Last Updated: July 2022
1. Introduction and Acceptance
Welcome to Gamma.io (the "Site"), owned and operated by Gamma.io Inc., a Delaware corporation ("Gamma ," "we ," "us", or "our"). The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, the "Terms"), govern your access and use of the Site, and any content, features, functionality, and services offered on or through the Site, including without limitation, using the Site to view, explore, and create NFTs, and using our tools, at your own discretion, to connect directly with others to purchase, sell, or transfer NFTs on public blockchains (collectively, the "Service"). For purposes of these terms, "NFT" means a non-fungible token or similar digital item implemented on a blockchain (such as the Bitcoin blockchain), which uses smart contracts to link to or otherwise be associated with certain content or data.
Gamma reserves the right to change or modify these Terms at any time and in our sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Service. If we make material changes to these Terms, we will use reasonable efforts to provide notice of such changes, such as by providing notice through the Service or updating the "Last Updated" date at the beginning of these Terms. By continuing to access or use the Service, you confirm your acceptance of the revised Terms and all of the terms incorporated therein by reference effective as of the date these Terms are updated. It is your sole responsibility to review the Terms from time to time, to view such changes, and ensure that you understand the terms and conditions that apply when you access or use the Service.
Because we have a growing number of services, we sometimes need to provide additional terms for specific services (and such services are deemed part of the "Service" hereunder and shall also be subject to these Terms). Those additional terms and conditions, which are available with the relevant service, then become part of your agreement with us if you use those services. In the event of a conflict between these Terms and any additional applicable terms we may provide for a specific service, such additional terms shall control for that specific service.
3. Service Overview and Site Access
Gamma is not a wallet provider, exchange, broker, financial institution, or creditor. Gamma provides a peer-to-peer web3 service that helps users discover and directly interact with each other and NFTs available on public blockchains. We do not have custody or control over the NFTs or blockchains you are interacting with, and we do not execute or effectuate purchases, transfers, or sales of NFTs. To use our Service, you must use a third-party wallet (e.g., Leather) which allows you to engage in transactions on blockchains.
Gamma is not party to any agreement between any users. You bear full responsibility for verifying the identity, legitimacy, and authenticity of NFTs that you purchase from third-party sellers using the Service and we make no claims about the identity, legitimacy, functionality, or authenticity of users or NFTs (and any content associated with such NFTs) visible on the Service.
You will need a blockchain address and a third-party wallet to access the Service. Your blockchain address functions as your identity on the Site. You may, but are not required to, create a Gamma user account to use the Service. For purposes of these Terms, your blockchain address or account created on Gamma are hereafter referred to as your "Account." Your Account will be associated with your linked blockchain address and display the NFTs for that blockchain address (and, if applicable, any content associated with such NFTs).
You must be at least 18 years old to use the Service. If you are at least 13 years old but under 18 years old, you may only use the Service through a parent or guardian's Account and with their approval and oversight, and the parent or guardian Account holder is responsible for your actions using the Account. It is prohibited to use our Service if you are under 13 years old.
You represent and warrant that all the information that you provide in order to use the Service is true, accurate, current, and complete. You understand that you are solely responsible for (and that we have no responsibility to you or to any third party for) any breach of your obligations under these Terms and for the consequences including any loss or damage which we may suffer) of any such breach.
Compliance with Law
You also represent and warrant that you will comply with all applicable laws (e.g., local, state, federal, and other laws) when using the Service. Without limiting the foregoing, by using the Service, you represent and warrant that: (a) 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 (b) you have not been identified as a Specially Designated National (as that term is defined by the Office of Foreign Assets Control of the U.S. Department of the Treasury) or placed on any U.S. Government list of prohibited, sanctioned, or restricted parties. We make no claims regarding our Site outside of the United States. If you access or use the Service outside the United States, you do so at your own risk and you are solely responsible for ensuring that your access and use of the Service in such country, territory or jurisdiction does not violate any applicable laws.
Gamma may require you to provide additional information and documents in certain circumstances, such as at the request of any government authority, as any applicable law or regulation dictates, or to investigate a potential violation of these Terms. In such cases, Gamma, in its sole discretion, may disable your Account and block your ability to access the Service until such additional information and documents are processed by Gamma. If you do not provide complete and accurate information in response to such a request, Gamma may refuse to restore your access to the Service.
