MAMMOTH MEDIA, INC.
Terms of Service
Last updated: September 22, 2022
Please read these Terms of Service (the “Terms”) and our Privacy Policy (https://privacypolicy.vtagz.com/) (“Privacy Policy”) carefully because they govern your use of the Mammoth Media, Inc. (“Mammoth”, “we”, “us”, “our”) website located at https://vtagz.com (the “Site”). To make these Terms easier to read, the Site and our services are collectively called the “Services.”
IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND MAMMOTH THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 21 “DISPUTE RESOLUTION” BELOW FOR DETAILS REGARDING ARBITRATION (INCLUDING THE PROCEDURE TO OPT OUT OF ARBITRATION). HOWEVER, IF YOU ARE A RESIDENT OF A JURISDICTION WHERE APPLICABLE LAW PROHIBITS ARBITRATION OF DISPUTES, THE AGREEMENT TO ARBITRATE IN SECTION 22 WILL NOT APPLY TO YOU BUT THE PROVISIONS OF SECTION 22 (GOVERNING LAW) WILL APPLY INSTEAD.
(a) Eligibility[a]. You may use the Services only if you are at least 13 years of age (or such other minimum age at which you can provide consent to data processing under the laws of your territory), and not otherwise barred from using the Services under applicable law. If you are over 13 years of age but under the age of majority in your respective jurisdiction, you hereby represent and warrant that your parent or legal guardian has read these Terms and accepts them on your behalf. Parents and legal guardians are responsible for the acts of their minor children when using the Services, whether or not the parent or guardian has authorized such acts.
(b) Compliance. The Services are only available to users in certain jurisdictions who can use the Services as permitted under applicable law. By using or accessing the Services, you represent to us that you are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties or excluded or denied persons, including but not limited to the lists maintained by the United Nations Security Council, the European Union or its Member States, or any other government authority. We do not onboard corporate accounts of entities or personal accounts or agent accounts located in, established in, or a resident of Belarus, Burundi, Crimea and Sevastopol, Cuba, Democratic Republic of Congo, Iran, Iraq, Libya, North Korea, Somalia, Sudan, Syria, Venezuela, Zimbabwe or any other country to which the United States, the United Kingdom or the European Union embargoes goods or imposes similar sanctions. We may suspend or terminate your access immediately in our discretion should you breach the terms of this Section 5(b). By using or accessing the Services, you agree to indemnify and hold Mammoth and its officers, directors, employees and agents, harmless from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses (each, a “Claim”), including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with your violation of this Section 5(d). You must: (i) promptly notify Mammoth in writing of the claim; (ii) grant Mammoth sole control of the defense and settlement of the Claim; and (iii) provide Mammoth with all assistance, information and authority reasonably required for the defense and settlement of the Claim. Mammoth will not be bound by any settlement or compromise that You enter into without Mammoth’s express prior consent. You agree not to access the Services using any technology for the purposes of circumventing these Terms. To protect the integrity of the Services, we reserve the right, at any time, in our sole discretion, to block access to the Services from certain IP addresses and unique device identifiers. We may require different levels of identification verification in order for you to access different levels of Services functionality or the Services generally.
(c) Know Your Customer and Anti-Money Laundering Laws. Mammoth may request that you comply with third-party "Know Your Customer" (“KYC”) and/or "Anti-Money Laundering" (“AML”) checks if we deem it necessary or such checks become required under applicable laws or regulations in any jurisdiction in which the Services are offered. You hereby consent to such third party KYC and AML checks and consent to provide to those third parties whatever information and documents are necessary to complete KYC and AML checks, which may include, without limitation, passports, driver's licenses, utility bills, photographs of associated individuals, government identification cards or sworn statements before notaries or other equivalent professionals. The results of such third-party checks may determine whether we allow you to use the Services.
(a) Right and Terms for Apps.
1. App License. If you comply with these Terms, Mammoth grants to you a limited non-exclusive, non-transferable license, with no right to sublicense, to download and install the App on your personal computers, mobile handsets, tablets, wearable devices, and/or other devices and to run the App solely for your own personal non-commercial purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App (unless applicable law permits, despite this limitation); or (iv) make the functionality of the App available to multiple users through any means.
