These Terms of Non-Fungible Token Issuance and Game Use (“Terms”) form a contract between the owner (“us” or “we”) of the video game application MetalCore (“MetalCore”, or “Game”), and you (“user” or “you”), which you must accept to use any part of MetalCore.
The non-fungible tokens (“NFTs”) issued under these Terms utilize the blockchain network (the “Network”) identified at the official MetalCore website at www.metalcore.gg (the “Website”), using smart contracts (“Smart Contracts”) to enable users to hold and transfer the NFTs, and subject to further conditions described below, to utilize the NFTs in the Game (“Services”).
PLEASE READ THESE TERMS CAREFULLY BEFORE USING NFTS, METALCORE, THE SMART CONTRACTS, THE SERVICES, OR WEBSITE. THESE TERMS GOVERN YOUR USE OF THE NFTS, METALCORE, THE SMART CONTRACTS, THE SERVICES AND THE WEBSITE, UNLESS WE HAVE EXECUTED A SEPARATE WRITTEN AGREEMENT WITH YOU FOR THAT PURPOSE. WE ARE ONLY WILLING TO MAKE NFTS, METALCORE, THE SMART CONTRACTS, THE SERVICES AND THE WEBSITE AVAILABLE TO YOU IF YOU ACCEPT ALL OF THESE TERMS. BY USING METALCORE, THE SMART CONTRACTS, THE SERVICES, THE WEBSITE, OR ANY PART OF THEM, OR BY ACQUIRING NFTS, YOU ARE CONFIRMING THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY ALL OF THESE TERMS, INCLUDING ANY AMENDED TERMS. IF YOU DO NOT HAVE AUTHORITY TO AGREE, OR IF YOU DO NOT ACCEPT ALL OF THESE TERMS, THEN WE ARE UNWILLING TO MAKE AN NFT, METALCORE, THE SMART CONTRACTS OR THE WEBSITE AVAILABLE TO YOU. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT ACQUIRE AN NFT OR ACCESS OR USE METALCORE, THE SMART CONTRACTS, THE WEBSITE OR THE SERVICES.
IF YOU DO NOT AGREE WITH THESE TERMS OR IF YOU ARE A PROHIBITED PERSON THEN YOU ARE NOT PERMITTED TO ACQUIRE THE NFTS FROM METALCORE OR ANY OTHER PERSON. BY ACQUIRING NFTS FROM METALCORE OR ANY OTHER PERSON YOU ACKNOWLEDGE THAT YOU HAVE FULLY READ, UNDERSTAND AND IRREVOCABLY ACCEPT AND AGREE TO BE BOUND BY THESE TERMS.
NFTS DO NOT REPRESENT OR CONFER ANY OWNERSHIP RIGHT OR STAKE, SHARE, OR EQUIVALENT RIGHTS, OR ANY RIGHT TO RECEIVE INTELLECTUAL PROPERTY RIGHTS IN OR RELATING TO METALCORE, ANY COMPANY ASSOCIATED WITH METALCORE OR ANY AFFILIATE OF METALCORE. THE NFTS ARE NOT INTENDED TO BE OR TO REPRESENT A STOCK, A LOAN CONTRACT, A COMMODITY, A CURRENCY, A SHARE, AN INSTRUMENT CREATING OR ACKNOWLEDGING INDEBTEDNESS, AN INSTRUMENT GIVING ENTITLEMENTS TO SECURITIES, A CERTIFICATE REPRESENTING CERTAIN SECURITIES, AN OPTION, A FUTURE OR A CONTRACT FOR DIFFERENCE IN THE CAYMAN ISLANDS OR IN ANY PERMITTED JURISDICTIONS.
PLEASE REVIEW THE ARBITRATION PROVISION SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE ALL PERSONS TO RESOLVE DISPUTES ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION AND TO WAIVE ANY RIGHT TO PROCEED AS A REPRESENTATIVE OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE PROCEEDING. BY ACQUIRING AN NFT OR USING OTHER SERVICES OR ACCESSING the Website, THE GAME OR THE SMART CONTRACTS, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
Each NFT incorporates Art and other distinctive elements intended to enhance play of the Game but may not be unique. We intend to make a certain number of NFTs available to the public via the Website. We expect to initially release a series of Genesis NFTs in the following classes: (1) Infantry; (2) Armored Vehicles; (3) Aerial Vehicles; and (4) Mechs. However, we make no representation or warranty that we will release any additional NFTs or as to the number of NFTs released. The NFTs are for use in the Game and are not intended for investment or speculative purposes. We also intend that each Genesis NFT will constitute an invitation, revocable by us in our sole discretion, to play the Game once it is made available (such as in “alpha testing”).
When you acquire or procure NFTs for use in MetalCore you must agree to the following NFT-related terms and conditions. Any sale or transfer must provide for the transfer of all of your rights then outstanding with respect to such NFT. Anyone receiving such NFTs from you agrees to and is bound by these Terms. The NFT will remain subject to these Terms in perpetuity, and any purchase, acquisition, possession, or use of the NFTs by a subsequent holder of the NFT will be subject to these Terms.
All NFTs acquired or procured by you are subject to these Terms, unless otherwise agreed in writing by us, and by acquiring any NFT you are agreeing to be bound by these Terms.
Acquisitions of NFTs.
We may issue NFTs from time to time, either as a stand-alone or with bundles, including for early access or for expansions of MetalCore. Issuances may be at different prices, including discounted pre-sales, promotional giveaways or reserves for future issuance.