You shall be solely responsible for providing, maintaining and ensuring compatibility with the Service access requirements, all hardware, software, electrical or other physical requirements for your use of the Service, including without limitation, mobile devices, telecommunications and Internet service provider access, connections, links, web browsers or other equipment, programs and services required to access the Internet or the Service. You acknowledge and agree that from time to time the Service may be inaccessible or inoperable for any reason, including without limitation: (i) equipment malfunctions, (ii) periodic maintenance procedures or repairs; or (iii) other causes beyond our control. Additionally, because the Service is accessed via the Internet or a mobile carrier, you may have connection issues due solely to your own Internet or telecommunications service provider or other technological access requirements. We are not responsible for any third-party access requirements (e.g., your ISP).
4. User Restrictions
You agree that you will not violate any law, contract, intellectual property, or other third-party right, and that you are solely responsible for your conduct and content while accessing or using the Service. You also agree that you will not:
- Use or attempt to use another user's Account without authorization from such user;
- Pose as another person or entity;
- Access the Service from a different blockchain address if we have blocked any of your other blockchain addresses from accessing the Service, unless you have our written permission first;
- Distribute spam, including through sending unwanted NFTs to other users;
- Damage, disable, overburden, or impair the functioning of the Service in any manner;
- Bypass or ignore instructions that control access to the Service, including attempting to circumvent any rate limiting systems, directing traffic through multiple IP addresses, or otherwise obfuscating the source of traffic you send to Gamma;
- Use any data mining, robot, spider, crawler, scraper, script, browser extension, offline reader, or other automated means or interface not authorized by us to access the Service, extract data, or otherwise interfere with or modify the rendering of Service pages or functionality;
- Reverse engineer, duplicate, decompile, disassemble, or decode any aspect of the Service, or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any service, area, or code of the Service;
- Sell or resell the Service or attempt to circumvent any Gamma fee systems;
- Engage in behaviors that have the intention or the effect of artificially causing an item or collection to appear at the top of search results, or artificially increasing view counts, favorites, or other metrics that Gamma might use to sort search results;
- Use the Service or data collected from our Service for any advertising or direct marketing activity (including without limitation, email marketing, SMS marketing, and telemarketing);
- Use the Service for money laundering, terrorist financing, or other illicit finance;
- Use the Service from a country sanctioned by the government of the United States or to facilitate transactions involving individuals sanctioned by the government of the United States or located in sanctioned countries;
- Use the Service to carry out any financial activities subject to registration or licensing, including but not limited to creating, selling, or buying securities, commodities, options, or debt instruments;
- Use the Service to create, sell, or buy NFTs or other items that give owners' rights to participate in an ICO or any securities offering, or that are redeemable for securities, commodities, or other financial instruments;
- Use the Service to engage in price manipulation, fraud, or other deceptive, misleading, or manipulative activity;
- Use the Service to buy, sell, or transfer stolen items, fraudulently obtained items, items taken without authorization, and/or any other illegally obtained items;
- Infringe or violate the intellectual property rights or any other rights of others;
- Create or display illegal content, such as content that may involve child sexual exploitation;
- Create or display NFTs or other items that promote suicide or self-harm, incites hate or violence against others, or doxes another individual;
- Use the Service for any illegal or unauthorized purpose, including creating or displaying illegal content, such as content that may involve child sexual exploitation, or encouraging or promoting any activity that violates the Terms;
- Use the Service in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Service.
We reserve the right to take action, with or without advance notice, if we believe you have violated these Terms, including the restrictions set forth above. This may include but is not limited to: (a) removing the ability to view certain NFTs on the Service or use our Service to interact with the NFTs; (b) disabling the ability to use the Service in conjunction with buying/selling/transferring NFTs available on blockchains; (c) disabling your ability to access our Service; and/or (d) other actions.
You bear full responsibility for verifying the authenticity, legitimacy, identity, and other details about any NFT, collection, or account that you view or otherwise interact with in conjunction with our Service. We make no guarantees or promises about the identity, legitimacy, or authenticity of any NFT, collection, or account on the Service.