2. Additional Information: Apple App Store. This Section 7(a)(2) applies to any App that you acquire from the Apple App Store or use on an iOS device. Apple has no obligation to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the App purchase price to you (if applicable) and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. Apple is not responsible for addressing any claims by you or any third party relating to the App or your possession and use of it, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that your possession and use of the App infringe that third party’s intellectual property rights. Apple and its subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof. You represent and warrant that (i) you are not 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; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You must also comply with any applicable third-party terms of service when using the App.
(a) Posting Content. Our Services may allow you to upload, store, or share content, such as text (in posts or communications with others), files, documents, graphics, images, music, software, audio and video. Anything (other than Feedback and content digitally linked in the metadata of VTAGZ NFTs) that you post or otherwise make available through the Services is referred to as “User Content”. Mammoth does not claim any ownership rights in any User Content besides the licenses granted in this Section 8 and nothing in these Terms will be deemed to restrict any rights that you may have to your User Content. If you wish to delete any item of User Content that you have uploaded to the Services, you can do so using the User Content deletion functionalities within the Services; provided, deleting your User Content will not delete your Account or terminate these Terms. In certain instances, some of your User Content (such as posts you make) may not be completely removed and copies of your User Content may continue to exist on the Services. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
(b) Permissions to Your User Content. By making any User Content available through the Services, you hereby grant to Mammoth a non-exclusive, transferable, worldwide, royalty-free (i) license, with the right to sublicense, to use, copy, modify, create derivative works based upon, distribute, publicly display, and publicly perform your User Content in connection with operating and providing the Services, and (ii) your name, image, voice, likeness, biographical material, and any other right of publicity/privacy held by you in connection with such User Content, in any and all media now known or hereafter discovered, in connection with the Services (including, without limitation, the operation thereof and the provision of any tools, products, services, functionalities and/or features now or in the future offered in connection therewith), the advertising, marketing, promotion, publicity, and merchandizing of the Services and any products and services related thereto, and to identify you as the source of your User Content (collectively, the “User Content License”).
For the avoidance of doubt, the User Content License granted to us hereunder covers our ability to sublicense to, and permit, other Users of the Services to use your User Content in connection with all tools, products, services, functionalities and/or features made available in connection with the Services from time to time, subject to the Terms of Service.
(c) Your Responsibility for User Content. You are solely responsible for all your User Content. You represent and warrant that you have (and will have) all rights that are necessary to grant us the license rights in your User Content under these Terms. You represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by Mammoth on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
By submitting User Content to the Interface, you acknowledge and agree that Company may create or license content from third parties, or obtain User Content from other Users, that may be similar or identical to your User Content. You agree that you shall have no recourse against Company for any alleged or actual infringement or misappropriation of any proprietary or any other right in or related to the User Content you provide to Company. You acknowledge and agree that your submission of User Content to the Services does not create any new or alter any existing relationship between you and Company. Use of or reliance on any User Content or materials posted via the Services or obtained by you through the Services is at your own risk. For the avoidance of doubt, Company will not be liable for any unauthorized use of User Content by any User.
(a) Reveal Process. Purchasers may be able to use the Services to access certain Entitlements associated with their VTAGZ NFT that are offered by third-party providers (the “Reveal Process”.) You acknowledge and agree that such third parties are responsible for fulfilling any offers made to you through the Reveal Process and that Mammoth does not control such third-party providers. You acknowledge and agree that Mammoth is not party to any agreement or dispute between you and any such third-party providers.
(b) Purchase Terms. We may require Purchasers to enter a separate purchase agreement with us and/or Creators or Brands with respect to any benefits associated with a given VTAGZ NFT, (such separate agreements, “Purchase Terms”).
(c) No Refunds. All purchases made through the Services are final. No refunds, exchanges, or returns will be provided to Purchaser.
(d) Fees. Purchaser agrees to pay all Gas Fees associated with Purchaser’s purchase of a VTAGZ NFT. “Gas Fees” are the fees that fund the network of computers that run the decentralized blockchain network, meaning that a user will need to pay Gas Fees for each transaction that occurs via the blockchain network.