We reserve the right to issue NFTs to affiliates, subject to any restrictions we deem appropriate or to no restrictions.
We may require that you register an account with us to acquire an NFT, and to provide any additional information that we reasonably request.
We may require that you share your Digital Wallet at the time of the order, or nominate a Digital Wallet at a later time, for delivery of any NFTs.
We will undertake reasonable endeavors to deliver any acquired NFTs to your Digital Wallet by any date we provide for delivery. You acknowledge, however, that the delivery date may change for reasons (including for reasons outside or within our control) at our sole discretion.
Risk and title in any NFT transfers to you upon our transfer of the NFT and you are responsible for ensuring your Digital Wallet is accurately linked. If you lose your private key or login or seed phrase for your Digital Wallet you will lose access to your NFTs stored in your Digital Wallet. We encourage the use of secure, offline storage measures for NFTs.
Sales and Transfers By You of NFTs
Subject to applicable law, if you transfer your NFT to another, that transaction may involve third party platforms, Networks or Digital Wallets, none of which are associated with us, and may be subject to transaction fees charged by a platform with a portion of that transaction fee allocated to us. Should any transfer be conducted via a third party platform, then third party platform fees and charges may apply to those transactions at the time of the transaction, including fees and charges payable to us.
If at any time you sell or otherwise transfer the NFT for any reason, you acknowledge and agree that you (i) will have no further rights in or to the Art and (ii) shall communicate these limitations and restrictions to any party to whom you transfer the NFT, which limitations and restrictions will be included in the metadata of the NFT comprising the NFT. You shall not remove any limitations or restrictions from the metadata of the NFT.
In no event shall we be responsible for any resales, secondary market sales or other transfers of the NFT or Art or any iterations of the same. Transfer of ownership to an NFT will not guarantee continuing access to the Art to which it relates.
NFTs purchased or procured by you may be used in the Game, which may provide additional features and services when the Game is made available to you.
The Game may be subject to further instructions, restrictions, terms and conditions as detailed in these Terms, the Game Terms, or Website Terms.
We do not represent or guarantee that your access to the Game will be uninterrupted or will be maintained into the future. Use and play of NFTs is intimately tied to the operations of Game, and we cannot guarantee that Game or any of its promoted elements will ever be publicly launched or maintained in the future.
Intellectual Property License in NFTs
We grant to the party who Owns an NFT for the time that party Owns the NFT (the “Term”), a non-exclusive, revocable license in respect of the Art associated with the NFT subject always to these Terms.
The License is assignable, transferable and revocable on the terms of these Terms, and is for your personal, non-commercial use of the NFT (including to sell or transfer on a third-party marketplace) and to display and enjoy the Art associated with the NFT anywhere in the world (as set forth in (a)-(b), the “License”).
Upon your transfer of the NFT you Own, the License transfers to the recipient who then Owns the NFT and will be subject to the License and these Terms. For the avoidance of doubt, the transfer of the License does not constitute a commercial use restricted by the License.
With immediate effect upon your sale of the NFT you Own, your rights under the License shall cease to apply and will no longer be in force and effect. You will no longer be entitled to use the Art (or any reproductions of the Art) upon sale by you of the NFT.
Except as expressly stated in these Terms, nothing in these Terms is intended to, or shall operate to, give you ownership of any Intellectual Property Rights in, or other rights in respect of our Intellectual Property. You acknowledge our title to the Intellectual Property comprising the NFTs, and shall not at any time do or permit to be done any act of thing which you know or should know will in any way impair or otherwise encumber these rights.
There is no transfer of title or ownership of any Intellectual Property or any Intellectual Property rights upon the sale of the NFT under these Terms.
All goodwill that derives from the use of the Intellectual Property shall inure solely to our benefit, and you will not contest or aid in contesting the validity or ownership of any Intellectual Property Rights or take any action in derogation of our rights therein, including, without limitation, applying to register, alone or as part of another trademark, any trademark, trade name, internet domain name, or other designation that is confusingly similar to any Intellectual Property.
We will not be liable for any loss whatsoever related to damage or corruption to the Art, failure of the NFT to reference the Art, or loss of, or other security or persistence issues related to, the Art.
The NFT may not be used in any way which would:
modify, alter, and/or create derivative works of any Art; or
use the Art to advertise, market or to sell third-party products, services, or for any other commercial benefit, whether for yourself or a third party; or
use the Art in connection with images of hatred, violence, cruelty or other inappropriate behavior be reasonably considered to bring the Intellectual Property Rights owner into disrepute or could be reasonably found to constitute hate speech or infringe upon the rights of others; or
seek to trademark or acquire Intellectual Property Rights in the Art; or
take, appropriate or represent any ownership in the Intellectual Property; or
assert any right to or over the Intellectual Property in any manner inconsistent with the rights under these Terms; or
take any action which would or might invalidate, challenge, oppose or otherwise put in dispute the owner’s title to the Intellectual Property; or be reasonably seen to disparage the Intellectual Property Rights of the owner; or
contravene the moral rights of the artist or licensor of the Art; or
contravene any of these Terms, the Game Terms or Website Terms; or
violate any other restriction of which you are subsequently notified by us; or
cause, permit or assist any other person directly or indirectly to do any of the above acts.
j. Third-Party Intellectual Property Rights:
i. If an NFT contains the Intellectual Property Rights of any party other than the Issuer, you understand and agree as follows: (a) we may need to (and reserve every right to) pass through additional restrictions on your ability to use the third-party Intellectual Property Rights; and (b) to the extent that we inform you of such additional restrictions, you will be responsible for complying with all such restrictions from the date that you receive the notice, and that failure to do so will be deemed a breach of the license contained in these Terms.
