October 6, 2022
The Portal is offered and available to users who are 18 years of age or older or have reached the age of majority in their jurisdiction, whichever is older. By using the Portal, you represent and warrant that you are at least 18 years of age or the age of majority in your jurisdiction and are otherwise legally competent to enter into this Agreement. If you are less than 18 years old or are otherwise not legally competent to enter into this Agreement, you must not access or use the Portal, regardless of any consent from your parent or guardian. We do not knowingly collect information from or direct any of our content specifically to children under the age of 18. If we learn or have reason to suspect that you are a user who is under the age of 18, we will unfortunately have to close your account.
Interpretation and Certain Definitions
- The words “include,” “includes,” and “including” are not limiting and are deemed to be followed by the words “without limitation”; the word “or” is not exclusive; words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and words denoting any gender include all genders.
- “Content” means, collectively, all content, information and material made available by Atmos Labs or our Suppliers on or through the Portal, including, without limitation, NFTs, text, photos, images, graphics, designs, artwork, emojis, avatars, characters (whether or not animated), animations, music, audios, videos, games, and software applications, whether or not downloadable, as well as all layout design and look and feel elements of the Portal. For the avoidance of doubt, all Virtual Goods (defined below) are and shall be deemed to be part of the Content.
- “NFT” means a blockchain-tracked, non-fungible token, such as those conforming to the ERC-721 standard or similar standards, and “Atmos Labs NFT” means an NFT released by Atmos Labs or its Suppliers. For clarity, all Atmos Labs NFTs are Virtual Goods (defined below).
- “Suppliers” means all of the following: (i) third parties that have licensed their intellectual property or other proprietary rights to Atmos Labs for use in connection with the Portal; (ii) our business partners; and (iii) third parties that provide software, data, or other information technology products, services, or support to Atmos Labs in connection with the operation of the Portal.
- “Virtual Goods” means digital virtual goods made available by Atmos Labs or our Suppliers on or through the Portal for purchase or as rewards, prizes, or promotional items. Virtual Goods include Atmos Labs NFTs and may include reward points, tokens, avatars, and accessories.
Consent to Electronic Communications
By signing up for the Portal, you consent to receiving electronic communications from us that are related to your use of the Portal. These electronic communications may include emails, in-browser notifications, and notifications posted to your account on the Portal. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically via email or in-browser notifications satisfy any legal requirement that the same be in writing.
By registering an account on the Portal, you represent and warrant that all account information you submit is your own information and is truthful and accurate. You understand and agree that we may immediately suspend or terminate your account if we have any reason to believe that you have misrepresented or provided false account information to us. It is your responsibility to keep your account information accurate and current. As the account holder, you are responsible for safeguarding your account login information (username and password), and you should notify us immediately in the event your account login is lost, stolen, or used by another without your permission. You are responsible for all activities on your account, including those of any other user you allow to access your account, and any misconduct by you or any such user may result in immediate suspension or termination of your account in our discretion.
Mobile Service Charges
If you use the Portal on a mobile device, or if you send or receive electronic communications to or from us on a mobile device, your wireless carrier may impose data or other charges, and you understand and agree that you will be solely responsible for any and all such charges from your wireless carrier.
Compliance With Export Control Laws
You agree not to export, re-export, or transfer, directly or indirectly, the Portal, or any U.S. technical data acquired from the Portal, or any products utilizing such data, in violation of the (U.S.) export laws or regulations. By accessing the Portal, you represent and warrant that: (i) you are not located in, and you are not a national or resident of, Burma (Myanmar), Cuba, Iran, North Korea, Sudan, Russia, or Syria; (ii) you are not located in, and you are not a national or resident of, a country that is subject to a (United States) embargo, or that has been designated as a “terrorist supporting” country; and (ii) you are not listed on any (United States) government list of prohibited or restricted parties. You are not allowed to use the Portal if we identify your IP address or address of residence or use of the Portal as originating from any such country or if we have reason to believe that you are listed on any United States government list of prohibited or restricted parties.
