PLEASE READ THE SECTION 11 ENTITLED “DISPUTE RESOLUTION, GOVERNING LAW, AND JURISDICTION” CAREFULLY, AS IT LIMITS OR MAY OTHERWISE AFFECT YOUR LEGAL RIGHTS AGAINST MMERCH.
1. AcceptanceBY CLICKING THE “I ACCEPT” BUTTON OR ANY SIMILAR ATTESTATION WHEN SUCH OPTION IS MADE AVAILABLE TO YOU, BY LINKING YOUR DIGITAL WALLET, OR BY OTHERWISE USING THE PLATFORM, YOU ACCEPT AND AGREE TO BE BOUND BY THESE TERMS, AS WELL AS ANY OTHER POLICIES OR GUIDELINES MADE AVAILABLE THROUGH THE PLATFORM, EFFECTIVE AS OF THE DATE OF SUCH ACTION. YOU EXPRESSLY ACKNOWLEDGE AND REPRESENT THAT YOU HAVE CAREFULLY REVIEWED THESE TERMS AND FULLY UNDERSTAND THE RISKS, COSTS AND BENEFITS RELATED TO TRANSACTIONS MADE USING THE PLATFORM. IF YOU DO NOT AGREE WITH THESE TERMS, THEN YOU ARE EXPRESSLY PROHIBITED FROM USING THE PLATFORM.
4. mmERCH Platform
4.1 mmERCH PlatformYou are hereby granted limited, non-exclusive, non-transferable, non-assignable, non-sublicensable access to and use of the Platform. We shall have sole and complete control over the Platform, and reserve the right to withdraw or amend the Platform, and any service or material we provide through the Platform, in our sole discretion without notice. Notwithstanding anything contained in these Terms, we reserve the right, without notice and in our sole discretion, to impose limitations on, suspend, and/or terminate your right to access or use the Platform, in whole or in part, at any time and for any or no reason, and you acknowledge that we will not be liable if for any reason all or any part of the Platform is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Platform, or the entire Platform, to users, including registered users.
You are responsible for both:
- Making all arrangements necessary for you to have access to the Service.
- Ensuring that all persons who access the Platform through your internet connection are aware of these Terms and comply with them. We may, in our sole discretion, take any necessary or desirable actions and/or exercise any of our rights and remedies any time and for any reason without notice in the event you breach these Terms. Any violation of any of the above, including, without limitation, use of the Platform in breach of these Terms, may subject you to civil liability, criminal prosecution, and termination of your rights to use the Platform.
- Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Platform.
All provisions of these Terms that, by their nature, should survive termination shall remain in effect after termination.
Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Platform. YOU WAIVE AND HOLD HARMLESS mmERCH FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY mmERCH DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER mmERCH OR LAW ENFORCEMENT AUTHORITIES.
4.2 Digital Assets and Smart Contracts
The Platform is provided in part to make available related digital and physical fashion assets that may be used by the respective owner in digital and physical environments. Digital fashion assets may take the form as non-fungible tokens applicable to respective blockchains as authorized by mmERCH (“NFTs”), including any subsequently provided NFT or NFT-feature associated with the original NFT that is air-dropped or otherwise made available to claim by the owner of record associated with the original NFT(“Air-Drop” collectively with an NFT “Digital Assets”).Transactions related to Digital Assets on the Platform are managed and confirmed via an applicable blockchain. Your public digital address will be made publicly visible whenever you engage in any transaction on the Platform. We shall not be liable for the acts or omissions of any blockchain or associated third parties, nor shall we be liable for any damage that you may suffer as a result of your transactions or any other interaction with any blockchain or associated third parties.
4.3 Smart Contracts
You acknowledge and agree that any Digital Asset acquired, sold, or otherwise used in a blockchain transaction may be governed by “Smart Contract(s)” defined herein as self-executing computer code that operates like a self-executing agreement when certain parameters are met in connection with an applicable transaction on a respective blockchain network. You understand that Smart Contracts are immutable and irreversible, meaning that once they are deployed, they cannot be modified, terminated or rescinded by any party, including mmERCH. You assume full responsibility for assessing any obligations, commitments, and parameters of Smart Contracts prior to acquiring any Digital Asset.