(e) Payment Processing for Purchasers. Payments facilitated by the Services may be processed by a third-party payment processor (“Payment Processor”). Purchaser’s use of these Payment Processors may be subject to the separate policies, terms of use, and fees of these Payment Processors. In compliance with the Visa Core Rules and Visa Product and Service Rules available at https://usa.visa.com/dam/VCOM/download/about-visa/visa-rules-public.pdf, there shall be no minimum or maximum transaction amounts applied to any Transactions accomplished using the functionality of the Services. Purchaser may be required to create an account with such Payment Processor, and by doing so, Purchaser are agreeing to comply with the Payment Processor’s terms of service. Purchaser may need to provide additional information to verify Purchaser’s identity, business and tax information and Purchaser’s bank information when Purchaser register with the Payment Processor. If, and to the extent, we accept, hold, or transmit funds in connection with Purchaser’s purchase, Purchaser agrees that we do so, on Creator's behalf, as Creator's limited agent.
(f) Payment through Digital Wallets.
1. General. Certain transactions that take place via the Services are managed and confirmed via the blockchain. You understand that your public cryptocurrency wallet address will be made publicly visible whenever you engage in a transaction using the Services. We will not be liable for the acts or omissions of any third parties, nor will we be liable for any damage that you may suffer because of your transactions or any other interaction with any such third parties. You may use our Services to collect VTAGZ NFTs, but neither Mammoth, its affiliates, or the Services, are the custodians of any VTAGZ NFTs you own or of any cryptocurrencies. You affirm that you are aware and acknowledge that Mammoth is a non-custodial service provider and has designed the Services to be directly accessible to VTAGZ NFT transactions by the Users without any involvement or actions taken by Mammoth or any third-party.
2. Use of Cryptocurrency Wallets. To initiate certain transactions on the Services, you must voluntarily invoke one or more smart contract operations from a digital wallet, whether by integrating your own third-party wallet or using our Services to create a Mammoth digital wallet (a “Locker”), (collectively, the third-party wallet and Locker, “Digital Wallets”). You can use your Digital Wallet to hold and manage your NFTs and support the sale, purchase, trade and distribution of NFTs on the Interface. All such transactions on the Services, including but not limited to transfers, offers, bids, listings, sales, or purchases of VTAGZ NFTs, are initiated though one or more smart contracts which you use at your sole discretion and at your own risk. The smart contracts are configured to facilitate the execution of a voluntary user offer, an acceptance of an offer, or other confirmation to purchase, sell, bid on, list, or transfer a VTAGZ NFT. You acknowledge the risk of all smart contracts, whether hosted by Mammoth or a third party, and agree to be bound by the outcome of any smart contract operation by invoking, calling, requesting, or otherwise engaging with the smart contract, whether or not the smart contract behaves as you expect it to. Additionally, your use of Digital Wallets may require you to register an account with and abide by the terms of service offered by that third party provider, and you acknowledge and agree that Mammoth is not a party to the relationship between you and a Digital Wallet.
3. Chargebacks and Payment Holdback. We reserve the right to offset future payments or to void VTAGZ NFTs after issuing them to Purchaser], including any royalty payments associated with Purchaser’s purchased VTAGZ NFT, (“Payment Holdbacks”) in certain cases including without limitation: (i) where Purchaser’s Account is subject to chargebacks resulting in additional costs or fees from the Payment Processor; (ii) where the Payment Processor withholds a percentage of a payment as a reserve, for example, as a result of actual or suspected fraudulent activity or breach or alleged breach of these Terms; or (iii) in certain cases where we decide, in our sole discretion, that it is prudent or necessary to reverse a transaction. We further reserve the right to implement Payment Holdbacks to Purchaser if payments are deemed suspicious or fraudulent, at our sole discretion. We will notify Purchaser that Purchaser are subject to a Payment Holdback and we may require that Purchaser provide supporting documentation or information related to the relevant payment(s) and corresponding Purchase(s). If Purchaser does not provide such supporting evidence within the requested timeframe, we reserve the right to refund the payment and transfer any available funds from Purchaser’s wallet to its identified bank account or otherwise take any action we feel is reasonably necessary to comply with our compliance standards, including those imposed by any relevant financial institution, our Payment Processor, or the credit card network rules, as well as any applicable law. Purchaser grants Mammoth a security interest in Purchaser’s Account and associated digital asset wallet, and all payments (including future payments) Purchaser receives for using the Services. We reserve the right, in our sole discretion, to freeze or cause Purchaser’s Account to be disabled and recover funds from Purchaser’s Account and associated digital asset wallet to pay for any fees including chargebacks or refunds due under these Terms, and Purchaser agrees that Purchaser will cooperate and provide us with all necessary access to recover such funds.
