1 - ACCEPTANCE OF TERMS
PLEASE BE AWARE THAT THESE TERMS REQUIRE THE USE OF ARBITRATION (SECTION 13.4) ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
By accessing, browsing, submitting information to and/or using the Services, you accept and agree to be bound and abide by these Terms and to comply with all applicable laws including, without limitation, all federal, state and local tax and tariff laws, regulations, and/or directives.
2 - AMENDMENTS
3 - DEFINITIONS AND INTERPRETATION
3.1 Defined Terms. Unless the context requires otherwise, capitalized terms in this Agreement shall have the following meanings:
- “Affiliate” means, with respect to a party, any person, firm, corporation, partnership (including, without limitation, general partnerships, limited partnerships, and limited liability partnerships), limited liability company, or other entity that now or in the future, directly controls, is controlled with or by or is under common control with such party.
- “Art” means the Individual artwork associated with each Particlon NFT.
- “Law or Laws” means all applicable federal, state, and municipal laws, rules, and regulations, as the same may be amended from time to time.
- “Business Day” means any day (other than a Saturday, Sunday, or legal holiday) on which federally-insured financial institutions in the State of Wyoming are permitted to be open to conduct substantially all of their business.
- “Particlon Ecosystem” means the NFT ecosystem under the name “Particlon” that will initially consist of profile-picture NFTs, 3D avatar renders, and serve to combine access to metaverses, real world events, and other features to be determined by Company.
- “NFT” means Non-Fungible Token.
- “Profile Information” means the information you provide to us to register for the Services, including as applicable, Wallet address, name and address, as well as the username and password that allow you to access the Services, as such information shall change from time to time.
- “Wallet” means an Ethereum/Web3 electronic wallet, which allows Users to purchase and store cryptocurrencies, and sign/engage in transactions on the Ethereum (and other EVM compatible) Blockchain.
3.2 Interpretation. References to Sections are to be construed as references to the Sections of these Terms, unless otherwise indicated. The singular includes the plural, and the plural includes the singular. All references to hereof, herein, hereunder and other similar compounds of the word here shall mean and refer to these Terms as a whole rather than any particular part of the same. Unless designated as Business Days, all references to days shall mean calendar days. The use of the words “include” or “including” in these Terms will be construed to mean “including, without limitation” or “including but not limited to” and will not be construed as an exclusive or exhausted list of the topics covered. The headings, captions, headers, footers and version numbers contained in these Terms are intended for convenience or reference and shall not affect the meaning or interpretation of these Terms.
4 - THE SERVICES
USERS ARE ENTIRELY RESPONSIBLE FOR THE SAFETY AND MANAGEMENT OF THEIR OWN PRIVATE ETHEREUM WALLETS AND VALIDATING ALL TRANSACTIONS AND CONTRACTS GENERATED BY THIS WEBSITE BEFORE APPROVAL. FURTHERMORE, AS THE SMART CONTRACT RUNS ON THE ETHEREUM NETWORK, THERE IS NO ABILITY TO UNDO, REVERSE, OR RESTORE ANY TRANSACTIONS.
4.2 Use of the Services. The Company grants you a non-exclusive license to access and use the Services, including the Website and all data, material, content, or information contained herein (collectively, the “Content”) solely for your personal use. Your right to access and use the Services shall be limited to the purposes described in these Terms unless you are otherwise expressly authorized by the Company to use the Services for your own commercial purposes. You agree to use the Services only for lawful purposes, in compliance with all rules governing any transactions on and through the Services and in compliance with all Laws.
4.2.1 Additional Considerations
184.108.40.206 Transactions Are Recorded on the Public Blockchains. Transactions that take place as part of the Services are managed and confirmed via public blockchains including but not limited to the Ethereum blockchain. The User understands that its public address on the relevant blockchain will be made publicly visible whenever it engages in a transaction on the Services. We neither own nor control MetaMask, or any other Wallet, the Ethereum network, or any other blockchain network that we choose to interface with, or any other third-party site, product, or service that Users might access, visit, or use for the purpose of enabling the user to access and utilize the various features of the Services. We will not be liable for the acts or omissions of any such third-parties, nor will we be liable for any damage that a User may suffer as a result of its transactions or any other interaction with any such third-parties.
