Last Updated: November 15, 2022
PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE APP. THESE TERMS GOVERN YOUR USE OF THE APP, UNLESS WE HAVE EXECUTED A SEPARATE WRITTEN AGREEMENT WITH YOU FOR THAT PURPOSE. WE ARE ONLY WILLING TO MAKE THE APP AVAILABLE TO YOU IF YOU ACCEPT ALL OF THESE TERMS. BY USING THE APP OR ANY PART OF IT, OR BY CLICKING “I ACCEPT” BELOW OR INDICATING YOUR ACCEPTANCE IN AN ADJOINING BOX, YOU ARE CONFIRMING THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY ALL OF THESE TERMS. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO ACCEPT THESE TERMS ON THAT ENTITY’S BEHALF, IN WHICH CASE “YOU” WILL MEAN THAT ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT ACCEPT ALL OF THESE TERMS, THEN WE ARE UNWILLING TO MAKE THE APP AVAILABLE TO YOU. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT ACCESS OR USE THE APP.
THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION (SEE SECTION 16). PLEASE REVIEW THE ARBITRATION PROVISION CAREFULLY, SINCE IT AFFECTS YOUR RIGHTS. BY USING THE APP OR ANY PART OF IT, OR BY CLICKING “I ACCEPT” BELOW OR INDICATING YOUR ACCEPTANCE IN AN ADJOINING BOX, YOU UNDERSTAND AND AGREE TO BE BOUND BY THE ARBITRATION PROVISION.
ANY PURCHASE OR SALE YOU MAKE, ACCEPT OR FACILITATE OUTSIDE OF THIS APP (AS DEFINED BELOW) OF A DC (AS DEFINED ABOVE) WILL BE ENTIRELY AT YOUR RISK. WE DO NOT CONTROL OR ENDORSE PURCHASES OR SALES OF DCs OUTSIDE OF THIS APP. WE EXPRESSLY DENY ANY OBLIGATION TO INDEMNIFY YOU OR HOLD YOU HARMLESS FOR ANY LOSSES YOU MAY INCUR BY TRANSACTING, OR FACILITATING TRANSACTIONS, IN DCs OUTSIDE OF THIS APP.
This document contains very important information regarding your rights and obligations, as well as conditions, limitations and exclusions that might apply to you. Please read it carefully.
Any changes to these Terms will be in effect as of the “Last Updated Date” referred to at the top of this page. You should review these Terms before using the App or purchasing any product or using any services that are available through this App.
Your continued use of this App after the “Last Updated Date” will constitute your acceptance of and agreement to such changes.
You may not use this App if you: (i) do not agree to these Terms; (ii) are not of the age of majority in your jurisdiction of residence; or (iii) are prohibited from accessing or using this App or any of this App’s contents, products or services by applicable law.
LIMITATION OF AVAILABILITY; PROHIBITED USERS
The App is not available in all jurisdictions or to all individuals, corporations, partnerships, trusts, unincorporated organizations, governmental offices or agencies, and the executors, administrators or other legal representatives of an individual in such capacity (“Persons”).
The following Persons are prohibited from using the App or any of our other services (each, a “Prohibited User”): (i) Persons who appear on the United States Department of the Treasury, Office of Foreign Assets Control (OFAC), Specially Designated Nationals List (SDN), United States Commerce Department’s Denied Persons or other similar lists; (ii) Persons who are nationals or residents of Cuba, Iran, North Korea, Sudan, Syria or any other country, territory, or other jurisdiction that is embargoed by Canada, the United States or listed at Exhibit “A” of this Agreement; (iv) Persons who are not residents of and located in an Approved Region (Canada, the United States and those places not listed in Exhibit “A” to this Agreement and where the App is made available, such as it may be from time to time); (v) Persons, or their affiliates, who have been subject to an account termination for cause; (vi) Persons that are not individual natural persons, and (vii) a Person who, directly or indirectly, uses, employs, operates or creates a computer program to simulate the human behavior of a user (“Bots”). We reserve the right to add or remove Approved Regions at our sole discretion.
