(i) organize and participate in video gaming tournaments,
(ii) view, explore, and create NFTs and use our tools, at your own discretion, to connect directly with others to purchase, sell, or transfer NFTs on public blockchains,
(iii) functionalities and features made available by FITCHIN on the Platform enabling Users to engage in various activities for fan engagement purposes (collectively, “the Platform”, “the Service”).
“NFT” in these Terms means a non-fungible token or similar digital item implemented on a blockchain, which uses smart contracts to link to or otherwise be associated with certain content or data.
Before becoming a user you are required to agree with the terms of this Agreement. Unless You and FITCHIN have each signed a separate agreement regarding the Platform, this Agreement is the complete, solely and exclusive agreement between You and FITCHIN regarding Your access to and use of the Platform and supersedes any oral or written proposal, unsigned agreements and/or other communication between You and FITCHIN regarding Your access and use of the Platform.
PLEASE CAREFULLY READ THIS AGREEMENT. BY ACCESSING OR USING THE PLATFORM, OR BY CLICKING A BOX THAT STATES THAT YOU ACCEPT, UNDERSTAND, AND AGREE TO THESE TERMS THAT YOU HAVE READ AND AGREE TO BE BOUND BY THE CLAUSES OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF ANOTHER ORGANIZATION OR ENTITY (“ENTITY”), YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY OR YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE PLATFORM OR CLICK THAT YOU ACCEPT OR AGREE TO THESE TERMS.
IF YOU DO NOT AGREE TO THIS AGREEMENT OR DO NOT MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT, FITCHIN IS NOT WILLING TO PROVIDE YOU WITH ACCESS TO OR USE OF THE PLATFORM AND YOU MUST NOT ACCESS OR USE THE PLATFORM. THESE TERMS CONTAIN AN ARBITRATION PROVISION, WHICH LIMITS YOUR RIGHTS TO BRING AN ACTION IN COURT AND HAVE DISPUTES DECIDED BY A JUDGE OR JURY, AND PROVISIONS THAT LIMIT FITCHIN’S LIABILITY TO YOU. YOUR BREACH OF ANY PROVISION OF THIS AGREEMENT WILL AUTOMATICALLY, WITHOUT THE REQUIREMENT OF NOTICE OR OTHER ACTION, REVOKE AND TERMINATE YOUR RIGHT TO ACCESS THE PLATFORM.
THIS CONTRACT IS BETWEEN YOU AND FITCHIN. NO OTHER PERSON SHALL HAVE ANY RIGHT TO ENFORCE ANY OF ITS TERMS. NEITHER OF US WILL NEED TO GET THE AGREEMENT OF ANY OTHER PERSON IN ORDER TO END THE CONTRACT OR MAKE ANY CHANGES TO THESE TERMS.
EACH OF THE PARAGRAPHS OF THESE TERMS OPERATES SEPARATELY. IF ANY COURT OR RELEVANT AUTHORITY DECIDES THAT ANY OF THEM ARE UNLAWFUL, THE REMAINING PARAGRAPHS WILL REMAIN IN FULL FORCE AND EFFECT.
This Agreement is entered into as of the earlier of the date You first access or use Platform (the “Effective Date”) and will continue until terminated as set forth herein.
FITCHIN reserves the right, at any time, to modify the Platform, as well as the terms of this Agreement, whether by making those modifications available on the Platform or by providing notice to You as specified in this Agreement. Any modifications will be effective upon posting to the Platform or delivery of such other notice, unless otherwise required by law. You may cease using the Platform or terminate this Agreement at any time upon five (5) business days’ prior written notice if You do not agree to any modification. However, you will be deemed to have agreed to any and all modifications through Your continued use of the Platform following such notice.
FITCHIN may offer certain services or features for which additional terms and conditions may apply in connection with your use of those services. By using any of these additional services, You agree to any additional terms applicable to those services, and those additional terms become part of our agreement with You. If any of the applicable additional terms conflict with these Terms, the additional terms will prevail while you are using those services to which they apply.