220.127.116.11 Gas. All transactions that take place as part of the Services are facilitated by smart contracts existing on a blockchain network. Blockchain networks generally require the payment of a transaction fee for every transaction. For example, the Ethereum network requires the payment of a transaction fee (a “Gas fee”) for every transaction that occurs on the Ethereum network, and thus every transaction occurring as part of the Services through the Ethereum network. The value of the Gas Fee changes, often unpredictably, and is entirely outside of the control of Company. User acknowledges that under no circumstances will a transaction as part of the Services, be invalidated, revocable, retractable, or otherwise unenforceable on the basis that the Gas Fee for the given transaction was unknown, too high, or otherwise unacceptable to User.
18.104.22.168 Our Use of Account Information. Any owner of a Particlon NFT authorizes us to use its account information for all purposes related to the Services, provided that such access shall be used solely for the purpose of providing the Services.
4.3 Prohibitions and Restrictions
4.3.1 Prohibited Uses. You agree that you will not:
- Use the Services in any manner that could damage, disable, overburden, or impair the Services or interfere with any other party’s use and enjoyment of them;
- Attempt to gain unauthorized access to any Website account, computer systems, or networks associated with the Company or the Services;
- Obtain or attempt to obtain any materials or information through the Services by any means not intentionally made available or provided by the Company;
- Use any robot, spider, or other automatic device, process or means to access the Services for any purpose, including monitoring or copying any of the material on the Services;
- Introduce any viruses, Trojan horses, worms, logic bombs, or other material which is malicious or technologically harmful;
- Attack the Services via a denial-of-service attack or a distributed denial-of-service attack; or
- Impersonate or attempt to impersonate the Company, a Company employee, another user or any other person or entity (including, without limitation, by using email addresses associated with any of the foregoing);
- License, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services, whether in whole or in part, or any content displayed on the Services;
- Modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Services; or
- Access the Services in order to build a similar or competitive website, product, or service.
4.3.2 Restrictions. Except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Services shall be subject to these Terms. All copyright and other proprietary notices on the Services (or on any content displayed on the Services) must be retained on all copies thereof. You will not use the Services for any illegal purpose.
4.4 Modification. Company reserves the right, at any time, to modify, suspend, or discontinue the Services (in whole or in part) with or without notice to you. You agree that Company will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Services or any part thereof.
4.5 No Support or Maintenance. You acknowledge and agree that Company will have no obligation to provide you with any support or maintenance in connection with the Services.
4.6 Account Suspension. User agrees that Company has the right to immediately pause or cancel User’s access to the Services if Company suspects, in its sole discretion, that (i) User’s account is being used for any illegal activity; (ii) User has engaged in fraudulent activity; or (iii) User has engaged in transactions in violation of these Terms.
4.7 Affiliates. The rights, duties and/or obligations of Company under these Terms may be exercised and/or performed by Company and/or any of Company’s Affiliates, or any of their subcontractors and/or agents. Company acknowledges and agrees that it shall be solely responsible for the acts or omissions of Company’s Affiliates, and any subcontractor or agent of Company or any of Company’s Affiliates, related to the subject matter hereof. You agree that any claim or action arising out of or related to any act or omission of any of Company or Company’s Affiliates, or any of their respective subcontractors or agents, related to the subject matter hereof, shall only be brought against Company, and not against any of Company’s Affiliates, or any subcontractor or agent of Company or any of Company’s Affiliates.
5 - PARTICLON NFTS
5.1 Ownership. After successfully minting a Particlon NFT, you own the NFT. Ownership of the NFT is mediated entirely by the smart Contract and the Ethereum Network: at no point may we seize, freeze, or otherwise modify the ownership of any Particlon NFT.