For the avoidance of any doubt:
the restrictions on the License survive assignment or transfer of the License; and
acquisition of an NFT does not grant you any ownership or license for any Intellectual Property Rights over MetalCore or any aspect of Art used in our NFTs other than as expressly set out in these Terms; and
the License granted under this Clause is limited to the time you Own the NFT. Upon your transfer of the NFT to another party the License is assigned to the receiver of the NFT and your rights under the License cease to have any effect, and you must draw to the other party’s attention the contents of these Terms prior to your sale of the NFT;
a sale of your NFT does not constitute a “commercial use” of your NFT for the purposes of these Terms.
The License may be terminated with immediate effect by us if:
any of your warranties to us are breached; or
any of the limitations of the License are breached; or
required in our discretion to observe the Intellectual Property Rights of third parties; or
required in our discretion to comply with applicable law.
Acknowledgements and Assumption of Risk
You acknowledge and agree that:
we provide NFTs solely on a proprietary basis for use in MetalCore and if we transact with you we do so solely on a bilateral basis;
NFTs are not intended for speculative use, are not sold or represented to be financial product or any other form of investment and nothing we publish is in any way financial advice to you or any other person;
NFTs may experience or may have extreme price volatility, including being worthless in the future;
we are not providing and will not provide any fiduciary, advisory, brokerage, exchange or other similar services to you or any other person;
you are solely responsible for any decision to enter into a transaction subject to these Terms, including the evaluation of any and all risks related to any such transaction;
a significant degree of IT sophistication is required to safely deal in and store NFTs of any kind using a Digital Wallet;
we are not a custodian of your NFTs and ownership and any transfer of an NFT requires you to utilize a Digital Wallet not associated with us;
we are not responsible for any Loss caused by your failure to act in accordance with our Terms, policies, procedures or in accordance with our reasonable directions;
you acquire NFTs entirely at your own risk and understanding and we have not made any representations or warranties as to the IT security or ongoing availability of such NFTs or that you may access your NFTs in any way at all;
you understand and acknowledge that your ownership of NFTs remains contingent upon you remaining in control of the seed phrases and private key(s) associated with your Digital Wallet and that we will not store any information in connection with your Digital Wallet beyond that required for the acquisition of NFTs or the interaction of your Digital Wallet with the Website or Smart Contracts; and
we do not represent or guarantee any outcomes, or any financial return from your acquisition of any NFT from us, and subsequent access to the Game may be subject to further terms and conditions, including payment of subscription fees.
MetalCore is only available to users over the age of 18. You must not create an account if you are under the age of 18 without parental consent. No one under the age of 13 is permitted to create an account nor use MetalCore. By using the Website and/or Services, you represent and warrant that you meet the foregoing eligibility requirements.
You must not, under any circumstances:
use exploits, automation software, bots, mods, or any unauthorized third-party software designed to modify or interfere with the Services, the Game, any Smart Contract or any NFT, or without our express written consent, modify or cause to be modified any files that are a part of the Services.
disrupt, or assist to disrupt, any computer, network or server used to provide the Services.
obtain, or attempt to gain, unauthorized access to the Services or to any account of another MetalCore user.
You agree that you will not use a name for any NFT or user that is likely to be offensive, derogatory, prejudicial, inflammatory or inappropriate for use in the MetalCore community. We reserve the right to cancel the name of any NFT or user which we determines in our absolute discretion to be offensive, derogatory, prejudicial, inflammatory or inappropriate for use in the MetalCore community by giving the NFT owner or user written notice (which may be provided after the name has been cancelled). Where such a determination is made, the NFT name or user name will be changed to a generic name and the NFT owner or account registrant will be able to choose a new name. You agree that our determination is final and not reviewable, and that repeated breaches of this Clause may result in suspension of the user’s account or the ability for the NFT to participate in MetalCore and/or the termination of the License.
MetalCore will only recognize you as a user and you will only be able to interact with MetalCore if your Digital Wallet is connected and unlocked and you have completed the account opening process.
Transactions that take place on MetalCore are managed and confirmed via the Network. You understand that your Network public address will be made publicly visible whenever you engage in a transaction on MetalCore.
You must provide accurate and complete registration information when you create an account on MetalCore. By creating an account, you agree to provide accurate, current and complete account information about yourself, and to maintain and promptly update as necessary your account information. You are solely responsible for the security of your account and your Digital Wallet.
You may not share or transfer any account. You may not disclose your password or other credentials to anyone. You agree to immediately notify us by sending an email to us at firstname.lastname@example.org concerning any known or suspected unauthorized use(s) of your account or any known or suspected breach of security, including loss, theft or unauthorized disclosure of your password. You understand and agree that you shall be liable for all activities that occur under any account created for your use, even if such activities were not committed by you. We are not responsible for any loss or damage arising from your failure to maintain the confidentiality of your password or of your account.
FEES AND OTHER EXPENSES
If you elect to acquire an NFT, or with or from other users in MetalCore, any financial transactions that you engage in will be conducted solely through the Network via your Digital Wallet. We will have no insight into or control over these payments or transactions, nor do we have the ability to reverse any transactions. With that in mind, we will have no liability to you or to any third party for any claims or damages that may arise as a result of any transactions that you engage in via the Website, or using the Smart Contracts, or any other transactions that you conduct via the Network or your Digital Wallet.