4.4 Accounts and Digital Wallet
Certain features such as transactions related to Digital Assets, including any receipt of an applicable Air Drop, require you to link an accepted digital wallet (“Digital Wallet”) to the Platform for so long as you use the Platform. We neither own nor control your Digital Wallets, any associated blockchain, or any other Third-Party Services (as defined below). You have the sole responsibility to (a) establish, and maintain, in fully operational, secure and valid status, access to your Digital Wallet, and (b) maintain, in your fully secure possession, the credentials for accessing your Digital Wallet and the private key for your Digital Wallet. In the event of any loss, hack or theft of any Digital Asset from your Digital Wallet, including any cryptocurrency, any NFT, Air Drop or other non-fungible token, you acknowledge and agree that you shall have no right(s), claim(s) or causes of action in any way whatsoever against us for such loss, hack or theft, including with respect to any Digital Asset.
4.5 Third-Party Services
The Platform may contain links to other sites (“Third-Party Links”) and incorporate functionality or services provided by third parties and not controlled by mmERCH (“Third-Party Services”). We have no control over the Third-Party Services or contents associated with any Third-Party Links, and accept no responsibility for them or for any loss or damage that may arise from your use of them. Certain Third-Party Services necessary for the functionality of the Platform or Digital Assets, including but not limited to (i) certain aspects of displaying content linked to a Digital Asset. Your access and use of any Third-Party Services via the Platform is entirely at your own risk and subject to the terms and conditions of use for such Third-Party Service.
mmERCH uses commercially reasonable efforts to provide access to the Platform in a reliable and secure manner. From time to time, interruptions, errors, delays, or other deficiencies in providing access to the Platform or a Third-Party Service may occur due to a variety of factors, some of which are outside of mmERCH's control, and some which may require or result in scheduled maintenance or unscheduled downtime of the Platform (collectively, “Downtime”). Part or all of the Platform may be unavailable during any such period of Downtime, which may include an inability to access or mint applicable Digital Assets at the time you intended.
5. ProhibitionsYou agree not to use the Platform to:
- Violate any law, regulation, or governmental policy in the US or internationally;
- Infringe upon or violate intellectual property rights or any other rights of anyone else (including mmERCH);
- Jeopardize the security of your Digital Wallet or anyone else's Digital Wallet;
- Impersonate or attempt to impersonate another individual, entity, mmERCH employee, agent, or another user of the Platform;
- Circumvent any Smart Contracts, or otherwise attempt to transfer or sell any Digital Asset in a manner that avoids requirements programmed as part of the Smart Contract;
- Infringe, in any way, on the rights of others or engage in or promote any behavior or activity that is harmful, offensive, fraudulent, deceptive, threatening, harassing, dangerous, defamatory, obscene, profane, discriminatory or otherwise illegal or objectionable;
- Copy or store any Platform source code or a significant portion of the mmERCH Materials;
- Modify or otherwise make any derivative uses of the Platform, or any portion thereof;
- Decompile, reverse engineer, or otherwise attempt to obtain source code or underlying ideas or information of or relating to the Platform we provide;
- Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Platform, the server on which any part of the Platform requires, or any other computer or database connected to the Platform;
- Circumvent, remove, alter, deactivate, degrade, or thwart any technological measure or content protections of the Platform;
- Attack the Platform via a denial-of-service attack or distributed denial-of-service attack;
- Use the Platform to engage in price manipulation, fraud, or other deceptive, misleading, or manipulative activity;
- Use the platform to buy, sell, or transfer stolen items, fraudulently obtained items, items taken without authorization, and/or any other illegally obtained items;
- Use any device, software, bot, or routine that interferes with the proper working of the Platform;
- Use any manual or automated process to monitor or copy any of the material on the Platform or for any other unauthorized purpose, including, without limitation, using any automated or non-automated systems to scape, copy, or distribute content without our prior written consent;
- Damage, overburden, disable, or impair the Platform;
- Introduce any viruses, trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful;
- Engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the Platform, or which, as determined by us, may harm or offend mmERCH or its users, or otherwise expose them to any liability;
- Otherwise attempt to interfere with the proper working of the Platform
6.1 NFT Terms of Sale and RoyaltiesNFTs offered for sale on the Platform by mmERCH are sold for the respective price listed on the Platform. All sales are final and the purchase of an NFT from mmERCH is non-refundable. Certain Digital Assets may carry with them royalty obligations if such Digital Asset is subsequently sold following its purchase or air drop. Such royalties may be built into Smart Contracts, and you agree not to use any Third-Party Service for the resale of a Digital Asset in a manner that circumvents any Smart Contract or royalty owed. Please review all NFT listing information provided on the Platform prior to any purchase of an NFT which will list applicable royalties.