4. Failure to Process Payments or Chargebacks. Purchaser is solely responsible for the information Purchaser provides in connection with payments processed via the Services. We will not be liable for failure to complete any payment from or to Purchaser’s Account if Purchaser provides inaccurate or incomplete information regarding the payment or refund. Subject to applicable law, we reserve the right to send any delinquent, past due, or any other Mammoth Account that is in default to collections agencies to recover such past due amount.
(f) VTAGZ NFTs. When you purchase an VTAGZ NFT through the Services, you own all personal property rights to that VTAGZ NFT (i.e., the right to sell or otherwise dispose of that VTAGZ NFT). Such rights, however, do not include ownership of any of the intellectual property rights in the VTAGZ NFT. Unless specified otherwise in a separate Entitlements Agreement, you will have a worldwide, non-exclusive, non-transferable, royalty-free license to use, copy, and display the content contained within your purchased VTAGZ NFT, solely for the following purposes: (i) for your own personal, non-commercial use; (ii) attempts to sell or otherwise dispose of the VTAGZ NFT consistent with the ownership of it; and (iii) as part of a third party offering compatible with the purchased VTAGZ NFT in the normal course of the permitted end-use of such offering.
(a) Fees for Creators. Creator agrees that Mammoth shall deduct all applicable Transaction Fees, and Creator authorizes Mammoth to automatically charge Creator for such Transaction Fees or deduct such Transaction Fees directly from Creator’s payment method, as applicable. Mammoth will deduct the “Mammoth Services Fee” for all such sales, which means a percentage deducted off the top of the listed price of a VTAGZ NFT. Creator authorizes Mammoth to automatically charge Creator for any of the foregoing fees/costs or deduct such fees/costs (including the Mammoth Services Fee) directly from Creator’s amounts paid by the Purchaser. The payments made to Creators also do not include any Taxes, and Mammoth shall have no responsibility for payment of such Taxes regardless of the taxing authority. Each party shall be responsible for all Taxes imposed on its income or property.
(b) Entitlement. As between Mammoth and Creator, Creator shall continue to exclusively own all right, title and interest or have the licensed rights to in and to the digital art, rights or benefits offered through the Reveal Process, and associated with the NFTs and any name, likeness, image, signature, voice and other identifiable characteristics included in the digital art embodied in the NFTs, creative assets Creator provide to Mammoth, and Creator’s name, logos and trademarks, as well as any physical goods linked to or otherwise associated with the NFTs, and all intellectual property rights in the foregoing (collectively, the “Entitlement”). Notwithstanding the foregoing, Creator grants to Mammoth a perpetual, irrevocable, worldwide, non-exclusive, royalty-free, fully paid-up, license, with the right to sublicense through multiple tiers, to use Entitlement for the purpose of performing Mammoth’s obligations under these Terms, including hosting the Entitlement and listing, marketing and facilitating the sale of the NFTs, and marketing or promoting the Services. Following the initial drop of an NFT, Mammoth is not responsible for repairing, supporting, replacing, or maintaining the website hosting the Entitlement, nor does Mammoth have the obligation to maintain any connection or link between a purchased VTAGZ NFT and the corresponding Entitlement.