You are prohibited from accessing or using the App (or any of our other services) in, from or through a location where your use of the App would violate any Applicable Law. By using the App, you represent and warrant that you are not a citizen or resident of any such jurisdiction, nor will you use the App while located or residing in any such jurisdiction.
We may implement controls to restrict access to the App from any jurisdiction from which use of the App is prohibited. You shall comply with such restrictions, even if the methods imposed by us to prevent the use of the App are not effective or can be bypassed.
1. USE OF THE APP; ACCOUNT SET-UP AND SECURITY
(i) Account and Wallet Set-Up. To most easily use the App, you should first install a web browser (such as the Google Chrome web browser). You will also need to use the Dapper® electronic wallet or another supported electronic wallet, which will enable you to purchase, sell, and store DCs that you collect or purchase via the App. Each DC is a Non-Fungible Token (an “NFT”) on the Flow™ blockchain network (the “Flow Network”).
(ii) Account Registration. You must provide accurate and complete registration information when you create an account for the App. By creating an account, you agree to provide accurate, current and complete account information about yourself, and to maintain and promptly update your account information as necessary. We reserve the right to reclaim usernames without liability to you.
(iii) Account Security. You are responsible for the security of your account for the App and for your electronic wallets. If you become aware of any unauthorized use of your password or of your account with us, you agree to notify us immediately at [email protected]
(iv) Account Transactions. You can use your electronic wallet to purchase, store, and engage in transactions using your credit card, or via one or more cryptocurrencies that we may elect to accept from time to time. Transactions that take place on the App are managed and confirmed via the Flow Network. You understand that your Flow Network public address will be made publicly visible whenever you engage in a transaction on the App.
2. PURCHASING YOUR DCs
(i) Digital Blockchain Collectibles. The App allows you to purchase, sell, showcase, and collect DCs created by [Artist]. Each DC is an NFT on the Flow Network.
(ii) Characteristics of DCs. DCs are generally [comprised of a digital rendering of a circular “happy face” image made up of a unique set of internal colors and designs.Each DC has a defined set of attributes – including scarcity – which may impact the potential resale value of the DC].
(iii) Subjectivity of DCs. The value of each DC is inherently subjective, in the same way the value of other DCs is inherently subjective. DCs have no inherent or intrinsic value. Some collectors might prefer to have a DC featuring a certain color and/or design, while another might prefer an equivalent DC featuring a different color and/or design.
(iv) Purchasing DCs. You can purchase DCs in two ways: (a) by minting a Seeds of Happiness DC directly from us on the App (while supplies last); or (b) by buying DCs from other users in the App’s marketplace (the “Marketplace”).
If you buy an individual DC from another user in the Marketplace, you will know the exact DC that you are purchasing. We strongly encourage you not to purchase DCs other than directly on the App or via the Marketplace. If you decide to purchase DCs in any other way, you understand that such purchases will be entirely at your sole risk
3. PAYMENT, GAS FEES, AND TAXES
(i) Financial Transactions on App. Any payments or financial transactions that you engage in via the App will be conducted solely through the Flow Network. We have no control over these payments or transactions, nor do we have the ability to reverse any payments or transactions. We have no liability to you or to any third party for any claims or damages that may arise as a result of any payments or transactions that you engage in via the App, or any other payment or transactions that you conduct via the Flow Network. We do not provide refunds for any purchases that you might make on or through the App.
(ii) Gas Fees. Every transaction on the Flow Network requires the payment of a transaction fee (each, a “Gas Fee”). The Gas Fees fund the network of computers that run the decentralized Flow Network. This means that you will need to pay a Gas Fee for each transaction that you instigate via the App. Except as otherwise expressly set forth in these Terms, you will be solely responsible to pay any Gas Fee for any transaction that you instigate via the App.
(iii) Responsibility for Taxes. You will be solely responsible to pay any and all sales, use, value-added and other taxes, duties, and assessments (except taxes on our net income) now or hereafter claimed or imposed by any governmental authority (collectively, the “Taxes”) associated with your use of the App. Except for income taxes levied on us, you: (a) will pay or reimburse us for all national, federal, state, local or other taxes and assessments of any jurisdiction, including value added taxes and taxes as required by international tax treaties, customs or other import or export taxes, and amounts levied in lieu thereof based on charges set, services performed or payments made hereunder, as are now or hereafter may be imposed under the authority of any national, state, local or any other taxing jurisdiction; and (b) will not be entitled to deduct the amount of any such taxes, duties or assessments from payments (including Gas Fees) made to us pursuant to these Terms. To allow us to determine our tax obligations, unless you otherwise notify us in writing, you confirm that you are not a resident in Canada nor are you registered for Goods and services tax / Harmonized sales tax (GST / HST) or Provincial sales taxes (PST) in Canada, and will inform us if your status changes in the future.