5. Third-Party Providers, Content, and Transactions
Gamma Third-Party Service Providers
You acknowledge that our contracts with third party suppliers, licensors, developers, application and data hosting providers, wireless network services, and other technology services providers to provide the Site's functionality and the Service ("Third Party Providers"). For example, all user data and user content is stored at computer data centers operated and maintained by Third Party Providers. We are responsible for ensuring that the Third-Party Providers abide by these Terms. We are solely responsible for monitoring and supervising all necessary work of the Third-Party Providers.
The Service may also contain links or functionality to access or use third-party websites and applications, or otherwise display, include, or make available content, data, information, services, applications, or materials from third parties. Any third party links provided in the Site are provided solely for your convenience. We do not review, endorse nor make any representations about such sites, and your use of these sites is at your own risk. You agree that we will not be responsible or liable under any circumstances or theories, directly or indirectly, for any damage or loss caused or alleged to be caused, by or in connection with your use or reliance on these third party sites.
By using your wallet in connection with the Service, you agree that you are using that wallet under the terms and conditions of the applicable provider of the wallet. Wallets are not operated by, maintained by, or affiliated with Gamma, and Gamma does not have custody or control over the contents of your wallet and has no ability to retrieve or transfer its contents. Gamma accepts no responsibility for, or liability to you, in connection with your use of a wallet and makes no representations or warranties regarding how the Service will operate with any specific wallet. You are solely responsible for keeping your wallet secure and you should never share your wallet credentials or seed phrase with anyone. If you discover an issue related to your wallet, please contact your wallet provider. Likewise, you are solely responsible for your Account and any associated wallet and we are not liable for any acts or omissions by you in connection with your Account or as a result of your Account or wallet being compromised. You agree to immediately notify us via email at [email protected] if you discover or otherwise suspect any security issues related to the Service or your Account.
Third-Party Content and Transactions
As a peer-to-peer web3 service, Gamma helps you explore NFTs created by third parties and interact with different blockchains. Gamma does not make any representations or warranties about this third-party content visible through our Service, including any content associated with NFTs displayed on the Service. We make no claims about the identity, legitimacy, functionality, or authenticity of users or NFTs. You bear responsibility for verifying the legitimacy, authenticity, and legality of NFTs that you purchase from third-party sellers using the Service. We also cannot guarantee that any NFTs visible on Gamma will always remain visible and/or available to be bought, sold, or transferred.
Gamma is not a party to any agreement between users. NFTs may be subject to terms directly between buyers and sellers with respect to the use of the NFT content and benefits associated with a given NFT ("Purchase Terms"). For example, when you click to get more details about any of the NFTs visible on Gamma, you may notice a third party link to the creator's website. Such website may include Purchase Terms governing the use of the NFT that you will be required to comply with. Gamma is not a party to any such Purchase Terms, which are solely between the buyer and the seller of the subject NFTs. The buyer and seller are entirely responsible for communicating, promulgating, agreeing to, and enforcing Purchase Terms. You are solely responsible for reviewing such Purchase Terms.
6. Intellectual Property Rights
Ownership of the Service
The Service and its entire contents, features, and functionality, including, but not limited to, the "look and feel" of the Service, data files, graphics, text, photographs, drawings, logos, images, sounds, music, video or audio files, are protected by copyright owned or licensed by us and our logo and all other logos used in association with the Service are owned by the Company, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. You agree not to take any action(s) inconsistent with such ownership interests. We and our affiliates, licensors, and users, as applicable, reserve all rights in connection with the Service and its content, including, without limitation, the exclusive right to create derivative works. You may not use any metatags or other "hidden text" utilizing "Gamma" or any other name, trademark, service mark, or product or service name of Gamma or our affiliates or licensors without our prior written permission. You shall have no rights or interests therein except as set forth in these Terms. You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) that may be affixed to or contained within the Site or the information provided therein.
License to Access and Use Our Service and Content
You are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, and personal license to access and use the Service; provided, however, that such license is subject to your compliance with these Terms. If any software, content, or other materials owned by, controlled by, or licensed to us are distributed or made available to you as part of your use of the Service, we hereby grant you a non-commercial, personal, non-assignable, non-sublicensable, non-transferrable, and non-exclusive right, and license to access and display such software, content, and materials provided to you as part of the Service, in each case for the sole purpose of enabling you to use the Service as permitted by these Terms, provided that your license in any content linked to or associated with any NFTs is solely as set forth by the applicable seller or creator of such NFT.
