PROJECT ELUÜNE TERMS AND CONDITIONS
BEFORE PROCEEDING, YOU MUST READ AND AGREE TO THE FOLLOWING TERMS AND CONDITIONS. PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE APP, THE SMART CONTRACTS, THE SITE, OR PARTICIPATING IN ANY OF THE PROJECT ELUÜNE DIGITAL COMMUNITIES OR PLATFORMS.
Project Eluüne (“PE”) is a collection of digital art collectibles created within a decentralized application on the Solana blockchain network using uniquely coded smart contracts (each, a “Smart Contract”) currently accessible at Arrivant.com (the, “Site” and collectively with Smart Contracts, the “App”). PE consists of Founding StarGardens (each, a “Founding StarGarden”), each of which is a non-fungible token (“NFT”) on the Solana network. Using the App, users can, subject to the terms hereof and the terms of the Smart Contract, acquire and own Founding StarGardens and, on the Solana blockchain network, via third-party marketplaces, users can, subject to the terms hereof and the terms of the Smart Contract, acquire, buy, sell, own, trade and transfer Founding StarGardens.
Immersly LLC d/b/a Arrivant (“Company” or “we” or “us”) is the party making the App available for use and the creator of PE. Before using the App, the Smart Contracts, or the Site, or interacting with any of the PE digital communities you must agree to these terms and conditions (“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”).
When you purchase a Founding StarGarden, you receive just a token which is part of the Project Eluüne digital collectibles that point to an underlying media file of a unique, non-fungible digital art collectible. Each Founding StarGarden sold by the Company should be purchased with the understanding that it is a digital collectible and not an investment. Each Founding StarGarden is a unique non-fungible digital collectible and as such are finished products in and of themselves. At the discretion of the Company, the Company may choose to continue iterating upon the Founding StarGardens or allow owners to use these tokens within different platforms and games that the Company creates when and if possible and in accordance with any and all regulatory guidelines.
ANY INFORMATION PROVIDED BY THE COMPANY ON ANY PLATFORM OR ON THE SITE IS FOR INFORMATIONAL AND ENTERTAINMENT PURPOSES ONLY AND SHOULD NOT BE CONSTRUED NOR IS IT INTENDED AS, AN OFFER TO SELL, OR THE SOLICITATION OF AN OFFER TO BUY, ANY INTEREST IN ANY SECURITY, ENTITY, INVESTMENT VEHICLE OR CONTRACT, INCLUDING, BUT NOT LIMITED TO, WITH RESPECT TO FOUNDING STARGARDENS.
YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE NO EXPECTATION OF PROFIT ASSOCIATED WITH YOUR PURCHASE OF ANY FOUNDING STARGARDENS AND YOU HAVE NO EXPECTATION TO DERIVE PROFITS FROM THE FOUNDING STARGARDENS AS A RESULT OF OUR EFFORTS OR THE EFFORTS OF ANY THIRD PARTY. ANY REFERENCES TO SECONDARY MARKETS FOR NFTS ARE PROVIDED SOLELY FOR INFORMATIONAL PURPOSES AND YOU ACKNOWLEDGE AND AGREE THAT YOUR PURCHASE OF ANY FOUNDING STARGARDEN IS NOT IN RELIANCE OF THE EXISTENCE OF ANY SUCH SECONDARY MARKET THAT MAY OR MAY NOT SUPPORT PE OR THE COMPANY.
PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE APP, THE SMART CONTRACTS, OR THE SITE. THESE TERMS GOVERN YOUR USE OF THE APP, THE SMART CONTRACTS, AND THE SITE. YOU ARE NOT PERMITTED TO USE THE APP, THE SMART CONTRACTS, AND THE SITE IF YOU DO NOT ACCEPT ALL OF THESE TERMS. 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 THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO ACCEPT THESE TERMS 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 THESE TERMS, 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 THESE TERMS, YOU ARE NOT PERMITTED TO ACCESS OR USE THE APP, THE SMART CONTRACTS, OR THE SITE.
