Last Updated [9/21/2022]
THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM. HOWEVER, IF YOU ARE A RESIDENT OF A JURISDICTION WHERE APPLICABLE LAW PROHIBITS ARBITRATION OF DISPUTES, THE AGREEMENT TO ARBITRATE NOT APPLY TO YOU BUT THE PROVISIONS OF GOVERNING LAW AND FORUM CHOICE WILL STILL APPLY.
1. DESCRIPTION AND USE OF OUR PLATFORM
We provide Visitors and Registered Users with access to the Platform as described below.
Visitors. Visitors, as the term implies, are people who do not register with us, but want to explore the Platform. No login is required for Visitors. Visitors can: (i) view all publicly-available content on the Platform; (ii) subscribe to Cymbal communications, alerts and other notifications; and (iii) e-mail us.
Registered Users. Registered Users can do all the things that Visitors can do, and: (i) access non-public features/functionality available only to Registered Users; (ii) claim individual profiles and/or digital content collection profile pages (each, a “Profile Page”); (iii) post content, including text, images, and other media, on claimed Profile Pages (all content and information provided in connection with the foregoing is collectively referred to herein as “Registered User Content”); and (iv) interact with certain decentralized cryptographic protocols, which we do not own or control, (“Protocols”) to support the minting, sale and distribution of non-fungible tokens (“NFTs”) on the decentralized blockchain on which the NFTs are recorded (each, a “Blockchain”).
Cymbal is under no obligation to accept any individual as a Registered User and may accept or reject any registration in its sole and complete discretion. In addition, Cymbal may deactivate any account at any time, including, without limitation, if it determines that a Registered User has violated this Agreement.
The Platform is only available to persons in certain jurisdictions who can use the Platform as permitted under applicable law. You certify that you will comply with all applicable laws (e.g., local, state, federal and other laws) when using the Platform. Without limiting the foregoing, by using the Platform, you represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo; and (b) you are not listed on any U.S. Government list of prohibited, sanctioned, or restricted parties. If you access or use the Platform outside the United States, you are solely responsible for ensuring that your access and use of the Platform in such country, territory, or jurisdiction does not violate any applicable laws. You must not use any software or networking techniques, including use of a Virtual Private Network (VPN) to modify your internet protocol address or otherwise circumvent or attempt to circumvent this prohibition. We reserve the right, but have no obligation, to monitor the locations from which our Platform are accessed. Furthermore, we reserve the right, at any time, in our sole discretion, to block access to the Platform, in whole or in part, from any geographic location, IP addresses, and unique device identifiers, or to any Registered User who we believe is in breach of this Agreement.
Cymbal Programs. Your participation in certain Cymbal programs (e.g., promotions, contests, etc.)will be subject to additional terms and conditions specific to such programs.
Cymbal NFT. Through your participation in the Platform, you may mint or receive NFTs from the Platform (such NFTs, the “Cymbal NFTs”). You agree and acknowledge that the Cymbal NFTs are solely intended for certain purposes as set forth below. You further agree that you are not purchasing the Cymbal NFTs for speculative or investment purposes. It is not the intent nor the desire of Cymbal, its founders or business partners to imbue Cymbal NFT with any monetary value.
(i) Ownership.When you own a digital wallet that holds a Cymbal NFT, as recorded on a Blockchain, you hold the exclusive right to hold, sell, transfer, and execute Blockchain transactions involving that Cymbal NFT (“Your Cymbal NFT”). Except for the Cymbal NFTs we own, Cymbal has no right or ability to seize, freeze, or otherwise modify the ownership of any Cymbal NFT.
(ii) License to the Cymbal Art. “Cymbal Art” means the digital art, e.g., a particular character or other 3D interactive asset with a combination of traits which images consists of elements compiled by the underlying Cymbal NFT smart contract and owned by the Cymbal.Cymbal owns all rights, title, and interest in and to the Cymbal Art including any and all copyrights, trademarks, and other intellectual property rights therein (“IP”). However, we grant you the License (defined below) to use the Cymbal Art associated with Your Cymbal NFT (“Your Cymbal Art”) for as long as you hold Your Cymbal NFT.
