Terms of Service
Last Updated: August 17th, 2022
Welcome to GamerGains. Our products, services and properties include, without limitation: our online and/or mobile services, including the website(s) and mobile applications (each an “App”) through which these Terms of Service (these “Terms”) are made available (collectively, the “Service”). The Service is made available by GamerGains Labs, Inc. and its affiliates (“GamerGains,” “we,” “us” or “our”), and these Terms govern your access to and use of the Service. As used herein, the term “you” (including any variant) refers to each individual who enters into these Terms on such individual’s own behalf or any entity on behalf of which an individual enters into these Terms. Certain features of the Service may be subject to additional guidelines, terms, or rules (“Supplemental Terms”), which will be displayed in connection with such features. These Terms and all such Supplemental Terms, which are incorporated by reference, are collectively referred to as the “Agreement.” If these Terms are inconsistent with any Supplemental Terms, the Supplemental Terms shall control solely with respect to such features of the Service.
THIS AGREEMENT IS IMPORTANT AND AFFECTS YOUR LEGAL RIGHTS, SO PLEASE READ CAREFULLY. BY CLICKING ON ANY “I ACCEPT” BUTTON, PURCHASING OR OFFERING TO PURCHASE TOKENS THROUGH THE SERVICE, AND/OR OTHERWISE USING THE SERVICE, YOU AGREE TO BE BOUND BY THIS AGREEMENT AND ALL OF THE TERMS INCORPORATED HEREIN. YOU MAY NOT ACCESS OR USE THE SERVICES IF YOU ARE AN INDIVIDUAL THAT IS NOT AT LEAST 13 YEARS OLD, IF YOU HAVE PREVIOUSLY BEEN REMOVED FROM THE SERVICE, OR IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THIS AGREEMENT.
WE ARE NOT AN Exchange, funding portal, custodian, trust company, licensed broker, dealer, broker-dealer, investment advisor, investment manager, or adviser in the United States or elsewhere. YOU BEAR FULL RESPONSIBILITY FOR VERIFYING THE IDENTITY, LEGITIMACY, AND AUTHENTICITY OF TOKENS YOU MAY RECEIVE THROUGH OR IN CONNECTION WITH THE SERVICE. EXCEPT WHERE EXPRESSLY STATED AT THE POINT OF SALE FOR ANY PURCHASE, GAMERGAINS MAKES NO CLAIMS ABOUT THE IDENTITY, LEGITIMACY, OR AUTHENTICITY OF TOKENS OFFERED FOR SALE ON OR THROUGH THE SERVICE.PLEASE READ SECTION 16 OF THIS AGREEMENT CAREFULLY, AS IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION, PURSUANT TO WHICH: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE AGREEING TO MANDATORY INDIVIDUAL ARBITRATION FOR THE RESOLUTION OF DISPUTES AND WAIVING YOUR RIGHT TO A JURY TRIAL ON YOUR CLAIMS.
a. Description. The Service enables users of the Service to: (i) share their achievements and complete challenges in video games that integrate with the Services (“Games”); (ii) earn, own, and transfer tokens made available by GamerGains, including but not limited to $GAMER tokens (“Tokens”) minted on the Solana blockchain network or such other public blockchain as determined and designated by GamerGains (the “Blockchain Platform”), including earning Tokens by playing and completing challenges or other achievements in Games (“Challenges”); and (iii) connect a third-party software-based digital wallet accepted by GamerGains which allows such users to engage in transactions using cryptocurrency and other digital assets (each, a “Digital Wallet”) for the purpose of receiving and transferring Tokens on or through the Services.
b. Access and Use. You are hereby granted a limited, revocable, non-exclusive, non-transferable, non-assignable, non-sublicensable, “as-is” right to access and use the Service and Content for your own personal, non-commercial use; provided, however, that such license is subject to this Agreement. This license is subject to your compliance with the Acceptable Use Policy set forth in Section 10 below. By accessing and using the Service you represent and warrant that you are at least 13 years of age.
c. Accounts. In order to access certain features of the Services you may be required to register an account on the Services (“Account”). You promise that: (i) all required registration information you submit in connection with your registration is truthful and accurate; and (ii) you will maintain the accuracy of such information. By using the Service, you agree to (a) provide accurate, current, and complete information about yourself as requested, (b) maintain and promptly update such information from time to time as necessary.