The Platform is intended for use by individuals 18 years of age and older. If you are at least 13 years old but under 18 years old, you may only use FITCHIN through a parent or guardian’s Account and with their approval and oversight. That account holder is responsible for your actions using the Account. It is prohibited to use our Service if you are under 13 years old. Additionally, to access and use the Platform You may need to fulfill certain other legal obligations or criteria required in Your jurisdiction. FITCHIN makes no representation that the Platform is appropriate or available for use in all jurisdictions. Accessing any part of the Platform is prohibited from any jurisdictions where access to or use of the Platform is prohibited.
Parents and/or guardians are jointly and respectively liable for all acts (including purchases and payments) and omissions of their children under the age of 18 when using FITCHIN App.
4. ACCOUNTS AND CONDUCT
4.1 - ACCOUNT CREATION AND RESPONSIBILITY. Before becoming a User, You must establish an account on the Platform (an “Account”). Approval of Your request to establish an Account will be at the sole discretion and entirely of FITCHIN. Each Account and the User identification and password for each Account (the “Account ID”) is for Your sole use and may only be used by You and Your authorized employees and contractors. You may not distribute or transfer Your Account or Account ID or provide a third-party with the right to access Your Account or Account ID. You are solely responsible for all use of the Platform through Your Account and for safeguarding your Account. All transactions completed through Your Account or under Your Account ID will be deemed to have been lawfully completed by You. You will ensure the security and confidentiality of Your Account ID and will notify FITCHIN immediately, by email at firstname.lastname@example.org, if any Account or Account ID is lost, stolen, improperly accessed, or otherwise compromised. In connection with establishing an Account, You will be asked to submit certain information about Yourself (“Registration Information”). You agree that: (1) all Registration Information You provide will be complete, accurate, and correct; and (2) You shall maintain and promptly update Your Registration Information to keep it accurate and current. You may not: (a) select or use an Account ID of another person with the intent to impersonate that person; and (b) use an Account ID that FITCHIN, in its sole discretion, deems offensive, unacceptable, or contrary to community standards, defamatory or in violation of FITCHIN’s policies.
You acknowledge that any unauthorized access to your account and or your electronic wallet could result in the loss or theft of NFTs and/or funds in any linked accounts. You understand and agree that we are not responsible for managing and maintaining the security of your account or your electronic wallet and we shall not be liable for any unauthorized access to, or use of, your account or your electronic wallet(s). We do not have access at any time to your electronic wallet. We do not have custody or control over the NFTs or blockchains you are interacting with. To use our Service, you must use a third-party wallet that allows you to engage in transactions on blockchains and it is your responsibility to safeguard that wallet.
4.2 CONTENT. You are solely responsible for all Content You provide, upload, submit, post to, or generate through access to or use of the Platform including by connecting or communicating with other Users (“Your Content”). Your responsibility for Your Content extends to resolving any disputes that may arise between You and any User or other Entity because of Your Content. By providing, uploading, submitting, posting, or generating Your Content, You grant FITCHIN and its authorized representatives and contractors a perpetual and non-exclusive right and license to use, process, store transmit, and disclose Your Content (a) to provide the Services and fulfill other obligations described in this Agreement or in further agreements (b) to further develop and provide services for FITCHIN customers (c) to update FITCHIN services on its platform. You understand that in certain contexts Your Content may be visible to, sent to, or viewed by other Users and You expressly waive any privacy rights. You agree to allow us, if we elect in our sole discretion, to provide Your Content to Users in connection with identity verification measures, described below. You represent, warrant, and covenant that Your Content: (a) does not violate this Agreement or any applicable law which is now in effect or may hereinafter be enacted; (b) is not libelous, defamatory, obscene, abusive, pornographic, threatening, or an invasion of privacy or the rights of any third party; (c) does not constitute an infringement or misappropriation of the IPR (as defined below) or other rights of any third party; (d) is not an advertisement or solicitation of funds, goods, or services; (e) is not false, misleading, or inaccurate; or (f) could not be considered junk mail, spam, a part of a pyramid scheme, a disruptive commercial message or disruptive advertisement. FITCHIN is not responsible or liable for any deletion, correction, destruction, damage, loss, or failure to store or back up any of Your Content. You agree that You have all right, title, interest, and consent in Your Content necessary to allow FITCHIN to use Your Content for the purposes for which You provide Your Content to FITCHIN.