Reservation of Rights
Except as expressly provided otherwise in the applicable Atmos Labs NFT License Terms, all Virtual Goods (including all associated intellectual property and proprietary rights) will remain the property of Atmos Labs or our Suppliers (as applicable), and you have no ownership or other property right or interest in any Virtual Goods, regardless of how you obtain access to the Virtual Goods.
Unless expressly otherwise indicated by Atmos Labs or our Suppliers, Atmos Labs and our Suppliers do not represent or warrant that Virtual Goods have any monetary value or that they can be redeemed or exchanged for any type of “real world” money (for example, United States dollars or other government-issued currency).
There is no refund or return for the purchase of any Virtual Goods, unless expressly authorized by Atmos Labs or our Suppliers.
If you submit ideas, suggestions, comments, or other feedback concerning the Portal or Content (including Virtual Goods) (whether solicited or unsolicited) (“Feedback”) to Atmos Labs or its Suppliers, you understand and agree that: (i) Atmos Labs and our affiliates and Suppliers, including our and their successors and assigns, will be free to copy and use your Feedback for any and all commercial and noncommercial purposes (including, without limitation, for marketing, advertising, promotion, and product/service development); (ii) your Feedback submission is voluntary and consensual and is made without any condition or reservation of rights, including, without limitation, any condition of compensation, payment, credit, attribution, secrecy or confidentiality; (iii) your Feedback submission does not give rise to any contractual, fiduciary or confidential relationship of any kind (whether express or implied) between you and Atmos Labs or our Suppliers; and (iv) your Feedback submission may be used and retained indefinitely by Atmos Labs and our affiliates and Suppliers, including our and their successors and assigns.
Certain features of the Portal may provide users with the ability to upload, post, display, transmit or distribute User Material. By using such features, you acknowledge and agree as follows:
- You warrant that your User Material does not violate any third party’s rights.
- You grant to Atmos Labs and our Suppliers an irrevocable, non-exclusive, worldwide, royalty-free, sublicensable and transferable license to make your User Material available to others on or through the Portal.
- We and our Suppliers reserve the right to retain copies of your User Material for internal backup/archival purposes, or as may be required by applicable law.
- We and our Suppliers are not responsible or liable for others’ retention, use or misuse of any User Material that you have made available to others on or through the Portal.
- You are solely responsible for backing up your User Material, and we and our Suppliers are not responsible for any loss or corruption of your User Material.
- All User Material is subject to our Copyright Infringement Policy as set out below.
The Portal may provide certain social media features that enable you to:
- Link from your own or certain third-party websites to certain Content on the Portal.
- Send e-mails or other communications with certain Content, or links to certain Content, on the Portal.
- Cause limited portions of Content on the Portal to be displayed or appear to be displayed on your own website or certain third-party websites.
You may use these features solely as they are provided by us and solely with respect to the content they are displayed with. Subject to the foregoing, you must not:
- Establish a link from any website that is not owned by you.
- Cause the Portal or portions of it to be displayed, or appear to be displayed by, for example, framing, deep linking or in-line linking, on any other site.
You agree to cooperate with us in causing any unauthorized framing or linking immediately to cease. We reserve the right to withdraw linking permission without notice.
We may disable all or any social media features and any links at any time without notice in our discretion.
Copyright Infringement Policy
We take claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on the Portal infringe your copyright, you may request removal of those materials by submitting written notification to our copyright agent designated below. In accordance with the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA“), the written notice must include substantially the following:
- Your physical or electronic signature.
- Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Portal, a representative list of such works.
- Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material.
- Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).
- A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.
- A statement that the information in the written notice is accurate.
- A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
If you fail to comply with all the requirements of Section 512(c)(3) of the DMCA, your DMCA notice may not be effective.
Our designated copyright agent to receive DMCA notices is:
Designated Agent Information to be provided at such time as we allow the posting by third parties on our portal
Please be aware that if you knowingly materially misrepresent that material or activity on the Portal is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
Third-Party Content and Links from the Portal
The Portal may include content provided by third parties, including materials provided by our licensor Suppliers. All statements and opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by Atmos Labs, are solely the opinions and the responsibility of the person or entity providing those materials. Third-party materials do not necessarily reflect the opinion of Atmos Labs. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
The Portal may contain links to third-party websites and applications or you may be directed to our Supplier’s website for completion of a transaction (“Third-Party Services”). When you connect to a Third-Party Service, we are not obligated to warn you that you have left the Portal. Such Third-Party Services are not under the control of us or our affiliates or Suppliers, and we disclaim all representations, warranties and responsibility for, such Third-Party Services. When you leave the Portal you will be subject to the agreements and policies, including privacy and data gathering practices, of the applicable Third-Party Service.