(iii) Derivative Works. As between you and Cymbal Labs, you own all rights, title and interest in and to any “derivative work,” as defined by the United States Copyright Act, based upon Your Cymbal Art created during the License Term (defined below) (“Your Derivative Cymbal Work”); provided, however, that (i) we retain the copyright in the Cymbal Art underlying any Your Derivative Cymbal Work; (ii) your use of any Your Derivative Cymbal Work during and after the License Term is subject to these Terms; and (iii) your use of any Your Derivative Cymbal Work after the License Term may require a license from the current owner of the Cymbal NFT.
(iv) Utility. Owners may be offered Utility, benefits, or entitlements (collectively ,“Utility”) from time to time, but these Terms do not confer any Utility except as granted by the License. Cymbal makes no assurances of any Utility. Any Utility may be subject toother terms and conditions. Cymbal will not be responsible in any manner for any Utility offered by any third party.
(v) License Grant. Subject to your acceptance of, and compliance with, these Terms, upon lawfully acquiring Your Cymbal NFT and, for so long as you hold Your Cymbal NFT (both dates as recorded on a Blockchain) (the “License Term”),Cymbal grants to you an exclusive, universe-wide, royalty-free, sublicensable license to reproduce, distribute, prepare Derivative works based upon, publicly display, publicly perform, transmit, and otherwise use and exploit, Your Cymbal Art (“License”). The License is intended to be broad, enabling you to make both commercial and non-commercial uses of Your Cymbal Art, in any and all media, whether existing now or invented later, subject only to the restrictions set forth below.
(vi) Restrictions and Reservations. The License extends only to Your Cymbal Art—meaning, the complete selection and arrangement of all base layers, features, attributes, and other elements that comprise Your Cymbal Art. Thus, while the License allows you to create and exploit Your Derivative Cymbal Works, the License does not grant you rights in any individual element of Your Cymbal Art, or a license to exploit any individual element separate and apart from Your Cymbal Art. For example, the License allows you to create three-dimensional renditions of, and to add new clothing to, Your Cymbal Art, but does not allow you to extract individual features (e.g., hair, accessories) for use in a separate work. The License does not grant you any rights in or to Cymbal’ (or any other) trade names, brands, trade dress, or trademarks (e.g., “Cymbal”), all of which are expressly reserved to Cymbal (collectively, “Cymbal TM Rights”). You hereby agree that any Cymbal TM Rights you purport to acquire, together with any associated goodwill, shall automatically, immediately, and at your expense be assigned to Cymbal. For the sake of clarity, the Cymbal TM Rights do not include Your Cymbal Art, in which you may acquire trademark rights through the exercise of your rights in accordance with, and subject to, these Terms and applicable law. Any application to register a trademark in Your Cymbal Art must occur during the License Term and be based solely upon the actual use of the Cymbal Art in commerce and solely for the goods or services in connect on with which Your Cymbal Art has actually been used in commerce in the applicable jurisdiction as of the date of the application. Thus, you may not seek to register a trademark in Your Cymbal Art on an “intent to use” basis or where you otherwise have not used Your Cymbal Art in commerce.
(vii) License Back to Cymbal. You grant to Cymbal an irrevocable, perpetual, non-exclusive, universe-wide, royalty-free, sublicensable license to publicly display and otherwise use Your Cymbal Art alongside other Cymbal Art for the purpose of promoting or exhibiting the entire Cymbal collection.
(viii) Transfer. The licenses in this Section are non-transferrable, except that they will automatically transfer in connection with a permitted transfer of the Cymbal NFT. Purchaser represents and warrants that it will not transfer an Cymbal NFT in any subsequent transaction to a transferee that is (i) located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; or is (ii) listed on any U.S. Government list of prohibited or restricted parties (“Prohibited Transferees”).
(ix) Cymbal’s Rights and Obligations to the Cymbal Art and Cymbal NFTs. The Parties acknowledge and agree that Cymbal is not responsible for repairing, supporting, replacing, or maintaining the website hosting the Cymbal Art or other applications or entitlements which the Cymbal NFT is compatible with, nor does Cymbal have the obligation to maintain any connection or link between a Cymbal NFT and the corresponding Cymbal Art.