6.2 TaxesYou are responsible for paying any and all sales, use, value-added, and other taxes, duties, and assessments now or hereafter claimed or imposed by any governmental authority that are associated with your use of the Platform, including, without limitation any taxes that may become payable as the result of your ownership, transfer, purchase, or sale, of any Digital Asset.
All transactions on the Platform, including, without limitation, purchasing NFTs, are facilitated by smart contracts existing on an applicable blockchain network. As part of the minting process (i.e., the creation of the NFT) when purchasing an NFT, blockchain networks require the payment of transaction fees (also referred to as “gas fees”) for the respective transaction on the blockchain. The value of the transaction fee may change, often unpredictably, and is entirely outside of our control. You acknowledge that under no circumstances will a contract, agreement, sale, or other transaction on the Platform be invalidated, revocable, retractable, or otherwise unenforceable on the basis that the transaction fee for the given transaction was unknown, too high, or otherwise unacceptable to you. You also acknowledge and agree that gas fees are non-refundable under all circumstances.
6.4 Digital Asset Value DisclaimerYou acknowledge and consent to the risk that the price of any Digital Asset originating from this Platform may be influenced by activity outside of our control. mmERCH does not represent, guarantee, or warrant the value, title, validity, accuracy or fairness of the price of any Digital Asset. You agree and acknowledge that mmERCH is not a fiduciary and does not owe any duties to you as a user of the Platform, including any duty to ensure fair pricing of a Digital Asset or to police any other user's behavior on the Platform.
6.5 Claiming Physical Goods
Where a Digital Asset is capable of being used one time to claim as a physical good, you may claim such good anytime within the time period specified by mmERCH (such specified claim period the “Claim Period”). If you fail to claim your applicable physical good within the Claim Period In mmERCH's discretion, mmERCH may make unclaimed physical goods that are unclaimed within the Claim Period available for purchase by other Digital Asset holders or the general public. In its discretion, mmERCH may make available a process necessary to claim an applicable physical good associated with your applicable Digital Asset that has not been claimed within the allotted time period. Upon claiming a physical good, you may be prompted to provide us with necessary shipping information in order to ship you your item. You are responsible for all shipping and handling fees associated with your claimed physical good. Risk of loss to any physical good purchased through the Platform passes to you the buyer upon our tender of such physical good to the shipping carrier. Under no circumstances shall mmERCH have any obligation to store any physical goods for a period longer than it specifies in any notice to you.
7. Intellectual Property Rights
You acknowledge and agree that we (or, as applicable, our licensors) own all right, title, and interest in and to all elements of the Platform, including, without limitation, all 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 Platform, including any artwork that is created by mmERCH, its contractors, or licensors, and incorporated into any Digital Assets (collectively, the “mmERCH Materials”). The Platform and mmERCH Materials are protected by copyright, trade dress, trademark, patent laws, international conventions, other relevant intellectual property and proprietary rights, and applicable laws. Your use of the Platform or any purchase of any Digital Asset by you does not grant you ownership of any other rights with respect to the mmERCH Materials or the Platform, whether expressly, by implication, estoppel, reliance or otherwise, all of which are specifically excluded and disclaimed.