2. THE APP.
To use the App, you will need to have a web browser and a Solana Wallet that is compatible with the Non-Fungible Token standard on the Solana network. All transactions regarding Founding StarGardens are managed and confirmed on the Solana blockchain. You understand that your Solana public address may be made publicly visible whenever you engage in a transaction. We do not own nor control your web browser, Solana Wallet, the Solana network, or any other third-party site, product, or service that you might access, visit, or use for the purpose of enabling you to interact with the Site. We are not 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. Any tools or calculations that are displayed on the App or otherwise provided on the Site are for informational and entertainment purposes only. These calculations are in no way predictions of any value associated with PE or the Founding StarGardens and you agree that you will not construe any such tools or calculations as predictions of future prices or values in any way or that we are giving you any advice on any value associated with the Founding StarGardens. For the avoidance of doubt, the Founding StarGardens are finished products and any additional tools, gamification, folklore, online communities or calculations provided on the Site or in any online communities associated with PE are solely for informational and entertainment purposes. All decisions are made in your sole discretion without reliance on any information provided on the App. We are not responsible or liable for any transactions that are cancelled by a seller.
3. THE FOUNDING STARGARDENS.
There will be a total of 7,027 Founding StarGardens initially minted. All sales from minting are final and we do not guarantee that all interested buyers will be able to purchase a Founding StarGarden before they are sold out. We disclaim all liability in connection with the purchase of any Founding StarGardens. It is your responsibility to ensure that your purchase of any Founding StarGardens has been completed. We reserve the right to terminate or end the initial sale of Founding StarGardens at any time.
4. OWNERSHIP; LICENSE; RESTRICTIONS.
a. Definitions. (i) “Art” means any art, design, and drawings that may be associated with a Founding StarGarden that you Own. (ii) “Own” means, with respect to a Founding StarGarden, a Founding StarGarden that you have purchased or otherwise rightfully acquired from a legitimate source on the blockchain (iii) “Purchased Founding StarGarden” means a Founding StarGarden 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.
(i) When you purchase a Founding StarGarden, you own only the NFT, not any associated Art or intellectual property of the Company. Each Founding StarGarden is an NFT on the Solana blockchain. When you acquire a Founding StarGarden, you own the NFT, not the associated Art, or any other StarGarden Universe Materials (as that term is defined below), or any Third Party IP. Please see the section on licensing below to understand what you are allowed to do with the associated Art as the owner of the NFT. As owner of the Founding StarGarden you can trade the NFT, sell it, or give it away for free similarly to a physical collectible. Ownership of the NFT is governed solely by the Smart Contract and the Solana Network.
(ii) We Own the App, and the App includes the Art. You acknowledge and agree that we (or, as applicable, our licensors) own 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 “StarGarden Universe Materials”). Other than expressly stated in these Terms, you do not have any other rights in the StarGarden Universe Materials. You acknowledge that the StarGarden Universe 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 StarGarden Universe Materials are the copyrighted property of us or our licensors, and all trademarks, service marks, and trade names associated with the App or otherwise contained in the StarGarden Universe Materials are proprietary to us or our licensors. 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 StarGarden Universe Materials that you may access on or through the App. We reserve all rights in and to the StarGarden Universe Materials that are not expressly granted to you in these Terms. For the avoidance of doubt, you understand and agree: (1) that your acquisition or purchase of a Founding StarGarden, whether via the App or otherwise, does not give you any rights or licenses in or to the StarGarden Universe Materials (including, without limitation, our copyright in and to the associated Art or the PE or StarGarden name/trademark) other than those expressly contained in these Terms; (2) that you do not have the right, except as otherwise set forth in these Terms, to reproduce, distribute, or otherwise commercialize any elements of the StarGarden Universe 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 (3) that you will not apply for, register, or otherwise use or attempt to use any PE or Founding StarGarden 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 these Terms, we grant you a limited worldwide, non-exclusive, revocable, non-transferable (except as otherwise specifically set forth herein), royalty-free, worldwide license to use, copy, and display the Art of your Purchased Founding StarGarden solely for the following purposes: (1) for your own personal, non-commercial use; for the avoidance of doubt you are definitely able to use it as your profile picture on social media and other digital communities (2) as part of a marketplace that permits the purchase and sale of your Purchased Founding StarGardens, provided that the marketplace cryptographically verifies each Founding StarGardens owner’s rights to display the Art for their Purchased Founding StarGarden to ensure that only the actual owner of the NFT can display the Art; or (3) as part of a third party website or application that permits the inclusion, involvement, or participation of your Purchased Founding StarGardens, provided that the website/application cryptographically verifies each Founding StarGarden owner’s rights to display the Art for their Purchased Founding StarGardens to ensure that only the actual owner of the NFT can display the Art, and provided that the Art is no longer visible once the owner of the Purchased Founding StarGardens leaves or logs out of the applicable website/application.
