EKOS GENESIS TERMS OF USE
We and our affiliates (collectively the “Company”, “we”, “us”, or “our”), provide users with the opportunity to view, obtain, and purchase non-fungible tokens (“NFTs”) offered by us or on our behalf and that will be recorded on the Ethereum blockchain. (“Ekos Genesis Art Pieces”). The Ekos Genesis Art Pieces may be obtained through the Ekos.io website initially (the “Site”) and/or Secondary Marketplaces (as defined below).
PLEASE READ THESE TERMS OF USE CAREFULLY AS THEY INCLUDE IMPORTANT INFORMATION AND AFFECT YOUR LEGAL RIGHTS. YOU AGREE TO SUBMIT ALL DISPUTES TO INDIVIDUAL MANDATORY ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
By using this Site, or obtaining an Ekos Genesis Art Piece either on the Site or through a Secondary Marketplace, you: (1) agree to be legally bound by these Terms of Use (the “Terms”), (2) acknowledge that you have read and understand these Terms, and (3) represent that you are of legal age in your jurisdiction to enter into a binding agreement. If you do not agree to these Terms, you must discontinue your access to and use of the Site. Your breach of any of these Terms immediately terminates your right to access and use the Services and all rights and licenses granted to you herein.
These Terms govern (1) your use of the Site whether accessed through web, mobile, or otherwise, (2) to the extent used by you, the services made available through the Site as described herein, and (3) your license to, and possession of, any Ekos Genesis Art Pieces (whether obtained through the Site or otherwise) (collectively, the “Services”). These Terms are in addition to our Privacy Policy.
We reserve the right to revise these Terms from time to time without notice. When we do so, we will update the “Last Updated” date located above. You acknowledge and agree that it is your responsibility to review the Site and these Terms periodically and to be aware of any changes. Your continued use of the Site and Services after changes to our Terms shall constitute your agreement to be bound by the modified Terms.
EKOS GENESIS ART PIECES
Ekos Genesis Art Piece may link to and identify artwork, designs, drawings, audio, video, graphics and visual effects or other content (collectively, “Content”). You acknowledge and agree that we may mint other NFTs or create other products that are similar to the Content of your Ekos Genesis Art Piece. You also acknowledge and agree that when you obtain an Ekos Genesis Art Piece on the Site, you will not know in advance the specific Content that will be associated with that Ekos Genesis Art Piece. Owners of Ekos Genesis Art Pieces obtain a Limited License to the Content as described in further detail in Section 5; other than such Limited License, you expressly acknowledge and agree that no other promises have been made, express or implied, and that there are no, nor will there be any, other rights, benefits or features of any kind associated with your Ekos Genesis Art Pieces.
You may obtain an Ekos Genesis Art Piece through the Site pursuant to the Auction Terms or on a Secondary Marketplace. We cannot guarantee that Ekos Genesis Art Pieces will be available for purchase at the time you seek to purchase one. We reserve the right to modify the types, prices and number of Ekos Genesis Art Pieces available at our discretion.
In order to access certain Services, including obtaining an Ekos Genesis Art Piece, you will need to link a compatible digital wallet to the Site as directed. You acknowledge that by providing the Site or Services, we are not acting as a wallet provider, exchange, broker-dealer, financial institution, or creditor. We never hold custody nor take ownership or possession of an Ekos Genesis Art Piece. We do not own or control any of the digital wallets that the Site may support, and our support of a specific digital wallet, or a description of how to obtain or use one, should not be interpreted as our endorsement or guarantee of the functionality of that digital wallet. Your use of the digital wallet you choose to use is at your own risk and subject to the terms and conditions of that digital wallet. You are responsible for all uses of your digital wallet, for keeping your digital wallet private key confidential and secure, and for ensuring your digital wallet address has a sufficient amount of cryptocurrency to cover your purchase as well as any Blockchain Fees as described in Section 4.
You agree that after you have made your deposit, you have no, and expressly waive any, right of withdrawal or other right to have your deposit or purchase cancelled or refunded. You agree that if you are successful in obtaining an Ekos Genesis Art Piece from our Site, the Ekos Genesis Art Piece will be minted for you or transferred to you and recorded on a blockchain.
