CHARGED PARTICLES SITE POLICES AND TERMS OF SERVICE
Last Updated: February 16, 2021
THESE TERMS SET FORTH THE LEGALLY BINDING TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SITE OR PLATFORM. BY ACCESSING OR USING THE SITE, SERVICES, OR SMART CONTRACTS YOU ARE ACCEPTING THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT), AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT). IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THESE TERMS, YOU ARE PROHIBITED FROM ACCESSING, USING, OR TRANSACTING ON THE SITE OR PLATFORM. YOU FURTHER REPRESENT AND WARRANT THAT YOU ARE OTHERWISE LEGALLY PERMITTED TO USE THE SERVICES IN YOUR JURISDICTION AND THAT THE COMPANY IS NOT LIABLE FOR YOUR COMPLIANCE WITH SUCH APPLICABLE LAWS. NOTICE REGARDING FUTURE CHANGES TO TERMS
The Company may make changes to the Terms at any time. Any changes made by the Company will be effective immediately when a revised version of the Terms is posted on the Site. The “Last Updated” date above will tell you when the Terms were last revised. By continuing to use the Site and/or the Platform after that date, you agree to the changes. Any changes may be deemed to be retroactive at the sole discretion of the Company.
NOTICE REGARDING ARBITRATION AND CLASS ACTION WAIVER
These Terms contain an arbitration agreement and class action waiver, whereby you agree that any dispute or claim relating in any way to your use of the Site, or to the Platform or services sold, distributed, issued, or serviced by or through the Site, will be resolved by binding, individual arbitration, rather than in court, and you waive your right to participate in a class action lawsuit or class-wide arbitration. This is explained in greater detail below in the section titled “Arbitration.”
Accessing the Platform through a Web3 wallet
To most access and use the Platform, Users must utilize an Ethereum/Web3 such as MetaMask. MetaMask (and similar Web3 wallets), is an electronic wallet, which allows Users to purchase cryptocurrencies, store, and engage in transactions on the Ethereum Blockchain (a “Wallet”). Users will not be able to engage in any transactions on the Platform other than through a Wallet the User controls. The Platform will only recognize you as a User, and Users will only be able to interact with the Platform, if the User’s Wallet is unlocked and connected to the Platform. There is no other way to sign up as a User, or to interact directly with the Platform.
Transactions Are Recorded on the Public Ethereum Blockchain
Transactions that take place on the Platform are managed and confirmed via the Ethereum blockchain. The User understands that its Ethereum public address will be made publicly visible whenever it engages in a transaction on the Platform. We neither own nor control MetaMask, or any other Wallet, the Ethereum network, or any other third-party site, product, or service that Users might access, visit, or use for the purpose of enabling the user to access and utilize the various features of the Platform. We will not be liable for the acts or omissions of any such third parties, nor will we be liable for any damage that a User may suffer as a result of its transactions or any other interaction with any such third parties.
All User transactions on the Platform, including without limitation Minting, Charging, purchasing, offering, or confirming, are facilitated by Smart Contracts existing on the Ethereum network. The Ethereum network requires the payment of a transaction fee (a “Gas fee”) for every transaction that occurs on the Ethereum network, and thus every transaction occurring on the Platform. The value of the Gas Fee changes, often unpredictably, and is entirely outside of the control of the Company or the Platform. User acknowledges that under no circumstances will a contract, agreement, offer, sale, bid, or other transaction on the Platform be invalidated, revocable, retractable, or otherwise unenforceable on the basis that the Gas Fee for the given transaction was unknown, too high, or otherwise unacceptable to User.
The Platform Is Property of Company
User acknowledges and agrees that Company (or, as applicable, our licensors) own all legal right, title and interest in and to all elements of the Platform. The 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 (collectively, the “Company Materials”) are owned by Charged Particles, and are protected by copyright, trade dress, patent, and trademark laws, international conventions, other relevant intellectual property and proprietary rights, and applicable laws. All Company Materials are the copyrighted property of Charged Particles or its licensors, and all trademarks, service marks, and trade names contained in the Company Materials are proprietary to Charged Particles or its licensors. Except as expressly set forth herein, User’s use of the Platform does not grant User ownership of or any other rights with respect to any content, code, data, or other materials that User may access on or through the Platform. Company reserves all rights in and to the Company Materials not expressly granted to Users in the Terms.