2. COMMUNITY GUIDELINES
Cymbal’s community, like any community, functions best when its users follow a few simple rules. By accessing and/or using the Platform, you agree to comply with the following community guidelines (the “Community Guidelines”):
- You will comply with all applicable laws in connection with your use of the Platform and will not use the Platform for any unlawful purpose;
- You will not upload, post, e-mail, transmit, or otherwise make available any Registered User Content that:
- infringes any copyright, trademark, right of publicity, or other proprietary rights of any person or entity; or
- is defamatory, libelous, indecent, obscene, pornographic, sexually explicit, invasive of another’s privacy, promotes violence, or contains hate speech (i.e., speech that attacks or demeans a group based on race or ethnic origin, religion, disability, gender, age, veteran status, and/or sexual orientation/gender identity; or
- discloses any sensitive information about another person, including that person’s e-mail address, postal address, phone number, credit card information, or any similar information.
- You will not “stalk,” threaten, or otherwise harass another person;
- You will not access or use the Platform to collect any market research for a competing business;
- You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
- You will not interfere with or attempt to interrupt the proper operation of the Platform through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any data, files, or passwords related to the Platform through hacking, password or data mining, or any other means;
- You will not cover, obscure, block, or in any way interfere with any advertisements and/or safety features (e.g., report abuse button) on the Platform;
- You will not use any robot, spider, scraper, or other automated means to access the Platform for any purpose without our express written permission; provided, however, we grant the operators of public search engines permission to use spiders to copy materials from the public portions of the Platform for the sole purpose of and solely to the extent necessary for creating publicly-available searchable indices of the materials, but not caches or archives of such materials;
- You will not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure; and
- You will let us know about inappropriate Registered User Content of which you become aware.
We have the right, but not the obligation, to review and reject or remove Registered User Content that, in our sole discretion, does not adhere to these Community Guidelines. We also reserve the right, in our sole and absolute discretion, to deny you access to the Platform, or to any portion of the Platform, at any time without notice.
3. REGISTERED USERS
To become a Registered User, you will be prompted to log into the Platform through a third-party login provider (e.g., Metamask, Twitter, or Google). When creating your account, you must provide true, accurate, current, and complete information. You are solely responsible for the confidentiality and use of your account login information, as well as for any use, misuse, or communications entered through the Platform using one or more of them. You will promptly inform us of any need to deactivate an account on the Platform.
4. INTELLECTUAL PROPERTY
The Platform contains material, such as software, text, graphics, images, designs, sound recordings, audiovisual works, and other material provided by or on behalf of Cymbal (collectively referred to as the “Content”). The Content may be owned by us or third parties. For avoidance of doubt, Content does not include your Registered User Content, but does include the Registered User Content of other Registered Users. The Content is protected under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other laws. You have no rights in or to the Content, and you will not use the Content except as permitted under this Agreement. No other use is permitted without prior written consent from us. You must retain all copyright and other proprietary notices contained in the original Content on any copy you make of the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of the Content on any other website or in a networked computer environment for any purpose is expressly prohibited. Elements of the Platform are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including, but not limited to, the use of framing or mirrors.
The trademarks, service marks, and logos of Cymbal (the “Cymbal Trademarks”) used and displayed on the Platform are registered and unregistered trademarks or service marks of Cymbal. Other company, product, and service names located on the Platform may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with Cymbal Trademarks, the “Trademarks”). Nothing on the Platform should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of the Cymbal Trademarks inures to our benefit.
5. REGISTERED USER CONTENT
As noted above, the Platform provides Registered Users who have claimed a Profile Page the ability to post and upload Registered User Content on such Profile Page. You expressly acknowledge and agree that once you post or upload your Registered User Content, it will be accessible by others, and that there is no confidentiality or privacy with respect to such Registered User Content, including, without limitation, any personally identifying information that you may make available. By uploading any Registered User Content to the Platform, you warrant and covenant that such Registered User Content shall comply with all applicable laws, rules, and regulations.