Networks require the payment of a transaction fee (a “Gas Fee”) for every transaction that occurs on the Network. The Gas Fee funds the network of computers that run the decentralized Network. This means that you will need to pay a Gas Fee for each transaction. We are not responsible for Gas Fees associated with any transactions and will not reimburse users for incurred Gas Fees, even if an NFT is issued “for free” or “without charge”.
You authorize us to collect a commission on your transfers or subsequent actions regarding NFTs without further disclosure to you (a “Commission”). These events include, without limitation, in-Game purchases and transactions on third party platforms. You acknowledge and agree that the Commission may be transferred directly to us through the Network or via a third party NFT trading platform as part of your payment. Part of all of a Commission may be paid to third parties to which we have an obligation, for example, artists or software licenses.
You are responsible for any Internet connection and telecommunication fees and charges that you incur when accessing your Digital Wallet, MetalCore or the Smart Contracts.
a. No warranties by us
YOU UNDERSTAND AND AGREE THAT YOUR ACCESS TO AND USE OF ANY SERVICES, AN NFT, METALCORE, THE WEBSITE AND/OR THE SMART CONTRACTS IS AT YOUR SOLE RISK, AND THAT THE SERVICES, NFTS, METALCORE THE WEBSITE AND THE SMART CONTRACTS ARE 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 AFFILIATES, AND LICENSORS MAKE NO EXPRESS WARRANTIES AND HEREBY DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE SERVICES, NFTS, THE WEBSITE, METALCORE AND THE SMART CONTRACTS AND ANY PART OF THEM, 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 AFFILIATES, AND LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (I) YOUR ACCESS TO OR USE OF ANY SERVICES, AN NFT, METALCORE, THE WEBSITE OR ANY SMART CONTRACTS WILL MEET YOUR REQUIREMENTS, (II) YOUR ACCESS TO OR USE OF ANY SERVICES AN NFT, METALCORE, THE WEBSITE AND/OR THE SMART CONTRACTS WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, (III) USAGE DATA PROVIDED THROUGH METALCORE, THE WEBSITE AND/OR THE SMART CONTRACTS WILL BE ACCURATE, (III) NFTS, METALCORE, THE WEBSITE AND THE SMART CONTRACTS OR ANY CONTENT, SERVICES, OR FEATURES MADE AVAILABLE ON OR THROUGH ANY NFT, METALCORE, THE WEBSITE AND/OR THE SMART CONTRACTS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (IV) THAT ANY DATA THAT YOU DISCLOSE WHEN YOU USE AN NFT, METALCORE, THE WEBSITE AND/OR SMART CONTRACT 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 warrant and assure us that in acquiring an NFT (from us or from a third party or existing NFT holder):
i. if you are an entity, you are duly formed and validly exist under the laws of your place of formation;
ii. these terms constitute your legal, valid and binding agreement enforceable against you in accordance with the terms set forth herein;
You are sufficiently experienced and educated to make decisions regarding the procurement or acquisition of NFTs, including sufficient experience in dealing with and storing NFTs using a Digital Wallet and other storage mechanisms, cryptocurrencies, blockchain technology and the use, characteristics, functionality, programming and/or other material characteristics of all of the foregoing, to fully understand and agree to these Terms and the disclaimers and risks outlined herein, or have consulted with professional advisors in relation to the foregoing such that any participation by you in the acquisition or storage of any NFT constitutes an informed acceptance of such disclaimers and risks;
You have all necessary experience, resources, certificates, licenses, permits and approvals to procure or acquire of NFTs applicable in Your Jurisdiction, and that any transactions under these Terms or in your use of MetalCore will be legal under the applicable laws of Your Jurisdiction;
You are acquiring NFTs for use in the Game and not for any investment or speculative purpose;
All information you supply to us is true and accurate as at the time it is given, and that any Digital Wallet address you provide to us has been generated in accordance with best practice security measures and no other party, other than you or your authorized representative, has used, or has access to, the seed phrases, private keys or analogous passwords required to effect transfers from, the Digital Wallet;
As far as you are aware, there are no facts, circumstances or other information which both:
you have not fully and fairly disclosed to us in a manner and to an extent that it would impact our ability to make a reasonable assessment of those facts, matters and circumstances prior to entering into a transaction to sell you an NFT; and
is of such nature and materiality that a reasonable person, had it been made aware of, could not reasonably be expected to consider prior to entering into a transaction for the sale of NFTs;
You are not involved in any capacity in any claim, legal action, proceeding, suit, litigation, prosecution, investigation, enquiry, mediation or arbitration (nor which are pending or threatened) concerning NFTs;
You will not use NFTs or MetalCore in a manner inconsistent with any applicable laws or regulations.
If we request, you will identify and substantiate the source of funds involved in transactions to acquire NFTs;
You are the lawful owner of any Digital Wallet nominated for delivery of NFTs and each Digital Wallet is owned and operated solely for your benefit, and no person has any right, title or interest in your nominated Digital Wallet; and
You have had the opportunity to obtain independent legal advice in relation to the terms and effect of these Terms.
You have not suffered an Insolvency Event.
You are not a Prohibited Person.