You can control most communications from the services provided by FITCHIN. We may need to provide you with certain communications, such as service statements or announcements as well as administrative messages. These communications are considered part of the services and your account, and you may not be able to determine not to receive them. If you added your phone number to your account and you later changed or deactivated that phone number, you must update your account information to help prevent us from communicating with anyone who acquires your old number.
4.3 YOUR CONDUCT. You agree not to harass, advocate harassment, or engage in any conduct that is abusive or harmful to any Entity or illegal under applicable gaming, financial regulatory, or other law or regulation. You agree that you will not violate any law, contract, intellectual property, or other third-party rights and that you are solely responsible for your conduct and content while accessing or using the Service. You also agree that you will not:
◦ Use or attempt to use another user’s Account without authorization from such user;
◦ Pose as another person or entity;
◦ Access the Service from a different address if we’ve blocked any of your other addresses from accessing the Service unless you have our written permission first;
◦ Distribute spam, including sending unwanted NFTs to other users;
◦ Use the Service – including through disseminating any software or interacting with any API – that could damage, disable, overburden, or impair the functioning of the Service in any manner;
◦ Bypass or ignore instructions that control access to the Service, including attempting to circumvent any rate-limiting systems by using multiple API keys, directing traffic through multiple IP addresses, or otherwise obfuscating the source of traffic you send to FITCHIN;
◦ Use any data mining, 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;
◦ Reverse engineer, duplicate, decompile, disassemble, or decode 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;
◦ Sell or resell the Service or attempt to circumvent any FITCHIN fee systems;
◦ Use the Service or data collected from our Service for any advertising or direct marketing activity (including without limitation, email marketing, SMS marketing, and telemarketing);
◦ Use the Service for money laundering, terrorist financing, or other illicit finance;
◦ Use the Service from a country sanctioned by the government of the United States or to facilitate transactions involving individuals sanctioned by the government of the United States or located in sanctioned countries;
◦ Use the Service to engage in price manipulation, fraud, or other deceptive, misleading, or manipulative activity;
◦ Use the Service to buy, sell, or transfer stolen items, fraudulently obtained items, items taken without authorization, and/or any other illegally obtained items;
◦ Infringe or violate the intellectual property rights or any other rights of others;
◦ Use the Service in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Service such as harassing or advocating harassment or engaging in any conduct that is abusive or harmful to any Entity
We reserve the right but are not obligated, to investigate and/or prohibit any conduct, or remove or refuse to post any Content (including Your Content), that we deem in our sole discretion to be unlawful, in breach of this Agreement, or violative of the rights of others, or otherwise offensive to You, the Platform, other Users, our rights, any Entity or that may be harmful to others, our operations, or reputation. We assume no liability and shall not be liable directly or indirectly for any action or inaction with respect to Your conduct, communication, transactions, or Content. Additionally, we may disclose any Content or electronic communication of any kind: (i) to satisfy any law or request by a governmental authority; (ii) if such disclosure is necessary or appropriate to operate the Platform; (iii) to protect our rights or property, our Users and customers, You, or any other Entity; or (iv) if, in our sole discretion, such Content or electronic communication should be referred to law enforcement or other government authorities. Furthermore, in addition to removing any of Your Content, FITCHIN hereby reserves the right to suspend and/or remove You from the Platform for violations of Section 4 of this Agreement as described in Section 20.
5.1 TO THE PLATFORM. Subject to Your compliance with this Agreement, FITCHIN will permit You to access and use the Platform solely for lawful purposes in accordance with the terms of this Agreement and any other agreement with us You agree to before being given access to any specific areas of the Platform. Any such additional agreement is in addition to this Agreement and will govern Your use of the portions of the Platform to which the additional agreement applies in the event of a conflict between the terms of this Agreement and the additional agreement.
