Terms and Conditions of Use
Last Updated: 28 November 2022
Before using the services, you must carefully read these Terms and Conditions of Use ("Terms", "Agreement") of https://xhamsternft.com ("Website", "Site"). These Terms govern your access to and use of this Website, as well as all content (images, text, software, graphics, data, messages, or any other information, and any other website content), functionality of the Website, and services offered on or through the Website, including the purchase and usage of xHamster NFTs (as defined below) and NFTs’ Bonuses (as defined below) (all of the foregoing, collectively, will be referred to as the "Services"). The Services are owned, operated, licensed, or controlled by the Company and its affiliates.
These Terms apply to all users and others ("You", "User") who access or use the Website and/or the Services provided therein and/or to anyone legally possessing xHamster NFTs.
1. DEFINITIONS AND PARTIES INVOLVED
- "Company" is the operator of https://xhamsternft.com. When first-person pronouns are used in this Agreement (Us, We, Our, Ours, etc.), these provisions are referring to the Company.
- "You" or "User" refers to the User of this Website and/or Services. When second-person pronouns are used in this Agreement, such as "Your/Yours" these provisions are referring to the User. By using this Website and/or Services, you verify that You are over eighteen (18) years of age, or if the age of majority in Your jurisdiction is greater than eighteen (18) years of age, in which case You verify that You are at least the age of majority in your relevant jurisdiction. You become a User by accessing this Website in any way and/or by using our Services in any manner. Nobody is authorized to access the Site or use the Services unless they have signed this Agreement. Such signature does not need to be a physical signature, since electronic acceptance of this Agreement is permitted by the Electronic Signatures in Global and National Commerce Act (E-Sign Act), Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 and other federal and state laws. You manifest Your agreement to this contractual Agreement by using the Website and/or the Services or by taking any act demonstrating Your assent thereto. You should understand that this has the same legal effect as You placing Your physical signature on any other legal contract. If You click any link, button, or other place provided to You in any part of Our Site’s interface, then this will indicate that You have legally agreed to all of these Terms. Additionally, by using Our Site or any of our Services in any manner, You understand and agree that We will consider such use as Your affirmation of Your complete and unconditional acceptance to all terms in this Agreement.
- "Collector" refers herein to the User, who has at least one xHamster NFT in its possession on the cryptocurrency wallet irrespectively of the legal ground of such ownership (initial purchase (minting) of xHamster NFT from the Company, purchase of xHamster NFT after secondary sale, receiving xHamster NFT as a gift, etc.).
- "xHamster NFT" / "NFT" refers herein to a limited-edition digital asset that embodies or includes certain artwork created, owned, or licensed by the Company, each of which is a non-fungible token that uses smart contracts on the Ethereum blockchain ("Smart Contracts") and the ownership of which can be transferred via gift, purchase, or sale.
- "Cryptocurrency Wallet" / "Wallet" refers herein to an electronic (cryptocurrency) wallet that allows You to purchase, store, and engage in transactions using cryptocurrency and NFTs. To be able to use Our Services You will need to connect to Our Website and have Your Wallet connected and supported on MetaMask and/or WalletConnect and/or other Wallet that is supported and/or will be supported by the Company. Wallet shall allow You to purchase, store, and engage in transactions using the native cryptocurrency of the Ethereum, Ether (ETH).
2. RECREATIONAL PURPOSE OF OUR SERVICES
- Our Website provides Services to Users solely for entertainment and recreational purposes.
- EACH XHAMSTER NFT IS A UNIQUE NON-FUNGIBLE PIECE OF DIGITAL ARTWORK AND, AS SUCH, IT IS A COMPLETE PRODUCT. ANY INFORMATION PROVIDED BY US OR ON THE SITE IS FOR ENTERTAINMENT AND INFORMATIONAL PURPOSES ONLY AND SHALL NOT BE CONSTRUED NOR IS INTENDED TO BE CONSTRUED AS AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY ANY INTEREST IN ANY SECURITY, ENTITY, INVESTMENT VEHICLE OR CONTRACT, INCLUDING, BUT NOT LIMITED TO, WITH RESPECT TO NFTS.
- YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE NO EXPECTATION OF PROFIT ASSOCIATED WITH YOUR PURCHASE OF ANY NFTS AND YOU HAVE NO EXPECTATION TO DERIVE PROFITS FROM THE NFTS AS A RESULT OF OUR EFFORTS OR THE EFFORTS OF ANY THIRD PARTY.
3. REQUIREMENTS FOR USAGE OF OUR SERVICES
- At a future date set by the Company, which will be displayed on the Website, You will have an opportunity to purchase xHamster NFTs directly from the Company via a minting process. By minting the NFT, You agree to comply with any terms, including licenses or payment rights that are embedded within or otherwise included in any NFT that You purchase.