SECONDARY MARKETPLACES AND THIRD-PARTY SITES
You may be permitted to sell, trade, or distribute your Ekos Genesis Art Piece, or you may purchase or otherwise obtain an Ekos Genesis Art Piece, on any smart-contract enabled secondary marketplaces, platforms and exchanges operated by third parties where users can sell, purchase, transfer, list for auction and bid on Ekos Genesis Art Pieces (“Secondary Marketplaces”). You acknowledge that certain Secondary Marketplaces will not support Ekos Genesis Art Pieces, and we neither support nor make any guarantee about the availability or functionality of any Secondary Marketplace. You also acknowledge that there may never be a Secondary Marketplace for Ekos Genesis Art Pieces. If you seek to transfer your Ekos Genesis Art Piece via a Secondary Marketplace or obtain an Ekos Genesis Art Piece via a Secondary Marketplace, you may need to open an account with such Secondary Marketplace, and you may also incur gas fees or other transaction costs, which you are responsible for.
You acknowledge and agree that we are not a party to any agreement or transaction relating to an Ekos Genesis Art Piece on any Secondary Marketplace, whether or not we receive a commission or fee as a consequence of the transaction. You acknowledge and agree that we do not own or control any Secondary Marketplaces, and any description of how to use one should not be interpreted as our endorsement or guarantee of that Secondary Marketplace. Your use of any Secondary Marketplace you choose to use is at your own risk and subject to the terms and conditions of that Secondary Marketplace. We are not liable for any loss incurred by you in connection with any transaction that takes place on Secondary Marketplaces.
These Terms only relate to your use of the Services, and do not relate to any other website or Internet-based services, including any Secondary Marketplaces or other websites or browser extensions to which the Services may link (“Third-Party Sites”). References or links to any Third-Party Site are provided for your convenience and information only. Such links should not be interpreted as our support or endorsement of any Third-Party Site. When you click such link, we may not warn you that you have left our Services and are subject to the terms and conditions and privacy policies of a Third-Party Site. We are not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on any content, advertising, products, services, information or other materials on Third-Party Sites.
ANNOUNCEMENTS
We may, from time to time, make certain announcements regarding your Ekos Genesis Art Pieces (“Announcements”). All Announcements will be made by us on our Site. You acknowledge and agree that it is your responsibility to check the Site for all Announcements. We are not responsible for your failure to check Announcements, nor are we liable for the availability of our Site.
PAYMENT, GAS FEES AND TAXES
If you sell your Ekos Genesis Art Piece via a Secondary Marketplace, you may be required to pay a license fee to us (“License Fee”). The License Fee will be a percentage determined by us and, depending on the Secondary Marketplace, will be deducted either from your sale price before the deduction of any Secondary Marketplace fees or after such deduction has been applied.
Other than as expressly stated by us, you are solely responsible for all payments, fees, and costs, including but not limited to “gas” fees, imposed by any blockchains or protocols in connection with the minting, purchase, and any transfer of your Ekos Genesis Art Piece (“Blockchain Fee”). You acknowledge that we have no control over these Blockchain Fees, including the ability to reverse or recover the payment of any Blockchain Fees.
You are solely responsible for determining and paying (or reimbursing for the payment of) any and all sales, use, value-added and other taxes, duties, and assessments (excluding taxes imposed on our net income) now or hereafter claimed or imposed by any tax or other governmental authority associated with your use of the Services (collectively, the “Taxes”). You will pay or reimburse us for all Taxes of any jurisdiction (whether national, federal, state, local, foreign or other), including value added taxes and taxes as required by international tax treaties, customs or other import or export taxes, and amounts levied in lieu thereof based on charges set, services performed or payments made hereunder, as are now or hereafter may be imposed under the authority of any national, federal, state, local, foreign or other taxing jurisdiction, and will not be entitled to deduct the amount of any such Taxes or amounts levied in lieu thereof from payments (including gas fees) made to us pursuant to these Terms.
LIMITED LICENSE AND OWNERSHIP
As with other types of artistic works, Ekos Genesis Art Pieces are being sold for consumptive enjoyment as collectibles. Subject to your compliance with these Terms and your lawful acquisition and use of an Ekos Genesis Art Piece, we hereby grant you a non-exclusive, royalty-free, non-sublicensable, limited license, solely with respect to any Ekos Genesis Art Piece you own to use, copy, and display the Content associated with the Ekos Genesis Art Piece solely for your personal, non-commercial use (the “Limited License”). You are not permitted to delete or obscure any copyright or other proprietary notices associated with the Content. This Limited License does not grant you any rights in or to the Content, or any other intellectual property rights, other than as set forth in these Terms. Any use of the Content other than as expressly authorized herein is strictly prohibited and shall immediately terminate your right to access and use the Site, Services and Content. Any such unauthorized use may also violate applicable laws, including copyright and trademark laws.