Ownership of a Particlon NFT grants its holder premium access to the particlon.xyz Discord server, and access to future Particlon Ecosystem features. After the minting process is complete, only holders of a Particlon NFT will have access to the Particlon Ecosystem and be able to enjoy the privilege of membership therein.
5.1.1 User Responsible for Custody. User is the sole custodian of any Particlon NFTs that it mints. Company will not grant you access to the Particlon Ecosystem and you will not be eligible for any other Project related Privileges if you lose access to, or control of, the Particlon NFTs and/or the Wallet in which it is located.
5.1.2 Rights to the Art. Subject to your continued compliance with these Terms, Company grants you an unlimited, worldwide license to use, copy, and display the Art associated with the Particlon NFT for the purpose of creating derivative works based upon the Art (“Commercial Use”)
5.1.3 Limitations. Other than the rights to the Art, nothing herein gives you any rights to any other trademarks or other intellectual property rights belonging to Company including, without limitation, to the Project, the Website, the Services, Particlon, and the associated logos. All of these rights are expressly reserved in the name of Silmaril Holdings, Limited and/or Firma Lux, Inc.
5.2 Not Investments. Particlon NFTs serve exclusively as collectibles and as access tokens permitting access to the Particlon Ecosystem. They are not intended for any investment purposes. We make absolutely no promise or guarantee that the Particlon NFTs will hold any particular value once minted.
5.3 Taxes. You are personally and solely responsible for any and all tax liability which may arise from minting or reselling Particlon NFTs.
5.4 No Future Guarantees or Future Promises. Company hopes to continue to develop this project and community after its initial launch. When you mint a Particlon NFT, you agree that your purchase of the NFT from Company is all you are guaranteed to receive. Any future potential airdrops, or other events are not guaranteed and will be decided at the sole discretion of Company. Company cannot guarantee that the Project will continue to exist past any specific date. Accordingly, the project has no lower limit on how long it will exist or be run/administered to by Company.
5.5 No Refunds. All purchases of Particlon NFTs are conducted on the Ethereum blockchain, as such it is impossible to undo, revert, or otherwise refund a purchase of a Particlon NFT.
6 - PRIVACY
7 - THIRD-PARTY LINKS, PRODUCTS AND APPLICATIONS
7.2 Release. You hereby release and forever discharge Company (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Services (including any interactions with, or act or omission of, our partners or any other third party or any Linked Site or application). IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
8 - INTELLECTUAL PROPERTY
8.1 Company Intellectual Property. User acknowledges and agrees that Company (or, as applicable, our licensors) own all legal right, title, and interest in and to all elements of the Project, and the Services. The Company logo, graphics, design, systems, methods, information, computer code, software, services, “look and feel,” organization, compilation of the content, code, data, and all other elements of the Services (collectively, the “Company Materials”) are owned by Company. The Company Materials, the Services, and the Content are protected by copyrights, trademarks, or are subject to other proprietary rights or Laws. Accordingly, you are not permitted to use the Services, Company Materials, or Content in any manner, except as expressly permitted by the Company in these Terms. The Services, Company Materials, or Content may not be copied, reproduced, modified, published, uploaded, posted, transmitted, performed, or distributed in any way, and you agree not to modify, rent, lease, loan, sell, distribute, transmit, broadcast, or create derivatives without the express written consent of the Company or the applicable owner. Except as expressly set forth herein, User’s use of the Services does not grant User ownership of or any other rights with respect to any content, code, data, or other materials that User may access on or through the Services. Company reserves all rights in and to the Services, the Company Materials, and the Content not expressly granted to Users in the Terms.
You may not use the Services, Company Materials, or Content to link to the Services, Company Materials, or Content without our express written permission. You may not use framing techniques to enclose any Company Materials or Content without our express written consent. In addition, the look and feel of the Services, Company Materials, and Content, including all page headers, custom graphics, button icons, and scripts constitute the service mark, trademark, or trade dress of Company and may not be copied, imitated, or used, in whole or in part, without our prior written permission.