We provide you with the ability to customize and curate your own Account profile using your NFT collectibles and user-owned data. We enable this using Gaia, which allows you to create and share a data store that is associated with your decentralized wallet. When you connect this data to Gamma, you are giving Gamma access to this information to enrich your profile experience, but you will always remain its owner. Accordingly, you give Gamma a worldwide, non-exclusive, sublicensable, royalty-free license to use, copy, modify, and display this content on or through the Service for the limited purpose of providing these Account features.
Any information, material, or idea you submit through the Service will be considered non-confidential and non-proprietary. You acknowledge and expressly agree that any contribution of feedback, comments, and suggestions for improvements to the Service ("Feedback") does not and will not give or grant you any right, title, or interest in the Service or in any such Feedback. You agree that Gamma may use and disclose Feedback in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to Gamma any and all right, title, and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that you may have in and to any and all Feedback.
Other User Submissions
The Service may contain profiles, message boards, creator portals, and other interactive features that allow users to post, submit, publish, display, or transmit to other users or other persons content or materials (collectively "User Contributions") on the Site or through the Service. This includes any digital file, art, or other material linked to or associated with any NFTs that are displayed on the Service. All User Contributions must comply with Gamma's content standards that are posted on the Site.
Any User Contribution you post to the Site or through the Service will be considered non-confidential and non-proprietary. By providing any User Contribution on the Site or through the Service, you grant Gamma and its licensee, successors, and assigns a worldwide, non-exclusive, sublicensable, royalty-free limited license to use, display, distribute, and otherwise disclose to any third party any such User Contribution you submit or post on or through the Service for the limited purposes of providing, promoting, and improving the Service and as authorized in your user account settings, if any. You still retain the ownership and remain the copyright holder of such User Contributions.
You represent and warrant that you have, or have obtained, all rights, licenses, consents, permissions, power and/or authority necessary to grant the rights granted herein for any content that you create, submit, post, promote, or display on or through the Service. You represent and warrant that such content does not contain material subject to copyright, trademark, publicity rights, or other intellectual property rights, unless you have necessary permission or are otherwise legally entitled to post the material and to grant Gamma the license described above, and that the content does not violate any laws.
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 or from the Service infringe your copyright, you may request removal of those materials (or access to them) from the Service by submitting written notification to our copyright agent designated below.
In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) ("DMCA"), the written notice (the "DMCA 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 Website, 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.
Our designated copyright agent to receive DMCA Notices is:
Attn: Legal Department
548 Market Street, PMB 42213
San Francisco, CA 94104
If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective.
Please be aware that if you knowingly materially misrepresent that material or activity on the Website is infringing your copyright, you may be held liable for damages (including costs and attorneys' fees) under Section 512(f) of the DMCA.
8. Assumption of Risk
This Section is about the risks you assume when you use our Service. You accept and acknowledge that:
- The value of an NFT is subjective. Prices of NFTs are subject to volatility and fluctuations in the price of cryptocurrency can also materially and adversely affect NFT prices. You fully understand this subjectivity and volatility and that you may lose money.
- 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 of NFTs.
- The regulatory regime governing blockchain technologies, non-fungible tokens, cryptocurrency, and other crypto-based items is uncertain, and new regulations or policies may materially adversely affect the development of the Service and the utility of NFTs.
- You are solely responsible for determining what, if any, taxes apply to your transactions. Gamma is not responsible for determining the taxes that apply to your NFTs.
- There are risks associated with purchasing items associated with content created by third parties through peer-to-peer transactions, including but not limited to, the risk of purchasing counterfeit items, mislabeled items, items that are vulnerable to metadata decay, items on smart contracts with bugs, and items that may become non-transferable. You represent and warrant that you have done sufficient research before making any decisions to sell, obtain, transfer, or otherwise interact with any NFTs or accounts/collections.
- We do not control the public blockchains that you are interacting with and we do not control certain smart contracts and protocols that may be integral to your ability to complete transactions on these public blockchains. Additionally, blockchain transactions are irreversible, and Gamma has no ability to reverse any transactions on the blockchain.