The Company May Use and Share All User Feedback
Users may choose to submit comments, bug reports, ideas or other feedback about the Platform, including without limitation about how to improve the Platform (collectively, “Feedback”). By submitting any Feedback, You agree that Company is free to use such Feedback at its 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 Company a perpetual, irrevocable, non-exclusive, worldwide license under all rights necessary for Company to incorporate and use Your Feedback for any purpose.
Company is a Non-Custodial Service Provider
The Smart Contracts and the Site facilitate Purchasers’ purchase of NFTs, Artists’ Minting of NFTs and Users’ Charging / Energizing of NFTs but Company and its affiliates, the Platform, and the Smart Contracts are not the custodians of any NFTs Minted, Energized / Charged, bought, or sold on the Platform. The User understands and acknowledges that the Smart Contracts do not give Company custody, possession, or control of any NFT or cryptocurrency at any time for any the purpose. You affirm that you are aware and acknowledge that Company is a non-custodial service provider and has designed this Platform to be directly accessible by the Users without any involvement or actions taken by Company or any third-party.
The Platform or Site may include hyperlinks to other websites or resources (collectively, “External Sites”), which are provided solely as a convenience for the Users. Company has no control over any External Sites. You acknowledge and agree that Company is not responsible for the availability of any External Sites, and that Company does not endorse any advertising, products, or other materials on or made available from any External Sites. Furthermore, You acknowledge and agree that Company is 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 User upon the completeness, accuracy or existence of any advertising, products or other materials on, or made available from, any External Sites.
USER ACCOUNT AND SECURITY
User is Responsible for Account Security
User is solely responsible for the security of its account and its Wallet. User agrees to undertake to maintain at all times adequate security and control of all of User account details, passwords, personal identification numbers or any other codes that User utilizes to access the Platform or the Services. User must notify Company immediately of any breach of security, loss, theft or unauthorized use of User’s username, account, or security information at [email protected]
Company May Suspend Hacked Accounts
Company reserves the right to terminate, suspend or restrict User’s access to any Account(s) if there is reasonable suspicion by us that the person logged into your Account(s) is not you or if we suspect that the Account(s) have been or will be used for any illegal, fraudulent, or unauthorized purposes. Under no circumstances shall Company or indemnified persons in accordance with these Terms be responsible or liable for any direct or indirect losses (including loss of profits, business or opportunities), damages or costs suffered by you or any other person or entity due to any such termination, suspension or restriction of access to any Account(s).
User May Not Use the Platform, Site, or Services for Illegal Activity
User agrees that User is responsible for its conduct while accessing or using the Platform, and for any consequences thereof. User agrees to use the Platform only for purposes that are legal, proper and in accordance with these Terms and any applicable laws or regulations. Company grants User a limited, non-exclusive, non-transferable, revocable license to access and use the Site and Content. Our grant of such license is subject to the following conditions:
User may not, and may not allow any third party to: (i) Mint, send, upload, distribute, or disseminate any unlawful, defamatory, harassing, abusive, fraudulent, obscene, or otherwise objectionable content; (ii) undertake any unlawful activity which would violate, or assist in violation of, any law, statute, ordinance, or regulation, sanctions program administered in any relevant country, including but not limited to the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”), or which would involve proceeds of any unlawful activity; (iii) distribute viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or any other items of a destructive or deceptive nature; (iv) impersonate another person (via the use of an email address or otherwise); (v) upload, post, transmit or otherwise make available through the Platform any content that infringes the intellectual proprietary rights of any person; (vi) operate to defraud Company, other users, or any other person or provide false, inaccurate or misleading information; (vii) use the Platform to violate the legal rights (such as rights of privacy and publicity) of