d. Modifications to the Service. GamerGains may from time-to-time change or discontinue any or all aspects or features of the Service, including by (i) altering the smart contracts which are included in the Blockchain Platform pursuant to upgrades, forks, security incident responses or chain migrations; or (ii) deactivating or deleting Content that GamerGains in its sole discretion determines has been abandoned. In such events, you may no longer be able to access, interact with or, read the data from certain features of the Service.
a. Generally. In connection with any Challenges available through the Service, we will describe the: (i) eligibility criteria to opt in to the Challenge; (ii) details of the Challenge, including what must be done to complete the Challenge; (iii) deadlines for opting into and completing the Challenge, if applicable; (iv) the Challenge Reward; and (v) other terms related to the Challenge, if any (collectively, the “Challenge Offering”). In the event of a conflict between the terms of a Challenge Offering and these Terms, the terms of the Challenge Offering will control solely with respect to the applicable Challenge. Your sole reward for completing Challenges shall be an in-platform digital credit which may be able to be redeemed through the Service for the number of Tokens set forth in the Challenge Offering if and when Tokens are made available by GamerGains (each a “Challenge Reward”). Tokens that may be redeemed with Challenge Rewards through the Service will be transferred to your Digital Wallet in accordance with this Agreement. Such transfers may not be completed instantaneously. GamerGains may impose timing restrictions or fees on the redemption of Challenge Rewards at its sole discretion. Tokens provided for the redemption of Challenge Rewards will be provided in accordance with, and such Tokens will be at all times subject to, Section 4. You are not entitled to receive anything else or opt for any different reward in lieu of Challenge Rewards for completing any Challenge. GamerGains reserves the right to set or modify Challenge Offerings at any time in its sole discretion. Your ability and eligibility to participate in Challenges, receive Challenge Rewards, redeem Tokens from Challenge Rewards is subject in all cases to: (a) your compliance with these Terms, including but not limited to Section 10 (Acceptable Use Policy); (b) your having a valid license to the applicable Game; (c) your connecting your Digital Wallet and the applicable Third-Party Account (as defined below) to the Service; and (d) meeting all eligibility criteria shown on the Service with respect to the applicable Challenge Offering and users’ ability to receive Tokens for completing such Challenge, including but not limited to any applicable fees. Without limiting the foregoing, if you engage in any form of cheating or use any automated software or bots while participating in a Challenge, you will not be eligible to receive Challenge Rewards or participate in future Challenges. Whether or not you have completed a Challenge will be determined by GamerGains in its sole discretion based on the information made available through the applicable Third-Party Account pertaining to your playing of the applicable Game.
b. Taxes. You are solely responsible for paying any such taxes, levies, duties or fines for your receipt of Tokens for completing Challenges, and GamerGains shall have no liability to you or any third party with respect thereto. If GamerGains determines it has a legal obligation to withhold or have withheld or pay or have paid on your behalf any taxes, levies, duties, or fines GamerGains will withhold, have withheld, pay, or have paid such amounts. You will indemnify GamerGains for any liability or expense GamerGains may incur in connection with withholding, having withheld, paying, or having paid such amounts.
a. Connecting your Digital Wallet. In order to access and use certain features of the Service, including earning Tokens for redeeming Challenge Rewards, you must connect a Digital Wallet to your Account. We neither own nor control your Digital Wallet, meaning, for the avoidance of doubt, we do not custody your Tokens nor do we hold your private key. By connecting your Digital Wallet to your Account, you: (i) grant GamerGains permission to use information you choose to expose to GamerGains with respect to your Digital Wallet to provide the Service to you; and (ii) you represent and warrant that you have all necessary right, authorization, and authority to disclose any such information to GamerGains and to permit GamerGains to use such information as contemplated hereunder without breach by you of any of the terms or conditions that govern your use of the applicable Digital Wallet.
b. Control of your Digital Wallet. As between you and GamerGains, you solely control your Digital Wallet, and GamerGains is not responsible for any risks associated with the use thereof. You are solely responsible for maintaining the security of your Digital Wallet and private keys, and you must notify us immediately if you discover or otherwise suspect any security breaches related to your Digital Wallet. GamerGains does not custody or have access to or control over any Tokens you own or any of your private keys, passwords, Digital Wallets, or other property. You accept all risks of unauthorized access to your Digital Wallet.
c. Information. In connection with connecting your Digital Wallet, you agree to provide all information and documents from time to time as may be requested by GamerGains, including, without limitation, at the request of any competent authority, in order to help GamerGains comply with applicable law, regulation, or policy, laws and regulations laws related to anti-money laundering and countering the financing of terrorism, or where GamerGains has reasons to believe that:
- 1.your Digital Wallet or other means of access to the Service is being used for money laundering, fraud or for any other illegal activity;
- 2.you have concealed or reported false identification information and other details; or
- 3.transactions effected via your Digital Wallet may have been effected in breach of this Agreement.