You represent and warrant to us that each of the Acquiror Warranties is true and complete, and not misleading or deceptive as at the date of these Terms and, except as expressly stated, will be true, accurate and not misleading or deceptive each time an NFT or NFTs are purchased or held by you.
You must disclose to us anything that has or will constitute a material breach of any or your warranties or cause any of your warranties to be untrue or inaccurate, as soon as practicable after you become aware of it.
Certain legislation may provide you with rights, warranties, guarantees and remedies relating to your acquire of NFTs which cannot be excluded, restricted or modified in these Terms (“Statutory Rights”).
Nothing in these Terms does, or is intended to, exclude any Statutory Rights to which you are entitled.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information regarding MetalCore (“Submissions“) provided by you to us are non-confidential and should become our sole property. We own exclusive rights, including all Intellectual Property Rights, and should be entitled to the unrestricted use and dissemination of these Submissions to any lawful purpose, commercial, or otherwise, without acknowledgment or compensation for you. You hereby waive any moral rights to any such Submissions, and you hereby warrant that any such Submissions are original with you or that you have the right to submit such Submissions. You agree there should be no recourse against us for any alleged or actual infringement or misappropriation of any proprietary right in your Submissions.
You hereby indemnify us and our third party contractors, employees, partners, agents, Directors, subsidiaries, associates, and any third-party employees and/or Directors (“Personnel”) and will keep us and our Personnel indemnified at all times to the fullest extent permitted by law in respect of any Loss or Claim which we or our Personnel may suffer, sustain or incur arising from, or connected with, a breach of an Acquiror Warranty or your violation of any applicable laws, rules, or regulations in connection with use of an NFT, MetalCore or the Website, without limitation.
In addition, you must indemnify us and our Personnel and keep us and our Personnel indemnified at all times to the fullest extent permitted by law in respect of any Claim which we or our Personnel may suffer, sustain or incur arising from, or connected with, any breach of these Terms, other than a breach of an Acquiror Warranty, or any breach of all applicable laws, reduced to the extent of the Loss in respect of the Claim was caused by our or our Personnel’s gross negligence, willful misconduct or fraud.
Pursuant to the Contracts (Rights of Third Parties) Act (Revised), any Personnel who is not a party to these Terms may enforce any rights granted to it pursuant to these Terms in its own right as if it were a party to these Terms.
Limitation of liability
a. Limitation on Amount
YOU AGREE THAT OUR TOTAL, AGGREGATE LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS, THE NFTS, METALCORE, THE WEBSITE OR THE SMART CONTRACTS YOUR ACCESS TO OR USE OF (OR YOUR INABILITY TO ACCESS OR USE) ANY PORTION OF THE SERVICES, THE NFTS, METALCORE THE WEBSITE OR THE SMART CONTRACTS, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, IS LIMITED TO THE GREATER OF (A) THE AMOUNTS YOU ACTUALLY PAID US TO ACQUIRE THE NFT OR NFTS TO WHICH THE DISPUTE RELATES, OR (B) ONE HUNDRED (100) US DOLLARS.
YOU ACKNOWLEDGE AND AGREE THAT WE HAVE TAKEN THE ACTIONS CONTEMPLATED BY 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 SERVICES, THE NFTS, METALCORE, THE WEBSITE OR THE SMART CONTRACTS TO YOU WITHOUT THESE LIMITATIONS.
Limitation of Scope
In the absence of our gross negligence, fraud or willful misconduct by us when providing NFTs to you under these Terms, we will not be liable to you on account of anything done, omitted or suffered by us acting in good faith when providing NFTs to you pursuant to these Terms, including in respect of a Force Majeure Event.
You are solely responsible for any risks associated with the transferring, creating, holding, storing, or use of NFTs or a Digital Wallet, as applicable, including network failures or disruptions; corrupted wallet files; viruses, phishing, bruteforcing, hacking, security breaches, mining attacks, or other means of attack against the NFT; risk of losing access to the NFT due to loss of private key(s); custodial or buyer error; regulatory interference in one or more jurisdictions; token taxation; personal information disclosure; uninsured losses; failure to provide appropriate maintenance (including without limitation hosting of Art); and other unanticipated risks. We will not be responsible for any such risks or losses. Once you receive the NFT, you irrevocably release us and our affiliates from any and all claims, causes of action, liabilities, damages, losses, and expenses (including but not limited to reasonable attorneys’ fees) for loss of or damage to the NFT.
Third party services
We will not be liable for the performance, errors or omissions of unaffiliated, nationally or regionally recognized third parties or decentralized networks such as, by way of example and not limitation: Networks (whether private/permissioned or public) courier companies, national postal services and other delivery, telecommunications and other companies not under our reasonable control, and third parties not under our reasonable control providing services to the blockchain industry generally, such as, by way of example and not limitation, companies and other entities providing processing and payment or transaction services (including “Layer 2” or similar “roll-up” or optimization services), banking partners, custody services, market making services and/or third party pricing services and decentralized blockchain networks such as, by way of example and not limitation, the blockchain(s) upon which any NFT depends or forks of those blockchain(s).
No liability for Certain Losses
Neither party will be liable to the other for any Loss or Claim in the nature of consequential or indirect loss, including without limitation loss of profits, loss of chance, loss of expectations, or loss or opportunity, or any incidental, special, punitive or exemplary damages.