5.2 TO CONTENT. Unless otherwise noted on the Platform, other than Your Content, all Content available through the Platform (“Platform Content” or “Content”) is owned by FITCHIN, the Users providing that Content or FITCHIN’s other Content providers. All Platform Content is for informational purposes only and You are solely responsible for verifying the accuracy, completeness, and applicability of all Platform Content and for Your use of any Platform Content. Subject to Your compliance with this Agreement, You may access the Platform Content solely for Your own purposes in connection with Your own use of the Platform. You shall not, and shall not permit any third party to (a) alter, modify, reproduce, or create derivative works of any Platform Content; (b) distribute, sell, resell, convey, lend, loan, lease, license, sublicense, gift, or transfer any Platform Content; or (c) alter, modify, adapt, obscure or remove any copyright, trademark or any other notices that are provided on or in connection with any Platform Content. FITCHIN has not verified the accuracy of, and shall not be responsible for any errors or omissions in, any Platform Content. Without limiting the foregoing, FITCHIN shall not be held liable to You or any other third-party for any Platform Content (or any other Content, including Your Content) under any law which is now in effect or may hereafter be enacted, including the Communications Decency Act or CDA, 47 U.S.C. § 230. Except as set forth in this Agreement, You are granted no licenses or rights in or to any Platform Content, or any IPR (as defined below) therein or related thereto.
5.4 TO THIRD-PARTY SERVICES. The Platform may also provide You with the option, and use of certain Platform features may require You, to obtain access to services, content, functionality, software and other things developed, provided, or maintained by third party service providers (collectively, “Third Party Services”). All Third Party Services are provided by third parties and are not under the direction or control of FITCHIN. You acknowledge and agree that FITCHIN shall not be liable or responsible, directly or indirectly, for Your access to or use of any Third Party Services, including any damages, losses, liabilities, failures, or problems caused by, related to, or arising from any Third Party Services. Your use of and access to any Third Party Services is solely between You and the third party provider of the Third Party Services. Your access to and use of any Third Party Services is subject to any additional terms, conditions, agreements, or privacy policies provided or entered into in connection with the Third Party Services (each, a “Third Party Agreement”). The terms of any Third Party Agreement (which may include payment of additional fees) will apply to the applicable Third Party Services provided under that Third Party Agreement but will not otherwise apply to Your access to or use of the Platform. Except as set forth in this Agreement, in the event of a conflict between the terms of this Agreement and a Third Party Agreement, the terms of the Third Party Agreement shall control with respect to Your access to and use of any Third Party Services provided under that Third Party Agreement. This Agreement will continue to control in all other respects.
6.1 EVENTS. Events or other activities conducted on the Platform may be subject to specific rules and other terms established by Organizers. You undertake all transactions through the Platform subject to such terms, as applicable, and solely at Your own risk. Notwithstanding the foregoing, FITCHIN reserves the right to moderate, limit, cancel, or otherwise suspend Platform activity as set forth in this Agreement. Under no circumstance shall FITCHIN be liable to You for any damage, losses, expenses, or harm resulting from FITCHIN’s exercise of such rights.
6.2 IDENTITY VERIFICATION. FITCHIN may require at any time that You verify Your identity before accessing or using certain Services. Promptly following FITCHIN’s request, You shall provide FITCHIN any and all Content, including Your full name and any documents or photographs, necessary for FITCHIN to verify Your identity. You hereby represent warrant and covenant that such Content is accurate, current, and complete. FITCHIN reserves the right to freeze Your Account until Your identity has been verified pursuant to this Section and to terminate Your Account should You fail to comply with Your obligations under this Section. You and You (and, if acting in a representative capacity, individually and for the Entity You represent) authorize FITCHIN and its agents to make such investigative inquiries and request such third-party reports as it deems necessary to verify Your identity and that of Your principals and other agents.
In case You fail to provide evidence of your eligibility and/or identification to FITCHIN, at our sole and absolute discretion we may proceed without prior notice in the suspension and/or termination of your account and You will lose all prizes won and retained in your account.