- Our Suppliers’ Intellectual Property: Intellectual property licensed from or otherwise made available by our Suppliers remains the property of our Suppliers including, for example, music, sound-recordings, videos, artwork, graphics, designs (including 2-D and 3-D), photographs, names, likenesses, trademarks, taglines, trade dress, logos and other brand identifications of our licensor Suppliers, of our business partner Suppliers, and of third-party sponsors and advertisers. Any unauthorized use of our Supplier’s trademarks, copyrights, or other intellectual property rights is strictly prohibited and may give rise to civil or criminal liabilities. Unless expressly otherwise permitted by the Supplier (including, for example, in the applicable NFT License Terms), you must not sell, offer to sell, distribute, transfer, license, transmit, or otherwise disseminate any of our Suppliers’ intellectual property or any duplicate or derivative work thereof, to others.
Atmos Labs NFT Marketplace
The following terms apply to all Atmos Labs NFTs, however acquired. A “wallet” means a digital wallet provided and maintained by a third-party wallet operator (e.g., Metamask), which allows the holder or an authorized user of the wallet to send, receive, and store cryptocurrencies and other blockchain-based assets.
The Portal includes an NFT sale marketplace (the “Marketplace”). The transactions in the Marketplace are aggregated in batches and stored in one or more escrow wallets maintained by our Supplier or its Third-Party Services providers. While the escrow wallets are maintained on the Ethereum blockchain, records of individual transactions within the escrow wallets are recorded on private servers controlled by our Supplier or its Third-Party Services providers and are not reflected on the Ethereum blockchain.
Transactions that take place outside of the Marketplace are managed and confirmed via the Ethereum blockchain and are not managed by Atmos Labs or our Supplier. Neither Atmos Labs or its Suppliers own or control MetaMask, any web browsers, the Ethereum network, or any other third-party site, product, or service that you may access to engage with the Portal (including the Marketplace), and neither Atmos Labs or its Supplier are responsible for the operation of any such third-party site, product, or service.
Marketplace. By placing an order, whether at a fixed price or an auction bid, in the Marketplace, you are submitting a binding offer to purchase. Your order in the Marketplace is accepted and confirmed only if and when we provides you with written confirmation that your transaction has been completed. No refunds are permitted except if required by statutory warranties or guaranties that cannot be disclaimed, excluded or otherwise limited by law.
In order to acquire an NFT on the Marketplace, you must have a wallet that is accepted by the Marketplace and must connect such wallet to your account on the Marketplace. By using a wallet to acquire an NFT, you represent and warrant that you are the lawful holder or an authorized user of such wallet and that you are in compliance with all of the terms, rules and policies of the third-party wallet operator in connection with your use of such wallet. Acceptable wallets and acceptable types of cryptocurrency for purchasing NFTs on the Marketplace are subject to change at any time in Atmos Labs’ sole discretion.
The operation and security of your wallet is entirely the responsibility of the applicable third-party wallet operator (e.g., Metamask). YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT ATMOS LABS AND OUR AFFILIATES AND SUPPLIERS WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY DEFECT, ERROR, MALFUNCTION, FAILURE, OR BREACH OF SECURITY OF YOUR WALLET, OR FOR ANY DAMAGES OR LOSSES (INCLUDING ANY LOSS OF NFT, CRYPTOCURRENCY, OR OTHER DIGITAL ASSETS) YOU MAY INCUR AS A RESULT.