7.2 Digital Assets
Upon purchasing and minting a Digital Asset, the owner of the applicable Digital Wallet such Digital Asset is minted to or otherwise links on the applicable blockchain is the “owner of record”of such Digital Asset. Ownership of a Digital Asset does not grant the respective owner any right, title, or interest in or to any mmERCH Materials, including the underlying content including any artwork that is created by mmERCH, its contractors, or licensors, and incorporated into or otherwise linked to any Digital Assets.Except as may be otherwise expressly stated in each Digital Asset, subject to continued compliance with these Terms and each license associated with a Digital Asset, the current owner of the NFT is hereby granted, solely for the period of time that such owner remains the owner of record to the applicable NFT, a limited worldwide, revocable, royalty free, non-exclusive, non-commercial, personal, non-assignable, non-transferrable, non-sublicensable right and license under the applicable mmERCH Material associated with such NFT, to publicly display the respective artwork, features or associated images for (a) for your own personal, non-commercial use; and (b) as part of a marketplace that permits the purchase and sale of your NFT, provided that the marketplace cryptographically verifies each applicable NFT to ensure that you are the actual owner prior to displaying the underlying Digital Artwork. The license granted this Section 7.2 shall terminate upon your sale or transfer of ownership of the respective Digital Asset.
As a user of the Platform, you may be able to submit certain content, ideas, proposals, suggestions, or comments related to the Platform(“Feedback”). All Feedback is and will be treated as non-confidential. You hereby assign to us on your behalf, all right, title, and interest in, and we are free to use, without any attribution or compensation to you or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although we are not required to use any Feedback.
7.4 TrademarksThe mmERCH name, the mmERCH logo, and all related names, logos, product and service names, designs, and slogans are trademarks of mmERCH or its affiliates or licensors. You must not use such marks without the prior written permission of mmERCH. All other names, logos, product and service names, designs, and slogans on this Platform are the trademarks of their respective owners.
8. Disclaimers of Warranties
8.1 DISCLAIMER OF WARRANTIESYOUR USE OF THE PLATFORM, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH OR IN CONNECTION WITH THE PLATFORM, INCLUDING ANY DIGITAL ASSET OR AIR DROP, IS AT YOUR OWN RISK. THE PLATFORM, ITS CONTENT, DIGITAL ASSETS, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORM ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER MMERCH NOR ANY PERSON ASSOCIATED WITH MMERCH MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE PLATFORM OR ANY DIGITAL ASSET. WITHOUT LIMITING THE FOREGOING, NEITHER MMERCH NOR ANYONE ASSOCIATED WITH MMERCH REPRESENTS OR WARRANTS THAT THE PLATFORM, ITS CONTENT, DIGITAL ASSETS, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORM WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE PLATFORM OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORM WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. TO THE FULLEST EXTENT PROVIDED BY LAW, MMERCH HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
8.2 Downtime DisclaimerMMERCH SHALL NOT BE LIABLE OR RESPONSIBLE TO YOU FOR ANY INCONVENIENCE, LOSSES OR ANY OTHER DAMAGES AS A RESULT OF DOWNTIME, INCLUDING, WITHOUT LIMITATION, YOUR INABILITY TO ACCESS THE PLATFORM OR TRANSACT WITH ANY DIGITAL ASSET AS A RESULT OF SUCH DOWNTIME. YOU HEREBY WAIVE ANY CLAIM AGAINST THE MMERCH IN CONNECTION WITH DOWNTIME.
8.3 NO INVESTMENT ADVICEUNDER NO CIRCUMSTANCES WILL ACCESS TO THE PLATFORM BE DEEMED TO CREATE A RELATIONSHIP THAT INCLUDES THE PROVISION OR RENDERING OF INVESTMENT ADVICE. TO THE EXTENT INFORMATION ON ANY DIGITAL ASSET, THE BLOCKCHAIN OR IN CONNECTION WITH WEB3/BLOCKCHAIN TECHNOLOGIES, CRYPTOCURRENCIES, NFTS, ARTWORK OR OTHER INDUSTRY TOPICS IS AVAILABLE OR MADE AVAILABLE IN CONNECTION WITH THE PLATFORM OR ANY OF THE SERVICES, SUCH INFORMATION IS INTENDED FOR INFORMATIONAL AND EDUCATIONAL PURPOSES ONLY AND DOES NOT CONSTITUTE A RECOMMENDATION BY MMERCH (I) TO MAKE ANY PURCHASE FOR INVESTMENT PURPOSES, TO (II) ENGAGE IN ANY INVESTMENT STRATEGIES, OR (III) AS ADVICE ABOUT THE VALUE OR USEFULNESS OF ANY DIGITAL ASSET.