- In order to access and use the Services, including purchasing the NFTs, You will need to have a web browser and Wallet on MetaMask (WalletConnect and/or other Wallet that is supported and/or will be supported by the Company) that is compatible with Our NFTs and standard on the Ethereum network. Before purchasing (minting) the NFT, You must connect and unlock Your Wallet through the Website. Once You submit an order to mint the NFT, Your order is passed on through the Wallet to the applicable bridge extension, which completes the transaction on the blockchain platform via the smart contract on Your behalf.
- When You link Your Wallet, You understand and agree that You are solely responsible for maintaining the security of Your Wallet and Your control over any wallet-related authentication credentials, including any seed phrase or private cryptocurrency keys, as well as NFTs or cryptocurrencies that are stored in or are accessible through Your Wallet. Any unauthorized access to Your Wallet by third parties could result in the loss or theft of NFTs and/or other assets held in Your Wallet and any associated wallets, including any linked financial information. Company is not responsible for managing and maintaining the security of Your Wallet. Company has no responsibility or liability to You for any unauthorized access to or use of Your Wallet nor is the Company responsible if You are unable to locate Your credentials from Your Wallet.
- The Ethereum blockchain, which We used in Our NFTs, provides an immutable ledger of all transactions that occur on the blockchain. This means that all xHamster NFTs are outside the control of any one party, including the Company, and are subject to various risks and uncertainties. Company neither owns nor controls cryptocurrency wallets (including MetaMask and WalletConnect), the Ethereum network, the Ethereum blockchain, Your browser, or any other third-party site, product, or service (including third-party wallets or marketplaces) that You might access, visit, or use for the purpose of enabling You to use the Services or to purchase, xHamster NFTs. Except for transferring the digital ownership of an NFT from the Company to the initial purchaser through the Services, the Company has no responsibility with respect to any secondary transactions of xHamster NFTs. Company will not be liable for the acts or omissions of any third parties, nor will Company be liable for any damage that You may suffer as a result of Yur transactions with xHamster NFT or any other interaction with any third parties. You understand that Your Ethereum public address will be made publicly visible whenever You engage in a transaction with NFT. Aside from transferring control of the xHamster NFT to the initial purchasers, the Company has no control over the transfer, storage, ownership or maintenance of the xHamster NFT.
- To use different NFT’s Bonuses You may need to have separate accounts on websites, which may be operated by other legal entities. It is Your sole responsibility to create and maintain such accounts. In case otherwise stated, the Company is not the operator of such third-party websites, and it is Your responsibility to cooperate and interact with such websites. Prior to the usage of these websites, We encourage You to carefully read the terms and conditions (and other relevant documentation) of the said websites.
4. XHAMSTER NFTS
- User has the possibility to become a Collector by purchasing xHamster NFT. There will be a limited number of xHamster NFTs initially minted - only 10,000 (ten thousand). You can find a detailed description of the different types of xHamster NFTs in the special section of Our Website.
- The initial sale of xHamster NFTs will start at a date, that will be explicitly specified in the special section of the Website. You can purchase xHamster NFT on the Website using a Wallet, as described above. All sales are definite and final, and We do not guarantee that all interested buyers will be able to purchase xHamster NFTs before they are sold out since there is a limited number of xHamster NFTs. We disclaim all liability in connection with the purchase of any xHamster NFTs. It is Your responsibility to ensure that Your purchase of any xHamster NFT has been completed. We reserve the right to terminate or end the initial sale of xHamster NFTs at any time.
- Company is not and shall not be a party to any transaction or dispute between any initial minter of an NFT and any subsequent owner of such NFT, whether arising from any rights granted in that NFT or otherwise, unless otherwise set forth in connection with such NFT.
- Since the number of NFTs is limited, the Company reserves the right to establish a special consequential order for Users to purchase xHamster NFT. The Company, at its sole discretion, will include carefully selected cryptocurrency wallets of separate Users in the whitelist of cryptocurrency wallets, which will be used for purchasing xHamster NFTs prior to cryptocurrency wallets that are not in this whitelist. The rules for inclusion in the whitelist will be determined internally by the Company. At the same time, the presence of the User’s cryptocurrency wallet in the said whitelist will not guarantee the purchase of xHamster NFTs.
5. NFTS’ BONUSES
- A Collector of xHamster NFTs may receive special benefits, experiences, or opportunities ("NFT’s Bonuses") as determined by the Company, at its sole discretion, after the NFTs are first made available for sale by the Company.
- In case the Company decides to provide NFT’s Bonuses, the description of such NFT’s Bonuses and the possible ways to receive them will be available in a special section of the Website.
- In case the Company decides to provide NFT’s Bonuses, it is at the Company’s sole discretion to determine the possibilities of such NFT’s Bonuses and the particular Collectors who may obtain certain NFT’s Bonuses. The Company reserves the right to vary the NFT’s Bonuses and their possibilities depending on the type of NFT, the number of purchased NFTs by each Collector, etc.