4. OWNERSHIP, LICENSE, AND OWNERSHIP RESTRICTIONS
WE WILL ONLY RECOGNIZE YOUR OWNERSHIP OF DCs IF YOU HAVE PURCHASED OR OTHERWISE RIGHTFULLY ACQUIRED SUCH DCs FROM A LEGITIMATE SOURCE, AND NOT THROUGH ANY OF THE CATEGORY B PROHIBITED ACTIVITIES (AS DEFINED BELOW).
(i) For the purposes of this Section 4, the following capitalized terms will have the following meanings:
“Additional Content Rights” means the right, as we may determine and as we may notify you from time to time, to participate in and/or enjoy certain additional content that we notify you are associated with your ownership of Your Purchased NFT.
“Commercialization Rights” means the right to use and display the Licensed Material for Your Purchased NFTs for any activity that is performed with the intent to generate revenue, such as creating and selling Your own merchandise, content, NFTs, or other products or services that includes, contains, displays or consists of the Licensed Material for Your Purchased NFTs.
“Copyright and Similar Rights” means copyright and/or similar rights closely related to copyright including, without limitation, performance, broadcast, and sound recording, without regard to how the rights are labeled or categorized. For the purposes of this License, the rights specified in Sections 4(vii)(B) and 4(vii)(C) are not Copyright and Similar Rights.
“Extensions” means design elements that (i) are intended for use as extensions or overlays to the NFT Media; (ii) do not modify the underlying NFT Media; and (iii) can be removed at any time without affecting the underlying NFT Media.
“Licensed Material” means the NFT Media that is associated with your Purchased DC.
“Licensed Rights” means the rights granted to you subject to the Terms, which are limited to: (i) Commercialization Rights; and (ii) the Copyright and Similar Rights that apply to your use of the Licensed Material as set forth herein and that we have the authority to license.
“NFT Media” means any art, design, content, drawings or other works of authorship (in any form or media, including, without limitation, video or photographs) that may be associated with your Purchased DC.
“Own” means, with respect to a DC, a DC that you have lawfully purchased or otherwise lawfully acquired from a legitimate source (and not through any of the Category B Prohibited Activities (as defined below)), which may be us, our authorized licensee, or a previous lawful owner.
“Purchased DC” means a DC that you Own.
“Third Party IP” means any third party rights, including, without limitation, patents (including patent applications and disclosures), copyrights, trade secrets, trademarks, know-how or any other intellectual property rights recognized in any country or jurisdiction in the world.(i) Ownership of DC. Because each DC is an NFT on the Flow Network, when you purchase a DC in accordance with these Terms (and not through any of the Category B Prohibited Activities), you own the underlying NFT completely. This means that you have the right to swap your DC, sell it, burn it, exchange it, or give it away to the extent that such uses are made available in the App. Ownership of the DC is mediated entirely by the Flow Network. Except as otherwise permitted by these Terms in cases where we determine that the DC has not been rightfully acquired from a legitimate source (including, without limitation, through any of the Category B Prohibited Activities), at no point will we seize, freeze, or otherwise modify the ownership of any DC.
(ii) We Own the App. You acknowledge and agree that we (or, as applicable, our licensors) owns all legal right, title and interest in and to all other elements of the App, and all intellectual property rights therein (including, without limitation, all Art, designs, systems, methods, information, computer code, software, services, “look and feel”, organization, compilation of the content, code, data, and all other elements of the App (collectively, the “App Materials”)). You acknowledge that the App Materials are protected by copyright, trade dress, patent, and trademark laws, international conventions, other relevant intellectual property and proprietary rights, and applicable laws. All App Materials are the copyrighted property of us or our licensors, and all trademarks, service marks, and trade names associated with the App or otherwise contained in the App Materials are proprietary to us or our licensors.