Third-party Websites and Content
The Website may provide links to other websites (“Third-Party Websites“) as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software, and other content or items belonging to or originating from third parties (“Third-Party Content“). Such Third-Party Websites and Third-Party Content are not investigated, monitored, or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third-Party Websites accessed through the Website, or any Third-Party Content posted on, available through, or installed from the Website, including the content, accuracy, offensiveness, opinions, reliability, privacy practices, or other policies of or contained in the Third-Party Websites or the Third-Party Content. Inclusion of, linking to, or permitting the use or installation of any Third-Party Websites or any Third-Party Content does not imply approval or endorsement thereof by us. If you decide to leave the Website and access the Third-Party Websites or to use or install any Third-Party Content, you do so at your own risk and you should be aware these Terms no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any website to which you navigate from MetalCore or relating to any applications you use or install from MetalCore. Any purchase you make through Third-Party Websites will be through other websites and from other companies, and we take no responsibility whatsoever in relation to such purchases which are exclusively between you and the applicable third party. You agree and acknowledge that we do not endorse the products and services offered on Third-Party Websites and you hold us harmless from any harm caused by your purchase of such products and services. Additionally, you hold us harmless from any losses sustained by you or harm caused to you relating to resulting in any way from any Third-Party Content or any contact with Third-Party Websites.
Compliance with laws – No monitoring responsibilities
We will have no liability or responsibility for your compliance with laws or regulations governing the transfer and use of NFTs. Further, you are solely responsible for compliance with all applicable requirements of any laws, rules, and regulations of governmental authorities in Your Jurisdiction.
You further acknowledge that neither we nor any of our Personnel is, and will not be, by virtue of providing NFTs to you, an advisor or fiduciary to you.
The regulatory regime governing blockchain technologies, cryptocurrencies and tokens is uncertain, and new regulations or policies may materially adversely affect the development the potential value of your NFTs. You accept and acknowledge that we will not be responsible for the risk of changes to the regulatory regime governing blockchain technologies, cryptocurrencies, and tokens and new regulations, unfavorable regulatory intervention in one or more jurisdictions or policies any of which may materially adversely affect the use and value of the NFTs.
While you may currently be in compliance with buying an NFT, you may not be able to sell or trade NFTs in your jurisdiction.
You are solely responsible for any Taxes now or hereafter assessed on your Ownership, use or transfer of the NFT, including any of the foregoing assessed on any subsequent sale of the NFT. The holder of the NFT must pay or reimburse us (if we are required or elect to pay) for all Taxes relating to the Ownership, use or transfer of the NFT. We may deduct any required payments under this Clause from any payment owed in the future to the holder of the NFT. You have no right to deduct the amount of Taxes from any payment owed to us.
Unless a provision of these Terms expressly state otherwise, a notice, consent, approval, waiver or other communication (notice) in connection with these Terms must be in writing and in English and sent to, in our case, our nominated email, and, in your case, published on the Website with public access to such notice.
Any notice will be deemed to be received within 24 hours of sending the electronic message (unless a rejection message is received) or publication online.
A party must immediately notify the other party in writing of any changes to its contact details.
These Terms shall be governed by and construed and enforced in accordance with the laws of the Cayman Island, and shall be interpreted in all respects as a Cayman Islands contract. Any dispute, controversy, claim or action arising from or related to your use of the NFTs, the Game, the Website or these Terms likewise shall be governed by the laws of the Cayman Islands, exclusive of choice-of-law principles.
31. Mandatory Resolution of Disputes Through Arbitration
a. Covered Claims. Except for excluded claims described below in paragraph b, you and we each agree that any Claim arising out of or relating to (a) these Terms or the existence, breach, termination, enforcement, interpretation or validity thereof, (b) your use of the NFTs, the Game, the Website or the Smart Contracts or (c) your access to or use of the Services at any time, will be subject to and finally resolved by confidential, binding arbitration and not in a class, representative or consolidated action or proceeding. If you are in the United States, the interpretation and enforceability of this arbitration provision will be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. Arbitration will be conducted through the use of videoconferencing technology (unless both arbitration parties agree that an in-person hearing is appropriate given the nature of the dispute) before a single arbitrator in accordance with the Rules for Non-Administered Arbitration of International Disputes of the International Institute for Conflict Prevention and Resolution, as amended from time to time (the “CPR Rules“). The “Neutral Organization” designated to perform the functions specified in Rules 5, 6 and 7 of the CPR Rules shall be the International Institute for Conflict Prevention and Resolution. The arbitrator selected by the arbitration parties must be a licensed attorney in the Cayman Islands with at least fifteen (15) years of experience in commercial disputes and have previously served or being currently serving as a sole arbitrator or co-arbitrator in a proceeding governed by the CPR Rules or predecessor rules of the International Institute for Conflict Prevention and Resolution. If the arbitrator is not jointly appointed by the arbitration parties within thirty (30) days of the commencement of the arbitration, the vacancy will be filled by an arbitrator meeting the above qualifications selected by International Institute for Conflict Prevention and Resolution. Judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. If the arbitral parties do not promptly agree on to seat of arbitration if an in-person hearing is selected, the seat will be the Cayman Islands. The language of the arbitral proceedings will be English. The arbitrator may award any relief that a court of competent jurisdiction could award, including attorneys’ fees when authorized by law, and the arbitral decision may be enforced in court. The prevailing party will be entitled to its costs of the arbitration (including the arbitrator’s fees) and its reasonable attorney’s fees and costs.