Secondary transactions involving NFTs outside of the Marketplace may be subject to additional or different fees, including blockchain transaction fees (“Gas Fees”). The value of Gas Fees changes, often unpredictably, and is outside of our, and our Supplier’s, control. By purchasing an NFT, you agree to pay the selling price in the type of cryptocurrency as listed at the point of sale for that NFT, including any applicable transaction fees, and your obligation to pay becomes final and binding the moment you submit an order, whether at a fixed price or an auction bid, for that NFT. You may not substitute any other currency, whether cryptocurrency or fiat currency, for the currency you have agreed to pay at the time of purchase. No fluctuation in the value of any currency, whether cryptocurrency or otherwise, will impact or excuse your obligation to pay in connection with an NFT purchase.
You will be solely responsible to pay any and all sales, use, value-added and other taxes, duties, and assessments (except taxes on our or our Supplier’s net income) now or hereafter claimed or imposed by any governmental authority (collectively, the “Taxes”) associated with your use of the Portal (including the Marketplace), including NFT transactions or other goods or services. Except for income taxes levied on us or our Suppliers, you: (a) will pay or reimburse us for all Taxes; and (b) will not be entitled to deduct the amount of any Taxes from payments (including transaction fees). You are solely responsible for determining what, if any Taxes, apply to your transactions on the Portal (including the Marketplace) or related to Virtual Goods (including Atmos Labs NFTs).
Listed prices for items sold through the Marketplace do not include Taxes. Without limiting your obligations with respect to Taxes, we reserve the right to collect and remit to the appropriate authorities certain Taxes on your transactions. Terms of payment for any items sold through the Marketplace are within our sole discretion and, unless otherwise agreed by us in writing, payment must be received by us or our Supplier before acceptance of an order, whether at a fixed price or an auction bid.
Atmos Labs NFT Sets and Packs
For any NFT that we decide to release to the public, we determine, in our sole discretion, the form, quantity, price, composition, and characteristics of such NFT. If we release NFTs as a collection, series, set or group (“Set”), we may, in our sole discretion, reserve any number of NFTs from a given Set, and we are under no obligation to make available all NFTs from any given Set.
You may be able to purchase Atmos Labs NFTs by: (a) buying multiple Atmos Labs NFTs in packs (each, a “Pack”); (b) buying individual Atmos Labs NFTs offered at a fixed price or by auction; or (c) buying Atmos Labs NFTs from other users on third-party marketplaces. There may be different types of Packs available for purchase, and we reserve the right to modify the types, prices and numbers of Packs available at our discretion. Depending on the type of Pack you buy, you may collect Atmos Labs NFTs of varying levels of scarcity. We may offer individual NFTs (at a fixed price or by auction) in a manner where you will know the exact Atmos Labs NFT that you are purchasing or bidding on, or as part of Set where you will discover the exact Atmos Labs NFT that you purchased only after you receive and open the NFT. If you buy an individual Atmos Labs NFT from another user on a third-party marketplace, you will know the exact Atmos Labs NFT that you are purchasing. ANY PURCHASE OR SALE YOU MAKE, ACCEPT OR FACILITATE OUTSIDE OF THE PORTAL (INCLUDING FROM A PREVIOUS NFT OWNER) OF AN NFT WILL BE ENTIRELY AT YOUR RISK. WE DO NOT CONTROL OR ENDORSE PURCHASES OR SALES OF NFTS INITIATED OUTSIDE OF THE MARKETPLACE.
Assumption of Risks
Collectible blockchain-based assets such as the Atmos Labs NFTs have no inherent or intrinsic value and their prices can be extremely volatile, unpredictable, and subjective. ATMOS LABS AND OUR AFFILIATES AND SUPPLIERS DO NOT REPRESENT OR WARRANT THAT ANY ATMOS LABS NFT HAS ANY MONETARY VALUE OR WILL INCREASE (OR DECREASE) IN VALUE OVER TIME, OR WILL MAINTAIN ANY VALUE, OR CAN BE SOLD, RESOLD, TRADED, LIQUIDATED OR EXCHANGED FOR ANY TYPE OF “REAL WORLD” MONEY OR ASSET (FOR EXAMPLE, UNITED STATES DOLLARS OR OTHER GOVERNMENT-ISSUED CURRENCY). The initial selling price of an Atmos Labs NFT listed in the Marketplace is set arbitrarily by Atmos Labs and Atmos Labs does not represent, warrant, reflect, suggest or infer any current or future value of that NFT. Neither Atmos Labs nor any of our affiliates or Suppliers determines or controls the selling or trading price of any NFT on the secondary market, which price is set and controlled solely by the then-current owner of that NFT. YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT IF YOU CHOOSE TO PURCHASE AN NFT, YOU ASSUME ANY AND ALL RISKS OF LOSS OF MONEY AND LOSS OF VALUE ASSOCIATED WITH THAT NFT.