YOU, AND NOT CYMBAL, ARE ENTIRELY RESPONSIBLE FOR ALL REGISTERED USER CONTENT THAT YOU UPLOAD, POST, E-MAIL, OR OTHERWISE TRANSMIT VIA THE PLATFORM.
You retain all copyrights and other intellectual property rights in and to your own Registered User Content. You do, however, hereby grant us and our sublicensees a non-exclusive, royalty-free, freely sublicensable, irrevocable, perpetual license to modify, compile, combine with other content, copy, record, synchronize, transmit, translate, format, distribute, publicly display, publicly perform, and otherwise use or exploit (including for profit) your Registered User Content and all intellectual property and moral rights therein throughout the universe, in each case, by or in any means, methods, media, or technology now known or hereafter devised. You also grant us and our sublicensees the right, but not the obligation, to use your Registered User Content, your Sign-In Name, name, likeness, and photograph in connection with any use of the related Registered User Content permitted by the previous sentence and/or to advertise and promote the Platform, Cymbal, and our products and services.
If you submit Registered User Content to us, each such submission constitutes a representation and warranty to Cymbal that such Registered User Content is your original creation (or that you otherwise have the right to provide the Registered User Content), that you have the rights necessary to grant to Cymbal the license to the Registered User Content as set forth above, and that the Registered User Content and its use by Cymbal and its content partners as permitted by this Agreement does not and will not infringe or misappropriate the intellectual property or moral rights of any person or contain any libelous, defamatory, or obscene material or content that violates our Community Guidelines.
6. COMMUNICATIONS WITH US
Although we encourage you to e-mail us, we do not want you to, and you should not, e-mail us any content that contains confidential information. With respect to all e-mails and communications you send to us, including, but not limited to, feedback, questions, comments, suggestions, and the like, we shall be free to use any ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including but not limited to, the development, production, and marketing of products and services that incorporate such information without compensation or attribution to you.
7. NO WARRANTIES; LIMITATION OF LIABILITY
THE PLATFORM AND THE CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING THAT THE PLATFORM WILL OPERATE ERROR-FREE, THAT THE PLATFORM, ITS SERVERS, OR THE CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. THE PLATFORM AND THE CONTENT ARE FOR EDUCATIONAL PURPOSES ONLY AND ARE NOT MEANT TO PROVIDE ANY FINANCIAL ADVICE OR INDICATE ANY TRADING OPPORTUNITY. WE DO NOT WARRANT THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY INFORMATION ON THE PLATFORM AT ANY PARTICULAR TIME. ANY RELIANCE YOU PLACE ON SUCH INFORMATION IS STRICTLY AT YOUR OWN RISK. WE HEREBY DISCLAIM ALL LIABILITY AND RESPONSIBILITY ARISING FROM ANY RELIANCE PLACED ON SUCH CONTENT BY YOU OR ANY OTHER VISITOR TO OUR PLATFORM, OR BY ANYONE WHO MAY BE INFORMED OF ANY OF ITS CONTENTS.
WE DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS. WE SHALL NOT BE LIABLE FOR (I) INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE PLATFORM OR THE CONTENT, OR (II) DIRECT DAMAGES IN EXCESS OF AN AMOUNT EQUAL TO $100, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE PLATFORM MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS OR OMISSIONS. UNLESS REQUIRED BY APPLICABLE LAWS, WE ARE NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL OR TECHNICAL ERRORS LISTED ON THE PLATFORM. WE RESERVE THE RIGHT TO MAKE CHANGES, CORRECTIONS, AND/OR IMPROVEMENTS TO THE PLATFORM AT ANY TIME WITHOUT NOTICE.
CYMBAL IS NOT A BROKER, FINANCIAL INSTITUTION, OR CREDITOR. THE PLATFORM IS AN ADMINISTRATIVE PLATFORM ONLY. CYMBAL FACILITATES TRANSACTIONS BETWEEN THE PURCHASER AND SELLER ON THE Platform BUT IS NOT A PARTY TO ANY AGREEMENT BETWEEN THE PURCHASER AND SELLER OF NFTS OR BETWEEN ANY USERS.