7. YOUR LICENSE TO USE THE SERVICES
You are hereby granted a limited, nonexclusive, non-transferable, non-sublicensable, and personal license to access and use the Service provided, however, such license is subject to your compliance with these Terms. If any software, content, or other materials owned by, controlled by, or licensed to us are distributed or made available to you as part of your use of the Service, we hereby grant you a non-commercial, personal, non-assignable, non-sublicensable, non-transferable, and non-exclusive right and license to access and display such software, content, and materials provided to you as part of the Service (and right to download a single copy of the App onto your applicable equipment or device), in each case for the sole purpose of enabling you to use the Service as permitted by these Terms, provided that your license in any content linked to or associated with any NFTs is solely as set forth by the applicable seller or creator of such NFT.
The Service, including its “look and feel” (e.g., text, graphics, images, logos, page headers, button icons, and scripts), proprietary content, information and other materials, and all content and other materials contained therein, including, without limitation, the FITCHIN logo and all designs, text, graphics, pictures, data, software, sound files, other files, and the selection and arrangement thereof are the proprietary property of FITCHIN or our affiliates, licensors, or users, as applicable, and you agree not to take any action(s) inconsistent with such ownership interests. We and our affiliates, licensors, and users, as applicable, reserve all rights in connection with the Service and its content, including, without limitation, the exclusive right to create derivative works.
FITCHIN’s name, logo, trademarks, and any FITCHIN product or service names, designs, logos, and slogans are the intellectual property of FITCHIN or our affiliates or licensors and may not be copied, imitated, or used, in whole or in part, without our prior written permission in each instance. You may not use any metatags or other “hidden text” utilizing “FITCHIN” or any other name, trademark or product, or service name of FITCHIN or our affiliates or licensors without our prior written permission. In addition, the “look and feel” of the Service constitutes the service mark, trademark, or trade dress of FITCHIN and may not be copied, imitated, or used, in whole or in part, without our prior written permission. All intellectual properties are protected by copyright and trademark laws, international conventions and all other relevant intellectual property rules and property rights, and applicable laws of the United States. You will not use or allegate the law of your local country as a defense for breaching the FITCHIN trademark.
All other third-party trademarks, registered trademarks, and product names mentioned on the Service or contained in the content linked to or associated with any NFTs displayed 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 intellectual property rights 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 FITCHIN.
We welcome feedback, comments, and suggestions for improvements to the Service (“Feedback”). You acknowledge and expressly agree that any contribution of Feedback does not and will not give or grant you any right, title, or interest in the Service or in any such Feedback. You agree that FITCHIN may use and disclose Feedback in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to FITCHIN any and all right, title, and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights, and any and all other intellectual property right) that you may have in and to any and all Feedback.
9. Fees and payment
Participants will pay fees required to access and use the Platform as set forth in the applicable Platform event or other Services terms and conditions. Except as otherwise provided by law, Platform fees are subject to change without notice at any time and You are responsible for checking applicable fees prior to engaging in Platform activity. You hereby grant FITCHIN the right to charge or deduct funds from any third-party cryptocurrency wallet You have linked to the Platform for all fees payable to FITCHIN under this Agreement. All financial transactions made using the Services will be conducted solely through blockchain wallets and browsers. We have no insight into or control over these payments or transactions, nor do we have the ability to reverse any transactions. We will therefore have no liability to you or to any third party for any claims or damages that may arise as a result of any transactions that you engage in via the Services, or any other transactions that you conduct via blockchain or using electronic wallets. You acknowledge and agree that fees will be transferred directly to us through the blockchain immediately following the completion of a transaction.
You will be responsible for any and all use, sales, and other taxes imposed on Your access to and use of the Platform. You agree to indemnify FITCHIN for any losses, claims, or damages incurred or suffered by FITCHIN due to your failure to pay any relevant taxes of any kind, penalties, or interest.
FITCHIN will use reasonable efforts to ensure that the Platform can be accessed by You in accordance with this Agreement; however, FITCHIN does not guarantee that the Platform will be available at all times. FITCHIN will make reasonable efforts to give You notice of planned maintenance. You accept the risks associated with the fact that You may not always be able to use the Platform or engage in activity using Your Account.