You acknowledge and agree that GamerGains may pause or cancel your use of the Service until any requested additional information and documents have been provided reviewed by GamerGains and accepted as satisfying GamerGains’ request or the requirements of applicable law, regulation, or policy. If you do not provide complete and accurate information and documents in response to a request for such by GamerGains, GamerGains may refuse to provide any Token, Content (as defined below), product, service and/or further access to the Service to you.
a. Tokens Overview. This Agreement applies to your use of the Tokens, in connection with the Service or otherwise. You may acquire Tokens by earning them by completing Challenges in accordance with this Agreement. GamerGains reserves the right to change the functionality of Tokens in our sole discretion.
b. Acquiring Tokens
i. Initial Distribution of Tokens. Challenge Rewards you earn on the Service may be, at our discretion, redeemable through the Service for Tokens, subject to any applicable timing restrictions or redemption fees. We will promptly initiate the transfer of redeemed Tokens to your Digital Wallet via smart contract, less any applicable transaction fees, once the applicable timing restriction has elapsed. Subject to any Token Restrictions (as defined below), any Tokens that you earn and have redeemed are your property. All Tokens earned on the Service are recorded solely through the interactions of the user with the Blockchain Platform, which is not under the control of or affiliated with GamerGains or the Service. GamerGains does not own, operate, or control the Blockchain Platform or Digital Wallet. GamerGains does not sell Tokens to you and will have no control over transactions that occur outside of the Services, nor do we have the ability to reverse any transactions. Tokens may not be used to make purchases outside of the Services and you may not use Tokens as a currency or a currency substitute.
ii. Token Restrictions. We may place restrictions on your use, disposition, or transferring of Tokens, whether or not such transfer takes place on or through the Service (each such interaction, a “Secondary Transfer”), which we will make available to you in connection with such Token (such restrictions, the “Token Restrictions”). When you earn a Token through use of the Services, you agree that you have read, understand, and agree to be bound by this Agreement, including any Token Restrictions. Tokens may not be sold or exchanged for fiat currency or other virtual currency on the Services, and we will not facilitate the conversion of Tokens into other digital assets.
iii. Secondary Transfers. GamerGains is not and shall not be a party to any transaction or dispute between any initial owner of a Token and any subsequent owner of such Token, whether arising from any rights granted in that Token or otherwise. YOU BEAR FULL RESPONSIBILITY FOR VERIFYING THE IDENTITY, LEGITIMACY, AND AUTHENTICITY OF ANY TOKEN IN A TRANSACTION OUTSIDE OF THE SERVICES. EXCEPT WHERE EXPRESSLY STATED BY US, GAMERGAINS MAKES NO CLAIMS ABOUT THE IDENTITY, LEGITIMACY, OR AUTHENTICITY OF TOKENS.
c. Blockchain Platform. All acquisitions and transfers of Tokens must be conducted solely through the Blockchain Platform. We have no control over acquisitions or transfers of Tokens as or once they occur, nor do we have the ability to reverse or refund any acquisition or purchase of Tokens. Except where GamerGains is providing a Token earned by you through the Services, GamerGains is not and shall not be a party to any transaction or dispute related to any exchanges of Tokens. You understand that your Blockchain Platform address may be made publicly visible whenever you engage in a transfer of Tokens. GamerGains is not responsible for any delay or failure to report any issues with the Blockchain Platform, including without limitation forks, technical node issues, or any other issues that result in losses of any sort. 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 use of or reliance on the Blockchain Platform.
i. TOKENS 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 GAMERGAINS OR ANY GAMERGAINS ENTITY CAN EFFECT THE TRANSFER OF TITLE OR RIGHT IN ANY TOKENS. WE CANNOT AND DO NOT GUARANTEE YOU WILL BE ABLE TO SELL OR RESELL ANY TOKEN EARNED OR PURCHASED THROUGH THE SERVICE.