Notwithstanding anything to the contrary herein, you understand and agree that you shall have no ownership or other property interest in your account, and you further agree that all rights in and to your account are and shall forever be owned by and inure to the benefit of Company.
8.2 Non-Company Intellectual Property. Outside the Company Materials and Company Content, all other trademarks, product names, logos, and similar intellectual property on the Website 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.
9 - INDEMNIFICATION
You agree to release, indemnify, and hold harmless Company and its Affiliates, and their respective officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way related to: (a) your access to, use of, or inability to use the Services or the Website; (b) your breach of these Terms; (c) your violation of any rights of a third-party; (d) your violation of any Law; and (e) any and all financial losses you may suffer, or cause others to suffer, due to trading NFTs whether or not such trades were made due to information learned on the Services or through the Services.
10 - ASSUMPTION OF RISK
10.1 User Acknowledges the Risk of Cryptocurrency and Smart Contracts. YOU REPRESENT AND WARRANT THAT YOU UNDERSTAND AND ARE WILLING TO ACCEPT THE RISKS ASSOCIATED WITH CRYPTOGRAPHIC SYSTEMS SUCH AS SMART CONTRACTS, PUBLIC BLOCKCHAIN NETWORKS (INCLUDING BUT NOT LIMITED TO THE ETHEREUM BLOCKCHAIN NETWORK), NON-FUNGIBLE TOKENS, AND THE INTERPLANETARY FILE SYSTEM.
10.2 Company is Not Responsible for Technical Errors on Any Blockchain. COMPANY IS NOT RESPONSIBLE FOR LOSSES DUE TO BLOCKCHAINS OR ANY OTHER FEATURES OF THE ETHEREUM NETWORK OR ANY OTHER BLOCKCHAIN NETWORK COMPANY MAY INTERFACE WITH, OR THE METAMASK WALLET OR ANY SIMILAR BROWSER OR WALLET ON ANY BLOCKCHAIN NETWORK INCLUDING BUT NOT LIMITED TO LATE REPORT BY DEVELOPERS OR REPRESENTATIVES (OR NO REPORT AT ALL) OF ANY ISSUES WITH THE BLOCKCHAIN SUPPORTING THE ETHEREUM NETWORK OR ANY OTHER BLOCKCHAIN NETWORK COMPANY MAY INTERFACE WITH, INCLUDING FORKS, TECHNICAL NODE ISSUES, OR ANY OTHER ISSUES HAVING FUND LOSSES AS A RESULT.
Upgrades to the Ethereum platform or any other blockchain network with which Company may interface, a hard fork in any such platform, or a change in how transactions are confirmed on any such platform may have unintended, adverse effects on all blockchains using the ERC-20, ERC-721, or ERC-1155 standards, including the Company ecosystem.
10.3 The User Acknowledges the Risks of the Services. You acknowledge that the Services are subject to flaws and acknowledge that you are solely responsible for evaluating any information provided by the Services. This warning and others provided in these Terms in no way evidence or represent an ongoing duty to alert you to all of the potential risks of utilizing or accessing the Services. The Services may experience sophisticated cyber-attacks, unexpected surges in activity, or other operational or technical difficulties that may cause interruptions or delays. You agree to accept the risk of any failure of the Services resulting from unanticipated or heightened technical difficulties, including those resulting from sophisticated attacks, and you agree not to hold us accountable for any related losses. The Company will not bear any liability, whatsoever, for any damage or interruptions caused by any viruses that may affect your computer or other equipment, or any phishing, spoofing, or other attack.