- Company does not make any representation, warranty or guarantee that any Collector will receive any NFT’s Bonuses or achieve any particular outcome as a result of purchasing any xHamster NFT. In case the Collector violates these Terms or the Company decides so, the Company reserves the right at any time and at its sole discretion to restrict, limit, or deny any xHamster NFT’s Bonuses, including to limit the period of time when NFT’s Bonuses are available. NFT’s Bonuses are not intended to be an endorsement of any project, creator, NFT, individual or any other thing, and the Company makes no recommendation and provides no investment advice in connection with any NFT’s Bonuses or otherwise as a result of holding or owning an xHamster NFT.
6. PRICING AND transaction FEES; PAYMENTS
- All pricing and payment terms for xHamster NFTs are indicated at the moment and at the point of sale or otherwise on the Website, and any payment obligations You incur are binding at the time of initial purchasing (minting). You may not substitute any other currency, whether cryptocurrency or fiat currency, for any currency in which You have contracted to pay at the time of purchase. For clarity, no fluctuation in the value of any currency, whether cryptocurrency or otherwise, shall impact or excuse Your obligations with respect to any obligation to pay any amounts.
- When each xHamster NFT is sold for the first time, the agreement for sale is between the Company and the initial Collector. If the initial Collector decides to sell an xHamster NFT ("Secondary Sale"), then the Company will not be a party to any agreement between the applicable buyer, seller, or facilitator of the secondary sale.
- By placing an order on the Website or through the Services, You agree that You are submitting a binding offer to purchase an xHamster NFT, You agree to pay all applicable fees associated with such transaction (including "gas fee"), and You authorize the Company (and other third parties as may be applicable) to automatically charge and collect such fees from Your Wallet. In other words, any acquisition, purchase, trade, or sale of NFTs will be conducted solely through the Ethereum network, though the Website may serve as a platform that facilitates such transactions. We have no control over these transactions as or once they occur, nor do We have the ability to reverse any transactions. You agree that We will have no liability to You or to any third party for any claims or damages that may arise as a result of any transactions pertaining to the Smart Contracts, or any other transactions that will be conducted via the Ethereum network.
- You acknowledge and agree that the Company is entitled to receive 5.0% (five percent) of every Secondary Sale of each xHamster NFT ("Royalty"). The Company has the right to collect Royalties for xHamster NFTs’ sales in perpetuity. As such, if You sell an xHamster NFT, including on a third-party marketplace, You agree to inform the potential buyers that the Royalty will apply, prior to the sale.
- It is the User's responsibility to decide whether any taxes apply to the purchase of an xHamster NFT You perform through the Services, and to withhold, report and remit the relevant funds to the appropriate tax authorities. You agree that the Company is not responsible for determining whether any taxes apply to Your transfers or for collecting, reporting, withholding, or remitting any taxes arising from any purchase of an xHamster NFT and does not act as Your tax agent.
- In certain cases, We may require You to provide additional information and documents at the request of any competent authority or in case of application of any applicable law or regulation, including laws related to anti-money laundering (legalization) of income generated as a result of criminal activities, or financing terrorism. Company may also require that You provide additional information and documents in cases where it has reasons to believe that: (i) You are using the Services for money laundering or for any other illegal activity; (ii) You have concealed or reported false information and other details; and/or (iii) the transactions effected by You were effected in breach of these Terms. If You do not provide complete and accurate information and documents in response to such a request, the Company may refuse to provide You with further access to the Site and/or the Services and may report You to the Competent Authorities.
7. LICENSE AND INTELLECTUAL PROPERTY
- Our Website and Services contain images, content, text, software, graphics, data, messages, or any other information.
- Company’s rights to the Website and Services. You acknowledge and agree that all content on the Website including, without limitation, text, graphical images, all designs, photographs, music, video, software, xHamster NFT collection, scripts and trademarks, service marks, "look and feel", organization, and logos contained therein (collectively referred to as the "Proprietary Materials"), are owned by and licensed to the Company. All Proprietary Materials are subject to copyright, trademark and/or other rights under the laws of applicable jurisdictions, including domestic laws, foreign laws, and international conventions. We reserve all Our rights over Our Proprietary Materials. Except as otherwise explicitly permitted, You agree not to copy, modify, publish, transmit, distribute, participate in the transfer or sale of, create derivative works of, or in any other way exploit, in whole or in part, any content of the Proprietary Materials. Except as expressly set forth herein, Your use of the Services does not grant You ownership, of or any other rights with respect to any art, content, code, data, or other Proprietary Materials that You may access on or through the Services.