others; (viii) engage in, promote, or encourage illegal activity (including, without limitation, terrorism, tax evasion, and/or money laundering); (ix) interfere with another individual’s or entity’s access to or use of the Platform; defame, abuse, extort, harass, stalk, threaten or otherwise violate or infringe the legal rights (such as, but not limited to, rights or privacy, publicity and intellectual property) of others; incite, threaten, facilitate, promote, or encourage hate, racial intolerance or violent acts against others; harvest or otherwise collect information from the Platform about others, including without limitation private Wallet information, email addresses, without proper consent; (x) exploit the Platform for any unauthorized commercial purpose; (xi) modify, adapt, translate, or reverse engineer any portion of the Platform; (xii) remove any copyright, trademark or other proprietary rights notices contained in or on the Platform or any part of it; (xiii) reformat or frame any portion of the Platform; (xiv) display any content on the Platform that contains any hate-related or violent content or contains any other material, products or services that violate or encourage conduct that would violate any criminal laws, any other applicable laws, or any third party rights; (xv) use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Platform or the content posted on the Platform, or to collect information about its users for any unauthorized purpose; (xvi) create user accounts by automated means or under false or fraudulent pretenses; (xvii) access or use the Platform for the purpose of creating a product or service that is competitive with any of our products or services; or (xvii) User agrees not to utilize the Services to engage in any lottery, bidding fee auctions, contests, sweepstakes, or other games of chance
User is 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, associated with User’s use of the Platform (including, without limitation, any taxes that may become payable as the result of your ownership, transfer, purchase, sale, or creation of any NFT). User agrees that User is solely responsible for determining what, if any, taxes apply to User’s transactions on the Platform, and Site or through use of the Services. Neither Company nor any other Company affiliate is responsible for determining the taxes that apply to User’s transactions.
Company grants User a limited, non-exclusive, non-transferable, revocable license to create a text hyperlink to the Site for noncommercial purposes, provided that such link does not portray Company, its affiliates, or the Services in a false, misleading, derogatory, or otherwise defamatory manner, and provided further that the linking site does not contain any adult or illegal materials, or other materials that is offensive, harassing, or otherwise objectionable.
User Must Be Eighteen Years Old
User affirms that User is over the age of 18, as the Platform is not intended for children under 18. IF USER IS 13 OR OLDER BUT UNDER THE AGE OF 18, OR THE LEGAL AGE OF MAJORITY WHERE USER RESIDES IF THAT JURISDICTION HAS AN OLDER AGE OF MAJORITY, THEN USER AGREES TO REVIEW THESE TERMS WITH USER’S PARENT OR GUARDIAN TO MAKE SURE THAT BOTH USER AND USER’S PARENT OR GUARDIAN UNDERSTAND AND AGREE TO THESE TERMS. USER AGREES TO HAVE USER’S PARENT OR GUARDIAN REVIEW AND ACCEPT THESE TERMS ON USER’S BEHALF. IF YOU ARE A PARENT OR GUARDIAN AGREEING TO THE TERMS FOR THE BENEFIT OF A CHILD OVER 13, THEN YOU AGREE TO AND ACCEPT FULL RESPONSIBILITY FOR THAT CHILD’S USE OF THE PLATFORM, INCLUDING ALL FINANCIAL CHARGES AND LEGAL LIABILITY THAT HE OR SHE MAY INCUR.
CONTENT AND THE PLATFORM
All NFTs on the Platform are represented by a unique cryptographic token exclusively Minted by other Users. Each NFT on the Platform is Minted or Charged by using the Charged Particles Smart Contracts. All NFTs Minted or Charged on the Platform are forever tracked and stored on the Ethereum blockchain.
NFT Creators If User is a NFT Creator, User hereby grants Company the right to use User’s name and image for marketing or promotional purposes. If User is a NFT Creator, User agrees that Company may use or modify images from the NFTs that User creates for marketing or promotional purposes. User also agrees that Company can use User’s biography and other public information about User to promote the NFTs that User creates. User Agrees to Mint only “Original” Works
By Minting an NFT on the Platform, Users expressly represent and warrant that their NFT Creation is an original work. Users are prohibited from Minting Works consisting of unlicensed or unauthorized copyrighted content, including any imagery, design, audio, video, human likeness, or other unoriginal content not created by the User, not authorized for use by the User, not in the public domain, or otherwise without a valid claim of fair use.