(c) Creator Obligations and Perks. Creator or Brand is responsible for obtaining all rights to the Entitlement in connection with the use thereof by Mammoth as contemplated in these Terms, and the awarding and administration of the real world benefits that Creator or Brand sells or lists in connection with the sale of Creator or Brand’s VTAGZ NFT, as applicable, including, but not limited to: (i) clearing and obtaining any rights in connection with the Entitlement, including but not limited to any music performance, publishing, and/or synchronization rights and payment of royalties to any performing rights organizations; (ii) acquiring any services or materials needed in connection with the Creator’s or Brand’s VTAGZ NFTs and benefits offered to Purchasers; and (iii) the costs and compliance for the benefits. Creator or Brand will provide Mammoth all Entitlement in accordance with any schedules or other specifications as may be mutually agreed upon between Creator or Brand and Mammoth in writing in a Creator Agreement and/or Brand Agreement. If Creator or Brand fails to deliver or otherwise fulfil any Entitlement to a Purchaser, Mammoth reserves the right to withhold or revert the prorated amount of net revenue arising from the NFT purchase associated with the failed delivery.
(d) Physical Goods. If the Entitlement is embodied in a physical, tangible form (“Physical Entitlement”), Creator or Brand acknowledges and agrees that Creator or Brand is solely responsible for the direct fulfilment of such Physical Entitlement to the Purchaser within its published timeframe. Creator or Brand agrees that Creator or Brand will provide all Purchasers of NFTs with the appropriate contact information to which they may contact Creator or Brand with questions regarding the fulfilment of such Physical Entitlement. Mammoth will neither facilitate nor provide support for the fulfilment of Physical Entitlement. Creator or Brand will include for each unit of Physical Entitlement all disclaimers (including any product tags) that may be required under applicable laws, regulations, self-regulatory guidelines and industry standards including without limitation, regarding product safety in all applicable jurisdictions (“Applicable Product Safety Laws”). If Creator or Brand fails to deliver or otherwise fulfil Physical Entitlement to a Purchaser, Mammoth reserves the right to withhold or revert the prorated amount of net revenue arising from the VTAGZ NFT purchase associated with the failed delivery.
(e) Creator and Brand Warranties. Creator or Brand represents and warrants that (i) Creator or Brand has the full right, power and authority to grant the rights granted or agreed to be granted hereunder, including, but not limited to, fully cleared permissions, consents, rights and licenses to the Brand Rights or Creator Rights in these Terms; (ii) the Brand Rights or Creator Rights, the VTAGZ NFTs, and the listing and sale contemplated by these Terms, complies with all, and do not and will not violate any applicable law, statute, rule, regulation, will perform in accordance with the intended specifications and without material error, and will be delivered free and clear of any claims, liens or rights of third parties; (iii) the Brand Rights or Creator Rights and Mammoth’s use thereof in accordance with these Terms does not and will not infringe any intellectual property rights of any third party or any right of privacy or publicity, or contain any libelous, defamatory, obscene or unlawful material, or otherwise violate or infringe any other right of any third party; (iv) Creator or Brand will fulfill its obligations under any terms with a Purchaser, as applicable; (v) any advertising or promotion of the VTAGZ NFTs by Creator or Brand or on its behalf will not constitute false, deceptive or unfair advertising or disparagement under any applicable laws and will not suggest a likely increase in value of the VTAGZ NFTs; and (vi) Creator or Brand will not use the proceeds retained from sales of the VTAGZ NFT, whether through the Services or any other platform for capital raising purposes; at no time will any of Creator’s or Brand’s services or marketing efforts violate any applicable securities or other laws, rules, or regulations including without limitation (i) encouraging speculative behavior in connection with any VTAGZ NFT or (ii) indicate that the value of any VTAGZ NFT is derived from or linked to the Creator’s or Brand’s efforts or labor. In addition, if Creator Brand includes offers of any physical goods with the Brand Rights or Creator Rights, Creator represents and warrants that (i) the such goods will be free from defects in materials or workmanship; (ii) such goods are and will be safe for normal use (iii) the manufacture, sale, storage, shipping, transportation and billing for such goods comply with all provisions of applicable law, safety and labeling standards and all applicable promulgations of governmental authority; (iv) such goods shall conform in every respect with the specifications set forth in the Purchase Terms or otherwise provided by Creator or Brand in writing and are of merchantable quality and good material and workmanship free from contamination or impurity and defects in design and title; and (v) Creator or Brand will in every manner of its business related to the performance of Purchase Terms obey and conform to all applicable laws, rules and regulations.
