This NFT Purchase and License Agreement (this “Agreement”) is a legally binding agreement by and between MetaClash Ltd., (“MCL” or “us”) and the holders of any MetaClash NFT (defined below) (“you” or “Holder”). MCL and each Holder may be referred to throughout this Agreement collectively as the “Parties” or individually as a “Party”. By purchasing or otherwise holding a MetaClash NFT, you acknowledge that you have carefully read and agree to the terms of this Agreement.
WHEN YOU AGREE TO THESE TERMS, YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND MCL THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 14 “DISPUTE RESOLUTION” BELOW FOR DETAILS REGARDING ARBITRATION. HOWEVER, IF YOU ARE A RESIDENT OF A JURISDICTION WHERE APPLICABLE LAW PROHIBITS ARBITRATION OF DISPUTES, THE AGREEMENT TO ARBITRATE IN SECTION 14 WILL NOT APPLY TO YOU BUT THE PROVISIONS OF SECTION 13 (GOVERNING LAW AND FORUM CHOICE) WILL APPLY INSTEAD.
1. AGREEMENT TO TERMS
“MetaClash NFT" refers to a non-fungible token (NFT) (i.e., a controllable electronic record recorded on a blockchain) that is minted by a smart contract deployed to the Ethereum, Polygon, and/or Immutable blockchain at address 0x3110ef5f612224ca51f5761adfdfd69081809f03b7, 0xc31085b262bc649f8747e4dfsdff083685697176e, or 0xec7f8a34b97caad3841659f2dfadfascd54285a3950, as applicable, (the “MetaClash Smart Contract”), and that is linked to images of MetaClash Art, as applicable. “MetaClash Art” means digital art, e.g., Gateway portal, a particular war vehicle, other 3D interactive assets with a combination of traits and statistics based on rarity, war drone, MetaClash in-game assets, which may be from the MetaClash collections, as it relates to the D.A.D. Game (as defined below), linked to MetaClash NFTs, which images consist of elements compiled by the underlying D.A.D. Smart Contract, and owned by MCL.
- Additional Terms: MetaClash NFTs may be available for purchase on one or more platforms, including but not limited to a platform with a website and interface located at https://www.metaclash.online/ (each, a “NFT Site”), which is not owned or operated by us. The access and use of the NFT Site is subject to the separate terms of the NFT Site. If there is a conflict between the NFT Site terms and this Agreement with respect to the MetaClash NFT and/or the MetaClash Art, this Agreement controls.
2. OWNERSHIP OF METACLASH NFT
- When the Holder holds a MetaClash NFT and owns a digital wallet that holds such MetaClash NFT, as recorded by the MetaClash Smart Contract, the Holder owns all personal property rights to that MetaClash NFT (e.g., the right to freely sell, transfer, or otherwise dispose of that MetaClash NFT). Such rights, however, do not include the ownership of the intellectual property rights in the MetaClash Art. Such rights are licensed pursuant to Section 3 below. In accordance with your personal property rights, as identified above, at no point may we seize, freeze, or otherwise modify the ownership of any MetaClash NFT.
- You may participate in the sale and purchase of the MetaClash NFT by linking your digital wallet(s) on supported bridge extensions, which allows you to purchase, store, and engage in transactions using a currency acceptable to us. Before purchasing an MetaClash NFT, we may ask you to download a supported electronic wallet extension and connect and unlock your digital wallets with that extension. Once you submit an order to sell or purchase a MetaClash NFT, your order is passed on to the applicable extension, which completes the transaction on your behalf.
- Holder represents and warrants that it will not transfer a MetaClash NFT in any subsequent transaction to a Transferee that is (i) located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; or is (ii) listed on any U.S. Government list of prohibited or restricted parties (“Prohibited Transferees”). A “Secondary Transaction” means any transaction in which a MetaClash NFT is sold by one holder to another holder after the initial purchase of the MetaClash NFT.
- Holders may be offered utility, benefits, or entitlements, including, but not limited to, use of the MetaClash NFT in connection with the MetaClash interactive entertainment application offered by a third party (such entertainment application, the “D.A.D. Game”) (collectively, “Utility”) from time to time, but this Agreement does not confer any Utility except as granted by the licenses set forth in Section 3. MCL makes no assurances of any Utility. Any Utility may be subject to other terms and conditions. MCL will not be responsible in any manner for any Utility offered by any third party.