(ii) Fan Art.
Subject to your full and continued compliance with these Terms, we hereby grant you a limited, non-exclusive, non-transferable, revocable, royalty-free worldwide license to use the Art as the basis for, as inspiration for, and incorporate the Art into, Fan Art subject to these Terms. “Fan Art” shall mean original, graphic art that is originally created by you; does not infringe the rights of any third-party; is used for non-commercial purposes only; does not include any form of collaboration or involvement of any brand or other third party, and does not violate any applicable laws, rules or regulations. Your use of the Art as part of Fan Art does not convey or grant to you any copyright, trademark or other rights to the Art, other than the limited license set forth herein. Any copyright, trademark or other rights of yours to the Fan Art shall expressly exclude any such rights to the Art. Notwithstanding anything herein to the contrary, you may not use the Art in connection with any NFT. All Fan Art that incorporates or uses Art must provide a reasonable attribution to Company Non-digital Commercial Use. Subject to your continued compliance with these Terms, we grant you a limited, worldwide, non-exclusive, non-transferable, revocable, royalty-free license to use, copy, and display the Art for your Purchased Founding Third-Party StarGardens for the purpose of commercializing your own physical merchandise that includes, contains, or consists of the Art for your Purchased Founding StarGarden (“Commercial Use”), provided that such Commercial Use does not (1) include any form of collaboration or involvement of any brand or other third party, or (2) result in you earning more than USD$100,000 in gross revenue each year. In the event your Commercial Use exceeds USD$100,000 in a given year, you will need to enter into a commercial license with us. If you exceed the USD$100,000 per year of gross revenue limitation, you will be in breach of these Terms, and must contact us regarding entering into a broader license agreement (which will be in our sole and absolute discretion). Without entering into a commercial license with us, you acknowledge and agree that: (x) you are in breach of these Terms; (y) in addition to any remedies that may be available to us at law or in equity, we may immediately terminate the license granted to you herein; and (z) you will be liable and responsible to reimburse us for any costs and expenses incurred by us during the course of enforcing these Terms against you (including attorney and legal fees).
Except as specifically authorized herein, you agree that you may not, nor permit any third party to do or attempt to do any of the following without our express prior written consent in each case: (1) modify the Art for your Purchased Founding StarGardens in any way, including, without limitation, the shapes, designs, drawings, attributes, or color schemes; (2) use the Art for your Purchased Founding StarGardens to advertise, market, or sell any third party product or service; (3) use the Art of your Purchased Founding StarGardens in violation of any applicable law, rule or regulation; or in any way (whether or not in connection with images, videos, or other forms of media) that depict hatred, intolerance, violence, cruelty, or anything else that could reasonably be found to incite violence or otherwise infringe upon the rights of others; (4) use the Art for your Purchased Founding StarGardens in movies, videos, or any other forms of media, except to the limited extent that such use is expressly permitted in these Terms or solely for your own personal, non-commercial use; (5) sell, distribute for commercial gain (including, without limitation, giving away in the hopes of eventual commercial gain), or otherwise commercialize merchandise that includes, contains, or consists of the Art for your Purchased Founding StarGardens, except as expressly permitted in these Terms; (6) attempt to trademark, copyright, or otherwise acquire additional intellectual property rights in or to the Art of your Purchased Founding StarGardens; or (7) otherwise utilize the Art of your Purchased Founding StarGardens for your or any third party’s commercial benefit. To the extent that Art associated with your Purchased Founding StarGardens contains Third Party IP, you understand and agree as follows: (w) that you will not have the right to use such Third Party IP in any way except as incorporated in the Art, and subject to the license and restrictions contained herein; (x) that the Commercial Use license in section 4.c.iii above will not apply; (y) that, depending on the nature of the license granted from the owner of the Third Party IP, we may need to pass through additional restrictions on your ability to use the Art; and (z) to the extent that we inform you of such additional restrictions in writing (email being acceptable), you will be responsible for complying with all such restrictions from the date that you receive the notice, and that failure to do so will be deemed a breach of this license. For the avoidance of doubt, it is strictly prohibited and a violation of these Terms to use any Art or Purchased Founding StarGardens in order to create a similar or derivative NFT based on the Art or Purchased Founding StarGardens. Such use constitutes a violation of these Terms as well as intellectual property infringement, which would cause monetary damages and irreparable harm to us. The restrictions in this Section will survive the expiration or termination of these Terms.
e. Other Terms of License.