There are risks associated with Internet-based digital assets, which include, but are not limited to, the risk of hardware, software and Internet connections, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to information stored within your wallet. YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT Atmos Labs AND OUR AFFILIATES AND SUPPLIERS WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY COMMUNICATION FAILURES, DISRUPTIONS, ERRORS, DISTORTIONS OR DELAYS YOU MAY EXPERIENCE WHEN USING THE PORTAL (INCLUDING THE MARKETPLACE), HOWEVER CAUSED.
All NFT transactions (purchase, sale, trading, transfer, etc.) are dependent upon the applicable third-party blockchain network (e.g., Ethereum). Smart contracts and third-party blockchain network technologies are still in an early development stage and unproven. Changes and updates to the applicable third-party blockchain network, a hard fork in the applicable third-party blockchain network, or a change in how transactions are confirmed on the applicable third-party blockchain network, may materially adversely affect the Portal (including the Marketplace) and the potential value or utility of NFTs.
Please be aware that hacks, cyber-attacks, distributed denials of service or errors, double-spent attacks, flash-loan attacks, vulnerabilities, defects or flaws in the applicable third-party blockchain network, or other events that are beyond our control may lead to partial or complete theft or loss of NFTs.
The legal and regulatory regime governing blockchain technologies, cryptocurrencies, NFTs, etc. is uncertain, and new regulations or policies may materially adversely affect the Portal (including the Marketplace) and the potential value or utility of NFTs.
AN NFT IS NOT AN INVESTMENT, SECURITY, SHARE OF STOCK OR EQUITY INTEREST, DEBT OR LOAN, NOR A DERIVATIVE INSTRUMENT OF ANY OF THE FOREGOING. Nothing in the Portal (including the Marketplace) or otherwise communicated or provided by Atmos Labs or any of our affiliates or Suppliers constitutes a prospectus or offering document or is an offer to sell or solicitation of an offer to purchase an investment, security, share of stock or equity interest.
Except as otherwise agreed between us, you must not:
- use the Portal or Content (including Virtual Goods) other than for your own lawful personal and noncommercial use only;
- use the Portal or Content (including Virtual Goods) for fraudulent, impersonation, harassment, bullying, or other malicious or unlawful purposes;
- use the Portal or Content (including Virtual Goods) to harm or exploit a minor;
- disrupt or interfere in any way with the operation of the Portal or any server, network or system associated therewith, or another’s use of the Portal;
- modify or otherwise make derivative works from, or decompile, disassemble or otherwise reverse engineer, any software or other technology component of the Portal;
- disable, remove, breach, or circumvent any content protection or access control mechanisms (including geo-blocking mechanisms) associated with the Portal or any Content (including Virtual Goods);
- access another’s account or a password-protected area on the Portal without proper authorization;
- use any robot, spider, or other automatic device, process, or means to access the Portal or Content (including Virtual Goods) for any purpose, including for monitoring or mining of data from the Portal;
- use the Portal or Content (including Virtual Goods) in any way that infringes upon, violates, or misappropriates the intellectual property or other proprietary rights of Atmos Labs or any of our affiliates or Suppliers or any third party;
- use a wallet that you neither own nor have authorization to use;
- use a wallet in violation of any applicable law or any of the terms, rules or policies of the applicable third-party wallet operator;
- use the Marketplace to carry out any illegal activities, including money laundering, terrorist financing, fraud/scams/deceptive trading, and activities designed to disrupt the operation of the Portal (including the Marketplace) or another’s access and use of the Marketplace;
- engage in or knowingly facilitate any “front-running,” “wash trading,” “pump and dump trading,” “ramping,” “cornering” or fraudulent, deceptive or manipulative trading activities, including:
- trading an NFT at successively lower or higher prices for the purpose of creating or inducing a false, misleading or artificial appearance of activity in such NFT, or unfairly or deceptively influencing the market price of an NFT;
- for the purpose of creating or inducing a false or misleading appearance of activity in an NFT or creating or inducing a false or misleading appearance with respect to the market for an NFT: (A) executing or causing the execution of any transaction in an NFT which involves no material change in the beneficial ownership thereof; or (B) entering any order for the purchase or sale of an NFT with the knowledge that an order of substantially the same size, and at substantially the same price, for the sale of such NFT, has been or will be entered by or for the same or different parties; or
- participating in, facilitating, assisting or knowingly transacting with any pool, syndicate or joint account organized for the purpose of unfairly or deceptively influencing the market price of an NFT.