8.4 DIGITAL ASSET AND BLOCKCHAIN SECURITY DISCLAIMER.MMERCH IS NOT RESPONSIBLE OR LIABLE FOR ANY SUSTAINED LOSSES OR INJURY CAUSED BY ANY EXPLOITATION, VULNERABILITY OR OTHER FORM OF FAILURE OR MALFUNCTIONING OF SOFTWARE (E.G., DECENTRALIZED APPLICATIONS, SMART CONTRACTS, ETC.), APPLICABLE BLOCKCHAINS, THIRD-PARTY SERVICES OR ANY FEATURES BUILT INTO DIGITAL ASSETS, INCLUDING, WITHOUT LIMITATION, ANY ISSUES WITH THE BLOCKCHAIN SUPPORTING NON-FUNGIBLE TOKENS, FORKS, TECHNICAL NODE ISSUES OR ANY OTHER ISSUES THAT MAY RESULT IN LOSSES OR INJURY.
- ASSUMPTION OF RISKS USING BLOCKCHAIN TECHNOLOGY
- You hereby acknowledge and assume the risk of using and making purchases through the Platform and take full responsibility and liability for the outcome of actions initiated. Without limiting any risks that exist, you acknowledge the following risks related to blockchain technology, cryptocurrencies and non-fungible tokens.
- Digital Assets' values are subjective. The potential value of Digital Assets like NFTs are subjective in nature and subject to volatility and fluctuations in the price of cryptocurrency.
- Regulatory uncertainty. The regulatory regime governing blockchain technologies, non-fungible tokens, cryptocurrency, and other crypto-based items is uncertain, and new regulations or policies may materially adversely affect the development of the Platform and the utility of NFTs.
- Blockchain technology risk. There are risks associated with using Internet and blockchain based products, including, but not limited to, the risk associated with hardware, software, and Internet connections, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to your Digital Wallet or account.
- Digital asset risks. There are risks associated with purchasing items associated with content created by third parties through peer-to-peer transactions, including but not limited to, the risk that items are vulnerable to metadata decay, bugs in smart contracts, and items that may become untransferable. You represent and warrant that you have done sufficient research before making any decisions to sell, obtain, transfer, or otherwise interact with any non-fungible tokens.
- Third-Party Services. We do not control Third-Party Services like the Ethereum network or other public blockchains, Digital Wallets, or other third parity products that you may be interacting with and we do not control third-party smart contracts and protocols that may be integral to your ability to complete transactions on these public blockchains.
- Third Party Actions. We cannot control the actions of third parties, including Partner Artists or purchasers of NFTs and Physical Art from their independent creation of unaffiliated non-fungible tokens which may resemble or be a reproduction of Digital Artwork linked to a respective NFT.
- IPFS Storage. We do not store the digital file of the underlying Digital Artwork associated with any NFT on any mmERCH controlled servers. The digital file of the underlying Digital Artwork is typically linked through IPFS using an IPFS node operated by a Third-Party Service. We have no control over IPFS or the IPFS Node nor can we guarantee that it will always be available.
- You agree to defend, indemnify, and hold harmless mmERCH, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys' fees) arising out of or relating to your violation of these Terms or your use of the Platform and any use of the Platform Materials, other than as expressly authorized in these Terms, or your use of any information obtained from the Platform. You agree to indemnify and hold us harmless from any claims, losses, damages, liabilities, or expenses (including legal fees) arising from your use of the Site or any violation of these Terms.
9. Dispute Resolution, Governing Law, and JurisdictionThe Terms shall be governed by and interpreted in accordance with the laws of Delaware without regard to conflict of law principles. All disputes, claims and actions, at law or in equity, in connection with the Terms or the breach, termination, enforcement, interpretation or validity thereof, use of the Platform (collectively, “Disputes”) shall be settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules (“AAA Rules”), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall take place in Wilmington, DE before a single neutral arbitrator appointed in accordance with the AAA Rules and shall be conducted in the English language. All arbitrations shall be conducted and resolved on an individual basis and not a class-wide, multiple plaintiff or similar basis. No arbitration shall be consolidated with any other arbitration proceeding involving any other person or entity. You have the right to opt-out and not be bound by these arbitration by sending written notice of your decision to opt-out to [email protected] within thirty (30) days of your earliest use or access of the Platform. Subject to the above arbitration provisions, you and mmERCH agree that all Disputes shall be settled in the federal or state courts located in Wilmington, Delaware, and each of us agrees that such courts shall have exclusive jurisdiction and venue for any such actions. Notwithstanding anything to the contrary, mmERCH also may seek injunctive or other equitable relief for breach of these Terms in any court of competent jurisdiction wherever located. You consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum. The prevailing party in any suit, action or proceeding, including any arbitration proceeding, will be entitled to recover its reasonable legal fees and costs and expenses from the other party.