(iii) Further User Ownership Acknowledgements. For the sake of clarity, you understand and agree: (a) that your purchase of a DC, whether via the App or otherwise, does not give you any rights or licenses in or to the App Materials (including, without limitation, our copyright in and to the associated Art) other than those expressly contained in these Terms; (b) that you do not have the right, except as otherwise set forth in these Terms, to reproduce, distribute, or otherwise commercialize any elements of the App Materials (including, without limitation, any NFT Media) without our prior written consent in each case, which consent we may withhold in our sole and absolute discretion; and (c) that you will not apply for, register, or otherwise use or attempt to use any of our trademarks or service marks, or any confusingly similar marks, anywhere in the world without our prior written consent in each case, which consent we may withhold at our sole and absolute discretion.
(iv) License Grant - Personal Use. Subject to the Terms, we hereby grant to you a worldwide, non-exclusive, non-transferable (except under Section 4(viii) below), royalty-free license to use, copy, perform and display the Licensed Material specific to Your Purchased NFTs (along with any Extensions you may elect to create or use), solely for the following purposes: (a) for your own personal, non-commercial use; or (b) as part of display on a marketplace that permits the purchase and sale of your Purchased NFTs, provided that the marketplace verifies that you Own the Purchased NFT (such as by validating ownership on the relevant blockchain) to ensure that only the actual owner can display the Licensed Material.
(v) Commercialization Rights. Subject to the Terms, for as long as you Own Your Purchased NFT, we hereby grant to You a limited, worldwide, non-exclusive, non-transferable license to use, copy, and display the Licensed Material for Your Purchased NFTs (along with any Extensions you may elect to create or use) for the purpose of exercising the Commercialization Rights.
(vi) Additional Content Rights. Subject to the Terms, for as long as you Own your Purchased NFT, you will have the right to enjoy such Additional Content Rights as may be associated from time to time with your Purchased NFT. You acknowledge and agree as follows: (i) that we will have the sole authority to determine the scope of your Additional Content Rights (provided that we will not modify the scope of your Additional Content Rights for your Purchased NFT without similarly modifying the scope of Additional Content Rights for other NFTs of the same mint group); (ii) that unless we otherwise permit it, you may only enjoy or take advantage of a particular Additional Content Right once for each Purchased NFT to which the Additional Content Rights relate; (iii) that while the Additional Content Rights are intended to provide the holders of certain NFTs with additional content, having Additional Content Rights does not guarantee that you will receipt the content that you desire; and (iv) that the final determination of what content is made available to you rests with us absolutely.
(vii) Restrictions and Conditions.
(viii) Automatic Licensing to Downstream Recipients. When you cease to Own your Purchased NFT, whether because you have conveyed it to another person or entity or otherwise: (i) the licenses granted herein will automatically expire with respect to you, and you will no longer have any rights in or to the Licensed Materials; and (ii) with respect to the person or entity to which the Purchased NFT was conveyed (the “recipient”), the recipient automatically receives the Licensed Rights from us, subject to the Terms. While you are not responsible for enforcing compliance by third parties (including any recipient) to this license, you are responsible for ensuring that any recipient to whom you convey your Purchased NFT is made aware of the existence of the license (including, without limitation, the Licensed Rights and all applicable restrictions), and the applicability of this license to the NFT they will receive, prior to the conveyance. You can provide this notice in any number of ways (including, without limitation, including a link to this license in the marketplace description of the NFT that you intend to convey), but it is your responsiblity to ensure that the potential recipient is aware of the existence and applicability of this license prior to the conveyance. For the sake of clarity, in no event may you convey your Purchased NFT to a recipient (x) without conveying all of the associated Licensed Rights under this license associated with your Purchased NFT; or (y) subject to any terms, conditions, or license (or variation thereof) other than the Terms.
(ix) User Feedback. You may choose to submit comments, bug reports, ideas or other feedback about the App, including without limitation about how to improve the App (collectively, “Feedback”). By submitting any Feedback, you agree that we are free to use such Feedback at our discretion and without additional compensation to you, and to disclose such Feedback to third parties (whether on a non-confidential basis, or otherwise). You hereby grant us a perpetual, irrevocable, nonexclusive, worldwide license under all rights necessary for us to incorporate and use your Feedback for any purpose.