10.4 Company Does Not Make Any Representations Regarding the Value of NFTs or Other Digital Assets. The prices of blockchain assets are extremely volatile. Fluctuations in the price of other digital assets could materially and adversely affect the value of NFTs, which may also be subject to significant price volatility. A lack of use or public interest in the creation and development of distributed ecosystems could negatively impact the development, potential utility, or value of NFTs. The Services, ETH, NFTs, and other digital assets could be impacted by one or more regulatory inquiries or regulatory action. For all of the foregoing reasons, as well as for reasons that may not presently be known to the Company, the Company makes absolutely no representations or warranties of any kind regarding the value of NFTs or other digital assets.
10.5 User Acknowledges Financial Risk of Digital Assets. The risk of loss in trading digital assets can be substantial. You should, therefore, carefully consider whether such creating, buying or selling digital assets is suitable for you in light of your circumstances and financial resources. By using the Services, you represent that you have been, are and will be solely responsible for making your own independent appraisal and investigations into the risks of a given transaction and the underlying digital assets. You represent that you have sufficient knowledge, market sophistication, professional advice, and experience to make your own evaluation of the merits and risks of any transaction conducted via any digital asset. Under no circumstances shall the Company be liable in connection with your use of the Services in connection with your performance of any digital asset transactions. Under no circumstances will the operation of all or any portion of the Services be deemed to create a relationship that includes the provision or tendering of investment advice. User acknowledges and agrees that Company is not a party to any agreement or transaction between one or more Users and/or third-parties involving the purchase, sale, charge, or transfer of NFTs.
10.6 Violations by Other Users. User irrevocably releases, acquits, and forever discharges Company and its subsidiaries, affiliates, officers, and successors for and against any and all past or future causes of action, suits, or controversies arising out of another user’s violation of these Terms.
11 - LIMITATION OF LIABILITY AND WARRANTY DISCLAIMER
11.1 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL COMPANY (OR OUR AFFILIATES) BE LIABLE TO YOU OR ANY THIRD-PARTY FOR ANY FINANCIAL LOSS, LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE THE SERVICES, CONTENT, OR INFORMATION ACCESSED VIA THE WEBSITE OR ANY HYPERLINKED WEBSITE, OR ANY DISRUPTION OR DELAY IN THE PERFORMANCE OF THE SERVICES EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICES IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
11.2 No Warranties. THE SERVICES AND ALL CONTENT ARE PROVIDED “AS IS” AND “WHERE IS” AND WITHOUT ANY WARRANTIES OF ANY KIND. THE COMPANY EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. NOTWITHSTANDING ANY PROVISION CONTAINED HEREIN TO THE CONTRARY, THE COMPANY MAKES NO REPRESENTATION, WARRANTY OR COVENANT CONCERNING THE ACCURACY, QUALITY, SUITABILITY, COMPLETENESS, SEQUENCE, TIMELINESS, SECURITY OR AVAILABILITY OF THE SERVICES OR ANY CONTENT POSTED ON OR OTHERWISE ACCESSIBLE VIA THE SERVICES. YOU SPECIFICALLY ACKNOWLEDGE THAT THE COMPANY IS NOT LIABLE FOR THE DEFAMATORY, OBSCENE OR UNLAWFUL CONDUCT OF OTHER THIRD-PARTIES OR USERS OF THE SERVICES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. THE COMPANY DOES NOT REPRESENT, WARRANT OR COVENANT THAT THE SERVICES WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE. THE COMPANY FURTHER MAKES NO WARRANTY THAT THE SERVICES WILL BE FREE OF VIRUSES, WORMS OR TROJAN HORSES OR THAT IT WILL FUNCTION OR OPERATE IN CONJUNCTION WITH ANY OTHER PRODUCT OR SOFTWARE. YOU EXPRESSLY AGREE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE COMPANY, ITS AFFILIATES SHALL NOT BE RESPONSIBLE FOR ANY TERMINATION, INTERRUPTION OF SERVICES, DELAYS, ERRORS, FAILURES OF PERFORMANCE, DEFECTS, LINE FAILURES, OR OMISSIONS ASSOCIATED WITH THE SERVICES OR YOUR USE THEREOF. YOUR SOLE REMEDY AGAINST THE COMPANY FOR DISSATISFACTION WITH THE SERVICES OR THE CONTENT IS TO CEASE YOUR USE OF THE SERVICES. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. YOU MAY HAVE OTHER RIGHTS, WHICH VARY BY JURISDICTION. WHEN THE IMPLIED WARRANTIES ARE NOT ALLOWED TO BE EXCLUDED IN THEIR ENTIRETY, YOU AGREE THAT THEY WILL BE LIMITED TO THE GREATEST EXTENT AND SHORTEST DURATION PERMITTED BY LAW.