Users Must Have Authority to Mint, Display, and Sell the Work
User expressly represents and warrants that works Minted on the Platform contain only original artistic content otherwise authorized for use by the NFT Creator. To the extent a Work contains unoriginal content, the Minting NFT Creator further represents and warrants that it has permission to incorporate the unoriginal content. NFT Creator represents and warrants that the display or performance of the NFT Creation for sale on the Platform is not a violation of any agreement, contract, or obligation owed to a third-party.
NFT Creator Indemnifies and Releases Company
NFT Creator hereby agrees to indemnify Company and be held liable for any claim against Company arising out of the NFT Creator’s breach of these Terms. NFT Creator hereby releases and forever discharges Company from any damages or causes of action resulting from a sale of any of the NFT Creator’s listed NFT Creations occurring after the NFT Creator’s breach of these Terms.
As a NFT Creator, User understands and agrees that:
User is personally responsible for the accuracy and content of any and all User NFT Creations;
Any NFT Creation that violates any of Company’s policies may be obfuscated or deleted by Company, in its sole discretion;
User will not infringe upon the intellectual property of others; and
Company Intellectual Property
Unless otherwise indicated in writing by us, the Site, all content, and all other materials contained therein, including, without limitation, the Charged Particles logo, and all designs, text, graphics, pictures, information, data, software, sound files, other files, and the selection and arrangement thereof (collectively, “Charged Particles Content”) are the proprietary property of Charged Particles or our affiliates, licensors, or users, as applicable. The Charged Particles logo and any Charged Particles product or service names, logos, or slogans that may appear on the Site or elsewhere are trademarks of Charged Particles or our affiliates, and may not be copied, imitated or used, in whole or in part, without our prior written permission. You may not use any Charged Particles Content to link to the Site or Content without our express written permission. You may not use framing techniques to enclose any Charged Particles Content without our express written consent. In addition, the look and feel of the Site and Content, including without limitation, all page headers, custom graphics, button icons, and scripts constitute the service mark, trademark, or trade dress of Charged Particles and may not be copied, imitated, or used, in whole or in part, without our prior written permission. Notwithstanding anything to the contrary herein, you understand and agree that you shall have no ownership or other property interest in your account, and you further agree that all rights in and to your account are and shall forever be owned by and inure to the benefit of Charged Particles. Non-Company Intellectual Property
Outside the Company 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 on the Platform or Site infringes your copyright or trademark rights, please file a notice of infringement by contacting Company Copyright Agent at [email protected] In such event, please provide Company Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on Site of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written 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; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Company’s policy is to suspend or terminate repeat infringers. Company’s response may depend on relevant aggravating or mitigating circumstances, but generally we will terminate an account if it is the subject of three valid infringement notices.
THE CHARGED PARTICLES MARKETPLACE
The Platform facilitates a peer-to-peer digital art Marketplace where artists, collectors, and other users can sell, purchase, list for auction, and bid on NFT Creations. Users may obtain NFT Creations by purchasing them on the Charged Particles Marketplace (the “Marketplace”). Items listed for sale on the Marketplace are not offered on consignment or held in trust on behalf of any artist, collector, owner, or user.
Purchasing NFT Creations
NFT Creations are offered for sale at a price (in ETH) established solely by the NFT Creator. Purchasers may purchase a NFT Creation through the Site by sending the request amount of ETH to a Smart Contract configured to initiate a transfer of the NFT Creation.
User Transactions are Executed by Smart Contracts
All transactions on the Marketplace, including transfers, charges, offers, sales, or purchases of NFT Creations are initiated at the sole discretion of the Users. To initiate a transaction on the Marketplace, a User must voluntarily invoke one or more Smart Contract operations from an Ethereum Wallet. The Smart Contracts are configured to facilitate the execution of a voluntary User offer, an acceptance of an offer, or other confirmation to purchase, sell, Mint, or transfer a NFT Creation. The User agrees to be bound by the outcome of any Smart Contract operation by invoking, calling, requesting, or otherwise engaging with the Smart Contract, whether or not the Smart Contract behaves as the User expects.