5. CONDITIONS OF USE AND PROHIBITED ACTIVITIES
YOU AGREE THAT YOU ARE RESPONSIBLE FOR YOUR OWN CONDUCT WHILE ACCESSING OR USING THE APP, AND FOR ANY CONSEQUENCES THEREOF. YOU AGREE TO USE THE APP ONLY FOR PURPOSES THAT ARE LEGAL, PROPER AND IN ACCORDANCE WITH THESE TERMS AND ANY APPLICABLE LAWS OR REGULATIONS.
(i) User Warranties. Without limiting the foregoing, you warrant and agree that your use of the App will not (and will not allow any third party to):
(a) in any manner:
(each, a “Category A Prohibited Activity”); and/or
(b) in any manner:
(ii) Effect of Your Breaches. If you engage in any of the Prohibited Activities, we may, at our sole and absolute discretion, without notice or liability to you, and without limiting any of our other rights or remedies at law or in equity, immediately suspend or terminate your user account and/or delete your DCs’ images and descriptions from the App. If we delete your DCs’ images and descriptions from the App, such deletion will not affect your ownership rights in any NFTs that you already Own, but you will not receive a refund of any amounts you paid for those DCs.
NOTWITHSTANDING THE FOREGOING, HOWEVER, IF WE REASONABLY BELIEVE THAT YOU ARE ENGAGED IN ANY OF THE CATEGORY B PROHIBITED ACTIVITIES, IN ADDITION TO OUR RIGHT TO IMMEDIATELY SUSPEND OR TERMINATE YOUR USER ACCOUNT AND/OR DELETE YOUR DCs’ IMAGES AND DESCRIPTIONS FROM THE APP, WE ALSO RESERVE THE RIGHT, AT OUR SOLE AND ABSOLUTE DISCRETION, WITHOUT NOTICE OR LIABILITY TO YOU, TO TAKE ANY OR ALL OF THE FOLLOWING ACTIONS: (A) TO DEEM ANY TRANSACTION THAT TOOK PLACE VIA OR AS THE RESULT OF SUCH ACTIVITIES TO BE VOID AB INITIO; AND/OR (B) TO IMMEDIATELY CONFISCATE ANY DCs (INCLUDING THEIR UNDERLYING NFTS) THAT WERE PURCHASED OR ACQUIRED AS THE RESULT OF SUCH ACTIVITIES.
(i) You Terminate. You may terminate these Terms at any time by canceling your account on the App and discontinuing your access to and use of the App. If you cancel your account, or otherwise terminate these Terms, you will not receive any refunds for any purchases that you might make on or through the App.
(ii) We Terminate. You agree that we, in our sole discretion and for any or no reason, may terminate these Terms and suspend and/or terminate your account(s) for the App without the provision of prior notice. You agree that any suspension or termination of your access to the App may be without prior notice, and that we will not be liable to you or to any third party for any such suspension or termination.
(iii) Other Remedies Available. If we terminate these Terms or suspend or terminate your access to or use of the App due to your breach of these Terms or any suspected fraudulent, abusive, or illegal activity (including, without limitation, if you engage in any of the Prohibited Activities), then termination of these Terms will be in addition to any other remedies we may have at law or in equity.
(iv) Referral to Governmental Authority. We have the right, without provision of prior notice, to take appropriate legal action, including, without limitation, referral to law enforcement or regulatory authority, or notifying the harmed party of any illegal or unauthorized use of the App. Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone using the App.
(v) Effect of Termination. Upon any termination or expiration of these Terms, whether by you or us, you may no longer have access to information that you have posted on the App or that is related to your account, and you acknowledge that we will have no obligation to maintain any such information in our databases or to forward any such information to you or to any third party. Sections 1 and 3 through 17 will survive the termination or expiration of these Terms for any reason.