11.3 Not a financial planner, investment adviser or tax advisor. NEITHER COMPANY NOR THE SERVICES ARE INTENDED TO PROVIDE LEGAL, TAX, INVESTMENT, OR FINANCIAL ADVICE. COMPANY IS NOT A FINANCIAL OR TAX PLANNER AND DOES NOT OFFER LEGAL ADVICE TO ANY USER OF THE SERVICE.
12 - TERMINATION
Except as provided in these Terms, these Terms will remain in full force and effect while you use the Services. We may suspend or terminate your rights to use the Services at any time for any reason at our sole discretion, including for any use of the Services in violation of these Terms. You may terminate your agreement to these Terms at any time by ceasing your use of the Services and notifying Company at [email protected]. Company may terminate these Terms at any time and for any reason, or for no reason at all. Regardless of whether the User or the Company terminates its agreement to these Terms, the User will not be entitled to any refunds. Upon termination of your rights under these Terms, your right to access and use the Services will terminate immediately. Company will not have any liability whatsoever to you for any termination of your rights under these Terms. Except upon termination of these Terms by the Company, all provisions of these Terms shall survive termination of the Services, including without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
13 - GENERAL TERMS
13.2 Waiver. The waiver by Company of a breach of any provision contained herein shall be in writing and shall in no way be construed as a waiver of any subsequent breach of such provision or the waiver of the provision itself.
13.3 Governing Law & Jurisdiction. These Terms are governed by the laws of the State of Wyoming, U.S.A. You hereby irrevocably consent to the exclusive jurisdiction and venue of the courts in the City and County of Denver, Colorado, U.S.A. in all disputes arising out of or relating to the use of the Services not subject to the Arbitration Agreement in Section 13.4.
13.4 Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Company and limits the manner in which you can seek relief from us. It is part of your contract with Company and affects your rights. It contains procedures of MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER. Within the Arbitration Agreement, Company and User may be referred to individually as a “Party” or collectively as the “Parties.”
13.4.1 Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Agreement or the use of any product or service provided by Company that cannot be resolved informally shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and Company, and to any subsidiaries, Affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Agreement. This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
13.4.2 Notice Requirement and Informal Dispute Resolution. Before either Party may seek arbitration, the Party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Company should be sent to:
Silmaril Holdings, Limited.
Attn: Benjamin Lakoff
F2-04 Oceanic House
Email: [email protected]
After the Notice is received, you and Company may attempt to resolve the claim or dispute informally. If you and Company do not resolve the claim or dispute within thirty (30) days after the Notice is received, either Party may begin an arbitration proceeding. The amount of any settlement offer made by any Party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either Party is entitled.
13.4.3 Arbitration Procedure. Arbitration shall be held in Denver, Colorado, and will be governed exclusively by the Colorado Revised Uniform Arbitration Act, C.R.S. §§ 13-22-201, et seq. (the “CRUAA”). The arbitrator will be selected from the roster of arbitrators at Judicial Arbiter Group, Inc. in Denver, Colorado (“JAG”), unless the Parties agree otherwise. If the Parties do not agree on the selection of a single arbitrator within ten (10) days after a demand for arbitration is made, then the arbitrator will be selected by JAG from among its available professionals. Arbitration of all disputes and the outcome of the arbitration will remain confidential between the Parties except as necessary to obtain a court judgment on the award or other relief or to engage in collection of the judgment.