The Limited License applies only to the extent that you continue to own the applicable Ekos Genesis Art Piece and to the extent you are not in breach of these Terms. If at any time you sell, trade, donate, give away, or transfer your Ekos Genesis Art Piece to a new owner, burn your Ekos Genesis Art Piece, or breach these Terms, your Limited License shall automatically terminate without the requirement of notice by us or any further action, and you will have no further rights in or to the Content associated with that Ekos Genesis Art Piece. If at any time you sell, trade, donate, give away, or transfer your Ekos Genesis Art Piece to a new owner, the new owner shall be subject to these Terms and you shall no longer own your Ekos Genesis Art Piece.
The Limited License applies only to the Ekos Genesis Art Pieces on the blockchain that we, in our sole discretion, may designate, which designation shall apply retroactively. Therefore, if, for example, a fork or other event purports to result in a duplicate of an Ekos Genesis Art Piece, only the Ekos Genesis Art Piece recorded on the blockchain designated by us will be eligible to receive the benefit of this Agreement. Any license purportedly granted hereunder to an owner of an Ekos Genesis Art Piece recorded on a blockchain not designated by us is void ab initio.
You may not and will not permit any third party to, do or attempt to do any of the following without our express prior written consent in each case: (i) modify, alter and/or create derivative works of the Content; (ii) use the Content for your and/or any other third party’s commercial benefit, including in any advertising, marketing or promotion related thereto; (iii) use the Content in connection with images, videos, and/or other forms of media that depict hatred, intolerance, violence, cruelty, politics or anything else that could reasonably be found to constitute hate speech or infringe upon the rights of others; (iv) use the Content in a manner that disparages or otherwise reflects unfavorably or harms us and/or our products and Services; (v) attempt to mint, tokenize, or create an additional cryptographic token, including an NFT, representing the Content on any platform; and (vi) otherwise commercially use or exploit any Content for your or any third party’s benefit, including by selling copies of any Content or selling derivative works embodying any Content.
You acknowledge that we or our licensors, as applicable, own all right, title and interest in and to the Site, the Services, and the Content, including any media, design, images, illustrations, animations, graphic material, proprietary information, as well as any accompanying documentation or other written materials, tangible or intangible, and all legally protectable elements of the foregoing, including, without limitation, all derivative works, translations, adaptations or variations of same, regardless of the medium, format or form, now known or hereinafter developed or discovered, and regardless of where produced, and all intellectual property rights therein (collectively the “Company IP”). Any limited license rights that you may have in and to the Content are limited to those expressly described in the Limited License. We (on behalf of ourselves and, as applicable, our licensors) reserve all other rights, including all copyrights, in and to the Company IP. Any use of the Company IP in a manner not permitted by these Terms violates the intellectual property rights, and possibly other rights, of the Company. Any rights granted by the Company hereunder may be modified or rescinded in their entirety if there are changes in technology, laws and/or regulations related to the sale of NFTs that would necessitate such changes to protect the Company IP or other rights or property of the Company.
The trademarks, service marks, trade names and logos, including MYTHOS and EKOS, and any third-party marks used and displayed through the Services are trademarks of Company, its licensors, affiliates or sponsors, and may not be used by you other than to factually describe your Ekos Genesis Art Piece when listing it for sale or distribution or for non-commercial purposes.
The artwork, audio, page headers, custom graphics, button icons, style sheets and scripts that contribute to the “look and feel” of the Services are service marks, trademarks and/or trade dress of Company and may not be copied, imitated or used, in whole or in part, in connection with any product or service that is not expressly authorized by Company in writing, in any manner that is likely to cause confusion among consumers, or in any manner that disparages or discredits Company.
You agree not to circumvent, disable or otherwise interfere with security-related features of the Site that prevent or restrict use or copying of any Company IP or enforce limitations on use of the Services or the Content.