(i) Creator or Brand Indemnity. Creator or Brand will indemnify and hold harmless Mammoth and its officers, directors, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses (each, a “Claim”), including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with Creator’s or Brand’s breach of its representations and warranties above. Creator or Brand must: (i) promptly notify Mammoth in writing of the Claim; (ii) grant Mammoth sole control of the defense and settlement of the Claim; and (iii) provide Mammoth with all assistance, information and authority reasonably required for the defense and settlement of the Claim. Mammoth will not be bound by any settlement or compromise that Creator or Brand enters without Mammoth’s express prior consent.
(a) Your Responsibility. You are solely responsible for all costs incurred by you in using the Services and determining, collecting, reporting and paying all applicable Taxes. As used herein, “Taxes” means the taxes, duties, levies, tariffs, and other governmental charges that you may be required by law to collect and remit to governmental agencies, and other similar municipal, state, federal and national indirect or other withholding and personal or corporate income taxes.
(b) Tax Records and Reporting. We reserve the right to report any activity occurring using the Services to relevant tax authorities as required under applicable law. 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 Services.
(a) Post, upload, publish, submit or transmit any User Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
(b) Without the separate permission of the applicable owner thereof, to (i) use any aspect of any sound recording, musical work or digital artwork in a manner that is not expressly permitted by the Terms of Service; (ii) modify, change, or adapt the lyrics or fundamental character of any sound recording or musical work; (iii) to use the story of any musical work; or (iv) to criticize the copyright owner of any sound recording, musical work or digital artwork, the authors, composers or lyricists of any musical work, or the featured or non-featured recording artists of any sound recording;
(c) Reproduce, distribute, publicly perform, communicate to the public, synchronize or otherwise use and exploit any sound recordings, musical works or digital artwork obtained by you other than as expressly permitted hereunder, and you are solely responsible for clearing the rights to any sound recordings, musical works or digital artwork which you source directly;
(d) Use, display, mirror or frame the Services or any individual element within the Services, Mammoth’s name, any Mammoth trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Mammoth’s express written consent;
(e) Upload User Content to the Services for which you are not the owner, or for which you have not obtained all rights, clearances, licenses and other consents required to do so and to grant Company the User Content License in and to such User Content set forth herein.
(f) Use the Services for any purpose in violation of applicable local, state, national, or international law.
Attempt to probe, scan or test the vulnerability of any Mammoth system or network or breach any security or authentication measures;
(g) Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
(h) Use, display, mirror or frame the Services or any individual element within the Services, Mammoth’s name, any Mammoth trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Mammoth’s express written consent;
(i) Use the Services, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms or by a separate written agreement between you and Mammoth;
(j) Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services to send altered, deceptive or false source-identifying information;
(k) Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;
(l) Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
(m) Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
(n) Fabricate in any way any Transaction or process related thereto;
(o) Impersonate or misrepresent your affiliation with any person or entity;
(p) Create or list counterfeit items (including any VTAGZ NFTs);
(q) Engage in wash trading or other deceptive or manipulative trading activities;
(r) Place misleading bids or offers;
(s) Disguise or interfere in any way with the IP address of the computer you are using to access or use the Services or that otherwise prevents us from correctly identifying the IP address of the computer you are using to access the Services;
(t) Transmit, exchange, or otherwise support the direct or indirect proceeds of criminal or fraudulent activity; or
(u) Encourage or enable any other individual to do any of the foregoing
Although Mammoth is not obligated to monitor access to or use of the Services or User Content or to review or edit any User Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to the Services and any User Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any User Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
.
