controversy, or claim between you and Smeisty that arises out of or relates to, directly or indirectly: (a) the Agreement, including the formation, existence, breach, termination, enforcement, interpretation, validity, or enforceability thereof; (b) access to or use of the Site, Services and Content including receipt of any advertising or marketing communications; (c) any transactions through, by, or using the Site or Services; or (d) any other aspect of your relationship or transactions with Smeisty, directly or indirectly, as a consumer ("Dispute Claim” or collectively, "Dispute Claims”). The Arbitration Agreement shall apply, without limitation, to all Dispute Claims that arose or were asserted before or after your agreement to the Agreement.
You can reject and opt-out of this Arbitration Agreement if within 30 days of accepting the Agreement by emailing Smeisty at[email protected] with your first and last name and stating your intent to opt-out of the Arbitration Agreement. Note that opting out of this Arbitration Agreement does not affect any other part of the Agreement, including the provisions regarding controlling law or in which courts any disputes must be brought.
For any Dispute Claim, you agree to first contact us at[email protected] and attempt to resolve the dispute with us informally. In the unlikely event that Smeisty has not been able to resolve a Dispute Claim after sixty (60) days, we each agree to resolve any Dispute Claim exclusively through binding arbitration by AAA before a single arbitrator (the "Arbitrator”), under the Expedited Procedures then in effect for AAA (the "Rules”), except as provided herein. In the event of any conflict between the Rules and this Arbitration Agreement, this Arbitration Agreement shall control. AAA may be contacted at www.adr.org, where the Rules are also available. The arbitration will be conducted in the U.S. county where you live or Delaware , unless you and Smeisty agree otherwise. If you are using the Site for commercial purposes, each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Site for non-commercial purposes: (i) AAA may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from AAA; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. You and Smeisty agree that the Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Agreement, any provision of the Agreement, is unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, unconscionability, or estoppel.
Nothing in this Section 12 shall be deemed as: preventing Smeisty from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, intellectual property rights or other proprietary rights; or preventing you from asserting claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances on only an individual (non-class, non-representative) basis.
If this Arbitration Agreement is found to be void, unenforceable, or unlawful, in whole or in part, the void, unenforceable, or unlawful provision, in whole or in part, shall be severed. Severance of the void, unenforceable, or unlawful provision, in whole or in part, shall have no impact on the remaining provisions of the Arbitration Agreement, which shall remain in force, or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement. Notwithstanding the foregoing, if the Class Action/Jury Trial Waiver is found to be void, unenforceable, or unlawful, in whole or in part, because it would prevent you from seeking public injunctive relief, then any dispute regarding the entitlement to such relief (and only that relief) must be severed from arbitration and may be litigated in a civil court of competent jurisdiction. All other claims for relief subject to arbitration under this Arbitration Agreement shall be arbitrated under its terms, and the parties agree that litigation of any dispute regarding the entitlement to public injunctive relief shall be stayed pending the outcome of any individual claims in arbitration.
Class Action/Jury Trial Waiver. WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SITE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AND SMEISTY AGREE THAT THE ARBITRATOR MAY AWARD RELIEF ONLY TO AN INDIVIDUAL CLAIMANT AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF ON YOUR INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED MAY NOT AFFECT OTHER SMEISTY USERS. YOU AND SMEISTY FURTHER AGREE THAT, BY ENTERING INTO THE AGREEMENT, YOU AND SMEISTY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO BRING, JOIN, OR PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND AS A PLAINTIFF OR CLASS MEMBER.
The Agreement, your access to and use of the Service and Content, and your participation in the Auction shall be governed by and construed and enforced in accordance with the laws of the State of Texas, without regard to conflict of law rules or principles of the State of Texas, or any other jurisdiction that would cause the application of the laws of any other jurisdiction that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, shall be resolved in the state or federal courts of competent jurisdiction in the County of Travis, State of Texas.
Notwithstanding anything contained in the Agreement, we reserve the right, without notice and in our sole discretion, to terminate your right to access or use the Service at any time and for any or no reason, and you acknowledge and agree that we shall have no liability or obligation to you in such event and that you will not be entitled to a refund of any amounts that you have already paid to us, to the fullest extent permitted by applicable law.
If any term, clause or provision of the Agreement is held invalid or unenforceable, then that term, clause or provision will be severable from the Agreement and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of the Agreement.
The following sections will survive the expiration or termination of the Agreement and the termination of your Account: all defined terms and Sections 1-4 and 7-19.
The Agreement along with the Auction Rules constitute the entire agreement between you and Smeisty relating to your access to and use of the Services and Content, and your participation in the Auction. The Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of Smeisty prior, concurrent or subsequent circumstance, and Smeisty’ failure to assert any right or provision under the Agreement shall not constitute a waiver of such right or provision. Except as otherwise provided herein, the Agreement is intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.
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