YOU BEAR FULL RESPONSIBILITY FOR VERIFYING THE IDENTITY, LEGITIMACY, AND AUTHENTICITY OF ASSETS YOU PURCHASE THROUGH THE PLATFORM. NOTWITHSTANDING INDICATORS AND MESSAGES THAT SUGGEST VERIFICATION, CYMBAL MAKES NO CLAIMS ABOUT THE IDENTITY, LEGITIMACY, OR AUTHENTICITY OF ASSETS ON THE NFTS TRANSACTED ON THE PLATFORM.
Transactions are conducted on the Blockchain. While Cymbal offers a marketplace for NFTs, it does not buy, sell, or take custody or possession of any NFTs, nor does it act as an agent or custodian for any user of the Platform. You acknowledge that Cymbal does not take control or custody of any NFT or cryptocurrency at any time. If you elect to buy or sell any NFTs, any transactions that you engage in will be conducted solely through the Blockchain network governing the NFT. You will be required to make or receive payments exclusively through the cryptocurrency wallet that you have linked to the Platform. We will have no insight into or control over these payments or transactions, nor do we have the ability to reverse any transactions. Accordingly, 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 Platform.
Fees. You agree to pay any applicable fees, including Gas Fees and hosting fees, in connection with transactions on the Platform. “Gas Fees” mean the fees that fund the network of computers that run the decentralized Blockchain network, meaning that you will need to pay a Gas Fee for each transaction that occurs via the Blockchain network.
Taxes. You are solely responsible for all costs incurred by you in using the Platform, and for determining, collecting, reporting, and paying all applicable Taxes that you may be required by law to collect and remit to any governmental or regulatory agencies. As used herein, “Taxes” means the taxes, duties, levies, tariffs, and other charges imposed by any federal, state, multinational or local governmental or regulatory authority. You are solely responsible for maintaining all relevant Tax records and complying with any reporting requirements you may have as related to our Services. You are further solely responsible for independently maintaining the accuracy of any record submitted to any tax authority including any information derived from the Platform. We reserve the right to report any activity occurring using the Platform to relevant tax authorities as required under applicable law.
Suspension or Termination. We may suspend or terminate your access to the Platform at any time in connection with any transaction as required by applicable law, any governmental authority, or if we, in our sole discretion, determine you are violating these Terms or the terms of any third-party service provider. Such suspension or termination shall not constitute a breach of these Terms by Cymbal. In accordance with its anti-money laundering, anti-terrorism, anti-fraud, and other compliance policies and practices, Cymbal may impose reasonable limitations and controls on the ability of you or any beneficiary to utilize the Platform. Such limitations may include, where good cause exists, rejecting transaction requests, freezing funds, or otherwise restricting you from using the Platform.
CYMBAL WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSS AND TAKES NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO YOU FOR, ANY USE OF THE PLATFORM, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES, OR CLAIMS ARISING FROM: (I) USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED WALLET ADDRESSES; (II) SERVER FAILURE OR DATA LOSS; (III) BLOCKCHAIN NETWORKS, CRYPTOCURRENCY WALLETS, OR CORRUPT FILES; (IV) UNAUTHORIZED ACCESS TO SERVICES; OR (V) ANY THIRD PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK.
NFTS ARE INTANGIBLE DIGITAL ASSETS. THEY EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED ON THE APPLICABLE BLOCKCHAIN NETWORK. ANY TRANSFER OF TITLE THAT MIGHT OCCUR IN ANY UNIQUE DIGITAL ASSET OCCURS ON THE DECENTRALIZED LEDGER WITHIN SUCH BLOCKCHAIN NETWORK. WE DO NOT GUARANTEE THAT WE CAN EFFECT THE TRANSFER OF TITLE OR RIGHT IN ANY NFTS OR OTHER DIGITAL ASSETS, OR THAT ANY ASSOCIATED PAYMENT WILL BE SUCCESSFUL.