- There are risks associated with using Internet and blockchain-based products, including, but not limited to, the risk associated with hardware, software, and Internet connections, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to your third-party wallet or Account. You accept and acknowledge that Gamma will not be responsible for any communication failures, disruptions, errors, distortions, or delays you may experience when using the Service or any blockchain network, however caused.
- The Service relies on Third Party Providers. If we are unable to maintain a good relationship with such Third Party Providers; if the terms and conditions or pricing of such Third Party Providers change; if we violate or cannot comply with the terms and conditions of such Third Party Providers; or if any of such Third Party Providers loses market share or falls out of favor or is unavailable for a prolonged period of time, access to and use of the Service will suffer.
- Gamma reserves the right to hide collections, contracts, and items affected by any of these issues or by other issues. Items you purchase may become inaccessible on Gamma. Under no circumstances shall the inability to view items on Gamma or an inability to use the Service in conjunction with the purchase, sale, or transfer of items available on any blockchains serve as grounds for a claim against Gamma.
- If you have a dispute with one or more users, YOU RELEASE US FROM CLAIMS, DEMANDS, AND DAMAGES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. IN ENTERING INTO THIS RELEASE YOU EXPRESSLY WAIVE ANY PROTECTIONS (WHETHER STATUTORY OR OTHERWISE) THAT WOULD OTHERWISE LIMIT THE COVERAGE OF THIS RELEASE TO INCLUDE THOSE CLAIMS WHICH YOU MAY KNOW OR SUSPECT TO EXIST IN YOUR FAVOR AT THE TIME OF AGREEING TO THIS RELEASE.
By agreeing to these Terms and accessing the Service, you agree, to the fullest extent permitted by applicable law, to indemnify, defend, and hold harmless Gamma, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns (individually and collectively, the "Gamma Parties"), from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys' fees) ("Claims") arising out of or relating to (a) your use or misuse of the Service, content, NFTs, or content linked to or associated with any NFTs, (b) your submissions to the Service, (c) your violation or breach of any term of these Terms or applicable law, (d) your violation of the rights of or obligations to a third party, including another user or third-party, and (e) your negligence or willful misconduct. You agree to promptly notify Gamma of any Claims and cooperate with the Gamma Parties in defending such Claims. You further agree that the Gamma Parties shall have control of the defense or settlement of any Claims. THIS INDEMNITY IS IN ADDITION TO, AND NOT IN LIEU OF, ANY OTHER INDEMNITIES SET FORTH IN AN AGREEMENT BETWEEN YOU AND GAMMA.
YOUR ACCESS TO AND USE OF THE SERVICE IS AT YOUR OWN RISK. YOU UNDERSTAND AND AGREE THAT THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND GAMMA EXPRESSLY DISCLAIMS WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. GAMMA (AND ITS THIRD PARTY PROVIDERS) MAKE NO WARRANTY OR REPRESENTATION AND DISCLAIM ALL RESPONSIBILITY FOR WHETHER THE SERVICE WILL: (A) MEET YOUR REQUIREMENTS; (B) BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) BE ACCURATE, RELIABLE, COMPLETE, LEGAL, OR SAFE. GAMMA DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. GAMMA WILL NOT BE LIABLE FOR ANY LOSS OF ANY KIND FROM ANY ACTION TAKEN OR TAKEN IN RELIANCE ON MATERIAL OR INFORMATION, CONTAINED ON THE SERVICE. WHILE GAMMA ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF THE SERVICE SAFE, GAMMA CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICE, CONTENT, CONTENT LINKED TO OR ASSOCIATED WITH ANY NFTS, OR ANY NFTS YOU INTERACT WITH USING OUR SERVICE OR OUR SERVICE PROVIDERS' SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE CANNOT GUARANTEE THE SECURITY OF ANY DATA THAT YOU DISCLOSE ONLINE. NO ADVICE OR INFORMATION, WHETHER ORAL OR OBTAINED FROM THE GAMMA PARTIES OR THROUGH THE SERVICE, WILL CREATE ANY WARRANTY OR REPRESENTATION NOT EXPRESSLY MADE HEREIN. YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET AND WILL NOT HOLD GAMMA RESPONSIBLE FOR ANY BREACH OF SECURITY.
WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSS AND TAKE NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO YOU FOR, ANY USE OF NFTS, CONTENT, AND/OR CONTENT LINKED TO OR ASSOCIATED WITH NFTS, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES, OR CLAIMS ARISING FROM: (A) USER ERROR, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED ADDRESSES; (B) SERVER FAILURE OR DATA LOSS; (C) UNAUTHORIZED ACCESS OR USE; AND/OR (D) ANY UNAUTHORIZED THIRD-PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTE FORCING, OR OTHER MEANS OF ATTACK AGAINST THE SERVICE OR NFTS.
NFTS EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE ASSOCIATED BLOCKCHAIN (E.G., BITCOIN NETWORK). ANY TRANSFERS OR SALES OCCUR ON THE ASSOCIATED BLOCKCHAIN (E.G., BITCOIN). GAMMA AND/OR ANY OTHER GAMMA PARTY CANNOT EFFECT OR OTHERWISE CONTROL THE TRANSFER OF TITLE OR RIGHT IN ANY NFTS OR UNDERLYING OR ASSOCIATED CONTENT OR ITEMS.
NO GAMMA PARTY IS RESPONSIBLE OR LIABLE FOR ANY SUSTAINED LOSSES OR INJURY DUE TO VULNERABILITY OR ANY KIND OF FAILURE, ABNORMAL BEHAVIOR OF SOFTWARE (E.G., WALLET, SMART CONTRACT), BLOCKCHAINS OR ANY OTHER FEATURES OF THE NFTS. NO GAMMA PARTY IS RESPONSIBLE FOR LOSSES OR INJURY DUE TO LATE REPORTS BY DEVELOPERS OR REPRESENTATIVES (OR NO REPORT AT ALL) OF ANY ISSUES WITH THE BLOCKCHAIN SUPPORTING THE NFTS, INCLUDING FORKS, TECHNICAL NODE ISSUES, OR ANY OTHER ISSUES HAVING LOSSES OR INJURY AS A RESULT.
Some jurisdictions do not allow the exclusion of implied warranties in contracts with consumers, so the above exclusion may not apply to you.
11. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AGREE THAT IN NO EVENT WILL GAMMA OR ITS SERVICE PROVIDERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES ARISING FROM THESE TERMS OR THE SERVICE, PRODUCTS, OR THIRD-PARTY SITES AND PRODUCTS, OR FOR ANY DAMAGES RELATED TO LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS, OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, OR LOSS OF DATA, AND WHETHER CAUSED BY STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE AND EVEN IF GAMMA OR ITS SERVICE PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) FOR ANY OTHER CLAIM, DEMAND, OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF THE DELIVERY, USE, OR PERFORMANCE OF THE SERVICE. ACCESS TO, AND USE OF, THE SERVICE, PRODUCTS, OR THIRD-PARTY SITES, AND PRODUCTS ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA RESULTING THEREFROM.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF GAMMA ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS, THE ACCESS TO, AND USE OF THE SERVICE, CONTENT, NFTS, OR ANY GAMMA PRODUCTS OR SERVICES EXCEED THE GREATER OF (A) $100 OR (B) THE AMOUNT RECEIVED BY GAMMA FOR ITS SERVICE DIRECTLY RELATING TO THE ITEMS THAT ARE THE SUBJECT OF THE CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Any claims arising in connection with your use of the Site or any information thereon must be brought within one (1) year after the cause of action accrues; otherwise, such cause of action or claim is permanently barred. Remedies under these Terms are exclusive and are limited to those expressly provided for in these Terms. If you are dissatisfied with the Service, your sole and exclusive remedy shall be to discontinue use of the Service.
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. Some jurisdictions also limit disclaimers or limitations of liability for personal injury from consumer products, so this limitation may not apply to personal injury claims.