b. Excluded Claims. The following Claims will be excluded from arbitration as described in paragraph a: causes of action or claims in which either party seeks injunctive or other equitable relief for the alleged unlawful use of its intellectual property, including without limitation copyrights, trademarks, trade names, trade secrets, or patents or its confidential information or private data. The parties shall be at liberty to pursue claims or causes of actions excluded from arbitration through any court of competent jurisdiction.
c. Delegation. The arbitrator will have the power to hear and determine challenges to his or her jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement. This authority extends to jurisdictional challenges with respect to both the subject matter of the dispute and the parties to the arbitration. Further, the arbitrator will have the power to determine the existence, validity, or scope of the contract of which an arbitration clause forms a part. For the purposes of challenges to the jurisdiction of the arbitrator, each Clause within this paragraph 31 will be considered as separable from any contract of which it forms a part. Any challenges to the jurisdiction of the arbitrator, except challenges based on the award itself, will be made not later than the notice of defense or, with respect to a counterclaim, the reply to the counterclaim; provided, however, that if a claim or counterclaim is later added or amended such a challenge may be made not later than the response to such claim or counterclaim as provided under CPR Rules.
d. Class Action Waiver. You and we expressly intend and agree that: (a) class action and representative action procedures are hereby waived and will not be asserted, nor will they apply, in any arbitration pursuant to these Terms; (b) neither you nor we will assert class action or representative action claims against the other in arbitration or otherwise; (c) each of you and us will only submit their own, individual claims in arbitration and will not seek to represent the interests of any other person, or consolidate claims with any other person; (d) nothing in these Terms will be interpreted as your or our intent to arbitrate claims on a class or representative basis; and (e) any relief awarded to any one user cannot and may not affect any other user. No adjudicator may consolidate or join more than one person’s or party’s claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding.
e. Confidentiality. You, us and any other arbitration parties will maintain the confidential nature of the arbitration proceeding and any award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision.
f. JURY TRIAL WAIVER: TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING OF ANY KIND WHATSOEVER ARISING OUT OF OR RELATING TO THESE TERMS OR ANY BREACH THEREOF, ANY USE OR ATTEMPTED USE OF THE NFTS, THE GAME, THE WEBSITE, THE SMART CONTRACTS OR THE SERVICES BY YOU, AND/OR ANY OTHER MATTER INVOLVING THE PARTIES.
We reserve the right to amend these Terms from time to time in our absolute discretion. Any changes to these Terms will be in effect as of the “Effective Date” referred to in these Terms, and you waive any right to receive specific notice of such changes. It is your responsibility to periodically review these Terms to stay informed of updates. Your continued use of the NFTs, Game, the Services, the Smart Contracts or the Website will constitute your acceptance and agreement to such changes.
Where there is inconsistency between the Terms and other content displayed as part of the Website or Metalcore concerning the sale of NFTs, the content of the Terms will prevail to the extent of any inconsistency.
We will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstances beyond our reasonable control (including but not limited to epidemics, pandemics, blockchain congestion or attacks, Government sanctions or orders, whether known or unknown at the time the parties enter into these Terms) (each a “Force Majeure Event”).
A provision of these Terms or a right created under it may not be waived except in writing signed by the party granting the waiver.
Exercise of a right
A party may exercise a right at its discretion and separately or together with another right. If a party exercises a single right or only partially exercises a right, then that party may still exercise that right or any other right later. If a party fails to exercise a right or delays in exercising a right, then that party may still exercise that right later.
The rights and remedies provided in these Terms are cumulative with and not exclusive of the rights and remedies provided by law independently of these Terms. Without limiting the generality of the foregoing, termination of the License shall not excuse, constitute an exclusive election with respect to or otherwise foreclose any other remedy to which we are entitled.
The rights and obligations of the parties (including under the warranties) will not merge on completion of any transaction under these Terms. They will survive the execution and delivery of any assignment or other document entered into for the purpose of implementing any transaction.
These Terms are for the benefit of the parties and their successors and assigns. The parties and their successors and assigns are bound by these Terms.
To the extent that any party purchases an NFT from you, they are deemed to have taken an assignment of these Terms as published at the time of the acquisition and you must provide that party with a link or copy of these Terms.
We may assign our rights under these Terms without your consent at any time and without notice.
If any provision of these Terms are void, voidable, unenforceable, illegal, prohibited or otherwise invalid in a jurisdiction, in that jurisdiction the provision must be read down to the extent it can be to save it but if it cannot be saved by reading it down, words must be severed from the provision to the extent they can be to save it but if that also fails to save it the whole provision must be severed. That will not invalidate the remaining provisions of these Terms nor affect the validity or enforceability of that provision in any other jurisdiction where it is not invalid.
These Terms, and the materials incorporated herein (including the Website Terms and the Game Terms) constitute the entire agreement of the parties in respect of the subject matter of these Terms and supersedes all prior discussions, representations, undertakings and agreements.
None of our agents or representatives are authorized to make any representations, conditions or agreements not expressed by us in writing nor are we bound by any such statements.
Nothing in these Terms constitutes the parties as partners or agents of the other and no party has any authority to bind the other legally or equitably save as expressly stated in these Terms.
Each party must pay its own fees, costs and expenses incurred by it incident to or in connection with the negotiation, preparation, execution, delivery and completion of these Terms and the transactions contemplated by these Terms including without limitation its own legal, accounting and corporate advisory fees.