ii. YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE NO EXPECTATION OF PROFIT ASSOCIATED WITH YOUR RECEIPT OF ANY TOKENS AND YOU HAVE NO EXPECTATION TO DERIVE PROFITS FROM THE TOKENS AS A RESULT OF OUR EFFORTS OR THE EFFORTS OF ANY THIRD PARTY. ANY REFERENCES TO SECONDARY MARKETS ARE PROVIDED SOLELY FOR INFORMATIONAL PURPOSES AND YOU ACKNOWLEDGE AND AGREE THAT YOUR PURCHASE OF ANY DIGITAL ASSET IS NOT IN RELIANCE OF THE EXISTENCE OF ANY SUCH SECONDARY MARKET OR SUCH SECONDARY MARKET’S ABILITY TO SUPPORT ANY DIGITAL ASSET.
e. Informational Purposes. Any tools or calculations for the Tokens that are displayed on the Service are in no way predictions of any value associated with our Service or any Tokens, and you agree that you will not construe any such tools or calculations as predictions of future prices or values in any way or that we are giving you any advice on any value associated with the Tokens. All decisions to transact in any Tokens are made in your sole discretion without reliance on any information provided on the Service. You hereby irrevocably disclaim and disavow reliance upon any statements or representations made by or on behalf of, or information made available by, GamerGains, in determining to enter into this Agreement, earn, receive, transfer, list, buy, sell, or stake any Tokens or use the Service.
f. Assumption of the Risk. You acknowledge and agree that:
i. you are solely responsible for determining what, if any, taxes apply to your transactions involving Tokens. GamerGains is not responsible for determining the taxes that may apply to transactions involving Tokens;
ii. Tokens exist and can be transferred only by virtue of the ownership record maintained on the blockchain supporting such Tokens;
iii. there are risks associated with using digital currency and digital assets, 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 your information and as between you and GamerGains, you are solely responsible for such risks;
iv. the legal and regulatory regime governing blockchain technologies, cryptocurrencies, and tokens is evolving, and new regulations or policies may materially adversely affect the same;
v. GamerGains makes no guarantee as to the functionality of any blockchain’s decentralized governance, which could, among other things, lead to delays, conflicts of interest, or operational decisions that are unfavorable to your Tokens;
vi. protocols governing the operation of a blockchain may be subject to sudden changes in operating rules which may materially alter the blockchain and affect the value and function of any of your Tokens supported by that blockchain;
vii. GamerGains has no responsibility for any Tokens after the redemption by you of such Tokens; and
viii. GamerGains does not investigate and cannot guarantee or warrant the authenticity, originality, uniqueness, marketability, or legality of any Token acquired from a third party.
g. Other Digital Assets. The Service may not be compatible with any or all forms of cryptocurrency, and certain of your digital assets may not be compatible with the Service. Whether or not a digital asset is then-currently compatible with the Service may change at any time, in GamerGains’ sole discretion, with or without notice to you.
a. Fees. You agree to pay GamerGains all fees and charges to your Account, including processing fees associated with the redemption of Tokens by you. GamerGains may decide to assess or charge fees in the future for existing features of the Service or add new features for additional fees, at any time in our sole discretion. We will comply with applicable laws in connection with any new or modified fees.
b. Payment Information. GamerGains may use a third-party payment processor (“Payment Processor”) to facilitate the collection of fees from you. You may be required to provide GamerGains or its Payment Processor with information pertaining to a Digital Wallet, a valid debit or credit card, or other permitted payment method (“Payment Information”) to make payments of fees or charges to your Account. Whether a particular cryptocurrency is accepted as a payment by GamerGains is subject to change at any time in our sole discretion. You agree that GamerGains and its Payment Processor, as applicable, are authorized to immediately charge the Payment Information for all fees due and payable by you and that no additional notice or consent is required. You agree to immediately notify GamerGains of any change in your billing address or Payment Information.
