Last Updated: November 13, 2021
MerryNFTs are designed to provide access to benefits and opportunities, and may even include special experiences that are linked to individual MerryNFTs. These benefits and opportunities are intended to be defined more clearly in the future and will change over time.
Due to the complexity of some of the offerings, we may capture information regarding these offerings in a separate agreement, the Merry Modz Experience Terms, which will be posted on the Site in the near future, so please visit this site regularly for the Experience Terms while you hold the MerryNFTs. To the extent there is a conflict between these Terms and any forthcoming Experience Terms, the Experience Terms control.
These Terms are entered into between you and Merry Modz, LLC (“Company,” “we,” or “us”).
THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM CAREFULLY.
1. Reviewing and Accepting These Terms
Please read these Terms carefully, as they set out your rights and responsibilities when you use this Site to buy MerryNFTs (the “Services”). When each MerryNFT is sold for the first time, the agreement for sale is between the Company and the initial purchaser. MerryNFTs may be sold by you to subsequent purchasers through any third-party site or platform that supports the sale of Ethereum-based non-fungible tokens (“NFTs”).
Access to the MerryNFTs is maintained on the Ethereum blockchain. As such, the Company does not maintain the MerryNFTs on this Site and, aside from transferring control of the MerryNFT to the initial purchaser of the MerryNFT, the Company has no control over the transfer, storage or ownership of the MerryNFT.
By agreeing to these Terms, you hereby certify that you are at least 18 years of age. If you do not agree to these Terms, you must not access or use the Site.
We reserve the right to change or modify these Terms at any time and in our sole discretion. You agree and understand that by accessing or using the Site following any change to these Terms, you are agreeing to the revised Terms and all of the terms incorporated therein by reference.
2. Connecting A Cryptocurrency Wallet Is Required to Purchase a MerryNFT
When you connect your cryptocurrency wallet to the Site using a trusted service provider of your choice such as MetaMask or Wallet Connect, you accept and agree to be bound and abide by these Terms and all of the terms incorporated herein by reference.
You acknowledge and agree that by linking your cryptocurrency wallet, you understand that you are solely responsible for maintaining the security of your wallet and your control over any wallet-related authentication credentials, private or public cryptocurrency keys, NFTs or cryptocurrencies that are stored in or are accessible through your wallet. Any unauthorized access to your cryptocurrency wallet by third parties could result in the loss or theft of MerryNFTs and/or funds held in your wallet and any associated wallets, including any linked financial information such as bank account(s) or credit card(s). We are not responsible for managing and maintaining the security of your cryptocurrency wallet nor for any unauthorized access to or use of your cryptocurrency wallet. If you notice any unauthorized or suspicious activity in your cryptocurrency wallet that seems to be related to this Site, please notify us immediately.
3. Intellectual Property
The trademarks, service marks, and logos used and displayed in the MerryNFTs may be registered and/or unregistered trademarks or service marks of ours (collectively, the “Trademarks”). Nothing herein should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks.
In particular, use of the Trademarks as part of a link to or from any third-party site is prohibited unless approved in advance by us in writing. All goodwill generated from the use of the Trademarks inures to solely our benefit.
4. Sale Stages and MerryNFT Availability
There is limited availability of 10,000 MerryNFTs.
In each case, a small number of the MerryNFTs will not be available for purchase because they are reserved by us for use as promotional items and gifts. We will not sell any of the reserved MerryNFTs for profit to the company and all reserved MerryNFTs will be gifted or awarded to or won by individuals for their personal use.
Our sale of the MerryNFTs occurs in two stages. If all MerryNFTs are sold during the first stage, then the sale of MerryNFTs will end and the next stage of sale will not occur.
The first sales stage is called the “Pre-Sale” and is when Legendary and/or Heroic Founder’s Key holders can mint a maximum of one MerryNFT per Legendary and/or Heroic Founder’s Key. During the Pre-Sale, each Legendary and/or Heroic Key Holder is entitled to one mint without charge, excluding transaction fees on the Ethereum blockchain, or Key Holders may choose to pay the full mint price plus transaction fees on the Ethereum blockchain [and save the previously mentioned available mint without charge, to the extent not already used, for the Public Sale or another offering]. Relentless Founder’s Key holders may not participate in the Pre-Sale. The Pre-Sale sales stage starts on November 15, 2021 at 7PM PT and will last for 13 hours, 59 minutes, 59 seconds, unless all Merry NFTs are sold before the expiration of the PreSale sales period, in which case, the Pre-Sale sales period will end and there will be no Public Sale sales period.