YOU WAIVE AND HOLD US AND OUR PARENT, SUBSIDIARIES, AFFILIATES AND OUR AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, CONTRACTORS, LICENSORS, LICENSEES, SUPPLIERS, AND SUCCESSORS HARMLESS FROM ANY AND ALL CLAIMS RESULTING FROM ANY ACTION TAKEN BY US AND ANY OF THE FOREGOING PARTIES RELATING TO ANY INVESTIGATIONS BY EITHER US OR SUCH PARTIES OR BY LAW ENFORCEMENT AUTHORITIES.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR ACCESS TO AND USE OF THE APP IS AT YOUR SOLE RISK, AND THAT THE APP IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WE, OUR SUBSIDIARIES, AFFILIATES, AND LICENSORS MAKE NO EXPRESS WARRANTIES AND HEREBY DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE APP AND ANY PART OF IT, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, CORRECTNESS, ACCURACY, OR RELIABILITY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE, OUR PARENT, SUBSIDIARIES, AFFILIATES, AND LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (I) YOUR ACCESS TO OR USE OF THE APP WILL MEET YOUR REQUIREMENTS; (II) YOUR ACCESS TO OR USE OF THE APP WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR; (III) USAGE DATA PROVIDED THROUGH THE APP WILL BE ACCURATE; (IV) THE APP OR ANY CONTENT, SERVICES, OR FEATURES MADE AVAILABLE ON OR THROUGH THE APP ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (V) THAT ANY DATA THAT YOU DISCLOSE WHEN YOU USE THE APP WILL BE SECURE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN CONTRACTS WITH CONSUMERS, SO SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET, AND AGREE THAT WE HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY BREACH OF SECURITY UNLESS IT IS DUE TO OUR GROSS NEGLIGENCE.
WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSSES YOU INCUR AS THE RESULT OF YOUR USE OF THE FLOW NETWORK, OR YOUR ELECTRONIC WALLET, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (I) USER ERROR, SUCH AS FORGOTTEN PASSWORDS OR INCORRECTLY CONSTRUED SMART CONTRACTS OR OTHER TRANSACTIONS; (II) SERVER FAILURE OR DATA LOSS; (III) CORRUPTED WALLET FILES; OR (IV) UNAUTHORIZED ACCESS OR ACTIVITIES BY THIRD PARTIES, INCLUDING, BUT NOT LIMITED TO, THE USE OF VIRUSES, PHISHING, BRUTE-FORCING OR OTHER MEANS OF ATTACK AGAINST THE APP, THE FLOW NETWORK, OR ANY ELECTRONIC WALLET.
DCs ARE INTANGIBLE DIGITAL ASSETS THAT EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE FLOW NETWORK. ALL SMART CONTRACTS ARE CONDUCTED AND OCCUR ON THE DECENTRALIZED LEDGER WITHIN THE FLOW NETWORK. WE HAVE NO CONTROL OVER AND MAKE NO GUARANTEES OR PROMISES WITH RESPECT TO SMART CONTRACTS.
WE ARE NOT RESPONSIBLE FOR LOSSES DUE TO BLOCKCHAINS OR ANY OTHER FEATURES OF THE FLOW NETWORK, OR ANY ELECTRONIC WALLET, INCLUDING BUT NOT LIMITED TO LATE REPORT BY DEVELOPERS OR REPRESENTATIVES (OR NO REPORT AT ALL) OF ANY ISSUES WITH THE BLOCKCHAIN SUPPORTING THE FLOW NETWORK, INCLUDING FORKS, TECHNICAL NODE ISSUES, OR ANY OTHER ISSUES HAVING FUND LOSSES AS A RESULT.
8. LIMITATION OF LIABILITY
YOU UNDERSTAND AND AGREE THAT WE, OUR PARENT, SUBSIDIARIES, AFFILIATES, LICENSORS, MEMBERS, AND JOINT VENTURERS WILL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES WHICH YOU MAY INCUR, HOWSOEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF PROFITS (WHETHER INCURRED DIRECTLY OR INDIRECTLY), LOSS OF GOODWILL OR BUSINESS REPUTATION, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, DIMINUTION OF VALUE OR ANY OTHER INTANGIBLE LOSS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
YOU AGREE THAT OUR (AND OUR PARENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, MEMBERS, AND JOINT VENTURERS’) TOTAL, AGGREGATE LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR ACCESS TO OR USE OF (OR YOUR INABILITY TO ACCESS OR USE) ANY PORTION OF THE APP, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, IS LIMITED TO THE GREATER OF THE AMOUNTS YOU HAVE ACTUALLY AND LAWFULLY PAID US UNDER THESE TERMS IN THE TWO (2) MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE.