12. Limitations On Liability For Third-Party Providers
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOU HAVE NO CONTRACTUAL RELATIONSHIP WITH ANY OF OUR THIRD PARTY PROVIDERS, AND THAT YOU ARE NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN COMPANY AND ANY THIRD PARTY PROVIDER. IN ADDITION, YOU ACKNOWLEDGE THAT ALL SUCH THIRD PARTY PROVIDERS SHALL HAVE NO LEGAL, EQUITABLE, OR OTHER LIABILITY OF ANY KIND TO ANY USER, AND YOU HEREBY WAIVE AND DISCLAIM ANY AND ALL CLAIMS OR DEMANDS OF SUCH NATURE. YOU ACKNOWLEDGE AND AGREE THAT ANY THIRD PARTY PROVIDERS HAVE NO OBLIGATION FOR ANY WARRANTY, EXPRESS OR IMPLIED OF ANY KIND WHATSOEVER (INCLUDING WITHOUT LIMITATION, WARRANTIES OF TITLE OR NON-INFRINGEMENT, OR ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) WITH REGARD TO THE INFORMATION PROVIDED ON OR THROUGH THE SERVICE. YOU FURTHER ACKNOWLEDGE AND AGREE THAT SUCH THIRD PARTY PROVIDERS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SHALL HAVE NO OTHER WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE INFORMATION PROVIDED, AND ANY OTHER CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES ATTRIBUTABLE TO ANY FAILURE TO CONFORM TO ANY WARRANTY WILL BE SOLELY AS PERMITTED UNDER THESE TERMS.
13. Bargained For Basis
YOU ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THESE TERMS AND NEITHER THE SERVICES, THE SITE, NOR THE INFORMATION THEREON WOULD BE PROVIDED TO YOU ABSENT SUCH LIMITATIONS OF LIABILITY.
14. Modifications to the Service
We reserve the right in our sole discretion to modify, suspend, or discontinue, temporarily or permanently, the Service (or any features or parts thereof) at any time and without liability as a result.
15. Dispute Resolution; Arbitration
Dispute Resolution. Please read the following arbitration agreement in this Section 15 ("Arbitration Agreement") carefully. It requires you to arbitrate disputes with Gamma and limits the manner in which you can seek relief from us. This Section does not govern disputes between users or between users and third parties. Gamma does not provide dispute resolution services for such disagreements and the parties must resolve those disputes directly.
Applicability of Arbitration Agreement. You agree that any dispute, controversy, or claim relating in any way to your access or use of the Service, to any products sold or distributed through the Service, or to any aspect of your relationship with Gamma, will be resolved by binding arbitration, rather than in court, including threshold questions of the arbitrability of such dispute, controversy, or claim except that (1) you or Gamma may assert claims in small claims court, but only if the claims qualify, the claims remain only in such court, and the claims remain on an individual, non-representative, and non-class basis, and (2) you or Gamma may seek injunctive or equitable relief in a court of proper jurisdiction if the claim relates to intellectual property infringement or other misuse of intellectual property rights.
Dispute Resolution Process. You and Gamma both agree to engage in good-faith efforts to resolve disputes prior to either party initiating an arbitration, small claims court proceeding, or equitable relief for intellectual property infringement. You must initiate this dispute resolution process by sending a letter describing the nature of your claim and desired resolution to Gamma via mail and email to the addresses set forth for copyright notices in Section 7 above. Both parties agree to meet and confer personally, by telephone, or by videoconference (hereinafter " Conference") to discuss the dispute and attempt in good faith to reach a mutually beneficial outcome that avoids the expenses of arbitration or, where applicable, litigation. If you are represented by counsel, your counsel may participate in the Conference as well, but you agree to fully participate in the Conference. Likewise, if Gamma is represented by counsel, its counsel may participate in the Conference as well, but Gamma agrees to have a company representative fully participate in the Conference. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process and Conference required by this paragraph. If the parties do not reach agreement to resolve the dispute within thirty (30) days after initiation of this dispute resolution process, either party may commence arbitration, file an action in small claims court, or file a claim for injunctive or equitable relief in a court of proper jurisdiction for matters relating to intellectual property infringement, if the claims qualify.
Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding after participating in the dispute resolution process, you must send a letter (via email and mail) requesting arbitration and describing your claim to our registered agent at the addresses set forth for copyright notices in Section 7 above. The disputes and claims subject to arbitration will be resolved by a single arbitrator mutually agreed upon by you and Gamma. If we the parties cannot agree on an arbitrator, then an arbitrator shall be selected pursuant to Rule 12 of the JAMS Streamlined Arbitration Rules and Procedures. The arbitrator shall be bound by and shall strictly enforce these Terms and any other applicable agreement between us, and may not limit, expand, or otherwise modify any such terms. The arbitrator may award any relief that a court of law could, applying the limitations of liability contained in these Terms. The arbitrator may award injunctive relief if permitted by law – but the injunctive relief awarded by the arbitrator may not extend beyond our dealings with one another. Any arbitration will be held in New York, NY, unless otherwise agreed upon by you and Gamma in writing. You and Gamma will each bear its own expenses in the arbitration and will share equally the costs of the arbitration; provided, however, that the arbitrator shall award costs and fees to the prevailing party if it is determined that the other party submitted a claim with no reasonable basis or filed any claim in bad faith.
Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement, and (b) resolve any dispute related to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement including, but not limited to, any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Gamma. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum's rules, and these Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Waiver of Jury Trial. YOU AND GAMMA HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Gamma are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the second paragraph labelled "Applicability of Arbitration Agreement" above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
Waiver of Class Actions and Class Arbitrations. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A REPRESENTATIVE OR COLLECTIVE CLASS BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE USER, PERSON, OR ENTITY CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER USER, PERSON, OR ENTITY. Accordingly, under the arbitration procedures outlined in this Section, an arbitrator shall not combine or consolidate more than one party's claims without the written consent of all affected parties to an arbitration proceeding. Without limiting the generality of the foregoing, you and Gamma agree that no dispute shall proceed by way of class arbitration without the written consent of all affected parties. If a decision is issued stating that applicable law precludes enforcement of any part of this subsection's limitations as to a given claim for relief, then that claim must be severed from the arbitration and brought in the state or federal courts located in the Southern District of New York. All other claims shall be arbitrated.
Severability. Except as provided in this Section, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Gamma and your use of the Service.
Modification. Notwithstanding any provision in these Terms to the contrary, we agree that if Gamma makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing (via mail and email) to Gamma at the addresses set forth for copyright notices in Section 7 above.
16. Governing Law and Venue
These Terms and your access to and use of the Service shall be governed by and construed and enforced in accordance with the laws of the State of Delaware (without regard to conflict of law rules or principles of the State of State of Delaware. You and Gamma agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or construction of these Terms.
Any dispute between the parties that is not subject to arbitration as set forth in Section 15 above or cannot be heard in small claims court, shall be resolved in the state or federal courts sitting in the Southern District of New York.
If you breach any of the provisions of these Terms, all licenses granted by Gamma will terminate automatically. Additionally, notwithstanding anything contained in these Terms, we reserve the right, with or without notice and in our sole discretion, to suspend, disable, terminate, or delete your Account and/or your ability to access or use the Service (or any part of the foregoing) at any time and for any or no reason, and you acknowledge and agree that we shall have no liability or obligation to you in such event and that you will not be entitled to a refund of any amounts that you have already paid to us.
18. No Waiver; Severability
Any failure on the part of a party to these Terms to insist upon strict enforcement of any provision(s) of these Terms shall not be construed as a waiver of any provision or right. Should any provision of these Terms be held invalid or unenforceable, such invalidity will not invalidate the whole of these Terms, but rather that invalid provision will be amended to achieve as nearly as possible the same economic effect as the original provision and the remainder of these Terms will remain in full force and effect.
19. Injunctive Relief
You agree that a breach of these Terms will cause irreparable injury to Gamma for which monetary damages would not be an adequate remedy and Gamma shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security, or proof of damages.
20. California Residents
If you are a California resident, in accordance with Cal. Civ. Code § 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.
All sections which by their nature should survive the termination of these Terms shall continue in full force and effect subsequent to and notwithstanding any termination of these Terms by Gamma or you. Termination will not limit any of Gamma's other rights or remedies at law or in equity.
These Terms constitute the entire agreement between you and Gamma relating to your access to and use of the Service and supersedes all prior agreements with respect to the content of these Terms. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of Gamma, and Gamma's failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for reference only and shall not be read to have any legal effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity.
23. Comments and Concerns
All notices, feedback, comments, requests for technical support, and other communications relating to the Site should be directed to Gamma at [email protected].