Company is Not a Party to Marketplace Transactions
User acknowledges and agrees that the Company is not a party to any agreement or transaction between any Users involving the purchase, sale, charge, or transfer of NFT Creations on the Platform. Company reserves the right to execute Smart Contract transactions on the Marketplace as a purchaser of NFT Creations.
Prohibition Against Manipulating Market Prices
User is expressly forbidden from accepting, soliciting, offering, bidding, engaging with the Smart Contracts, or otherwise transacting on or off of the Platform with the intent to artificially devalue, inflate, or otherwise deceptively influence, misrepresent, or cause to be misrepresented the price a NFT Creation, groups of NFT Creations, or NFT Creations created by particular users.
Prohibition Against Using the Marketplace to Conceal Economic Activity
User is expressly forbidden from engaging in any transaction on the Marketplace for the purpose of concealing economic activity not relating to NFT Creation transactions. For example, and without limitation, User is forbidden from using the Marketplace to launder money, conceal or transfer proceeds relating to criminal activity, or to make payments to people for consideration other than an NFT Creation.
Agreement to Report Suspicious Market Activity
User agrees to report suspicious market activity of other users. If User suspects that one or more Charged Particles users are in violation of these Terms, User shall promptly inform the Charged Particles team at [email protected]
Violation of the Marketplace Code of Conduct May Result in Company Intervention
User agrees and acknowledges that any forbidden Marketplace conduct described herein may be a violation of federal or state law and/or these Terms. Company reserves the right to completely or partially restrict or revoke User’s access to the Site for violating these Terms.
User Releases Company from Claims Arising from Violations of the Marketplace Code of Conduct
User irrevocably releases, acquits, and forever discharges Company and its subsidiaries, affiliates, officers, and successors for and against any and all past or future causes of action, suits, or controversies arising out of another user’s violation of the Charged Particles Marketplace code of conduct.
Marketplace Prices & Fees
Secondary Market Sale
Artists receive a 10% Royalty based on the total Sale Price for Secondary Market Sales paid by
Users Agree to the Automated Collection and Disbursement of Fees by the Smart Contracts
User agrees and understands that all fees, commissions, and royalties are transferred, processed, or initiated directly through one or more of the Smart Contracts on the Ethereum blockchain network. By transacting on the platform and by using the Smart Contracts, User hereby acknowledges, consents to, and accepts all automated fees, commissions, and royalties for the sale of items on the Platform. User also consents to and agrees to be bound by the Smart Contracts’ execution and distribution of the fees, commissions, and royalties.
Users Consent to Automated Royalties to NFT Creations
User consents to the automated collection and disbursement to NFT Creators of royalties for Secondary Market sales of NFT Creations. User hereby waives any first sale defense or argument with respect to Secondary Market activities resulting in a royalty to a NFT Creator.
Company Makes No Representations on Price
User acknowledges and consents to the risk that the price of a NFT Creation purchased on the Marketplace may have been influenced by activity outside of the control of Company or the Platform. Company does not represent, guarantee, or warrant the accuracy or fairness of the price of any NFT Creation sold or offered for sale on or off of the Marketplace. User agrees and acknowledges that Company is not a fiduciary and does not owe any duties to any user of the platform, including the duty to ensure fair pricing of NFT Creations or to police user behavior on the Marketplace.
ASSUMPTION OF THE RISK
User Acknowledges the Risk of Cryptocurrency and Smart Contracts
YOU FURTHER REPRESENT AND WARRANT THAT YOU UNDERSTAND AND ARE WILLING TO ACCEPT THE RISKS ASSOCIATED WITH CRYPTOGRAPHIC SYSTEMS SUCH AS THE SMART CONTRACTS, THE ETHEREUM BLOCKCHAIN, NON-FUNGIBLE TOKENS, AND THE INTERPLANETARY FILE SYSTEM.
Company is Not Responsible for Technical Errors on the Ethereum Blockchain
COMPANY IS NOT RESPONSIBLE FOR LOSSES DUE TO BLOCKCHAINS OR ANY OTHER FEATURES OF THE ETHEREUM NETWORK OR THE METAMASK ELECTRONIC WALLET OR ANY ETHEREUM-COMPATIBLE BROWSER OR 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 ETHEREUM NETWORK, INCLUDING FORKS, TECHNICAL NODE ISSUES, OR ANY OTHER ISSUES HAVING FUND LOSSES AS A RESULT.