You may choose to submit comments, bug reports, ideas or other feedback about the Site, including, without limitation, about how to improve the Services through the email address provided at the end of these Terms (collectively, “Feedback”). By submitting any Feedback, you agree that we are free to use such Feedback at our discretion and without additional compensation to you, and to disclose such Feedback to third parties (whether on a non-confidential basis, or otherwise). You hereby grant us a perpetual, irrevocable, non-exclusive, worldwide license under all rights necessary for us to incorporate and use your Feedback for any purpose.
ACKNOWLEDGMENTS AND ASSUMPTION OF RISK
You acknowledge and agree that there are risks associated with receiving, purchasing, acquiring, transferring, holding, and using your Ekos Genesis Art Pieces and using the Site and Services. By receiving, purchasing, holding and using an Ekos Genesis Art Piece, and by using the Site and Services, you expressly acknowledge and assume all risks including, but not limited to: forgotten passwords; inability to access or use your digital wallet for any reason; mistyped addresses or improperly constructed instructions when transmitting or receiving Ekos Genesis Art Pieces or any cryptocurrency; errors in the smart contracts that mint Ekos Genesis Art Pieces; errors in the Ekos Genesis Art Pieces; errors in the Site or Services; blockchain malfunctions or other technical or protocol errors; server failure or data loss; telecommunications failures; cybersecurity attacks or incidents; weaknesses in our security;; unauthorized third-party activities, including, without limitation, the introduction of viruses or other malicious code; and the use of phishing, sybil attacks, 51% attacks, bruteforcing, changes to the protocol rules of any blockchain we use (i.e., “forks”), or other means of attack that affect, in any way, the Ekos Genesis Art Pieces; and any unanticipated risks (the foregoing, collectively, “Ekos Genesis Art Piece Risks”).
You acknowledge that, by using the Site or Services, you have sufficient knowledge, sophistication, experience, and understanding of the functionality, usage, storage, transmission mechanisms and other material characteristics of blockchain technology, NFTs, digital assets, digital wallets, and cryptocurrencies to understand these Terms, to appreciate the risks and implications of purchasing an Ekos Genesis Art Piece, and to make your own evaluation of the merits and risks of any transaction conducted via the Site or Services or any digital asset associated with such transaction.
We are not responsible if your Ekos Genesis Art Piece or the Content becomes inaccessible to you for any reason, if you are unable to transfer your Ekos Genesis Art Piece or display the Content, or for any modifications or changes to your Content including any deletion, removal, or inaccessibility on the Site or Services or otherwise. You acknowledge and agree that we may modify, replace, or remove the Content associated with your Ekos Genesis Art Piece at any time if we, in our sole discretion, determine it to be necessary. You acknowledge and agree that the Content can be copied and distributed and that we cannot guarantee that additional copies of the Content associated with your Ekos Genesis Art Piece will not be created by others. You also acknowledge and agree that we or any third party on our behalf could make additional copies of, and distribute, the Content and could sell or otherwise assign the copyright or other intellectual property rights or economic rights in such Content.
You represent that you are not located in, and you will not transfer Ekos Genesis Art Pieces to any individual, entity, or organization located in, a country that is subject to a United States Government embargo, or has been designated by the United States Government as a terrorist-supporting country, or with whom any United States law, regulation, or executive order prohibits U.S. companies and individuals from dealing, including, names appearing on the U.S. Department of the Treasury’s Office of Foreign Assets Control’s Specially Designated Nationals and Blocked Persons List.