All licenses granted to you herein apply only to the extent that you continue to Own the applicable Purchased Founding StarGardens. If at any time you sell, trade, donate, give away, transfer, or otherwise dispose of your Purchased Founding StarGardens for any reason, all licenses granted to you herein will immediately terminate with respect to you and that Founding StarGarden without requiring notice, and you will have no further rights in or to such Founding StarGarden such Founding StarGarden or the Art for that Founding StarGarden. All goodwill arising from your use of the Art or any StarGarden Universe Materials shall solely accrue to Company and be the sole and exclusive property of Company.
You may submit comments, bug reports, ideas or other feedback about the App and any Founding StarGarden (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.
6. USE OF THE PE OR FOUNDING STARGARDEN NAME.
Notwithstanding anything to the contrary contained in these Terms, you agree that you will not use the PE or Founding StarGarden name for any purpose other than as expressly set forth herein 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.
7. YOUR OBLIGATIONS.
You are solely responsible for your own conduct while accessing or using the Site or participating in any of our online communities, and for any consequences thereof. You agree to use the Site and our online communities only for purposes that are legal, proper and in accordance with these Terms 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: ( a) send, upload, distribute or disseminate any unlawful, defamatory, harassing, abusive, fraudulent, hateful, violent, obscene, or otherwise objectionable content; ( b) distribute viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or any other items of a destructive or deceptive nature; ( c) impersonate another person or entity; (d) upload, post, transmit or otherwise make available through the Site any content that infringes the intellectual property or proprietary rights of any party or otherwise violates the legal rights of others; ( e) engage in, promote, or encourage illegal activity (including, without limitation, money laundering); ( f) interfere with other users' use of the Site; (vii) use the Site for any unauthorized commercial purpose; (viii) modify, adapt, translate, or reverse engineer any portion of the Site; ( g) remove any copyright, trademark or other proprietary rights notices contained in or on the Site or any part of it; ( h) use any technology to collect information about the Site for any unauthorized purpose; ( i) 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 user account (if any) and/or prohibit your access to the Site.
9. SOLANA FEES AND PAYMENTS.
a. Any acquisition or purchase of Founding StarGardens will be conducted solely through the Solana network, though the Site may serve as a platform to facilitate 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 the App, or any other transactions that are conducted via the Solana network.
b. The Solana network requires the payment of a transaction fee for every transaction that occurs on the Solana network. This fee funds the network of computers that run the Solana network. This means that you will need to pay any such fees for each transaction.
(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, WE, 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, WE, 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 WE HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY BREACH OF SECURITY UNLESS IT IS DUE TO OUR WILLFUL MISCONDUCT. (c) WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSSES YOU INCUR AS THE RESULT OF YOUR USE OF THE SOLANA NETWORK OR ANY SOLANA 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, SOLANA NETWORK, OR ANY SOLANA WALLET OR OTHER ELECTRONIC WALLET. (D) FOUNDING STARGARDENS ARE INTANGIBLE DIGITAL ASSETS THAT EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE SOLANA NETWORK. ALL SMART CONTRACTS ARE CONDUCTED AND OCCUR ON THE DECENTRALIZED LEDGER WITHIN THE SOLANA NETWORK. WE HAVE NO CONTROL OVER AND MAKE NO GUARANTEES OR PROMISES WITH RESPECT TO SMART CONTRACTS. (e) WE ARE NOT RESPONSIBLE FOR LOSSES DUE TO BLOCKCHAINS OR ANY OTHER FEATURES OF THE SOLANA NETWORK OR ANY SOLANA WALLET OR OTHER 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 SOLANA NETWORK, INCLUDING FORKS, TECHNICAL NODE ISSUES, OR ANY OTHER ISSUES.