11. REPRESENTATIONS AND WARRANTIES
11.1 GENERAL. You hereby represent and warrant to FITCHIN that: (a) You have the legal right and authority to enter into this Agreement; (b) this Agreement forms a binding legal obligation on Your behalf, and (c) You have the legal right and authority to perform Your obligations under this Agreement and to grant the rights and licenses described in this Agreement.
11.2 COMPLIANCE WITH LAWS. You acknowledge that the Platform is a general-purpose online service and is not specifically designed to facilitate compliance with any specific law. You also represent and warrant that you will comply with all applicable laws (e.g., local, state, federal, and other laws) when using the Service. Without limiting the foregoing, by using the Service, you represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo; and (b) you have not been identified as a Specially Designated National or placed on any U.S. Government list of prohibited, sanctioned, or restricted parties. If you access or use the Service outside the United States, you are solely responsible for ensuring that your access and use of the Service in such country, territory, or jurisdiction does not violate any applicable laws. Your use of the Platform in compliance with any specific law, rule, or regulation applicable to You, or other data or information You may provide or generate through the Platform is Your sole responsibility. FITCHIN is not responsible for Your compliance with any such law or for Your failure to comply. Regardless of the jurisdiction in which You use or access the Platform, You represent and warrant to FITCHIN that Your use of and access to the Platform, including, without limitation, Your Content and any other data or information You may provide or generate through Your use of or access to the Platform, shall comply with all applicable laws, rules, and regulations and shall not cause FITCHIN itself to violate any applicable law. The foregoing obligation includes compliance with all laws that are applicable to the transmission of data on the internet, including, but not limited to, laws governing the transmission of data or funds across international boundaries, into prohibited countries, and containing financial, technical, and/or personally identifiable information.
FITCHIN, as previously mentioned, may require you to provide additional information and documents in certain circumstances, such as at the request of any government authority, as any applicable law or regulation dictates, or to investigate a potential violation of these Terms. In such cases, FITCHIN, in its sole discretion, may disable your Account and block your ability to access the Service until such additional information and documents are processed by FITCHIN. If you do not provide complete and accurate information in response to such a request, FITCHIN may refuse to restore your access to the Service.
12.1 NO TAX, LEGAL, FINANCIAL, OR INVESTMENT ADVICE. You should not interpret any Content provided on the Platform as tax, legal, financial, or investment advice. We have no special relationship with or fiduciary duty to You and Your use of the Platform does not create such a relationship. You agree and acknowledge that You are solely responsible for conducting legal, accounting, and other due diligence review on the information posted on the Platform.
12.2 RISKS ASSOCIATED WITH CRYPTOGRAPHY AND DIGITAL ASSETS. You accept and acknowledge each of the following risks:
i. The value of digital assets is extremely volatile. The value of NFTs purchased via FITCHIN may go up or down; (b) You also acknowledge that the cost of transacting using blockchain technologies is variable and may increase at any time causing impact to any activities taking place via the Services; (c) You acknowledge these risks and accept that we cannot be held liable for such variations and fluctuations in the value of digital assets or transaction costs.
ii. We do not store, send, or receive NFTs. Any transfer of NFTs occurs within the blockchain and not via the Services.
iii. All Smart Contracts are conducted and occur on the decentralized ledger within the blockchain. By accepting these terms you agree that FITCHIN has no control over and makes no guarantees, warranties, or promises in relation to the performance, accuracy, or reliability of Smart Contracts.
iv. You accept that, due to their digital nature, and the nature of cryptography, NFTs may become degraded and links associated with such NFTs can vanish. You decline any claim of every nature against us and accept that FITCHIN will hold no liability for any loss or corruption of an NFT or Content.
v. The blockchain, Services, NFTs, and digital assets, in general, could be negatively affected by the introduction of laws or regulations which could affect our ability to deliver the Services or your ability to access or use the Services, including access to the NFTs.