You acknowledge and agree that:
Ekos Genesis Art Pieces are collectible works of art, intended and offered solely for entertainment or consumptive purposes and not intended or suitable for investment, speculation, or financial gain;
Beyond being collectible works of art, Ekos Genesis Art Pieces do not confer any other benefits, features, services, products, rewards or offers of any kind whatsoever;
The purchase or acquisition of Ekos Genesis Art Pieces does not entitle the owner to any equity or ownership interest in any entity, project, or endeavor;
Malicious actors may hack or exploit systems and steal Ekos Genesis Art Pieces or other digital assets, or attempt to impersonate owners of Ekos Genesis Art Pieces, counterfeit Ekos Genesis Art Pieces, sell replicas of original Ekos Genesis Art Pieces, or misuse Content associated with Ekos Genesis Art Pieces;
The regulatory regime governing blockchain technologies, cryptocurrencies, tokens, and NFTs is uncertain and continually evolving, and new regulations or policies may negatively impact the potential value of your Ekos Genesis Art Pieces, or your ability to transfer or sell your Ekos Genesis Art Piece;
We make no representation or promise of any kind regarding the price or value of your Ekos Genesis Art Piece. The market for NFTs is new and volatile, and the price of an Ekos Genesis Art Piece as it relates to fiat currency may greatly decrease over a short period of time, impacting the liquidity and the price of an Ekos Genesis Art Piece. NFTs compete with other digital assets, and this competition may negatively impact the potential value of your Ekos Genesis Art Piece. A lack of use or public interest in NFTs could also negatively impact the potential value of your Ekos Genesis Art Piece. We cannot guarantee that any purchases of Ekos Genesis Art Pieces will retain their original value, as their value is inherently subjective and factors occurring outside of us or the Services may materially impact the value, price and/or desirability of any particular Ekos Genesis Art Piece;
We do not provide any application or other service to receive, access, view, or display your Content, and do not guarantee you will be able to do so. It is your responsibility to procure a digital wallet or other means to allow for you to access or view your Content, and to store the requisite private key(s) or other credentials necessary to access your digital wallet or other technologies. You acknowledge that the risk of acquiring an Ekos Genesis Art Piece from us; holding and using the Ekos Genesis Art Piece; and transferring your Ekos Genesis Art Piece to others rests entirely with you. If your private key(s) or other access credentials are lost, you may lose access to your Ekos Genesis Art Piece, and we are not responsible for any such losses;
We make no representation that Ekos Genesis Art Pieces or any Services are legal or appropriate for use in any specific country or whether they may be exported from or imported into any specific country. You are responsible for determining whether purchase or ownership of an Ekos Genesis Art Piece, or use of the Site or Services, complies with applicable laws and regulation in your jurisdiction or from any jurisdiction from which you may access the Site and/or Services;
Your Ekos Genesis Art Pieces exist only by virtue of the ownership record maintained on the blockchain we have determined to use. Changes to that blockchain, which we cannot control, may have unintended, adverse effects on your Ekos Genesis Art Piece;
There are risks associated with using digital currency, including, but not limited to, volatility, 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; and
Under no circumstances will the operation of all or any portion of the Site or Services be deemed to create a relationship that includes the provision or tendering of investment advice.
DISCLAIMER OF WARRANTIES
IF YOU CHOOSE TO USE THE SITE OR SERVICES OR OWN AN EKOS GENESIS ART PIECE, YOU DO SO VOLUNTARILY AND AT YOUR SOLE RISK. THE SITE, SERVICES AND EKOS GENESIS ART PIECES ARE PROVIDED “AS IS” AND TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, WE DISCLAIM ALL WARRANTIES OR OTHER TERMS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OR TERMS OF SATISFACTORY QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT: THAT THE SITE, SERVICES, OR ANY OF THEIR FUNCTIONS, OR THE EKOS GENESIS ART PIECES WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; THAT ANY PART OF THE SITE, SERVICES OR EKOS GENESIS ART PIECES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SITE, SERVICES, OR EKOS GENESIS ART PIECES WITH REGARD TO CORRECTNESS, ACCURACY, TIMELINESS, RELIABILITY, APPROPRIATENESS FOR ANY PURPOSE, OR OTHERWISE. DUE TO THE NATURE OF THE INTERNET, WE CANNOT GUARANTEE THE CONTINUOUS AND UNINTERRUPTED AVAILABILITY AND ACCESSIBILITY OF THE SITE, SERVICES OR EKOS GENESIS ART PIECES. WE MAY LIMIT OR RESTRICT THE AVAILABILITY OF THE SITE, SERVICES, EKOS GENESIS ART PIECES OR CERTAIN AREAS OR FEATURES, AS DETERMINED BY US FOR REASONS OF SECURITY OR INTEGRITY OF THE SITE, SERVICES OR EKOS GENESIS ART PIECES, OR TO CARRY OUT MAINTENANCE. IF YOU ARE DISSATISFIED WITH ANY ISSUES RELATING TO THE SITE OR SERVICES, OR WITH ANY OF THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SITE OR SERVICES.
We will not be responsible or liable to you or any other party for errors or failures to execute any transaction related to obtaining your Ekos Genesis Art Piece, including, without limitation, errors or failures caused by: (i) your failure to follow our instructions; (ii) any loss of connection to our Site or Services unless caused by our gross negligence; (iii) a failure of any software or device used by you to obtain your Ekos Genesis Art Piece; or (iv) for any failure to obtain, access, display, use or transfer your Ekos Genesis Art Piece unless caused by our gross negligence.