WE FURTHER EXPRESSLY DISCLAIM ALL LIABILITY OR RESPONSIBILITY IN CONNECTION WITH THIRD PARTY SERVICES. NOTHING HEREIN NOR ANY USE OF OUR SERVICES IN CONNECTION WITH THIRD PARTY SERVICES CONSTITUTES OUR ENDORSEMENT, RECOMMENDATION OR ANY OTHER AFFILIATION OF OR WITH ANY THIRD PARTY SERVICES.
NFTS ARE INTANGIBLE DIGITAL ASSETS. THEY EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN 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 WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSS AND TAKE NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO YOU FOR, ANY USE OF THE INTERFACE, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (A) USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED WALLET ADDRESSES; (B) SERVER FAILURE OR DATA LOSS; (C) CRYPTOCURRENCY WALLETS OR CORRUPT FILES; (D) UNAUTHORIZED ACCESS TO SERVICES; OR (E) ANY THIRD PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK AGAINST ANY BLOCKCHAIN NETWORK UNDERLYING THE INTERFACE.
By accessing and using the Services, you represent that you understand the inherent risks associated with using cryptographic and blockchain-based systems, and that you have a working knowledge of the usage and intricacies of digital assets such as bitcoin (BTC), ether (ETH), and other digital tokens such as those following the Ethereum Token Standard (ERC-20 or ERC-721). You further understand that the markets for these digital assets are highly volatile due to factors including (but not limited to) adoption, speculation, technology, security, and regulation. You acknowledge that the cost and speed of transacting with cryptographic and blockchain-based systems such as Ethereum 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 Services. 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 Services. Accordingly, you understand and agree to assume full responsibility for all the risks of accessing and using and interacting with the Services.
THE INTERFACE 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 INTERFACE AND/OR TELECOMMUNICATIONS INFRASTRUCTURE DISRUPTION, AND THEREFORE WE EXPRESSLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY REGARDING THE USE AND/OR AVAILABILITY, ACCESSIBILITY, SECURITY OR PERFORMANCE OF THE INTERFACE 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.
(a) CONSEQUENTIAL DAMAGES DISCLAIMER. NEITHER MAMMOTH NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST DIGITAL ASSETS, LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THE USE OR THE INABILITY TO USE THE INTERFACE, THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICE RESULTING FROM ANY NFT, GOODS, DATA, OR INFORMATION PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE INTERFACE, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE INTERFACE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT MAMMOTH OR ANY OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
(b) LIABILITY CAP. IN NO EVENT WILL MAMMOTH’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE INTERFACE EXCEED ONE THOUSAND U.S. DOLLARS ($1,000).
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN MAMMOTH AND YOU.
(a) Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Mammoth agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and Mammoth are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
(b) Exceptions. As limited exceptions to Section 21 (a) 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.
(c) Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org. Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability, and scope of this arbitration agreement.
(d) Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules, and we won’t seek to recover the administration and arbitrator fees we are responsible for paying, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
(e) Injunctive and Declaratory Relief. Except as provided in Section 21(b) above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the extent that you or we prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
(f) Class Action Waiver. YOU AND MAMMOTH AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ Dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
(g) Severability. With the exception of any of the provisions in Section 21(f) of these Terms (“Class Action Waiver”), if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
You agree that regardless of any applicable statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Services or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever and fully barred.
(a) Reservation of Rights. Mammoth and its licensors exclusively own all right, title and interest in and to the Services, including all associated intellectual property rights. You acknowledge that the Services are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
(b) Entire Agreement. These Terms constitute the entire and exclusive understanding and agreement between Mammoth and you regarding the Services, and these Terms supersede and replace all prior oral or written understandings or agreements between Mammoth and you regarding the Services. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. Except where provided by applicable law in your jurisdiction, you may not assign or transfer these Terms, by operation of law or otherwise, without Mammoth’s prior written consent. Any attempt by you to assign or transfer these Terms absent our consent or your statutory right, without such consent, will be null. Mammoth may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns. These terms of Service shall be binding upon all assignees or third parties that receive VTAGZ NFTs.
(c) Notices. Any notices or other communications provided by Mammoth under these Terms will be given: (i) via email; or (ii) by posting to the Services. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.
(d) Waiver of Rights. Mammoth’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Mammoth. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.