11. LIMITATION OF LIABILITY.
(a) YOU UNDERSTAND AND AGREE THAT WE, 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 WE HAVE 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 THESE TERMS 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 THE GREATER OF (A) THE AMOUNTS YOU ACTUALLY PAID US UNDER THESE TERMS IN THE 12 MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE, OR (B) $100. (c) YOU ACKNOWLEDGE AND AGREE THAT WE HAVE MADE THE APP AVAILABLE TO YOU AND ENTERED INTO THESE TERMS 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. WE WOULD NOT BE ABLE TO PROVIDE THE APP TO YOU WITHOUT THESE LIMITATIONS.
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 Founding StarGardens, which may also be subject to significant price volatility. We cannot guarantee that any Founding StarGardens purchased will retain their original value. Founding StarGardens have no inherent or intrinsic value. For the avoidance of doubt, your purchase of Founding StarGardens should not be considered an investment. (b) You are solely responsible for determining what, if any, taxes apply to your Founding StarGarden-related transactions. We are not responsible for determining the taxes that apply to any of your transactions. (c) The App does not store, send, or receive Founding StarGardens. Founding StarGardens exist only by virtue of the ownership record maintained on the blockchain in the Solana network. Any transfer of Founding StarGardens occurs within the supporting blockchain in the Solana 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 we will not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience when using the Solana network, however caused. (e) A lack of use or public interest in the creation and development of distributed ecosystems could negatively impact the Founding StarGardens and, including but not limited to, the value of the Founding StarGardens. (f) The regulatory regime governing blockchain technologies, cryptocurrencies, and tokens is highly uncertain, and new regulations or policies may materially adversely affect the Founding StarGardens, and therefore the potential value of Founding StarGardens (g) Upgrades by Solana to the Solana network, a hard fork in the Solana network, or a change in how transactions are confirmed on the Solana network may have unintended, adverse effects on all blockchains using the Solana NFT Metaplex standard, including the Founding StarGardens.
You shall defend, indemnify and hold harmless the Company and our subsidiaries, affiliates, officers, agents, employees, members, managers, attorneys, 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 actual or alleged breach of these Terms; (ii) your use or misuse of, or access to the App; ; (iii) misappropriation or infringement by you, of any intellectual property rights or other right of ours, or any person or entity; (iv) your violation of applicable laws, rules or regulations in connection with your access to or use of the App ; or (v) any use of Fan Art that incorporates, is based upon, or otherwise makes use of Art. 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.
14. 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.
15. 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, with or without any prior notice. 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 these Terms periodically for changes. You can determine if any changes were made to these Terms by noting the date that these Terms 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.
16. 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. Shutting down the App or Site will not prohibit you from transferring, buying or selling your Purchased Founding StarGardens on another website or application.
Due to the irrevocable nature of the blockchain, and our lack of control over user assets, we are unable to offer refunds on any purchases.
The Site is not intended for children. You must be at least 18 years old to access this Site. If you are under 18 years old you are not permitted to use this Site for any reason. By accessing the Site, you represent and warrant that you are at least 18 years of age.
19. DISPUTE RESOLUTION; ARBITRATION.
Please read this section 19 carefully. It requires you to arbitrate disputes with us, and limits the manner in which you can seek relief from us. A printed version of these Terms 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 us 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 California, 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 Los Angeles, California, 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 arbitration and all decisions and awards thereof shall be confidential. The prevailing party in any arbitration or other proceeding arising under these Terms 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 Los Angeles, California. 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 THESE TERMS, 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.
These Terms (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) between you and us with respect to the App. 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 these Terms shall not constitute a waiver of our right to later enforce that or any other part of these Terms. For any waiver of compliance with these Terms 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 these Terms. Nothing in these Terms create any agency, partnership, or joint venture. The language in these Terms 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 these Terms, whether by operation of law or otherwise, without our prior written consent. We may assign our rights and obligations under these Terms in our sole discretion to an affiliate, or in connection with an acquisition, sale or merger. Subject to section 20, any legal action or proceeding arising under these Terms will be brought exclusively in the State or Federal courts located in Los Angeles, California 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).