vi. There are risks associated with the use of cryptocurrency, including the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to information stored within your electronic wallet. You accept and acknowledge that we will not be responsible for any communication failures, disruptions, errors, distortions, or delays you may experience when using the blockchain, however caused.
vii. You acknowledge and understand that cryptography is a developing field. Advances in code cracking or technical advances such as the development of quantum computers may present risks to cryptocurrencies, digital assets, and the Services, which could result in the theft or loss of your NFTs.
viii. The Smart Contracts are fully open-source and verified on the blockchain for analysis. Nonetheless, you acknowledge that the Services are subject to flaws and acknowledge that you are the unique responsible for evaluating any code provided by the Services. You accept that it is not our duty to alert you to all of the potential risks of utilizing or accessing the Services.
ix. You represent and warrant that you possess relevant knowledge and skills. 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 NFTs. 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 the Services. You accept all consequences of using the Services, including the risk that you may lose access to your NFTs indefinitely. 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.
12.3 General. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” FITCHIN AND ITS PROVIDERS DO NOT WARRANT OR GUARANTEE THE ACCURACY, COMPLETENESS, AVAILABILITY, ADEQUACY, OR CURRENCY OF ANY SERVICES OR CONTENT AND DO NOT ENDORSE THE VIEWS OR OPINIONS THAT MAY BE EXPRESSED OR PROVIDED THROUGH THE PLATFORM. FITCHIN AND ITS PROVIDERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO THE PLATFORM AND THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, OR NON-INFRINGEMENT. FITCHIN AND ITS PROVIDERS DO NOT WARRANT THE RELIABILITY, ACCURACY, INTEGRITY, SECURITY, COMPLETENESS, ADEQUACY, OR CURRENCY OF THE PLATFORM, AND DO NOT ENDORSE THE VIEWS OR OPINIONS THAT MAY BE EXPRESSED OR PROVIDED BY USERS OF THE PLATFORM. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY THE PLATFORM, FITCHIN, OR ITS EMPLOYEES, PROVIDERS, OR AGENTS SHALL CREATE A WARRANTY OF ANY KIND. FITCHIN AND ITS PROVIDERS SPECIFICALLY DISCLAIM ANY REPRESENTATION OR WARRANTY THAT THE PLATFORM WILL MEET YOUR REQUIREMENTS, BE SUITABLE FOR THE INTENDED PURPOSE, OR OPERATE UNINTERRUPTED OR ERROR-FREE.
You hereby agree to indemnify, defend, and hold harmless FITCHIN and its officers, directors, shareholders, affiliates, employees, agents, contractors, assigns, Users, customers, providers, licensees, and successors in interest (“Indemnified Parties”) from any and all claims, losses, liabilities, damages, fees, expenses and costs (including attorneys' fees, court costs, damage awards, and settlement amounts) that result from any claim or allegation against any Indemnified Party arising in any manner from: (1) Your access to or use of the Platform, whether as a Participant or an Organizer; (2) Your Content or Account information or other Content You provide through the Platform; and (3) Your breach of any representation, warranty, or other provision of this Agreement. FITCHIN shall provide You with notice of any such claim or allegation, and FITCHIN shall have the right to participate in the defense of any such claim at its expense.