- Company’s rights to xHamster NFTs. Each xHamster NFT includes certain artwork created, owned, or licensed by the Company (the "Artwork"). Artwork shall be regarded as intellectual property. You acknowledge and agree that the Company owns or has licensed all legal rights, titles, and interests in and to the Artwork, and all intellectual property rights therein. The Company may also incorporate (create) one or more elements of xHamster NFTs as a trademark and branding (the "Brand"). ALTHOUGH EACH XHAMSTER NFT ITSELF IS OWNED BY ITS COLLECTOR, THE ARTWORK EMBODIED THEREBY AND ANY BRAND INCORPORATED THEREIN OR USED THEREWITH IS LICENSED PURSUANT TO THESE TERMS, AND NOT TRANSFERRED OR SOLD, TO SUCH COLLECTOR. The rights that You will acquire on the Artwork after the purchase are limited to those expressly stated in these Terms. Company and its licensors reserve all rights in and to the Artwork and Brand not expressly granted to You herein.
- Collector’s license to xHamster NFTs. As described herein, each Collector has limited copyrights to the particular xHamster NFT that the Collector owns. Subject to Collector’s lawful purchase or acquisition of xHamster NFT and Collector’s continued compliance with this Agreement, the Company grants the Collector a worldwide, non-exclusive, revocable, royalty-free license, with no right to sublicense, to display and use in accordance with these Terms the Artwork embodied by the Collector’s xHamster NFT, solely for the following purposes:
- For Collector’s own personal, non-commercial use, including without limitation to display in a virtual gallery, on a mobile device, as an avatar, as well as to conduct actions, which may be necessary to exercise rights and receive benefits established by the NFT’s Bonuses;
- Through or as a part of a marketplace that permits the purchase and sale of Collector’s xHamster NFT in connection with such potential purchase or sale, provided that the marketplace is cryptographically able to verify the rights which ensure that only the actual owner can offer an NFT for sale;
- As part of a third-party website or application that permits the inclusion, involvement, or participation of the Collector’s xHamster NFT, provided that the website/application is cryptographically able to verify the rights which ensure that only the actual owner of the xHamster NFT can display the Artwork embodied thereby;
- Commercial Use. Subject to Your continued compliance with these Terms and upon receiving our prior written consent, You may be granted a license for Your xHamster NFTs for the purpose of creating derivative works based upon your purchased xHamster NFTs ("Commercial Use"). Examples of such Commercial Use would be the use of the xHamster NFTs to produce and sell merchandise products (i.e., T-shirts, etc.) or displaying copies of the xHamster NFTs. You can send your request for Commercial Use of xHamster NFTs to [email protected].
- The Company provides the xHamster NFT and licenses the Artwork to the Collector of this xHamster NFT on an "AS IS" basis, and expressly disclaims any warranties or conditions of any kind, either express or implied, including, without limitation, any warranties or conditions of title, non-infringement, merchantability, or fitness for a particular purpose. The license to display the Artwork and any Brand embodied by the xHamster NFT is automatically and always transferred with the xHamster NFT as described in these Terms. Otherwise, the license to display the Artwork embodied by any xHamster NFT is non-transferable. You acknowledge that the license granted to You in this Agreement applies only to the extent that You lawfully purchased or acquired an xHamster NFT. If, at any time, You sell, trade, donate, give away, transfer, or otherwise dispose Your xHamster NFT for any reason, the licenses granted to You in this Agreement will immediately expire without the requirement of any notice, and You will have no further rights in or to the Artwork or Brand embodied by such xHamster NFT. The licenses granted in this Agreement will also automatically terminate, with all rights returning to the Company, if: (i) You breach this Agreement, which shall include transferring or acquiring any xHamster NFT in a way not specifically permitted hereunder, or (ii) You engage in any unlawful business practice related to any xHamster NFT. In the event that You did not lawfully purchase or acquire an xHamster NFT or upon any termination of the licenses granted in this Agreement, the Company may disable Your access to the Artwork and/or Brand and/or deny You access to any further benefits, NFT’s Bonuses, services or goods associated with this NFT.
- RESTRICTIONS. You agree that You will not, nor will You permit any third-party to, do or attempt to do any of the following without the Company’s prior written and express consent in each of the following:
- Use the Artwork or Brand embodied by Your xHamster NFT in connection with images, videos, or other forms of media that depict hatred, intolerance, violence, cruelty, or anything else that could reasonably be found to constitute hate speech or otherwise infringe upon the rights of others or to promote any illegal activities;
- Attempt to trademark, copyright, or otherwise acquire additional intellectual property rights in or to the Artwork or Brand embodied by Your xHamster NFT;
- Use the Artwork or Brand embodied by Your xHamster NFTs in connection with defamatory or dishonest statements about the Company and/or its affiliated companies or which otherwise damage the goodwill, value or reputation of the Company or represent or imply that Your exercise of the licenses granted hereunder is endorsed by the Company and/ or its affiliated companies.
- Without limiting the foregoing, the license granted by this Agreement does not include (unless otherwise agreed in writing by the Company as defined herein): (i) the right to use the Artwork or Brand in connection with additional NFTs; or (ii) the right to create derivative works of the Artwork. You shall not use or attempt to register any asset, including any domain names, social media accounts or related addresses, that contains or incorporates any Artwork, Brand, or any other representation, name or mark that may be confusingly similar to any of the Company’s intellectual property.