c. Third-Party Payment Processing. You understand and agree that payment processing for the Service (e.g., card acceptance, merchant settlement, and related services) will be performed by GamerGains’ Payment Processor. Your use of the Service and the payment processing provided by the Payment Processor may be subject to agreement(s) with the Payment Processor for such Service and payment processing, as may be modified by the Payment Processor from time to time (collectively, “Payment Processor Agreement”). As a condition of using the Payment Processor’s payment processing, you must provide accurate and complete information, and you authorize us to share this information with the Payment Processor and to charge your payment method for all amounts that may become due under this Agreement. All bank, credit card, or other payment information is sent directly to and stored with the Payment Processor using its security protocols. GamerGains does not store your payment information on its systems and shall not have any responsibility for the safety or security of that information. Your use of the Payment Processor’s payment processing is conditioned upon your compliance with the Payment Processor Agreement, and if the Payment Processor Agreement is terminated by the Payment Processor, you may not be able to use the Service, or you may have your use of the Service suspended or terminated. We may change or add other payment processing services at any time upon notice to you, which may be subject to additional terms or conditions.
d. Sales Taxes. Any payments required may not include any Sales Tax that may be due in connection with the Service provided. If any Service or products, or payments for any Service or products, are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to GamerGains, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify GamerGains for any liability or expense GamerGains may incur in connection with such Sales Taxes. If GamerGains determines it has a legal obligation to collect a Sales Tax from you, GamerGains shall collect such Sales Tax in addition to the other payments required. You are solely responsible for paying any such taxes and GamerGains shall have no liability to you or any third party with respect thereto. Upon GamerGains’ request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
e. Transaction Fees. The Blockchain Platform may require the payment of a transaction fee for transactions that occur on the Blockchain Platform. You are solely responsible for such fees. GamerGains may add or change any payment processing services at any time. Such services may be subject to additional terms or conditions.
f. Free Trials. Any free trial or other promotion must be used within the specified time of the trial. At the end of the trial period, your use of that Service will expire and any further use of the applicable Service is prohibited unless you pay any applicable fees.
a. Unless otherwise indicated in writing by us, the Service and all content and other materials contained therein, including, without limitation, the GamerGains logo, product or service names, and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, “Content”) are the proprietary property of GamerGains or our affiliates or licensors and may not be copied, imitated or used, in whole or in part, without our prior written permission. You may not use any metatags or other “hidden text” utilizing “GamerGains,” or any other name, trademark or product or service name of GamerGains or our affiliates without our prior written permission. Reference to any products, services, processes or other information by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by GamerGains.
b. You agree that any submission of any ideas, suggestions, documents, and/or proposals to GamerGains (collectively, “Feedback”) is at your own risk and that GamerGains has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to GamerGains a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Service and GamerGains’ other products and services.
a. Generally. Certain information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials may be made available by users on or through the Service (“User Content”). For the avoidance of doubt, User Content does not include Tokens or any aspect or feature of the Service. If you choose to make User Content available on or through the Service, you hereby grant GamerGains a fully paid, royalty-free, worldwide, non-exclusive right (including any moral rights) and license to use, sublicense, distribute, reproduce, modify, adapt, and display, such User Content (in whole or in part) for the purposes of: (a) providing the Service, including making User Content available to other users in accordance with your elections on the Service, (b) improving the Service, and (c) advertising and promoting GamerGains and its products and services. You also hereby grant each other user of the Service a non-exclusive license to access your User Content through the Service, and to use, reproduce, distribute, display and perform such User Content solely as permitted through the functionality of the Service and under this Agreement. You are solely responsible for any User Content you provide. You represent and warrant that you have, or have obtained, all rights, licenses, consents, permissions, power and/or authority necessary to grant the rights granted herein for any User Content that you submit, post or display on or through the Service. You agree that such User Content will not contain material subject to copyright or other proprietary rights of a third party, unless you have necessary permission or are otherwise legally entitled to post the material and to grant the licenses described above. We take no responsibility for the User Content posted or listed via the Service, although we reserve the right to remove any User Content that is in violation of this Agreement.
b. Restrictions. You agree not to make available any User Content or take any action using the Service that: (i) may create a risk of, glorify, encourage, or threaten violence, harm, physical or mental injury, emotional distress, death, disability, disfigurement, self-harm, or any other loss or damage to you or any other person or to any animal or to any property; (ii) may discriminate against, degrade, shame, or harass, encourage, glorify, or promote violence toward any person or any groups of persons; (iii) contains or depicts sexual acts or sexually explicit or pornographic material; (iv) seeks to harm, exploit, or groom children by exposing them to inappropriate content or soliciting personally identifiable details or otherwise; (v) may constitute, contribute to, depict, or encourage, a crime, illegal activity, or a violation or infringement of any third party’s rights; (vi) solicits or seeks to obtain or discloses the personal information of any other person; (vii) you do not have the right to make available under any law or under contractual or fiduciary relationships; (viii) deceptively impersonates another person or entity or contains information that is fraudulent or that you know is not correct and current; (ix) we deem to be otherwise unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; or (x) we deem in violation of the Acceptable Use Policy in Section 10.