Upgrades by Ethereum to the Ethereum platform, a hard fork in the Ethereum platform, or a change in how transactions are confirmed on the Ethereum platform may have unintended, adverse effects on all blockchains using the ERC-20 or ERC-721 standards, including the Charged Particles ecosystem.
The User Acknowledges the Risks of the Platform
You acknowledge that the Platform is subject to flaws and acknowledge that you are solely responsible for evaluating any code provided by the Platform. This warning and others provided in this Agreement by Company in no way evidence or represent an ongoing duty to alert you to all of the potential risks of utilizing or accessing the Platform. The Platform may experience sophisticated cyber-attacks, unexpected surges in activity or other operational or technical difficulties that may cause interruptions to or delays on the Platform. You agree to accept the risk of the Platform failure resulting from unanticipated or heightened technical difficulties, including those resulting from sophisticated attacks, and you agree not to hold us accountable for any related losses. We will not bear any liability, whatsoever, for any damage or interruptions caused by any viruses that may affect your computer or other equipment, or any phishing, spoofing or other attack.
Company Does Not Guarantee the Value of NFT Creations
The prices of blockchain assets are extremely volatile. Fluctuations in the price of other digital assets could materially and adversely affect the value of NFT Creations, which may also be subject to significant price volatility. We cannot guarantee that any purchasers of NFT Creations will not lose money. You also acknowledge that the cost of transacting on such technologies is variable and may increase at any time causing impact to any activities taking place on the Ethereum blockchain. A lack of use or public interest in the creation and development of distributed ecosystems could negatively impact the development of the Charged Particles ecosystem, and therefore the potential utility or value of NFT Creations. The Platform, ETH and digital assets could be impacted by one or more regulatory inquiries or regulatory action, which could impede or limit the ability of Company to continue to develop, or which could impede or limit your ability to access or use the Platform or Ethereum blockchain, including access to your digital assets or other funds, and new regulations or policies may materially adversely affect the development of the Charged Particles ecosystem, and therefore the potential utility or value of all NFT Creations.
User Acknowledges Financial Risk of Digital Assets
Use of the Platform, including the creating, buying or selling trading digital assets, may carry financial risk. digital assets are, by their nature, highly experimental, risky, volatile and transactions carried through the Platform are irreversible, final and there are no refunds. You acknowledge and agree that you will access and use the Platform at your own risk. The risk of loss in trading digital assets can be substantial. You should, therefore, carefully consider whether such creating, buying or selling digital assets is suitable for you in light of your circumstances and financial resources. By using the Platform, you represent that you have been, are and will be solely responsible for making your own independent appraisal and investigations into the risks of a given transaction and the underlying digital assets. You represent that you have sufficient knowledge, market sophistication, professional advice and experience to make your own evaluation of the merits and risks of any transaction conducted via the Platform or any underlying digital asset. You accept all consequences of using the Platform, including the risk that you may lose access to your digital assets indefinitely. All transaction decisions are made solely by you. Notwithstanding anything in this Agreement, we accept no responsibility whatsoever for and will in no circumstances be liable to you in connection with use of the Platform for performing digital asset transactions. Under no circumstances will the operation of all or any portion of the Platform be deemed to create a relationship that includes the provision or tendering of investment advice.
The Smart Contracts May Change
The User acknowledges that Company may modify, change, amend, or replace one or more of the Smart Contracts from time to time. The User agrees that a modification to one or more of the Smart Contracts does not alter any right or obligation conferred by these Terms.
EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY COMPANY, THE SITE, CONTENT CONTAINED THEREIN, AND NFTS LISTED THEREIN ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. COMPANY (AND ITS SUPPLIERS) 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. COMPANY DOES NOT REPRESENT OR WARRANT THAT CONTENT ON THE SITE IS ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. WHILE COMPANY ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF THE SITE AND CONTENT SAFE, COMPANY CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SITE, CONTENT, ANY NFTS 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 NFTS INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (1) USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED ADDRESSES; (2) SERVER FAILURE OR DATA LOSS; (3) CORRUPTED WALLET FILES; (4) UNAUTHORIZED ACCESS TO APPLICATIONS; (5) ANY UNAUTHORIZED THIRD PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK AGAINST THE SITE OR NFTS. NFTS 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. WE DO NOT GUARANTEE THAT COMPANY OR ANY COMPANY PARTY CAN AFFECT THE TRANSFER OF TITLE OR RIGHT IN ANY NFTS. Company is not responsible for sustained losses due to vulnerability or any kind of failure, abnormal behavior of software (e.g., wallet, smart contract), blockchains, or any other features of NFTs. Company is not responsible for sustained losses due to late reports by developers or representatives (or no report at all) of any issues with the blockchain supporting NFTs including forks, technical node issues or any other issues having fund losses as a result. Nothing in this Agreement 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. TO THE FULLEST EXTENT PROVIDED BY LAW, COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE SITE AND CONTENT CONTAINED THEREIN. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL COMPANY BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM THIS AGREEMENT, THE SITE, PRODUCTS 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, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE AND EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITES, PRODUCTS 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.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF COMPANY ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, THE ACCESS TO AND USE OF THE SITE, CONTENT, NFTS, OR ANY PRODUCTS OR SERVICES PURCHASED ON THE SITE EXCEED THE GREATER OF (A) $100 OR (B) THE AMOUNT YOU HAVE PAID TO COMPANY FOR THE SERVICES IN THE LAST SIX MONTHS OUT OF WHICH LIABILITY AROSE. THE FOREGOING LIMITATIONS OF LIABILITY SHALL NOT APPLY TO LIABILITY OF COMPANY FOR ANY INJURY CAUSED BY FRAUD OR FRAUDULENT MISREPRESENTATION. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. Some jurisdictions also limit disclaimers or limitations of liability for personal injury from consumer products, so this limitation may not apply to personal injury claims.
Prior to commencing any arbitration related to this Agreement, you must first contact our Customer Service Department at [email protected] If our Customer Service Department is unable to achieve a satisfactory resolution, then you must notify us in writing about your claim by sending the accompanying form by certified mail to:
3 Stiles Ave
Aurora, ON L4G7N4
It is important that you provide as much information as possible. Our representative will respond within thirty (30) days of receiving this notice. If the matter is not resolved to your satisfaction, then you may commence arbitration as delineated below.
Any dispute, claim, interpretation, controversy, or issues of public policy arising out of or relating to this Agreement, including the determination of the scope or applicability of this section, will be determined exclusively by arbitration held in Denver, Colorado, and will be governed exclusively by the Colorado Uniform Arbitration Act, C.R.S. §§ 13-22-201, et seq. (the “CUAA”).
The arbitrator will be selected from the roster of arbitrators at Judicial Arbiter Group, Inc. in Denver, Colorado (“JAG”), unless the Parties agree otherwise. If the Parties do not agree on the selection of a single arbitrator within ten (10) days after a demand for arbitration is made, then the arbitrator will be selected by JAG from among its available professionals. Arbitration of all disputes and the outcome of the arbitration will remain confidential between the Parties except as necessary to obtain a court judgment on the award or other relief or to engage in collection of the judgment.
The Parties irrevocably submit to the exclusive jurisdiction of the state courts located in Denver, Colorado, with respect to this section to compel arbitration, to confirm an arbitration award or order, or to handle court functions permitted under the CUAA. The Parties irrevocably waive defense of an inconvenient forum to the maintenance of any such action or other proceeding. The Parties may seek recognition and enforcement of any state court judgment confirming an arbitration award or order in any United States state court or any court outside the United States or its territories having jurisdiction with respect to recognition or enforcement of such judgment.
This provision for arbitration will not preclude a party from seeking temporary or preliminary injunctive relief (“Provisional Relief”) in a court of law while arbitration proceedings are pending in order to protect its rights pending a final determination by the arbitrator, nor will the filing of such an action for Provisional Relief constitute waiver by a party of its right to seek arbitration. Any Provisional Relief granted by such court will remain effective until otherwise modified by the arbitrator.