- All Users may access certain limited public areas of the Website. You understand that all We are providing You is merely access to Our Services as We provide them from time to time. You need to provide Your own access to the Internet, and any Internet access or other fees that You incur to access Our Website and use Our Services are Your sole responsibility. We are not providing any hardware or software to You. You need to purchase or license the necessary hardware and software in order to access the Website and Services. This Agreement covers all public and non-public areas of the Website.
- When You use the Service, You hereby represent and warrant, to and for the benefit of the Company, its affiliates, and its and their respective representatives, as follows: You have conducted your own research around the NFT marketplace and you understand how it operates and acknowledge the risks associated with purchasing such NFT's. Additionally, You have conducted an independent investigation of the Service and the matters contemplated by these Terms, have formed Your own independent judgment regarding their benefits, advantages, disadvantages, and risks. You understand the necessary and desirable practices regarding the foregoing, and, in making the determination to use the Services, You have relied solely on the results of such investigation and such independent judgement. Without limiting the generality of the foregoing, You understand, acknowledge and agree that the legal requirements pertaining to blockchain technologies and digital assets generally, including the NFTs, are uncertain, and You have conducted an independent investigation of such potentially applicable legal requirements and the resulting risks and uncertainties, including the risk that one or more governmental entities or other persons may assert that any digital assets or cryptographic tokens (including the NFTs) may constitute securities under applicable legal requirements. You hereby irrevocably disclaim and disavow reliance upon any statements or representations made by or on behalf of, or information made available by, the Company, in determining to enter into this Agreement, mint any NFT, or otherwise use the Services.
- In order to be able to use Our Services and access Our Website You warrant and represent that You:
- Are at least eighteen (18) years of age, unless the age of majority in Your jurisdiction is greater than eighteen (18) years of age, in which case You must be at least at the age of majority in Your relevant jurisdiction. The Site is not intended for minors. If You are under the age of majority You are not permitted to visit or use this Website or the Services for any reason;
- Have full power and authority to enter into this legal relationship and by doing so You will not violate any other legal relationships;
- Have the legal right to access Our Website and Services;
- Are providing Us with complete and accurate information. You shall update such information when it changes or when We request it;
- Will not copy or distribute any part of the Website without Our prior written authorization;
- Will not use Our Services or will immediately cease using them if any applicable law in Your Country or jurisdiction prohibits or will prohibit You, at any time, from doing so;
- By using our Website and Services, You accept and acknowledge the following risks: (a) the prices of blockchain assets and cryptocurrencies are highly volatile. Fluctuations in the price of other digital assets could materially and adversely affect the value of Your NFT, which may also be subject to significant price volatility. We cannot guarantee that any xHamster NFTs purchased will retain their original value. NFTs have no inherent or intrinsic value. For the avoidance of any doubt, Your purchase of a xHamster NFT should not be considered as an investment; (b) The Website and Services does not store, send, or receive NFTs. NFTs exist only by virtue of the ownership record maintained on the blockchain in the Ethereum network. Any transfer of NFTs occurs within the supporting blockchain in the Ethereum network; (c) There are risks associated with using an Internet-based currency including, but not limited to, the risk of hardware, software and Internet connection failures, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to information stored within Your wallet. You accept and acknowledge that We will not be responsible for any communication failures, disruptions, errors, distortions or delays You may experience when using the Ethereum network, however caused; (d) A lack of use or public interest in the creation and development of distributed ecosystems could negatively impact the NFTs and, including but not limited to, the value of the NFTs; (e) The regulatory regime governing blockchain technologies, cryptocurrencies, and tokens is highly uncertain, and any new regulations or policies may materially and adversely affect the NFTs and, therefore, the potential value of NFTs; (f) Upgrades to the blockchain platform that supports the xHamster NFTs, a hard fork in the said blockchain platform, a failure or cessation of the blockchain platform, or a change in how transactions are confirmed on the blockchain platform may have unintended, adverse effects on all blockchains using such technologies, including, without limitation, Your transactions involving NFTs purchased on the Website.
- YOU AGREE TO INDEMNIFY AND HOLD US HARMLESS AGAINST ANY CLAIMS, DEMANDS AND DAMAGES, WHETHER DIRECT, INDIRECT, CONSEQUENTIAL OR SPECIAL, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS, LOSS OF DATA, OR LOSS OF ASSETS, WHETHER IT CONCERNS AN ACTION, A CONTRACT, OR A TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ORIGINATED FROM OR IN ANY WAY CONNECTED WITH INVALIDITY OR BREACH OF ANY OF THE WARRANTIES, REPRESENTATIONS AND COVENANTS OF THIS SECTION AND THE ENTIRE TERMS.