No Warranties; Limitation of Liability
THE PORTAL AND ALL CONTENT (INCLUDING ALL NFTS AND OTHER VIRTUAL GOODS) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, WE AND OUR AFFILIATES AND SUPPLIERS DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PORTAL (INCLUDING THE MARKETPLACE) AND ALL CONTENT (INCLUDING VIRTUAL GOODS), INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES OF TITLE AND NON-INFRINGEMENT. WITHOUT LIMITATION TO THE GENERALITY OF THE FOREGOING, WE AND OUR AFFILIATES AND SUPPLIERS DO NOT WARRANT THAT: (i) THE PORTAL (INCLUDING THE MARKETPLACE) AND ALL CONTENT (INCLUDING VIRTUAL GOODS) WILL BE ERROR-FREE, ACCURATE OR UP TO DATE, OR WILL BE UNINTERRUPTED, OR WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (ii) ANY DEFECT OR ERROR ON THE PORTAL (INCLUDING THE MARKETPLACE) OR IN ANY CONTENT (INCLUDING VIRTUAL GOODS) WILL BE CORRECTED; OR (iii) THE PORTAL (INCLUDING THE MARKETPLACE) AND ALL CONTENT (INCLUDING VIRTUAL GOODS) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL ATMOS LABS OR ANY OF OUR AFFILIATES OR SUPPLIERS BE LIABLE TO YOU, WHETHER UNDER A THEORY OF CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF USE, OR LOSS OF DATA OR INFORMATION OF ANY KIND) ARISING OUT OF OR RELATED TO THE PORTAL (INCLUDING THE MARKETPLACE) OR ANY CONTENT (INCLUDING VIRTUAL GOODS) OR YOUR USE THEREOF, EVEN IF WE OR THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL THE COLLECTIVE LIABILITY OF ATMOS LABS OR ANY OF OUR AFFILIATES OR SUPPLIERS, AND ANY PERSON ASSOCIATED WITH ANY OF THEM, TO YOU (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE) EXCEED THE AMOUNT OF US $100.
WITHOUT LIMITING ANY OF THE FOREGOING, YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT ATMOS AND OUR AFFILIATES AND SUPPLIERS WILL NOT BE LIABLE TO YOU FOR ANY LOSSES, DAMAGES OR CLAIMS ARISING OUT OF OR RELATED TO YOUR USE OF (OR YOUR INABILITY TO USE) THE MARKETPLACE, OR YOUR PURCHASE, RECEIPT, USE, SALE, TRADING, TRANSFER OR OTHER DISPOSITION OF ANY NFT, OR YOUR INABILITY TO PURCHASE, RECEIVE, USE, SELL, TRADE, TRANSFER OR OTHERWISE DISPOSE OF ANY NFT, INCLUDING FROM ANY OF THE FOLLOWING:
- USER ERROR, SUCH AS AN INADVERTENT PURCHASE OR A PURCHASE MADE IN ERROR OR BY MISTAKE, FORGOTTEN PASSWORDS, OR INCORRECTLY CONSTRUCTED SMART CONTRACTS OR TRANSACTIONS;
- INTERNET CONNECTION ISSUES, SERVER ISSUES, HARDWARE OR SOFTWARE ISSUES, OR CORRUPTION OR LOSS OF DATA;
- ANY ISSUE WITH THE APPLICABLE THIRD-PARTY BLOCKCHAIN NETWORK, INCLUDING FORKS, TECHNICAL NODE ISSUES, OR ANY OTHER ISSUE RESULTING IN ASSET OR FUND LOSSES, AND INCLUDING ALSO LATE REPORT OR NO REPORT AT ALL OF ANY SUCH ISSUES BY DEVELOPERS OR REPRESENTATIVES;
- ANY ISSUE WITH A WALLET YOU USE, INCLUDING, WITHOUT LIMITATION, WALLET ERROR, MALFUNCTION OR FAILURE, OR CORRUPTED WALLET FILES; OR
- UNAUTHORIZED ACCESS OR ACTIVITIES BY THIRD PARTIES, INCLUDING THE USE OF VIRUSES, PHISHING, BRUTE-FORCING OR OTHER MEANS OF ATTACK AGAINST THE MARKETPLACE, OR AGAINST THE APPLICABLE THIRD-PARTY BLOCKCHAIN NETWORK, OR AGAINST A WALLET.