- MCL has no obligation to support the resolution of, or resolve any, dispute that may arise between MetaClash NFT holders.
- Non-Commercial License: Subject to your compliance with this Agreement, MCL hereby grants to you, for so long as you hold a MetaClash NFT (as recorded by the MetaClash Smart Contract), a non-exclusive, worldwide, royalty-free, revocable license, with no right to sublicense, to use, copy, display the MetaClash Art linked to your purchased MetaClash NFT for the following purposes: (i) for your own personal, non-commercial use, including to create a reasonable number of back-up copies and a physical print out, each to be retained only for so long as you hold the associated MetaClash NFT; (ii) to sell or otherwise transfer the associated MetaClash NFT consistent with the ownership of it (e.g., posting a sales listing on NFT Site); and (iii) to use it in connection with the D.A.D. Game or any third party offering compatible with the MetaClash NFT.
- Commercial License: Subject to your compliance with this Agreement, MCL hereby grants to you, for so long as you hold a MetaClash NFT (as recorded by the MetaClash Smart Contract), a non-exclusive, royalty-free, worldwide, revocable license, with the right to sublicense, to use, copy, distribute, create derivative works of (subject to Section 3.3), and display, the MetaClash Art linked to your purchased MetaClash NFT for Commercial Purposes. “Commercial Purposes” means the use of the MetaClash Art linked to your purchased MetaClash NFT for all lawful commercial purposes, whether known now or created in the future. You will have the right to retain all revenue that you generate through your exercise of your rights under this Section.
- Derivative Works: The right to create derivative works of the MetaClash Art under Section 3.2 means that you can modify the MetaClash Art, for example, (i) as needed to depict the image shown in the MetaClash Art in merchandising goods or media (whether physical or digital) in their full body or back or as a three dimensional creature, or to reformat the MetaClash Art for a particular medium, and (ii) to create variations in the appearance of the image shown in the MetaClash Art. However, such right does not include the right to create a MetaClash game asset that is substantially or confusingly similar to MetaClash game asset associated with other MetaClash NFT(s) that you do not hold. Notwithstanding anything to the contrary herein, you may not create derivative works that infringe or otherwise transgress the rights in the MetaClash Art associated with other MetaClash NFTs.
- Transfer: The licenses in Section 3 are non-transferrable, except that they will automatically transfer in connection with a transfer of the MetaClash NFT (as recorded by the smart contract). Upon a transfer, the licenses in Section 3 granted to you will terminate immediately. In particular, you must stop all commercial uses of the rights granted to you in Section 3, provided that you may reasonably wind down your activities as a result of such uses in a reasonable period of time (e.g., selling off then-existing inventory of physical merchandise). If you enter into any agreements under which you license such rights to a third party, you must ensure that such agreements terminate upon transfer of the MetaClash NFT.
4. RESERVATION OF RIGHTS
- General: All rights in and to the MetaClash Art not expressly provided for in this Agreement are hereby reserved by MCL. The MetaClash Art is licensed, not sold. MCL owns and will retain all title, interest, ownership rights and intellectual property rights in and to the MetaClash Art. For clarity, nothing in this Agreement will prevent MCL, its representatives, or any of its affiliates from using, copying, or displaying the MetaClash Art associated with your MetaClash NFT in the D.A.D. Game, for purposes of streaming the D.A.D. Game, or for any marketing and promotional content regarding the D.A.D. Game, MetaClash NFTs, or other MCL projects, or from allowing third-party service providers to do the same, without any obligation or compensation to you. Without limitation, Holder shall not, nor permit any third party to do or attempt to, do any of the following without express prior written consent from MCL : (i) modify the MetaClash Art except as expressly permitted herein; (ii) use the MetaClash Art in a manner that violates applicable law; (iii) use the MetaClash Art in connection with media or merchandise that promotes hate speech, illegal activities, vulgarity (e.g., pornography), offensive behavior, violence, cruelty or political statements; (iv) attempt to register any trademark, copyright, or otherwise acquire or enforce intellectual property rights in or to the MetaClash Art; or (vi) make defamatory or dishonest statements about MCL or the MetaClash NFTs or otherwise damage the goodwill, value or reputation of MCL or the MetaClash NFTs.