The second sales stage is called the “Public Sale” and starts on November 16, 2021 at 9AM PT, unless all Merry NFTs are sold during the Pre-Sale sales stage. At this time all members of the public, as well as individuals holding any of the Founder’s Keys, may purchase MerryNFTs. The Public Sale will continue for as long as Merry NFTs are available for purchase or at any time Impact Theory chooses to stop the Public Sale. Should Impact Theory choose to stop the Public Sale before all Merry NFTs have been sold, then Impact Theory would destroy the remaining supply of Merry NFTs and permanently remove them from ever being sold. There are limitations on the number of Merry NFTs that may be purchased during the Public Sale. Legendary and Heroic Founder’s Key holders with less than or equal to 15 Legendary and/or Heroic Founder’s Keys total in a single crypto wallet can mint a maximum of 15 MerryNFTs, adjusting for any mints (whether or not paid for) that were used in the Pre-Sale. Legendary and Heroic Founder’s Key holders with 16 or more Legendary and/or Heroic Founder’s Keys in a single crypto wallet can mint an amount of MerryNFTs that is equal to the total number of Legendary and/or Heroic Keys in that wallet, again adjusting for any mints (whether or not paid for) that were used in the Pre-Sale. The public (i.e., non-Founder’s Key holders) can mint a maximum of 15 MerryNFTs.
For all buyers of MerryNFTs, at each sales stage, the price of MerryNFTs will remain fixed at the Mint Price throughout the Pre-Sale and, if applicable, the Public Sale.
Please note that it is possible that due to technology and other circumstances, any sales stage may be shorter than the time period identified.
5. Merry Announcement
On or around December 17, 2021, all purchasers of MerryNFTs should visit the Site to read a Merry Announcement regarding a special opportunity available to such purchasers.
6. Terms of Sale
By placing an order on the Site to purchase a MerryNFT (whether the Launch Edition or the Upgrade Edition, or both), you agree that you are submitting a binding offer to purchase an MerryNFT or other Service. If you are the initial purchaser of a MerryNFT or you are purchasing a Service, then all amounts due are to be paid to Merry Modz, LLC.
If you are not the initial purchaser of a MerryNFT, then amounts may be paid to the-then holder of the MerryNFT. You also acknowledge and agree that Company receives [5%] of every subsequent sale of a MerryNFT (“Royalty”). For example, if you are the initial purchaser, and you sell a MerryNFT for $100 to a subsequent purchaser, $5 will automatically be transferred to Company and you will receive $95 (minus any applicable transaction or other third-party fees). Company has the right to collect Royalties for MerryNFT sales in perpetuity and may use those funds in any manner Company sees fit.
As such, if you sell a MerryNFT on a third-party NFT marketplace, you agree to include a statement substantially similar to the following in the description of the MerryNFT:
“5% Royalty Applies. See Founder’s Key NFT Terms for details.”
In addition, when you buy a MerryNFT on this Site, you agree to pay all applicable fees associated with the transaction and you authorize us to automatically charge and collect such fees from your payment. We will always display a breakdown of any transaction or other fees prior to your purchase of a MerryNFT.
No refunds are permitted except with respect to any statutory warranties or guaranties that cannot be excluded or limited by law.
7. Digital Millennium Copyright Act Notice
Other than Site Content, all other trademarks, product names, and logos on the Site are the property of their respective owners and may not be copied, imitated, or used, in whole or in part, without the permission of the applicable trademark holder. Without limiting the foregoing, if you believe that third-party material hosted on the Site infringes your copyright or trademark rights, please file a notice of infringement by contacting the Copyright Agent listed below.
We respect the intellectual property rights of others and attempt to comply with all relevant laws. We will review all claims of copyright infringement received and remove any content deemed to have been posted or distributed in violation of any such laws.