THE PARTIES AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. YOU AGREE TO WAIVE ANY RIGHT TO A JURY TRIAL OR TO PARTICIPATE CLASS-WIDE ARBITRATION. THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF AN INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIMS. ANY RELIEF AWARDED CANNOT AFFECT OTHER SITE USERS
You can choose to reject this agreement to arbitrate. You must notify Company in writing within thirty (30) days of the date that you first access the Site if you do not wish to be bound by this arbitration agreement. Your written notification must include your name and address, as well as a clear statement that you do not wish to resolve disputes with Company through arbitration. Mail your written notification by certified mail to:
3 Stiles Ave
Aurora, ON L4G7N4
This arbitration agreement is intended to be broadly interpreted and will survive termination of these Terms.
Attorneys’ Fees and Costs
In addition to any relief, order, or award that is entered by the arbiter, any Party found to be the substantially losing Party in any Proceeding shall be required to pay the reasonable attorneys’ fees and costs of any Party determined to be the substantially prevailing Party, and such losing Party, shall also reimburse or pay any of the arbitrator’s fees and expenses incurred by the prevailing Party in any arbitration. In the context of this Agreement, reasonable attorneys’ fees and costs shall include but not be limited to:
legal fees and costs, the fees and costs of witnesses, accountants, experts, and other professionals, and any other forum costs incurred during, or in preparation for, a Proceeding;
all of the foregoing whether incurred before or after the initiation of a Proceeding; and
all such fees and costs incurred in obtaining Provisional Relief.
It is understood that certain time entries that may appear in the billing records of such Party’s legal counsel may be redacted to protect attorney-client or work-product privilege, and this will not prevent recovery for the associated billings (and if necessary, the arbitrator may require that such records be submitted to the arbitrator for in camera review by the arbitrator).
The heading at the beginning of each paragraph is for reference purposes only and does not define the scope or extent of such paragraph.
These Terms supersede all prior discussions and agreements between the Parties with respect to the subject matter hereof and contains the sole and entire agreement between the Parties with respect to the subject matter hereof. The Parties may amend any provision of this Agreement only by a written instrument signed by the Parties
No Assignment of the Terms
User may not assign or transfer any rights or obligations under this Agreement without the prior written consent of Company. This Agreement shall be binding upon the permitted assigns or transferees of each party.
User’s use of the Site, Services, or Platform does not create and is not intended to create any agency, partnership, joint venture, or other relationship with anyone including Company.
Invalid Provisions; Severability
If a dispute between the Parties arises out of this Agreement or the subject matter of this Agreement, the Parties would want a court or arbitrator to interpret this Agreement as follows:
With respect to any provision held to be unenforceable, by modifying that provision to the minimum extent necessary to make it enforceable or, if that modification is not permitted by law or public policy, by disregarding the provision;
If an unenforceable provision is modified or disregarded in accordance with this Section by holding the rest of the Agreement will remain in effect as written;
By holding that any unenforceable provision will remain as written in any circumstances other than those in which the provision is held to be unenforceable; and
If modifying or disregarding the unenforceable provision would result in a failure of an essential purpose of this Agreement, by holding the entire Agreement unenforceable.
Upon the determination that any term or other provision of this Agreement is invalid, illegal, or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to affect the original intent of the Parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible
Company reserves the right, without notice and in its sole discretion, to terminate User’s license to access or use the Site, the Services, or the Platform, at any time and for any reason. User understands and agrees that Company shall have no liability or obligation to User in such an event.
Confidentiality of Certain Communications
Users may voluntarily contact Company to report serious misuses of the Platform including, for example, suspicious market activity, hate speech, or other serious violations of these Terms. User agrees to keep confidential all private correspondence with Company, its officers, agents and assigns pertaining to another User’s alleged violation of these Terms or other inquiries about Company’s policies.
If you have any questions, would like to provide feedback, or would like more information about Charged Particles, please feel free to email us at [email protected] If you would like to lodge a complaint, please contact us at [email protected] or write to us at: Charged Particles 3 Stiles Ave, Aurora, ON Canada END OF AGREEMENT