When you use the Service, you hereby represent and warrant that:
a. you have all requisite capacity, power and authority to enter into, and perform your obligations under this Agreement, including to earn, receive, or stake any Tokens, as applicable;
b. this Agreement constitutes your legal, valid and binding obligation, and is enforceable against you;
c. all information that you provide to GamerGains and/or its third-party designees, including its address and social security number or tax ID number, is, and will be kept, true, accurate, complete, and up to date;
d. none of: (i) you; (ii) any of your affiliates; (iii) any third party having a beneficial interest in you; or (iv) any third party for whom you are acting as agent, nominee in connection with this Agreement is: (1) a country, territory, entity or individual named on an OFAC list as provided at http://www.treas.gov/ofac, or a person or entity prohibited under the OFAC programs, regardless of whether or not they appear on the OFAC list; or (2) a senior foreign political figure, or any immediate family member or close associate of a senior foreign political figure; and
e. this Agreement does not, and the performance of your obligations under this Agreement and your earning, receiving, or staking of any Tokens, as applicable to your use of the Service, will not: (i) if you are an entity, conflict with or violate any of the charter documents of such entity or any resolution adopted by its equity holders or other persons having governance authority over the entity; (ii) contravene, conflict with or violate any right of any third party or any applicable legal requirement to which you or any of the assets owned or used by you, is subject; or (iii) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under any material contract or agreement to which you are a party, permit held by you or legal requirement applicable to you;
f. you understand, acknowledge and agree that the legal requirements pertaining to blockchain technologies and digital assets generally, including the Tokens, 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 Tokens) may constitute securities under applicable legal requirements;
g. there is no legal proceeding pending that relates to your activities relating to the receiving or staking of Tokens or other token- or digital asset- trading or blockchain technology related activities.
a. Third-Party Accounts. The Service may permit you to link your Account to a valid third-party website or service account such as Steam, Xbox, PlayStation, Discord, or Twitch (each, a “Third-Party Account”). If you link your Account with Third-Party Accounts, you agree to allow GamerGains access to your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you (i) are entitled to disclose any Third-Party Account information you choose to expose to GamerGains and you grant GamerGains permission to use your Third-Party Account information to provide the Service to you, as further described herein; and (ii) you represent and warrant that you have all necessary right, authorization, and authority to disclose any such information to GamerGains and to permit GamerGains to use such information as contemplated hereunder without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating GamerGains to pay any fees or making GamerGains subject to any usage limitations imposed by such third-party service providers.
b. Third Party Account Content. By granting GamerGains access to any Third-Party Accounts, you grant GamerGains the right to access, make available and store information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials that you have stored in your Third-Party Account (“Third-Party Account Content”) in accordance with your direction or selection and the functionality of the applicable third-party service. You understand that GamerGains may use such Third-Party Account Content and usage data, data types, and other information and data concerning such Third-Party Account Content in connection with the functionality, operation, maintenance, and improvement of the Service. Unless otherwise specified in these Terms, all Third-Party Account Content shall be considered to be User Content (as defined in Section 7) for all purposes of these Terms. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on the Service. If you select settings within the Service to link with a Third-Party Account, you grant GamerGains permission to transfer, store, share, make available, and publish your Content to your Third-Party Account(s). Please note that if a Third-Party Account or associated service becomes unavailable, or GamerGains’ access to such Third-Party Account is terminated by the third-party service provider, then Third-Party Account Content will no longer be available on and through the Service, and GamerGains may not publish or receive your User Content to or from such Third-Party Account. You have the ability to disable the connection between your Account and your Third-Party Accounts at any time by logging in and selecting the “Connected Accounts” option on your “Account Settings” page.
c. Terms Applicable to Third-Party Services. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND GAMERGAINS DISCLAIMS ANY LIABILITY FOR ANY USER CONTENT OR PERSONALLY IDENTIFIABLE INFORMATION OR OTHER SENSITIVE INFORMATION THAT MAY BE PROVIDED TO GAMERGAINS BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. GamerGains makes no effort to review any Third-Party Account Content for any purpose, including but not limited to, for accuracy, legality or non-infringement, and GamerGains is not responsible for any Third-Party Account Content.