- No Rights to Trademarks: For avoidance of doubt, except to the extent that a MCL & MetaClash trademark is included in the MetaClash Art (in which case such use of MCL’s & MetaClash’s trademarks will be subject to Section 3 and solely as embodied in the MetaClash Art), the licenses in Section 3 do not include the right to, and you may not, use any MetaClash trademarks (e.g., MetaClash, D.A.D. Game or the names of any collections of MetaClash NFTs). No trademark or other rights based on designation of source or origin are licensed to you. You may not use, attempt to register, or enforce any rights in any asset, including any domain names, social media accounts or related addresses, that contains or incorporates any artwork, other representation, name or mark that may be confusingly similar to such trademarks. For clarity, however, you may use MetaClash along with your NFT identification number (e.g., “MetaClashDAD #681”) to identify your particular MetaClash NFT or MetaClash Art linked thereto.
5. PAYMENT, FEES, AND SECONDARY TRANSACTIONS
- Purchase and Sale: Holder hereby agrees to purchase the MetaClash NFT at the price determined by MCL (the “Primary Transaction Purchase Price”). Without limiting any of the foregoing, the valid execution of this Agreement, including the delivery of the MetaClash NFT, shall be conditioned upon Holder’s payment of the Primary Transaction Purchase Price.
- Payment: Holder covenants and agrees to pay the Primary Transaction Purchase Price to MCL, and in any case no later than three business days after the Effective Date.
- Form of Payment: MCL agrees to accept payment for the Primary Transaction Purchase Price via $ETH; provided that the MCL may elect to accept other methods or forms of payment on an as-converted to U.S. dollars basis in its sole discretion. The U.S. dollar exchange rate for any other forms of payment shall be determined solely by the MCL or its assignee or agent in accordance with reasonable and accepted market practices and additional transaction fees may apply.
- Gas Fees: If Holder sells, purchases, or otherwise transfers the MetaClash NFT, any financial transactions that Holder engages in will be conducted solely through the Ethereum Network, the blockchain network governing the MetaClash NFT, and Holder will be required to make or receive payments exclusively through the cryptocurrency wallet Holder has connected to the NFT Site. MCL has no insight into or control over these payments or transactions, nor does MCL have the ability to reverse any transactions. Accordingly, MCL will have no liability to you or to any third party for any claims or damages that may arise as a result of any transactions that you engage in via the NFT Site. “Gas Fees” fund the network of computers that run the decentralized Ethereum network, meaning that Holder will need to pay a Gas Fee for each transaction that occurs via the Ethereum network. By buying or selling an MetaClash NFT on the NFT Site or any other platform, you agree to pay all applicable fees and you authorize MCL to automatically deduct fees (including any transaction fees, or Gas Fees, as applicable) directly from Holder’s payments for the Primary Transaction or subsequent Secondary Transactions.
- Secondary Transactions:
- All Secondary Transactions of the MetaClash NFTs are subject to the following terms: (a) the MetaClash NFT transferee (the “Transferee”) shall, by purchasing, accepting, accessing or otherwise using the MetaClash NFT or MetaClash Art, be deemed to accept all of the terms of this Agreement as a “Holder” hereof; (b) the MetaClash NFT transferor (the “Transferor”) shall provide notice to the Transferee of this Agreement, including a link or other method by which the terms of this Agreement can be accessible by the Transferee; and (c) MetaClash collection creator shall be entitled to receive five to ten percent (5% - 10%) of the gross amounts paid by the Transferee (the “Royalty Payment”). The Royalty Payment may be changed, in accordance with Section 15 of this Agreement. Notwithstanding the foregoing, additional fees may apply based on the structure of the Secondary Transaction in question and as determined by MCL in its sole discretion. MCL shall be paid the Royalty Payment on the same terms and at the same time as Transferor is paid by the Transferee. Holder further acknowledges and agrees that all subsequent transactions of the MetaClash NFT will be effected on the blockchain network governing the MetaClash NFT, and Holder will be required to make or receive payments exclusively through its cryptocurrency wallet.
- You further acknowledge and agree that all Secondary Transactions will be effected on the applicable blockchain network (e.g., Ethereum) compatible with the MetaClash NFTs, and you will be required to make or receive payments exclusively through your cryptocurrency wallet.