Our designated agent under the Digital Millennium Copyright Act (the “Act”) for the receipt of any Notification of Claimed Infringement which may be given under that Act is as follows:
Directed to Copyright Agent at
- 9903 Santa Monica Blvd. #1107, Beverly Hills, CA 90212or
If you believe that your work has been copied on the Site in a way that constitutes copyright infringement, please provide our agent with notice in accordance with the requirements of the Act, including (i) a description of the copyrighted work that has been infringed and the specific location on the Site where such work is located; (ii) a description of the location of the original or an authorized copy of the copyrighted work; (iii) your address, telephone number and e-mail address; (iv) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; (v) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (vi) an electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest
Counter-Notification Procedures. If you believe that material you posted on the Site was removed or access to it was disabled by mistake or misidentification, you may file a counter-notification with us (a “Counter-Notice”) by submitting written notification to our Copyright Agent.
Pursuant to the Act, the Counter-Notice must include substantially the following: (i) your physical or electronic signature; (ii) an identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access disabled; (iii) adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address); (iv) a statement under penalty of perjury by you that you have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; (v) a statement that you will consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or if you reside outside the United States for any judicial district in which the Site may be found) and that you will accept service from the person (or an agent of that person) who provided the Site with the complaint at issue.
The Act allows us to restore the removed content if the party filing the original notice does not file a court action against you within ten business days of receiving the copy of your Counter-Notice.
Please be aware that if you knowingly materially misrepresent that material or activity on the Site was removed or disabled by mistake or misidentification, you may be held liable for damages (including costs and attorneys' fees) under Section 512(f) of the Act.
8. Intellectual Property in MerryNFTs
With respect to the MerryNFTs, each purchaser of a MerryNFT is granted an exclusive, limited license to such MerryNFT and its content to access, use, or store such MerryNFT and its content solely for their personal, non-commercial purposes. MerryNFTs are a limited-edition digital creation based upon content that may be trademarked and/or copyrighted by Company. Unless otherwise specified, your purchase of a MerryNFT does not give you the right to publicly display, perform, distribute, sell or otherwise reproduce the MerryNFT or its content for any commercial purpose. You further agree that you are not receiving any copyright interest in the MerryNFT or its content, and indeed, you agree that Company may sell, license, modify, display, broadcast and create derivative works based upon your MerryNFT or its content. Any commercial exploitation of the MerryNFT could subject you to claims of copyright infringement. If you sell a MerryNFT through the Site, you agree that you will not have any claims against us for any breach of these Terms by a purchaser. If you purchase a MerryNFT on the Site, you hereby agree to hold us and the seller of such MerryNFT harmless from and against any and all violations or breaches of these Terms.
If you are unsure whether a contemplated use of the Site Content or a MerryNFT and its content would violate these Terms, please contact us at email@example.com.
We are not responsible for determining the withholding, sales, use, value added, transfer or other taxes, together with any interest and penalties imposed with respect thereto (“Taxes”), that may apply to transactions on this Site. You agree that you are solely responsible for determining what, if any, Taxes, duties, and assessments (except taxes on our net income) now or hereafter claimed or imposed by any governmental authority associated with purchases or sales of MerryNFTs or your use of the Site.
Unless otherwise indicated on an applicable invoice, amounts due on this Site are exclusive of sale, use, value added or similar Taxes (“Sales Taxes”). This means that Sales Taxes become your sole responsibility. Upon our request, you agree to promptly provide a properly executed Internal Revenue Service Form W-9 or applicable Internal Revenue Service W-8 and any other tax form that is reasonably required by us so to comply with our tax reporting obligations.
By agreeing to these Terms, you agree you: (a) will pay or reimburse us for all Taxes and Sales Taxes 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, Sales Taxes, duties or assessments from payments made to us pursuant to these Terms.
, which is incorporated into these Terms.
You agree and understand that we may modify part or all of this Site or the Services without notice, and that we may update these Terms and any other document incorporated by reference therein at any time, and we have no obligation to inform you of changes to the Terms.
We reserve the right to discontinue, suspend or terminate support for the added experiences and opportunities, including the Right to Partner, that are described in the Experience Terms at any time. We will provide notice of such discontinuation, suspension or termination in advance to holders of the MerryNFTs who have provided contact information to us whenever possible.