We reserve the right to change, revise, update, suspend, or discontinue or otherwise modify the Site or Services and related applications, programs and services at any time and without prior notice (except as required by applicable law), and we will not be liable to you should we exercise such rights, even if your ability to obtain, access, display, use, or transfer your Ekos Genesis Art Piece is impacted by the change.
RELEASE.
To the maximum extent permitted by applicable law, you hereby release and waive all claims against Company and its affiliates, licensors, suppliers and sponsors, and each of their respective directors, officers, agents, contractors, partners, advisors, employees, licensors, content creators, and suppliers from any and all liability for claims, damages (actual and consequential), costs and expenses (including litigation costs and attorney’s fees) of every kind and nature, arising out of or in any way connected with your use of the Site or Services or obtaining, accessing, displaying, using, or transferring an Ekos Genesis Art Piece.
INDEMNIFICATION.
You agree to indemnify, defend and hold Company, its affiliates, licensors, suppliers and sponsors, and each of their directors, officers, employees and agents harmless from and against any loss, liability, claim, suit, demand, damages, penalty, fine, judgment, costs and expenses, including reasonable attorneys’ fees, arising out of your breach of these Terms; your violation of laws, rules or regulations; your violation of any intellectual property right or other rights of another party; or your misuse of the Site, Services, or Ekos Genesis Art Pieces. The foregoing defense and indemnification obligation will survive these Terms and your use of the Services. You acknowledge and agree that Company may, at its option, control the defense or settlement of any such claims.
LIMITATION OF LIABILITY.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: IN NO EVENT WILL WE BE LIABLE FOR (I) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, WHERE RELATED TO LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, OR DAMAGES FOR BUSINESS INTERRUPTION); AND (II) ANY DAMAGES, INCLUDING ANY ATTORNEYS FEES, ARISING FROM ANY EKOS NFT RISKS, ARISING OUT OF OR IN ANY WAY RELATED TO OBTAINING, OR THE SALE OR USE OF, EKOS GENESIS ART PIECES OR CRYPTOCURRENCIES OR OTHERWISE RELATED TO THESE TERMS, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE).
USER CONDUCT.
By using the Site and/or the Services, you agree not to: (i) use the Site or the Services for unlawful purposes or in violation of any applicable law; (ii) infringe any of Company’s intellectual property rights in the Site or Services; (iii) upload viruses or other malicious code to the Site or Services; (iv) interfere with, or compromise the operations, system integrity or security of the Services; (v) conduct automated queries through the Site or engage in other activities for the purpose of obtaining data or other information from the Services; (vi) take any action that imposes an unreasonable or disproportionately large load on our infrastructure; (vii) reproduce, modify, distribute, display or otherwise provide access to, create derivative works from, decompile, disassemble or reverse engineer any portion of the Site, Services or Ekos Genesis Art Pieces; or (viii) use or attempt to use another user’s account without authorization from such user.
Users who violate systems or network security may incur criminal or civil liability. You agree that we may at any time, and at our sole discretion, terminate your access to the Site or Services without prior notice to you for violating any of the above provisions. In addition, you acknowledge that we will cooperate fully with investigations of violations of systems or network security at other sites, including cooperating with law enforcement authorities in investigating suspected criminal violations.
ARBITRATION/DISPUTE RESOLUTION TERMS FOR U.S. RESIDENTS
You agree that any dispute between us (“Dispute”) shall be resolved exclusively in individual (non-class) arbitration. The parties intend to be bound to the Federal Arbitration Act, 9 U.S.C. § 1 et seq. An arbitration means there will be no jury, and no judge.
The arbitrator shall exclusively determine all issues as to the Dispute, applying these Terms. The arbitrator shall also determine any question as to whether any Dispute or issue is subject to arbitration. The arbitrator shall not have the power to hear any Dispute as a class action, mass action, or representative action. The arbitrator shall not have any power to issue relief to anyone but You or us.
Disputes that can be fully resolved in small claims court need not be submitted to arbitration.
You agree that any Disputes shall be heard exclusively in the County of Los Angeles, California unless otherwise agreed to by the Parties or determined by the arbitrator. You consent to jurisdiction in the County of Los Angeles, California for all purposes.