10. NoticeNotices from one party to any other party must be in the English language and must be reasonably detailed. Notices shall be effective on the date on which the notice is delivered to the notified party's authorized email address or as published by mmERCH as described herein. Until you receive notice of a different email address from us, mmERCH's authorized email address for all purposes of these Terms shall be the following: [email protected]
11. Limitations of Liability:NOTWITHSTANDING ANY CONTRARY PROVISION OF THESE TERMS OR FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY, AND TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW, YOU AGREE AS FOLLOWS:
- (a) IN NO EVENT WILL MMERCH BE LIABLE FOR (I) ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR SIMILAR DAMAGES OR LIABILITIES WHATSOEVER, OR (II) ANY DAMAGES FOR LOSS OF ANY DIGITAL ASSETS, DATA, INFORMATION, REVENUE, PROFITS OR OTHER BUSINESSES OR FINANCIAL BENEFITS, IN ANY CASE WHETHER UNDER CONTRACT, TORT, NEGLIGENCE, STATUTE, STRICT LIABILITY OR OTHER THEORY EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR CONNECTED WITH ACCESS OR USE OF THE PLATFORM, INCLUDING, WITHOUT LIMITATION, THE FOLLOWING: (A) ANY UNAUTHORIZED USE OF THE PLATFORM OR SERVICES; (B) ANY OF YOUR DIGITAL ASSETS; (C) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT ARE FOUND IN THE PLATFORM OR SERVICES (REGARDLESS OF THE SOURCE OF ORIGINATION); (D) ANY INJURY OR DAMAGE TO COMPUTER EQUIPMENT; OR (E) THEFT, TAMPERING, OR DESTRUCTION OF, OR UNAUTHORIZED ACCESS TO, DIGITAL ASSETS, OR DATA OR CONTENT OF ANY KIND;
- (b) IN NO EVENT SHALL OUR LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY FOR ALL DAMAGES OR LIABILITIES EXCEED IN THE AGGREGATE THE AMOUNT OF TWENTY-FIVE U.S. DOLLARS (USD $25.00) OR ITS EQUIVALENT IN THE LOCAL CURRENCY OF THE APPLICABLE JURISDICTION; and
- (c) NOTHING IN THESE TERMS SHALL EXCLUDE OR LIMIT THE LIABILITY OF EITHER PARTY FOR DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE. SOME JURISDICTIONS FURTHER DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES OR OTHER DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE FOREGOING LIMITATIONS OF LIABILITY UNDER THIS SECTION 13 SHALL NOT APPLY IF AND TO THE EXTENT OF WILLFUL MISCONDUCT OR GROSS NEGLIGENCE.
12. WaiverThe failure by us to enforce any right or provision of these Terms shall not prevent any party from enforcing such right or provision in the future. No waiver by a party of any of the provisions of these Terms is effective unless explicitly set forth in writing and signed by such party. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from these Terms operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
13. SeverabilityIf any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be unlawful, invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms will continue in full force and effect.
14. InterpretationThe headings of the sections and subsections contained in these Terms are included for reference purposes only, solely for the convenience of the parties, and shall not in any way be deemed to affect the meaning, interpretation or applicability of these Terms or provision hereof. When the context requires, the plural shall include the singular and the singular the plural; and any gender shall include any other gender. All references to “including” or “includes” or any variation thereof shall be deemed to include the terms “without limitation”. The words “hereunder,” “hereof,” “hereto” and words of similar import shall be deemed references to these Terms as a whole. To the extent not prohibited by applicable law, these Terms shall not be construed against the party who drafted these Terms.
15. Entire AgreementThese Terms constitute the sole and entire agreement between you and mmERCH regarding the Platform and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Platform.
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