In these Terms:
Acquiror Warranties means the warranties set out in Clause 20.b;
Art means any art, design, wording and drawings that are associated with an NFT that you Own;
Business Day means any day except a Saturday or a Sunday or other public holiday in Cayman Islands;
Claim includes a claim, notice, demand, action, proceeding, litigation, investigation, however arising whether present, unascertained, immediate, future or contingent, whether based in contract, tort or statute and whether involving a third party or a party to these Terms and where and to the extent the context permits, includes all associated Loss;
Digital Currency means a cryptographically secured virtual currency or virtual asset which we identify as an acceptable means of payment or transacting with us;
Digital Wallet means the a software application, public key or wallet address, account or storage device utilized in connection with the Ownership of the NFTs provided by us;
Game Terms means the terms and conditions for access or use of the Game Terms as may be varied from time to time;
Insolvency Event means, in relation to a person, such person: (a) stops or suspends or threatens in writing to stop or suspend payment of all or a class of its debts; (b) is insolvent within the meaning of any law applicable to it or unable or taken to be unable to pay its debts, or a court is required by law to presume that such person is insolvent; or (c) has a receiver, manager, receiver and manager, administrator, or trustee or other like custodian lawfully appointed by any person over all or any of its assets or undertaking or any step preliminary to the appointment of any of them is taken, or has an application or order made, proceedings commenced, resolution passed or proposed in a notice of meeting or an application to a court or other steps taken for: (i) its winding up, liquidation (other than a voluntary liquidation for the purposes of a bona fide proposal or plan of arrangement which has been approved by such person’s creditors) or dissolution; or (ii) such person to enter an arrangement, compromise or composition with or assignment for the benefit of its creditors, a class of them or any of them, and, in the case of any application, proceeding, notice or step, it is not withdrawn, stayed, struck out or dismissed within 21 days after it is made;
Intellectual Property means any and all intellectual property in the NFT and the Art including all copyright, patents, trademarks, business names, domain names, trading styles, get-up, designs, knowhow, processes, methodologies and all current and future registered and unregistered rights, development or enhancement of the Intellectual Property owned by us or by our licensors;
Intellectual Property Rights means all present and future intellectual and industrial property rights conferred by statute, at common law or in equity and wherever existing, including:
patents, inventions, discoveries, designs, copyright, trademarks, trade names, brand names, business names, product names, domain names or rights in designs, art, images, drawings, know how, product names, trade secrets and any other rights subsisting in the results of intellectual effort in any field, whether or not registered or capable of registration;
any application or right to apply for registration of any of these rights or other rights of a similar nature arising or capable of arising under statute or at common law anywhere in the world;
other intellectual property as defined in Article 2 of the Convention Establishing the World Intellectual Property Organization 1967;
any registration of any of those rights or any registration of any application referred to in paragraph (b.); and
all renewals and extensions of these rights;
Loss includes and loss, damage, cost, charge, liability or expense (including legal costs and expenses);
MetalCore means the MetalCore online game and associated software interfaces for that game, including the Website, elements of which are located on the Network;
NFT means a non-fungible token issued by us for use in MetalCore;
Own means, with respect to an NFT, any NFT we have issued where proof of ownership is recorded on a Network and you control the private key associated with a Digital Wallet to which the NFT is associated or located;
Person includes an individual, association, partnership, corporation, company, other body corporate, trust, estate, and any form of organization, group, or entity (whether or not having separate legal personality);
Personnel means any employee, contractor, subcontractor, agent, partner, shareholder, ultimate beneficial owner, director or officer of a party;
Prohibited Jurisdiction means the Cayman Islands, Cuba, Democratic People’s Republic of North Korea, Islamic Republic of Iran, Libya, People’s Republic of China, South Sudan, Sudan (North), Syria, Crimea, Donetsk People’s Republic and Luhansk People’s Republic (each a region of Ukraine annexed by the Russian Federation), any jurisdiction in which the entry into these Terms or the ownership of the NFTs is prohibited by applicable law;
Prohibited Person means any of the government of Venezuela; any Person resident of, with its principal office in or controlled by, or any government or government official of, any Prohibited Jurisdiction; and any Sanctioned Person;
Sanctions List means the “Specially Designated Nationals and Blocked Persons” (“SDN”) List and the Non-SDN List, including the “Sectoral Sanctions Identifications List”, published by the Office of Foreign Asset Control of the U.S. Department of the Treasury; and, any other foreign terrorist organization or other sanctioned, restricted, or debarred party list published by the Cayman Islands Monetary Authority, or under applicable law of or by governments of the United States, the Cayman Islands (including any sanctioned, restricted, or debarred party list under the laws of the United Kingdom and applicable in the Cayman Islands), or the United Nations;
Sanctioned Person refers to any Person or Digital Wallet address that is: (i) specifically listed in any Sanctions List; (ii) directly or indirectly owned 50 percent or more by any Person or group of Persons in the aggregate, or a Digital Wallet associated with such Person or Persons, referred to in any Sanctions List, or government or government official of any Prohibited Jurisdiction; or (iii) that is subject to any government approval or otherwise sanctioned, restricted, or penalized under applicable laws;
Taxes means sales, use, value-added, and other taxes, duties and assessments (except taxes on our income);
Your Jurisdiction means the country or state where you are ordinarily resident or from which you enter into any agreement with us;
Website means www.metalcore.gg and/or any other related website that is officially posted and authorized as a related website on www.metalcore.gg from time to time;
Website Terms means the terms and conditions for access or use of the Website (if any) as may be varied from time to time.