- Without limitation of any other termination rights, MCL may suspend or terminate the license to the MetaClash Art if it has a reasonable basis for believing that you have engaged in an off-chain sale of the MetaClash NFT, or otherwise engaged in any off-chain transactions for the purchase or sale of the MetaClash NFT without making the applicable Royalty Payment. You, and all subsequent Transferees, shall be responsible for paying the Royalty Payment associated with the Secondary Transaction purchase price, regardless of where such purchase price is fulfilled on-chain, off-chain, or in a combination of the foregoing.
- Except as expressly provided herein, ownership of a MetaClash NFT and the licenses in Section 3 are not separable in any way. You may not engage in any transaction or activity that purports to decouple the licenses in Section 3 from your MetaClash NFT.
6. MCL’s RIGHTS AND OBLIGATIONS TO THE METACLASH ART AND METACLASH NFTs.
The Parties acknowledge and agree that MCL is not responsible for repairing, supporting, replacing, or maintaining the website hosting the MetaClash Art or other applications or entitlements which the MetaClash NFT is compatible with, nor does MCL have the obligation to maintain any connection or link between a MetaClash NFT and the corresponding MetaClash Art.
7. WARRANTY DISCLAIMERS AND ASSUMPTION OF RISK
Warranty Disclaimers and Assumption of Risk. Holder represents and warrants that it (a) is the age of majority in Holder’s place of residence (which is typically 18 years of age in most U.S. states) and has the legal capacity to enter into this Agreement, (b) that Holder will use and interact with the MetaClash NFTs and MetaClash Art only for lawful purposes and in accordance with this Agreement, and (c) that Holder will not use the MetaClash NFTs or MetaClash Art to violate (and Holder will otherwise not violate) any law, regulation or ordinance or any right of MCL, its licensors or any third party, including without limitation, any right of privacy, publicity, copyright, trademark, or patent.
The MetaClash NFTs are provided “AS IS”, without warranty of any kind, without limiting the foregoing, MCL explicitly disclaims any implied warranties of merchantability, fitness for a particular purpose, quiet enjoyment and non-infringement, and any warranties arising out of course of dealing or usage of trade. MCL makes no warranty that the MetaClash NFTs will meet Holder’s requirements or be available on an uninterrupted, secure, or error-free basis. MCL makes no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any information or content on the MetaClash NFTs.
MCL will not be responsible or liable to Holders for any loss and takes no responsibility for, and will not be liable to you for, any use of the MetaClash NFT, including but not limited to any losses, damages or claims arising from. (i) user error such as forgotten passwords, incorrectly constructed transactions, or mistyped wallet addresses; (ii) server failure or data loss; (iii) corrupted cryptocurrency wallet files; (iv) unauthorized access to the MetaClash NFT; or (v) any unauthorized third party activities, including without limitation the use of viruses, phishing, bruteforcing or other means of attack against blockchain network underlying the MetaClash NFTs.
The MetaClash 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 distributed ledger within such blockchain network, which MCL does not control. MCL does not guarantee that MCL can effect the transfer of title or right in any MetaClash NFT. Holder bears full responsibilityfor verifying the identity, legitimacy, and authenticity of assets holder purchases through the NFT site. Notwithstanding indicators and messages that suggest verification, MCL makes no claims abou the identity, legitimacy, or authenticity of assets on the NFT site or any purported subsequent transactions.
MCL is not responsible for any kind of failure, abnormal behavior of software, (e.g. wallet, smart contract), blockchains or any other features of the MetaClash NFTs, NFT sites, or D.A.D. game. MCL is not responsible for casualties due to late report by developers or representatives (or no report at all) of any issues with the blockchain supporting the MetaClash NFTs, including forks, technical node issues or any other issues having fund losses 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.
8. ASSUMPTION OF RISK
Holder accepts and acknowledges all risks associated with the following:
- The prices and liquidity of cryptocurrency assets (including any NFTs) are extremely volatile. Fluctuations in the price of other digital assets could materially and adversely affect the MetaClash NFTs made available, which may also be subject to significant price volatility. We cannot guarantee that any holders of NFTs will not lose money.
- Holder is solely responsible for assessing prior commercial uses of the MetaClash Art and determining whether they affect the value or viability of any future use of the MetaClash Art.
- Holder is solely responsible for determining what, if any, taxes apply to Holder’s purchase, sale, or transfer of the MetaClash NFTs. MCL is not responsible for determining or paying the taxes that apply to such transactions.