YOU ACKNOWLEDGE AND AGREE THAT WE HAVE MADE THE APP AVAILABLE TO YOU AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE REPRESENTATIONS AND WARRANTIES, DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN, WHICH REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN US AND YOU AND FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN US AND YOU. WE WOULD NOT BE ABLE TO PROVIDE THE APP TO YOU WITHOUT THESE LIMITATIONS.
9. ASSUMPTION OF RISK
(i) Value and Volatility. The prices of collectible blockchain assets are extremely volatile and subjective and collectible blockchain assets have no inherent or intrinsic value. Fluctuations in the price of other digital assets could materially and adversely affect the value of your DCs, which may also be subject to significant price volatility. Each DC has no inherent or intrinsic value. We cannot guarantee that any DCs purchased will retain their original value, as the value of DCs is inherently subjective and factors occurring outside of the Seeds of Happiness ecosystem may materially impact the value and desirability of any particular DC.
(ii) Tax Calculations. You are solely responsible for determining what, if any, taxes apply to your DC-related transactions. We are not responsible for determining the taxes that apply to your transactions on the App.
(iii) Use of Blockchain. The App does not store, send, or receive DCs. This is because DCs exist only by virtue of the ownership record maintained on the App’s supporting blockchain in the Flow network. Any transfer of DCs occurs within the supporting blockchain in the Flow network, and not on the App.
(viii) Regulatory Uncertainty. The regulatory regime governing blockchain technologies, cryptocurrencies and tokens is uncertain, and new regulations or policies may materially adversely affect the development of the Seeds of Happiness ecosystem, and therefore the potential utility or value of your DCs.
(iv) Software Risks. Upgrades to the Flow Network, a hard fork in the Flow Network, or a change in how transactions are confirmed on the Flow Network may have unintended, adverse effects on all blockchains using the Flow Network’s NFT standard, including the Seeds of Happiness ecosystem.
You agree to hold harmless and indemnify us and our parent, subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, members, co-venturers, suppliers or partners from and against any claim, liability, loss, damage (actual and consequential) of any kind or nature, suit, judgment, litigation cost and attorneys' fees arising out of or in any way related to: (i) your breach of these Terms; (ii) your misuse of the App; (iii) your accidental, unintentional, and/or unintended use of the App; or (iv) your violation of applicable laws, rules or regulations in connection with your access to or use of the App. You agree that we will have control of the defense or settlement of any such claims.
11. EXTERNAL SITES
The App may include hyperlinks to other websites or resources (collectively, the “External Sites”), which are provided solely as a convenience to our users. We have no control over any External Sites. You acknowledge and agree that we are not responsible for the availability of any External Sites, and that we do not endorse any advertising, products or other materials on or made available from or through any External Sites. Furthermore, you acknowledge and agree that we are not liable for any loss or damage which may be incurred as a result of the availability or unavailability of the External Sites, or as a result of any reliance placed by you upon the completeness, accuracy or existence of any advertising, products or other materials on, or made available from, any External Sites.
12. FORCE MAJEURE
(i) Force Majeure Events. We will not be liable or responsible to the you, nor be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any of these Terms, when and to the extent such failure or delay is caused by or results from the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, epidemics, pandemics, including the 2019 novel coronavirus pandemic (COVID-19), tsunami, explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this agreement; (f) strikes, labour stoppages or slowdowns or other industrial disturbances; (g) shortage of adequate or suitable Internet connectivity, telecommunication breakdown or shortage of adequate power or electricity; and (h) other similar events beyond our control.
(ii) Performance During Force Majeure Events. If we suffer a Force Majeure Event, we will use reasonable efforts to promptly notify you of the Force Majeure Event, stating the period of time the occurrence is expected to continue. We will use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. We will resume the performance of our obligations as soon as reasonably practicable after the removal of the cause. In the event that our failure or delay remains uncured for a period of forty-five (45) consecutive days following written notice given by us under this Section 12, we may thereafter terminate these Terms upon fifteen (15) days' written notice.