- Service Interruption. From time to time, due to technological factors, scheduled software updates and other factors beyond Our control, Services may be temporarily interrupted. From time to time, access to the Website or certain features of the Website may not be available for use due to technological and other factors. You agree to hold Us harmless against any such interruption of service.
10. RESTRICTIONS APPLICABLE TO THE USE OF THE WEBSITE AND SERVICES
- You further represent, agree and warrant, that You will not violate any law, contract, third-party right or commit a tort by accessing or using the Website, and that You are solely responsible for Your actions and/or inactions while using Our Website. You agree that You will only use the Website and Services for purposes expressly permitted and contemplated by this Agreement. You may not use the Website and Services for any other purposes without Our prior express and written consent. Without prejudice to the foregoing, You represent, agree and warrant, that YOU WILL NOT:
- Use or attempt to use another User’s identity, given knowingly and voluntarily as well as impersonate any person or entity, or falsely state or otherwise misrepresent Your affiliation with a person or entity;
- Copy, duplicate, or distribute any part of the Website without Our prior written authorization;
- Intentionally or unintentionally violate any applicable local, state, national or international law, and any regulations having the force of law;
- Provide false, inaccurate, or misleading information;
- Use the Website in any manner that could interfere with, disrupt, negatively affect, or inhibit other Users from using Our Website with full functionality, or that could damage, disable, overburden, or impair the functioning of the Website (servers or networks connected to the Website) in any manner;
- Obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Services;
- Collect or store personal data about other Users and Collectors, including via the use of any data mining, bots, or similar data gathering and extraction tools as well as use any robot, spider, crawler, scraper or other automated means or interface, not provided by us, to access the Website or to extract data;
- Encourage or induce any third party to engage in any of the activities prohibited under this section of the Terms;
- Use the Services to advertise or offer to sell or buy any goods or services for any purpose that is not specifically authorized herein and/or not specifically approved by Us in writing;
- Use the Services or any xHamster NFT to carry out financial activities subject to registration or licensing, including but not limited to creating, listing, or buying securities, commodities, options, real estate, or debt instruments;
- Create any derivative works based on Our Website, Services, xHamster NFTs or any of the materials contained therein or received via the Services. You agree and stipulate that any and all derivative works are NOT "fair use";
- Remove any copyright or other proprietary notices or any of the materials contained therein from Our Website;
- Restrict or inhibit any other user from using and enjoying the Services;
- Publish falsehoods or misrepresentations that could damage the Website or any third party.
11. CHANGE OF THE AGREEMENT
- We reserve the right to alter, amend or modify these Terms from time to time, at Our sole discretion. We will post the amended Terms via the Website and update the "Last Updated" date at the beginning of these Terms. Any updated or edited version supersedes any prior versions immediately upon posting, and the prior version is of no continuing legal effect unless the revised version specifically refers to the prior version and keeps the prior version or portions thereof in effect.
- The amended Terms will be deemed effective immediately upon posting for any new Users of the Services. In all other cases, the amended Terms will become effective for pre-existing users from the date that the User visits our Website or continues to use Our Services after the Company publishes a new version of the Terms on the Website.
- You do not agree to any amended Terms, You must discontinue using Our Services and contact Us to terminate Your account.
- Waiver. If You fail to periodically review this Agreement to determine if any of the terms have changed, You assume all responsibility for Your failure to do so and You agree that such failure amounts to Your affirmative waiver of Your right to review the amended terms. We are not responsible for Your neglect of Your legal rights.
12. THIRD-PARTY SERVICES; THIRD-PARTY TERMS
- The Website or the Service may contain links to third-party properties ("Third-Party Properties") and applications ("Third-Party Applications"). When You click on a link to a Third-Party Property or Third-Party Application, You are subject to the terms and conditions (including privacy policies) of such other property or application. Such Third-Party Properties and Third-Party Applications are not under the control of the Company. The Company is not responsible for any Third-Party Properties or Third-Party Applications. The Company provides links to these Third-Party Properties and Third-Party Applications only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Properties or Third-Party Applications, or their products or services. You use all links in Third-Party Properties, and Third-Party Applications at Your own risk. When You leave Our Service, Our Terms and policies no longer govern Your use or interactions. You should review all applicable agreements and policies, including privacy and data gathering practices, of any Third-Party Properties or Third-Party Applications, and You should conduct whatever investigation You deem necessary or appropriate before proceeding with any transaction with any third-party.