YOU BEAR FULL RESPONSIBILITY FOR VERIFYING THE IDENTITY, LEGITIMACY, AND AUTHENTICITY OF ASSETS YOU PURCHASE THROUGH THE PLATFORM. NOTWITHSTANDING INDICATORS AND MESSAGES THAT SUGGEST VERIFICATION, CYMBAL MAKES NO CLAIMS ABOUT THE IDENTITY, LEGITIMACY, OR AUTHENTICITY OF ASSETS ON THE PLATFORM.
THE PLATFORM MAY NOT BE AVAILABLE DUE TO ANY NUMBER OF FACTORS INCLUDING, BUT NOT LIMITED TO, PERIODIC SYSTEM MAINTENANCE, SCHEDULED OR UNSCHEDULED, ACTS OF GOD, UNAUTHORIZED ACCESS, VIRUSES, DENIAL OF SERVICE OR OTHER ATTACKS, TECHNICAL FAILURE OF THE PLATFORM AND/OR TELECOMMUNICATIONS INFRASTRUCTURE OR DISRUPTION, AND THEREFORE WE EXPRESSLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY REGARDING THE USE AND/OR AVAILABILITY, ACCESSIBILITY, SECURITY, OR PERFORMANCE OF THE PLATFORM CAUSED BY SUCH FACTORS. WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AGAINST THE POSSIBILITY OF DELETION, MISDELIVERY, OR FAILURE TO STORE COMMUNICATIONS, PERSONALIZED SETTINGS OR OTHER DATA.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS OF WARRANTIES MAY NOT APPLY TO YOU.
Assumption of Risk. You accept and acknowledge:
(b) The prices and liquidity of cryptocurrency assets (including any NFTs) are extremely volatile. Fluctuations in the price of other digital assets could materially and adversely affect the NFTs made available through the Platform, which may also be subject to significant price volatility. We cannot guarantee that any Purchasers of NFTs will not lose money.
(c) You are solely responsible for determining what, if any, Taxes apply to your transactions through the Platform. Neither Cymbal nor any Cymbal affiliates are responsible for determining the Taxes that apply to such transactions.
(d) Our Services do not store, send, or receive cryptocurrency assets. This is because cryptocurrency assets exist only by virtue of the ownership record maintained on its supporting blockchain. Any transfer of cryptocurrency assets occurs within the supporting blockchain and not on the Platform. Transactions in NFTs may be irreversible, and, accordingly, losses due to fraudulent or accidental transactions may not be recoverable. Some transactions in NFTs shall be deemed to be made when recorded on a public ledger, which is not necessarily the date or time that you initiated the transaction.
(e) There are risks associated with using an Internet based currency, including but not limited to, the risk of hardware, software, and Internet connection and service issues, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to information stored within your wallet. You accept and acknowledge that Cymbal will not be responsible for any communication failures, disruptions, errors, distortions, or delays you may experience when using the Platform for transactions, however caused.
(f) A lack of use or public interest in the creation and development of distributed ecosystems could negatively impact the development of those ecosystems and related applications, and could therefore also negatively impact the potential utility or value of any NFTs.
(g) The Platform may rely on third-party platforms to perform transactions with respect to any cryptocurrency assets. If we are unable to maintain a good relationship with such platform providers; if the terms and conditions or pricing of such platform providers change; if we violate or cannot comply with the terms and conditions of such platforms; or if any of such platforms loses market share or falls out of favor or is unavailable for a prolonged period of time, access to and use of the Platform will suffer.
(h) By accessing and using the Platform, you represent that you understand the inherent risks associated with using cryptographic and blockchain-based systems, and that you have a working knowledge of digital assets. Such systems may have vulnerabilities or other failures, or experience other abnormal behavior. Cymbal is not responsible for any issues with the Blockchains, including forks, technical node issues, or any other issues that may result in fund losses. You acknowledge that the cost and speed of transacting with cryptographic and blockchain-based systems are variable and may increase at any time. You further acknowledge the risk that your digital assets may lose some or all of their value while they are supplied to or from the Platform. You further acknowledge that we are not responsible for any of these variables or risks and cannot be held liable for any resulting losses that you experience while accessing the Platform. Accordingly, you understand and agree to assume full responsibility for all of the risks of accessing and using and interacting with the Platform.