14. LIMITATION ON LIABILITY
FITCHIN SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN CONNECTION WITH OR OUT OF THE USE OF THE PLATFORM, EVEN IF FITCHIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF YOUR CONTENT, DATA, OPPORTUNITY, REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. FITCHIN’S TOTAL CUMULATIVE LIABILITY TO YOU IN CONNECTION WITH THIS AGREEMENT AND ITS PROVISION OF THE PLATFORM UNDER THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL NOT EXCEED THE FEES FITCHIN ACTUALLY RECEIVED IN CONNECTION WITH YOUR USE OF THE PLATFORM IN THE TWELVE MONTHS PRECEDING THE EVENTS ON WHICH ANY BASIS FOR LIABILITY IS ALLEGED. YOU AGREE THAT FITCHIN WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, FITCHIN’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
16. FORCE MAJEURE
Neither party will be responsible for the performance of its obligations hereunder where delayed or hindered by events beyond their respective reasonable control, including, without limitation, acts of God or any governmental body (including regulation, enforcement, controls, or restrictions on cryptocurrency, blockchain, or the Service), war or national emergency, riots or insurrection, sabotage, embargo, fire, flood, accident, strike or other labor disturbance, or interruption of or delay in systems, power or telecommunications under third-party control
Except as otherwise provided below, the parties shall attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to this Agreement, including the formation, validity, binding effect, interpretation, performance, breach, or termination of this Agreement and the arbitrability of the issues submitted to arbitration hereunder and non-contractual claims relating to this Agreement (each, a “Dispute”), in accordance with the procedures set forth in this Section. If any Dispute cannot be resolved through negotiations between the parties within 5 days of notice from one party to the other of the Dispute, such Dispute shall be finally settled through binding arbitration under the rules of the American Arbitration Association then in effect (the “Rules”). Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules. The arbitration shall be conducted before a sole neutral arbitrator selected by agreement of the parties. If the parties cannot agree on the appointment of a single arbitrator within 30 days (the “Initial Period”) after either party to this Agreement delivers a request for arbitration, a neutral arbitrator shall be selected as provided in the Rules. The arbitration shall be conducted in an expedited manner, exclusively in the English language, at a site specified by FITCHIN in the State of New York, U.S.A. The award of the arbitrator shall be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or plead to the arbitrator. The award of the arbitrators shall require payment of the costs, fees, and expenses incurred by the prevailing party in any such arbitration by the non-prevailing party. Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees, or expenses incurred in enforcing the award may be charged against the party that resists its enforcement. Notwithstanding the foregoing, You agree that the following matters shall not, at the election of FITCHIN, be subject to binding arbitration: (a) any dispute concerning FITCHIN’s, its suppliers’, or its service providers’ IPR; (b) any dispute related to or arising from allegations of criminal activity; or (c) any claim for injunctive relief.
18. CLASS ACTION WAIVER
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NO ARBITRATION SHALL BE JOINED TO AN ARBITRATION INVOLVING ANY OTHER PARTY SUBJECT TO THIS AGREEMENT, WHETHER THROUGH CLASS ACTION ARBITRATION PROCEEDINGS OR OTHERWISE. ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS BOTH YOU AND FITCHIN SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION.
19. GOVERNING LAW
These Terms and your access to and use of the Service shall be governed by and construed and enforced in accordance with the laws of the State of New York (without regard to conflict of law rules or principles of the State of New York, or 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 as set forth in Section 17 or cannot be heard in small claims court, shall be resolved in the state or federal courts of New York County in the State of New York, and the United States, respectively, sitting in the State of New York.
In case FITCHIN considers that you have breached these Terms or we otherwise consider it appropriate, we may immediately and without prior notice, terminate this Agreement. Upon termination of this Agreement for any reason: (1) all rights granted to You under this Agreement shall terminate; (2) You will immediately cease all use of and access to the Platform and all Services, including Your Content and any Platform Content You obtained prior to termination; and (3) FITCHIN may, in its sole discretion, delete Your Account or Your Content at any time. Your Content may continue to exist on the Platform and be visible to Users after the termination of this Agreement unless You actively delete it or contact FITCHIN support and request deletion. All sections which by their nature should survive the termination of these Terms shall continue in full force and effect subsequent to and notwithstanding any termination of these Terms by FITCHIN or you. Termination will not limit any of FITCHIN’s other rights or remedies at law or in equity.
Unless otherwise specified in this Agreement, any notices required or allowed under this Agreement will be provided to FITCHIN by email only to the following address: email@example.com. FITCHIN may provide You with any notices required or allowed under this Agreement by sending You an email to any email address You provide to FITCHIN in connection with Your Account, provided that in the case of any notice applicable both to You and other Users of Platform, FITCHIN may instead provide such notice by posting on Platform. Notices provided to FITCHIN will be deemed given when actually received by FITCHIN. Notice provided to You will be deemed given upon posting to Platform or sending via email unless otherwise required by law prohibited or (as to email) the sending party is notified that the email address is invalid.