13. INDEMNIFICATION AND RELEASE
- YOU AGREE TO INDEMNIFY AND HOLD THE COMPANY HARMLESS AGAINST ANY CLAIMS, DEMANDS AND DAMAGES, WHETHER DIRECT, INDIRECT, CONSEQUENTIAL OR SPECIAL, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS, LOSS OF DATA, OR LOSS OF ASSETS, INCLUDING TOTAL ONE, WHETHER IN AN ACTION, IN CONTRACT, IN TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ORIGINATED FROM OR IN ANY WAY CONNECTED WITH:
- Your use of and access to the Website;
- Your violation of any part of these Terms;
- Your violation of any third party right, including without limitation any copyright, property, or privacy right;
- Any claim that Your usage of the Website and Services caused damage to a third party;
- Your use of the Website, Services and NFTs, including, but not limited to those arising from Your personal errors and misbehavior such as forgotten passwords, incorrectly constructed transactions, loss of Your accesses etc;
- Any risks associated with utilizing any NFTs, blockchain networks, including, but not limited to the risk of unknown vulnerabilities in or unanticipated changes to any network protocol;
- Any software failures, protocol changes by third-party providers, internet outages, Force Majeure event or other disasters including third party distributed denial-of-service (DDOS) attacks, scheduled or unscheduled maintenance, or other causes either within or outside Our control, any malfunction, unintended function, unexpected functioning of or attack on the Blockchain protocol that may cause the Website, Services and NFTs to malfunction or function in an unexpected or unintended manner. For the purposes hereof "Force Majeure Event" shall be understood as any event beyond the Company’s reasonable control, including but not limited to flood, extraordinary weather conditions, earthquake, or other act of God, fire, war, insurrection, riot, labor dispute, accident, action of government, suspension of bank accounts of any kind, extraordinary leaps of the course of cryptocurrency, communications, network or power failure, or equipment or software malfunction or any other cause beyond the Company’s reasonable control;
- Any technical, typographical, or photographic errors in information and materials appearing on the Website or related applications.
- In the event that You have a dispute with one or more Users or any third parties, You hereby release us, Our officers, employees, agents and successors-in-right from claims, demands and damages (actual and consequential) of every type or nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes and/or the Website(s).
- We do not provide any facility for sending or receiving private or confidential electronic communications. All messages transmitted to Us shall be deemed to be readily accessible to the general public. Users should not use this Website or Services to transmit any communication for which the sender intends only the sender and the intended recipient(s) to read. Notice is hereby given that all messages and other content entered into or on this Website or Services can and may be read by the agents and operators of the Website or Services, regardless of whether they are the intended recipients of such messages.
These defense and indemnification obligations will survive these Terms and Your use of the Website.
14. DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITIES
- READ THIS SECTION CAREFULLY AS IT LIMITS OUR LIABILITY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
- YOU AGREE THAT YOUR USE OF THE WEBSITE SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, THE WEBSITE, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE WEBSITE AND YOUR USE THEREOF. THE WEBSITE MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE WEBSITE'S CONTENT OR THE CONTENT OF ANY WEBSITES LINKED TO THIS WEBSITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY:
- ERRORS, MISTAKES, OR INACCURACIES OF CONTENT;
- UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN;
- INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SITE, ANY BUGS, VIRUSES, TROJAN HORSES, ETC. WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SITE BY ANY THIRD PARTY;
- ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WEBSITE.
- THE SITE DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY THIRD-PARTY PROVIDED PRODUCT OR SERVICE ADVERTISED ON, OFFERED BY, OR FEATURED ON THE WEBSITE OR THROUGH THE WEBSITE OR ANY LINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND THE WEBSITE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
- The Website, Services and xHamster NFTs are provided on an "AS-IS" basis and are provided without any warranty or condition, express, implied or statutory. We specifically disclaim to the fullest extent any implied warranties of merchantability, fitness for a particular purpose, non-infringement, information accuracy, integration, interoperability, or quiet enjoyment. We disclaim any warranties for viruses or other harmful components in connection with the Website. Some jurisdictions do not allow the disclaimer of implied warranties, therefore in such jurisdictions, some of the foregoing disclaimers may not apply to You insofar as they relate to such implied warranties.
- Except as otherwise required by the law, IN NO EVENT SHALL THE COMPANY, OUR DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS, LOSS OF ASSETS OR LOSS OF DATA, WHETHER IN AN ACTION, IN CONTRACT, IN TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH AUTHORIZED OR UNAUTHORIZED USE, THE USE OF OR INABILITY TO USE OUR SERVICES OR THE COMPANY’S INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY ANY USER ON ANY INFORMATION OBTAINED FROM THE COMPANY, OR THAT RESULTS FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAILS, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM A FORCE MAJEURE EVENT, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO THE COMPANY'S RECORDS, PROGRAMS OR SERVICES.
- THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. THE COMPANY MAKES NO REPRESENTATIONS THAT THE WEBSITE IS APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS. THOSE WHO ACCESS OR USE THE WEBSITE FROM OTHER JURISDICTIONS DO SO AT THEIR OWN VOLITION AND ARE RESPONSIBLE FOR COMPLIANCE WITH THE LOCAL LAW AND ALL APPLICABLE RULES AND REGULATIONS.