8. EXTERNAL SITES
The Platform may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content or products available through such External Sites. The External Sites may offer third-party goods and services (the “Third Party Products”), and you acknowledge and agree that: (i) Cymbal does not manufacture or sell the Third Party Products and thus has no control over the quality, safety, legality or efficacy of any Third Party Product; (ii) Cymbal has no involvement in any transaction involving any Third Party Products; and (iii) Cymbal shall have no liability with respect to any Third Party Product or any transaction or interaction between you and the provider of any Third Party Product.
The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.
You agree to defend, indemnify, and hold us and our officers, directors, employees, successors, licensees, and assigns harmless from and against any claims, actions, or demands, together with all related damages, fees, costs, expenses and other losses (including, without limitation, reasonable legal and accounting fees), arising or resulting from your breach of this Agreement or your misuse of the Content or the Platform. We shall provide notice to you of any such claim, suit, or proceeding and shall assist you, at your expense, in defending any such claim, suit, or proceeding. We reserve the right, at your expense, to assume the exclusive defense and control of any matter that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
10. COMPLIANCE WITH APPLICABLE LAWS
The Platform is based in the United States. We make no claims concerning whether the Content may be downloaded, viewed, or be appropriate for use outside of the United States. If you access or use the Platform or the Content from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
11. TERMINATION OF THE AGREEMENT
We reserve the right, in our sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Platform, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the Platform at any time without prior notice or liability.
12. DIGITAL MILLENNIUM COPYRIGHT ACT
Cymbal respects the intellectual property rights of others and attempts to comply with all relevant laws. We will review all claims of copyright infringement received and remove any Content deemed to have been posted or distributed in violation of any such laws.
Our designated agent under the Digital Millennium Copyright Act (the “Act”) for the receipt of any Notification of Claimed Infringement which may be given under that Act is as follows:
If you believe that your work has been copied on the Platform in a way that constitutes copyright infringement, please provide our agent with notice in accordance with the requirements of the Act, including (i) a description of the copyrighted work that has been infringed and the specific location on the Platform where such work is located; (ii) a description of the location of the original or an authorized copy of the copyrighted work; (iii) your address, telephone number and e-mail address; (iv) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; (v) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (vi) an electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
13. GOVERNING LAW, FORUM, AND BINDING ARBITRATION
This Agreement and any action related thereto will be governed by the U.S. Federal Arbitration Act, federal arbitration law, and the laws of the State of Delaware, without regard to its conflict of laws provisions. Except as otherwise expressly set forth below, the exclusive jurisdiction for all Disputes (defined below) will be the state and federal courts located in the State of Delaware, and you and Cymbal each waive any objection to jurisdiction and venue in such courts.
Binding Arbitration. In the event of a dispute arising under or relating to this Agreement, the Content, or the Platform (each, a “Dispute”), either party may elect to finally and exclusively resolve the dispute by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other party. IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL. DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the FAA. Any court in San Mateo County, California may enforce the arbitrator’s award. The arbitration shall be administered by the Judicial Arbitration and Mediation Services (“JAMS”) pursuant to JAMS’ Streamlined Arbitration Rules and Procedures, if applicable, or otherwise pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules (the “JAMS Rules”). Such disputes will be resolved by the arbitrator as determined under the JAMS Rules. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in San Mateo County, California. The parties may litigate in court to compel arbitration, to stay proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. In addition, we may litigate in court to seek injunctive relief.
Exceptions. As limited exceptions to the Binding Arbitration Provision above: (i) we both may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights.
14. CLASS ACTION WAIVER
You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
This Agreement and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions. The following provisions will survive any expiration or termination of this Agreement: “Intellectual Property,” “Registered User Content; Licenses,” “Communications with Us,” “No Warranties; Limitation of Liability,” “Indemnification,” “Termination of the Agreement,” “Binding Arbitration,” “Class Action Waiver,” and “Miscellaneous.”
Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you in writing, this Agreement constitutes the entire Agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.
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