13. Risks Inherent In Blockchain Transactions and MerryNFTs
Please note the following risks in accessing, purchasing, selling or using MerryNFTs, the purchase of which is intended to be primarily for utility and engagement:
- The price and liquidity of blockchain assets, including MerryNFTs, are extremely volatile and may be subject to large fluctuations
- Fluctuations in the price of other digital assets could materially and adversely affect MerryNFTs, which may also be subject to significant price volatility
- Legislative and regulatory changes or actions at the state, federal, or international level may adversely affect the use, transfer, exchange, and value of MerryNFTs.
- MerryNFTs are not legal tender and are not backed by any government.
- MerryNFTs are not securities and may lose value.
- Transactions in MerryNFTs may be irreversible, and, accordingly, losses due to fraudulent or accidental transactions may not be recoverable.
- Some transactions in MerryNFTs shall be deemed to be made when recorded on a public ledger, which is not necessarily the date or time that you initiated the transaction.
- The value of MerryNFTs may be derived from the continued willingness of market participants to exchange fiat currency or digital assets for MerryNFTs, which may result in the potential for permanent and total loss of value of a particular MerryNFT should the market for that MerryNFT disappear.
- At times, due to the underlying blockchain software or network connections, transactions may fail and you may not successfully purchase a MerryNFT. To the extent transaction fees, including gas, have already been charged and deducted from your cryptocurrency wallet, you agree that we have no obligation to refund such transaction fees and accept the risk of this kind of failure by placing an order
You acknowledge that the NFT ecosystem is in its infancy and as such, there could be risks that are unknown to us at this time. You agree and understand that you are solely responsible for determining the nature, potential value, suitability, and appropriateness of these risks for yourself, and that we do not give advice or recommendations regarding MerryNFTs, including the suitability and appropriateness of, and investment strategies for, MerryNFTs. You agree and understand that you access and use this Site at your own risk; however, this brief statement does not disclose all of the risks associated with MerryNFTs and other digital assets. You agree and understand that we will not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience when using MerryNFTs, however caused, including when you are linking your cryptocurrency wallet to our Site.
EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY MERRY MODZ, LLC, THE SITE AND ANY SITE CONTENT CONTAINED THEREIN, AND ANY AND ALL MERRYNFTS LISTED THEREIN ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. WE (AND OUR SUPPLIERS AND AFFILIATES) MAKE NO WARRANTY THAT THE SITE WILL (1) MEET YOUR REQUIREMENTS; (2) BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (3) BE ACCURATE, RELIABLE, COMPLETE, LEGAL, OR SAFE.
WE WILL NOT BE LIABLE FOR ANY LOSS OF ANY KIND FROM ANY ACTION TAKEN OR TAKEN IN RELIANCE ON MATERIAL OR INFORMATION, CONTAINED ON THE SITE. WE DO NOT REPRESENT OR WARRANT THAT SITE CONTENT IS ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE.
WHILE WE ATTEMPT TO MAKE YOUR ACCESS TO AND USE OF THE SITE AND SITE CONTENT SAFE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT THE SITE, SITE CONTENT, ANY MERRYNFTS LISTED ON OUR SITE OR OUR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE CANNOT GUARANTEE THE SECURITY OF ANY DATA THAT YOU DISCLOSE ONLINE. YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET AND WILL NOT HOLD US RESPONSIBLE FOR ANY BREACH OF SECURITY UNLESS IT IS DUE TO OUR GROSS NEGLIGENCE.
WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSS AND TAKE NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO YOU FOR, ANY USE OF MERRYNFTS INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (A) USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED ADDRESSES; (B) SERVER FAILURE OR DATA LOSS; (C) CORRUPTED CRYPTOCURRENCY WALLET FILES; (D) UNAUTHORIZED ACCESS TO APPLICATIONS OR THE SITE; (E) ANY UNAUTHORIZED THIRD PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTE FORCING OR OTHER MEANS OF ATTACK AGAINST THE SITE OR MERRYNFTS.
MERRYNFTS ARE INTANGIBLE DIGITAL ASSETS. THEY EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE ETHEREUM NETWORK. ANY TRANSFER OF TITLE THAT MIGHT OCCUR IN ANY UNIQUE DIGITAL ASSET OCCURS ON THE DECENTRALIZED LEDGER WITHIN THE ETHEREUM PLATFORM IS NOT IN OUR CONTROL. WE DO NOT GUARANTEE THAT WE OR OUR SUPPLIERS OR AFFILIATES CAN EFFECT THE TRANSFER OF TITLE OR RIGHT IN ANY MERRYNFT .