- MCL does not store, send, or receive cryptocurrency assets. Any transfer of cryptocurrency assets occurs within the supporting blockchain that is not controlled by MCL. Transactions of the MetaClash NFTs may be irreversible, and, accordingly, losses due to fraudulent or accidental transactions may not be recoverable. Some transactions of the MetaClash NFTs shall be deemed to be made when recorded on a public blockchain ledger, which is not necessarily the date or time that Holder initiated the transaction.
- There are risks associated with using an Internet based digital asset, including but not limited to, the risk of hardware, software and Internet connections, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to information stored within your digital wallet. MCL will not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience when effecting MetaClash NFT transactions, however caused.
- A lack of use or public interest in the creation and development of distributed ecosystems could negatively impact the development of those ecosystems and related applications, and could therefore also negatively impact the potential utility or value of a certain NFT.
- Digital assets, including blockchain based assets such as the MetaClash NFTs, are subject to developing laws and regulations throughout the world.
- Transactions involving the MetaClash NFTs may rely on third-party platforms to perform transactions. If MCL is unable to maintain a good relationship with such platform providers; if the terms and conditions or pricing of such platform providers change; if MCL violates or cannot comply with the terms and conditions of such platforms; or if any of such platforms loses market share or falls out of favor or is unavailable for a prolonged period of time, access to and interactions of the MetaClash NFTs may suffer.
- By participating in the sale and purchase of the MetaClash NFTs, you represent that you understand the inherent risks associated with using cryptographic and blockchain-based systems, and that you have a working knowledge of digital assets. Such systems may have vulnerabilities or other failures, or other abnormal behavior. MCL is not responsible for any issues with the blockchains, including forks, technical node issues or any other issues having fund losses as a result. 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 from MCL. 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 purchasing an MetaClash NFT. Accordingly, you understand and agree to assume full responsibility for all of the risks of participating in the sale and purchase of the MetaClash NFT.
9. LINKS TO THIRD PARTY WEBSITES OR RESOURCES
Use and interaction of the MetaClash NFTs and MetaClash Art may allow Holder to access third-party websites (including websites that host the MetaClash Art) or other resources. MCL provides access only as a convenience and is not responsible for the content, products or services on or available from those resources or links displayed on such websites. Holder acknowledges sole responsibility for and assumes all risk arising from Holder’s use of any third-party resources. Under no circumstances shall Holder’s inability to view MetaClash Art on a third-party website serve as grounds for a claim against MCL.
10. TERMINATION OF LICENSE TO ART
Holder’s licenses to the MetaClash Art shall automatically terminate, and all rights shall revert to MCL if at any time: (a) Holder breaches any portion of this Agreement or (b) Holder engages in any unlawful activity related to the MetaClash NFT (including transferring the MetaClash NFT to a Prohibited Transferee). Upon any termination, discontinuation or cancellation of Holder’s licenses to the MetaClash Art, MCL may disable Holder’s access to the MetaClash Art and Holder shall delete, remove, or otherwise destroy any back up or single digital or physical copy of the MetaClash Art. Upon any termination, discontinuation or cancellation of the license in this Agreement, the following Sections will survive: 2, 4 through 15.
Holder shall defend, indemnify, and hold MCL, its licensors and affiliates (the “Indemnified Parties”) harmless from and against any and all claims, disputes, demands, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought by a third party (including any person who accesses or transacts using the MetaClash NFTs whether or not such person personally purchased the MetaClash NFTs) against the Indemnified Parties, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with (a) your access to or use of the NFT Site, (b) your breach of this Agreement, and (c) your exercise of the licenses in Section 3.
12. LIMITATION OF LIABILITY
- To the maximum extent permitted by law, neither MCL nor its service providers, involved in creating, producing, or delivering the MetaClash NFTs will be liable for any incidental, special, exemplary or consequential damages, or damages for 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 the substitute MetaClash NFTs of any kind arising out of or in connection with these terms or any Metaclash NFT, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not MCL or its service providers has been informed of the possibility of such damage, even if a limited remedy ser forth herein is found to have failed of its essential purpose.
- To the maximum extent permitted by the law of the applicable jurisdiction, in no event will MCL’s total liability arising out of or in connection with these terms or any MetaClash NFTs or access the MetaClash Art exceed US$1,000.
- The exclusions and limitation of damages set forth above are fundamental elements of the basis of the bargain between MCL and the Holder.