13. CHANGES TO THE APP
We are constantly innovating the App to help provide the best possible experience. You acknowledge and agree that the form and nature of the App, and any part of it, may change from time to time without prior notice to you, and that we may add new features and change any part of the App at any time without notice.
You affirm that you are over the age of 18. The App is not intended for children under 18. If you are under the age of 18, you may not use the App. We do not knowingly collect information from or direct any of our content specifically to children under the age of 18. If we learn or have reason to suspect that you are a user who is under the age of 18, we will unfortunately have to close your account. Other countries may have different minimum age limits, and if you are below the minimum age for providing consent for data collection in your country, you may not use the App.
16. DISPUTE RESOLUTION; BINDING ARBITRATION
YOU ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
YOU HEREBY EXPRESSLY GIVE UP YOUR RIGHT TO HAVE A TRIAL BY JURY.
YOU HEREBY EXPRESSLY GIVE UP YOUR RIGHT TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS IN ANY LAWSUIT, INCLUDING, BUT NOT LIMITED TO, CLASS ACTION LAWSUITS INVOLVING ANY SUCH DISPUTE.
(i) Binding Arbitration. All disputes arising out of or in connection with this contract, or in respect of any defined legal relationship associated therewith or derived therefrom, shall be referred to and finally resolved by arbitration under the International Commercial Arbitration Rules of Procedure of the Vancouver International Arbitration Centre.
The appointing authority shall be the Vancouver International Arbitration Centre.
The case shall be administered by the Vancouver International Arbitration Centre in accordance with its Rules.
The place of arbitration shall be Vancouver, British Columbia, Canada.
(ii) Arbitration Fees. Each party will cover its own fees and costs associated with the arbitration proceedings; however, if the arbitrator finds that you cannot afford to pay the fees and costs reasonably associated with the arbitration proceedings, we will pay them for you.
(iii) Award Enforcement. The award of the arbitrator will be final and binding, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The parties agree that they will not appeal any arbitration decision to any court.
(iv) Our Equitable Remedies. Notwithstanding the foregoing, we may seek and obtain injunctive relief in any jurisdiction in any court of competent jurisdiction, and you agree that these Terms are specifically enforceable by us through injunctive relief and other equitable remedies without proof of monetary damages.
(ii) No Third-Party Beneficiaries. These Terms do not and are not intended to confer any rights or remedies upon any person or entity other than you.
(iii) Interpretation. The language in these Terms will be interpreted as to its fair meaning, and not strictly for or against any party.
(iv) Severability. Should any part of these Terms be held invalid, illegal, void or unenforceable, that portion will be deemed severed from these Terms and will not affect the validity or enforceability of the remaining provisions of these Terms.
(v) No Waivers. Our failure or delay to exercise or enforce any right or provision of these Terms will not constitute or be deemed a waiver of future exercise or enforcement of such right or provision. The waiver of any right or provision of these Terms will be effective only if in writing and signed for and on behalf of us by a duly authorized representative.
(vi) Governing Law. All matters arising out of or relating to these Terms will be governed by and construed in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein without giving effect to any choice or conflict of law provision or rule (whether of the Province of British Columbia or any other jurisdiction).
(vii) Venue. Subject to Section 16 of these Terms, any legal action or proceeding arising under these Terms will be brought exclusively in the Supreme Court of the Province of British Columbia located in Vancouver, British Columbia, and we and you irrevocably consent and attorn to the personal jurisdiction and venue there.
(viii) Notices. We may provide you with any notices (including, without limitation those regarding changes to these Terms) by email or postings on the App. By providing us with your email address, you consent to our using the email address to send you any notices. Notices sent by email will be effective when we send the email, and notices we provide by posting will be effective upon posting. It is your responsibility to keep your email address current.
(ix) Assignment. You may not assign any of your rights or obligations under these Terms, whether by operation of law or otherwise, without our prior written consent. We may assign our rights and obligations under these Terms in our sole discretion to an affiliate, or in connection with an acquisition, sale or merger.