IF APPLICABLE LAW DOES NOT ALLOW ALL OR ANY PART OF THE ABOVE DISCLAIMERS OR LIMITATIONS OF LIABILITY TO APPLY TO YOU, THE DISCLAIMERS AND LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
Release and Indemnity
You agree to release and forever discharge (to the fullest extent permitted by applicable law) Atmos Labs and our affiliates and Suppliers, including our and their successors and assigns, from any and all claims, actions, causes of action, liabilities, damages, costs and expenses (including, without limitation, those for bodily injury and emotional distress) arising out of or related to your use of the Portal or any Content (including any Virtual Goods).
IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH SECTION STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
Governing Law and International Use
We make no claims that the Portal or any of its Content is accessible or appropriate outside of the United States. Access to the Portal may not be legal by certain persons or in certain countries. If you access the Portal from outside the United States, you do so on your own initiative and risk and you are responsible for complying with any and all applicable local laws and regulations.
Dispute Resolution and Binding Arbitration
YOU ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION. ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND Atmos Labs AND OUR AFFILIATES AND SUPPLIERS, INCLUDING OUR AND THEIR SUCCESSORS AND ASSIGNS, ARISING FROM OR RELATING IN ANY WAY TO THE PORTAL, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this Section. (The AAA Rules are available at adr.org or by calling the AAA at +1-800-778-7879.) The United States Federal Arbitration Act will govern the interpretation and enforcement of this Section. If the dispute has a claimed value of not more than US $250,000, then the arbitration will be heard and determined by a single neutral arbitrator who is a retired judge or a lawyer with not less than 15 years’ experience as a practicing member of the bar in the substantive practice area related to the dispute. If the dispute has a claimed value of more than $250,000, or if Atmos Labs elects in its sole discretion to bear the costs of arbitration in excess of those that would occur for a proceeding before a single neutral arbitrator, then the arbitration will be heard and determined by a three-member panel. Each party will select one member and the third member (who will be chair of the panel) will be selected by the two party appointed members or by the AAA. The arbitrator or panel will have exclusive authority to resolve any dispute relating to arbitrability or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the Agreement is void, voidable or otherwise invalid. The arbitrator or panel will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator or panel will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction.
You agree to an arbitration on an individual basis. In any dispute, YOU WILL NOT BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER PERSONS OR ENTITIES IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person’s or entity’s claims and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced.
The foregoing provisions of this Section will not apply to any legal action taken by Atmos Labs to seek an injunction or other equitable relief in connection with any loss, cost, or damage (or any potential loss, cost, or damage) relating to its intellectual property rights, its products, or its services. You agree that such claims may be brought in the state or federal courts located in Chicago, Illinois and you waive any objection to jurisdiction and venue in such courts.
ANY CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THE PORTAL MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CLAIM ACCRUES; OTHERWISE, SUCH CLAIM IS PERMANENTLY BARRED.
Your Comments and Concerns
All notices of copyright infringement claims should be sent to the copyright agent designated above in the section entitled “Copyright Infringement Policy” in the manner and by the means set out therein.
All other feedback, comments, requests for technical support, and other communications relating to the Portal should be directed to:
Atmos Labs, Inc.
575 E. 4th Street
Winston-Salem, NC 27101