13. GOVERNING LAW AND FORUM CHOICE
This Agreement and any action related thereto will be governed by the laws of the Marshall Islands, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 14 “Dispute Resolution,” the exclusive jurisdiction for all Disputes (defined below) that Holder and MCL are not required to arbitrate will be the courts located in the Marshall Islands, and Holder and MCL each waive any objection to jurisdiction and venue in such courts.
14. DISPUTE RESOLUTION
- Mandatory Arbitration of Disputes: The Parties 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 of the MetaClash NFTs transaction (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. The Holder and MCL agree that the Arbitration Act governs the interpretation and enforcement of this Agreement, and that the Holder and MCL 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.
- Exceptions: As limited exceptions to Section 14.1 above: (i) both Parties may seek to resolve a Dispute in small claims court if it qualifies; and (ii) both Parties 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.
- Conducting Arbitration and Arbitration Rules: The arbitration will be conducted by Singapore International Arbitration Cente under its Singapore International Arbitration Center Rules 2013 (the “SIAC Rules”) then in effect, except as modified by these Terms. The SIAC Rules are available at https://siac.org.sg. A party who wishes to start arbitration must submit a written Demand for Arbitration to SIAC and give notice to the other party as specified in the SIAC Rules. 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.
- Any arbitration hearings will take place in the country of the arbitrators, unless MCL and Holder both agree to a different location but any such arbitration will be conducted remotely to the extent permitted by the SIAC Rules. 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.
- Arbitration Costs: Payment of all filing, administration and arbitrator fees will be governed by the SIAC Rules, and MCL won’t seek to recover the administration and arbitrator fees that MCL are responsible for paying, unless the arbitrator finds the Holder’s dispute frivolous. If MCL prevail in arbitration, MCL will pay all of MCL’s attorneys’ fees and costs and won’t seek to recover them from the Holder. If the Holder prevail in arbitration, the Holder will not seek the Holder’s attorneys’ fees and expenses, irregardless to the extent provided under applicable law.
- Injunctive and Declaratory Relief: Except as provided in Section 14.2 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 the Holder or MCL 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 Holder and MCL 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.
- Class Action Waiver: The Holder AND MCL 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.
- Severability: With the exception of any of the provisions in Section 14.6 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.
15. GENERAL TERMS
This Agreement will transfer and be binding upon and will inure to the benefit of the Parties and their permitted successors and assigns, in particular any Transferee. This Agreement constitutes the entire agreement, and supersedes any and all prior or contemporaneous representations, understandings and agreements, between the Parties with respect to the subject matter of this Agreement, all of which are hereby merged into this Agreement. Without limitation, the terms of any other document, course of dealing, or course of trade will not modify this Agreement, except as expressly provided in this Agreement or as the Parties may agree in writing. MCL reserves the right to clarify or amend this Agreement by publicly publishing a new version of the Agreement, including, but not limited to the NFT Site, or any successor website. Failure to promptly enforce a provision of this Agreement will not be construed as a waiver of such provision. Nothing contained in this Agreement will be deemed to create, or be construed as creating, a joint venture or partnership between the parties. Neither Party is, by virtue of this Agreement or otherwise, authorized as an agent or legal representative of the other Party. Neither Party to this Agreement is granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf or in the name of the other Party, or to bind such other Party in any manner. Nothing contained in this Agreement will be deemed to create any third-party beneficiary right upon any third party whatsoever. Each of the Parties acknowledges that it has had the opportunity to have this Agreement reviewed or not by independent legal counsel of its choice. If any one or more of the provisions of this Agreement should be ruled wholly or partly invalid or unenforceable, then the provisions held invalid or unenforceable will be deemed amended, and the court or other government body is authorized to reform the provision(s) to the minimum extent necessary to render them valid and enforceable in conformity with the Parties’ intent as manifested herein. The headings to Sections of this Agreement are for convenience or reference only and do not form a part of this Agreement and will not in any way affect its interpretation. Neither Party will be afforded or denied preference in the construction of this Agreement, whether by virtue of being the drafter or otherwise. For purposes of this Agreement, the words and phrases “include,” “includes”, “including” and “such as” are deemed to be followed by the words “without limitation”. Holder may give notice to MCL by contacting MCL at firstname.lastname@example.org. Notice is effective upon receipt.