YOU AND THE COMPANY EACH VOLUNTARILY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO A TRIAL BY JURY IN RESOLVING ANY DISPUTE BETWEEN YOU AND US ARISING OUT OF THESE TERMS OR THE SITE OR SERVICES.
You agree that any Dispute between you and us shall be resolved in an individual action. Under no circumstances will you file, seek, or participate in a class action, mass action, or representative action in connection with a Dispute.
The arbitrator may grant any remedy, relief, or outcome that the parties could have received in court, including awards of attorney’s fees and costs, in accordance with the law(s) that applies to the case, except injunctive relief.
The arbitrator may not issue any injunction. If either party in a Dispute seeks injunctive relief, the arbitrator will complete arbitration of the Dispute, issue an award of monetary compensation (if any), and then the party seeking injunctive relief may file a new action in state or federal court in California, solely for injunctive relief. The findings of fact and conclusions of law of the arbitrator shall not be submitted as evidence or constitute precedent in this subsequent suit.
DISPUTE RESOLUTION FOR NON-U.S. RESIDENTS.
In the event of any Dispute, you and we agree to send a written notice to the other providing a reasonable description of the Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us but if no such information exists or if such information is not current, then we have no obligation under this section. For a period of 60 days from the date of receipt of notice from the other party, we and you will engage in a dialogue in order to attempt to resolve the Dispute, though nothing will require either you or us to resolve the dispute on terms either you or us, in each of our sole discretion, are unsatisfactory. Nothing in this section will prevent a party from pursuing their claims in court or another complaint process.
If your country of residence or establishment is outside the U.S., these Terms will be governed by and interpreted in accordance with English law. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded. This choice of law does not impact your rights as a consumer according to the consumer protection laws of your country of residence. If you are a consumer, you may be able to bring judicial proceedings against us arising from or in connection with these Terms in a court within a jurisdiction according to the laws of your country of residence or the English courts. If you are acting as a business, you agree to submit to the exclusive jurisdiction of the English courts.
MISCELLANEOUS
Notices. Notices to you may be made via posting to the Site, by e-mail, or by regular mail, in our sole discretion. Notices to us should be made by e-mail to ekos@mythosstudios.com.
Entire Agreement; Third-Party Beneficiaries. These Terms constitute the complete understanding and agreement of you and us with respect to the Site, the Services and the Ekos Genesis Art Pieces, and supersedes any and all prior or contemporaneous written or oral agreements between you and us with respect to the Site, the Services, and the Ekos Genesis Art Pieces. You agree that there are no third-party beneficiaries to these Terms.
Termination. In addition to the termination rights as set forth in these Terms, we reserve the right, in our sole and exclusive discretion, to refuse, suspend, restrict or terminate your access to the Site or Services, or any portion thereof, without notice and for any reason or no reason. You acknowledge that we have the right, but not the obligation, to suspend or terminate your access to all or part of the Site or Services: at the request of law enforcement or other government agencies; if the Site or Services are discontinued or materially modified; and upon the occurrence of any technical or security issues or problems.
No Waiver. No right or term of these Terms will be deemed waived, and no breach of these Terms excused, unless the waiver or consent is in writing and signed by you and us.
Severability. If any part of these Terms is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.
Assignment. We will have the unrestricted right to assign these Terms and to assign, subcontract, license and sublicense any or all of its rights and obligations hereunder. These Terms are personal to you and shall not be assigned or transferred by you. Any other attempt by you to assign, sub-license, or transfer your rights and any licenses granted hereunder under these Terms shall be null and void.
Force Majeure. We will not be responsible for any failure to fulfill any obligation due to any cause beyond our control. In addition to any excuse provided by applicable law, we shall be excused from liability for non-delivery or delay in delivery of Services available through our Site or otherwise arising from any event beyond our reasonable control, whether or not foreseeable by either party, including but not limited to, natural disasters, pandemics or epidemics, labor disturbance, war, fire, accident, adverse weather, governmental act or regulation and other causes or events beyond our reasonable control, whether or not similar to those which are enumerated above.
Governing Law. These Terms and your use of the Site are governed by the laws of the State of California without regard to its choice of law provisions. However, any determination as to whether a Dispute is subject to arbitration, or as to the conduct of the arbitration, shall be governed exclusively by the Federal Arbitration Act, 9 U.S.C. § 1 et seq.