The Parties irrevocably submit to the exclusive jurisdiction of the state courts located in Denver, Colorado, with respect to this section to compel arbitration, to confirm an arbitration award or order, or to handle court functions permitted under the CRUAA. The Parties irrevocably waive defense of an inconvenient forum to the maintenance of any such action or other proceeding. The Parties may seek recognition and enforcement of any state court judgment confirming an arbitration award or order in any United States state court or any court outside the United States or its territories having jurisdiction with respect to recognition or enforcement of such judgment.
This provision for arbitration will not preclude a Party from seeking temporary or preliminary injunctive relief (“Provisional Relief”) in a court of law while arbitration proceedings are pending in order to protect its rights pending a final determination by the arbitrator, nor will the filing of such an action for Provisional Relief constitute waiver by a Party of its right to seek arbitration. Any Provisional Relief granted by such court will remain effective until otherwise modified by the arbitrator.
13.4.4 Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and Company in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
13.4.5 Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
13.4.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Wallet address, and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with the Company. Mail your written notification by certified mail to:
Attn: Benjamin Lakoff
F2-04 Oceanic House
Email: [email protected]
13.4.7 Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The Parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a Party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
13.4.8 Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
13.4.9 Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the Party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
13.4.10 Survival of Agreement. This Arbitration Agreement will survive the termination these Terms and of your relationship with Company.
13.4.11 Emergency Equitable Relief. Notwithstanding the foregoing, either Party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
13.4.12 Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secrets shall not be subject to this Arbitration Agreement.
13.4.13 Courts. In any circumstances where the foregoing Arbitration Agreement permits the Parties to litigate in court, the Parties hereby agree to submit to the personal jurisdiction of the state courts located in the City and County of Denver, for such purpose.
13.5 Attorneys’ Fees and Costs. In addition to any relief, order, or award that is entered by an arbiter, or court as the case may be, any party found to be the substantially losing party in any dispute shall be required to pay the reasonable attorneys’ fees and costs of any party determined to be the substantially prevailing party, and such losing party, shall also reimburse or pay any of the arbitrator’s fees and expenses incurred by the prevailing party in any arbitration. In the context of these Terms, reasonable attorneys’ fees and costs shall include but not be limited to:
13.5.1 legal fees and costs, the fees and costs of witnesses, accountants, experts, and other professionals, and any other forum costs incurred during, or in preparation for, a dispute;
13.5.2 all of the foregoing whether incurred before or after the initiation of a Proceeding; and
13.5.3 all such fees and costs incurred in obtaining Provisional Relief.
It is understood that certain time entries that may appear in the billing records of a party’s legal counsel may be redacted to protect attorney-client or work-product privilege, and this will not prevent recovery for the associated billings.
13.6 Third Party Beneficiaries. Except as limited by Section 13.7, these Terms and the rights and obligations hereunder shall bind and inure to the benefit of Company and User and their successors and permitted assigns. Nothing in these Terms, expressed or implied, is intended to confer upon any person, other than Company and User and their successors and permitted assigns, any of the rights hereunder.
13.7 Entire Agreement. These Terms constitute and contain the entire agreement between the Company and User with respect to the subject matter hereof and supersedes any prior or contemporaneous oral or written agreements. Both Company and User acknowledge and agree that the other has not made any representations, warranties or agreements of any kind, except as expressly set forth herein.
13.8 Severability. If any provision of these Terms (or any portion thereof) is determined to be invalid or unenforceable, the remaining provisions of these Terms shall not be affected thereby and shall be binding and enforceable, as though said invalid or unenforceable provision (or portion thereof) were not contained in these Terms.
13.9 Assignment. You may not assign or transfer any rights hereunder without the prior written consent of Company. Except as provided in this section, any attempts you make to assign any of your rights or delegate any of your duties hereunder without the prior written consent of Company shall be null and void. Company may assign these Terms or any rights hereunder without your consent.
Company Contact Information. Questions can be directed to the Company at: [email protected].