We are not responsible for sustained casualties due to vulnerability or any kind of failure, abnormal behavior of software (e.g., wallet, smart contract), blockchains or any other features of the MerryNFTs. We are not responsible for casualties due to late report by developers or representatives (or no report at all) of any issues with the blockchain supporting MerryNFTs including forks, technical node issues or any other issues having fund losses as a result.
Nothing in these Terms shall exclude or limit liability of either party for fraud, death or bodily injury caused by negligence, violation of laws, or any other activity that cannot be limited or excluded by legitimate means.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN CONTRACTS WITH CONSUMERS, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
15. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM THESE TERMS, THE SITE, SITE CONTENT, THE SERVICES OR THIRD PARTY SITES AND PRODUCTS, OR FOR ANY DAMAGES RELATED TO LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, OR LOSS OF DATA, WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITE, SITE CONTENT, THE SERVICES OR THIRD PARTY SITES AND PRODUCTS ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA RESULTING THEREFROM.
IF YOU HAVE AN ISSUE WITH ANY INTERACTION OR TRANSACTION THAT YOU ENTERED INTO WITH ANOTHER USER OF THE SITE, YOU MUST ADDRESS THAT ISSUE DIRECTLY WITH THE OTHER USER AND NOT WITH US – WE HAVE NO OBLIGATION TO ASSIST IN ANY OF THESE DISPUTES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL OUR MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, THE ACCESS TO AND USE OF THE SITE, SITE CONTENT, KEYNFTS, OR ANY SERVICES PURCHASED ON THE SITE EXCEED THE DIRECT DAMAGES IN EXCESS OF AN AMOUNT EQUAL TO THE FEES THAT WE HAVE COLLECTED FROM YOU IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE CLAIM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
You agree to defend, indemnify, and hold us and our officers, directors, employees, successors, licensees, and assigns harmless from and against any claims, actions, or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from (i) breach of any of your representations, warranties or other obligations under these Terms; (ii) your misuse of the Site; (iii) your gross negligence or willful misconduct; (iv) any transaction that you enter into with another user of the Site; or (v) any actual or alleged infringement or misappropriation of third party intellectual property rights related to content you provide to us. We shall provide notice to you of any such claim, suit, or proceeding and shall assist you, at your expense, in defending any such claim, suit, or proceeding. We reserve the right, at your expense, to assume the exclusive defense and control of any matter that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
17. Governing Law
These Terms, your rights and obligations, and all actions contemplated by, arising out of or related to these Terms shall be governed by the laws of the State of California, as if these Terms are a contract wholly entered into and wholly performed within the State of California. YOU UNDERSTAND AND AGREE THAT YOUR USE OF THIS SITE AS CONTEMPLATED BY THESE TERMS SHALL BE DEEMED TO HAVE OCCURRED IN THE STATE OF CALIFORNIA AND BE SUBJECT TO THE INTERNAL LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO ITS CONFLICTS OF LAWS PROVISIONS.
18. BINDING ARBITRATION AGREEMENT
This Section 18 constitutes the “Arbitration Agreement.”
A. Subject to sub-section B below, in the event of a dispute arising under or relating to these Terms (“Dispute”), either party may elect to finally and exclusively resolve the dispute by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other party. IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All Disputes will be resolved before a neutral arbitrator selected jointly by the parties, whose decision will be final, except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by JAMS pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website www.jamsadr.com.
Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in the United States county where you reside. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. Nothing in these Terms will prevent us from seeking injunctive relief in any court of competent jurisdiction as necessary to protect our proprietary interests.
B. CLASS ACTION WAIVER
You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
C. SEVERABILITY OF ARBITRATION AGREEMENT.
Except as provided herein, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect
D. SURVIVAL OF ARBITRATION AGREEMENT.
This Arbitration Agreement will survive the termination of your relationship with us.
19. Severability of Terms
If any term, clause, or provision of these Terms is held invalid or unenforceable, then that term, clause, or provision shall be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, cause, or provision, or any other terms, clause, or provision of these Terms.
20. Entire Agreement
These Terms comprise the entire agreement between you and us relating to your access to and use of the Site, Site Content and any MerryNFTs you have purchased, and supersede any and all prior discussions agreements, and understandings of any kind. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.