- IN NO EVENT SHALL OUR MAXIMUM TOTAL AGGREGATE LIABILITY HEREUNDER FOR DIRECT DAMAGES EXCEED THE AMOUNT OF TEN UNITED STATES DOLLARS ($10.00). AS SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
- NFTS ARE INTANGIBLE DIGITAL ASSETS. THEY EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE BLOCKCHAIN NETWORK. ANY TRANSFER OF TITLE THAT MIGHT OCCUR IN ANY UNIQUE DIGITAL ASSET OCCURS ON THE DECENTRALIZED LEDGER WITHIN THE BLOCKCHAIN PLATFORM. WE DO NOT GUARANTEE THAT THE COMPANY CAN AFFECT THE TRANSFER OF TITLE OR RIGHT IN ANY NFTS. WE CANNOT AND DO NOT GUARANTEE THAT ANY NFT WILL HAVE OR RETAIN ANY INHERENT VALUE, OR THAT YOU WILL BE ABLE TO SELL OR RESELL ANY NFT ACQUIRED THROUGH THE SERVICE
15. NO AGENCY RELATIONSHIP
- Nothing in this Agreement shall be deemed to constitute, create, imply, give effect to, or otherwise recognize a partnership, employment, joint venture, or formal business entity of any kind. The rights and obligations of the parties shall be limited to those expressly set forth herein
16. TERMINATION RIGHTS
- You agree that the Company, at its sole discretion, may suspend or terminate Your use of the Services or NFT Bonuses and remove and discard any content within the Services, including the ability to remove You from the NFT allow list and whitelist, for any reason, including, without limitation, for lack of use or if the Company has grounds to believe that You have violated or acted inconsistently with the letter or spirit of these Terms. Any suspected fraudulent, abusive, or illegal activity may become the grounds for termination of Your use of the Services and/or NFT’s Bonuses and You may be reported to the appropriate law enforcement authorities. The Company may also, at its sole discretion and at any time, discontinue providing the Services or NFT Bonuses, or any part thereof, with or without notice. You agree that any termination of Your access to the Services or NFT Bonuses under any provision of these Terms may be effected without prior notice. Further, You agree that the Company will not be liable to You or any third party for any termination of Your access to the Services or NFT Bonuses.
17. ARBITRATION PROVISIONS
- Binding Arbitration. If there is a dispute between the Company and the User (collectively referred to as "the Parties" and individually referred to as the "Party") arising out of or otherwise relating to this Agreement, the Parties shall meet, virtually or in person, and negotiate in good faith to attempt to resolve the dispute. If the Parties are unable to resolve the dispute through direct negotiations, then, except as otherwise provided herein, the issue shall be submitted by either Party to binding arbitration in accordance with applicable arbitration rules. Claims subject to arbitration ("Arbitral Claims") shall include, but are not limited to, contract and tort claims of all kinds, and all claims based on any federal, state, or local law, statute, or regulation, excepting only claims by Us under actions (regardless of the underlying cause of action) seeking injunctions, attachment, garnishment, and other equitable relief. The arbitration procedures shall be conducted in the Republic of Cyprus, in a convenient location agreed to by the Parties, or in the absence of such agreement, the location shall be selected by the Arbitrator. The arbitration shall be conducted by a single arbitrator, who is knowledgeable in Internet and e-Commerce disputes.
- The Arbitrator shall have no authority to award any punitive or exemplary damages, certify a class action, add any parties, or vary or ignore the provisions of this Agreement. The arbitrators shall be bound by and apply Cyprus law to any dispute submitted for arbitration hereunder, and this Agreement shall be interpreted in accordance with the laws of the Republic of Cyprus. The arbitrator shall render a written opinion setting forth all material facts and the basis of his or her decision within thirty (30) days of the conclusion of the arbitration proceeding. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO ARBITRAL CLAIMS.
- No waiver of the right to arbitration. There shall be no waiver of the right to arbitration unless such waiver is provided affirmatively and in writing by the waiving Party to the other party. There shall be no implied waiver of this right to arbitration. No acts, including the filing of litigation, shall be construed as a waiver or a repudiation of the right to arbitrate.
- YOU AND THE COMPANY AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if a dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with a Party’s 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 section shall be null and void
- The invalidity or unenforceability of any terms of the Agreement shall not affect the validity or enforceability of any other terms, all of which shall remain in full force and effect.
- Our failure or delay in exercising any right, power or privilege under these Terms shall not operate as a waiver thereof.
- All headings are solely for the convenience of reference and shall not affect the meaning, construction, or effect of this Agreement.
- You may not assign or transfer any of Your rights or obligations under these Terms without prior written consent from the Company, including by operation of law or in connection with any change of control. The Company may assign or transfer any or all of its rights under these Terms, in whole or in part, without obtaining Your consent or approval.
- If these Terms or any other documents between You and Us are translated and executed in any language other than English and there is any conflict between the translation and the English version, the English version shall prevail.