d. App Stores. You acknowledge and agree that the availability of the App is dependent on the third party from whom you received the App license, such as the Apple App Store or Google Play (each, an “App Store”, and each such App, an “App Store Sourced Application”). You acknowledge that this Agreement is between you and GamerGains and not with the App Store. GamerGains, not the App Store, is solely responsible for the Service, including the App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Service, including the App. You agree to comply with, and your license to use the App is conditioned upon, your compliance with all terms of agreement imposed by the applicable App Store when using any Services, including the App. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and may have the right to enforce it.
i. Accessing and Downloading the Application from Apple App Store. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
- 1.You acknowledge and agree that (y) the Agreement is concluded between you and GamerGains only, and not Apple, and (z) GamerGains, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
- 2.You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
- 3.In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between GamerGains and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of GamerGains.
- 4.You and GamerGains acknowledge that, as between GamerGains and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (x) product liability claims; (y) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (z) claims arising under consumer protection or similar legislation.
- 5.You and GamerGains acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between GamerGains and Apple, GamerGains, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
- 6.You and GamerGains acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
- 7.Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
You agree that you are solely responsible for your conduct in connection with the Service. You agree that you will abide by this Agreement and will not (and will not attempt to): (a) sell, resell, or use commercially the Service or Content; (b) distribute, publicly perform, or publicly display any Content except as expressly permitted by us; (c) modify or otherwise make any derivative uses of the Service or Content, or any portion thereof, except as expressly permitted by us; (d) download (other than page caching) any portion of the Service or Content, except as expressly permitted by us; (e) use the Service or Content other than for their intended purposes; (f) provide false or misleading information to GamerGains or any other user; (g) use or attempt to use another user’s linked Digital Wallet without authorization from such user and GamerGains; (h) use the Service in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Service, or that could damage, disable, overburden or impair the functioning of the Service in any manner, including but not limited to using, developing, hosting or distributing cheats, automation software (bots), hacks, mods or any other unauthorized third-party software in connection with the Service or Games, or engage in any form of cheating, boosting, or booting; (i) develop, utilize, or disseminate any software, or interact with any application programming interface, in any manner that could damage, harm, or impair the Service; (j) reverse engineer any aspect of the Service, or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any service, area, or code of the Service; (k) attempt to circumvent any content-filtering techniques we employ, or attempt to access any feature or area of the Service that you are not authorized to access; (l) use any robot, spider, crawler, scraper, script, browser extension, offline reader, or other automated means or interface not authorized by us to access the Service, extract data or otherwise interfere with or modify the rendering of Service pages or functionality; (m) collect or harvest data from our Service that would allow you to contact individuals, companies, or other persons or entities, or use any such data to contact such entities; (n) use data collected from our Service for any direct marketing activity (including without limitation, email marketing, SMS marketing, telemarketing, and direct marketing); (o) bypass or ignore instructions that control all automated access to the Service; (p) use the Service for any illegal or unauthorized purpose, or engage in, encourage, or promote any activity that violates any applicable law or this Agreement; (q) use the Blockchain Platform to carry out any illegal activities in connection with or in any way related to your access to and use of the Service, including but not limited to money laundering, terrorist financing or deliberately engaging in activities designed to adversely affect the performance of the Blockchain Platform, or the Service; (r) engage in or knowingly facilitate any “front-running,” “wash trading,” “pump and dump trading,” “ramping,” “cornering” or fraudulent, deceptive or manipulative trading activities, including: (A) trading a Token at successively lower or higher prices for the purpose of creating or inducing a false, misleading or artificial appearance of activity in such Token, unduly or improperly influencing the market price for such Token trading on the Service or establishing a price which does not reflect the true state of the market in such Token; (B) for the purpose of creating or inducing a false or misleading appearance of activity in a Token or creating or inducing a false or misleading appearance with respect to the market in a Token: (X) executing or causing the execution of any transaction in a Token which involves no material change in the beneficial ownership thereof; or (Y) entering any order for the purchase or sale of a Token with the knowledge that an order of substantially the same size, and at substantially the same price, for the sale of such Token, has been or will be entered by or for the same or different parties; or (Z) participating in, facilitating, assisting or knowingly transacting with any pool, syndicate or joint account organized for the purpose of unfairly or deceptively influencing the market price of a Token; (s) use the Service to carry out any financial activities subject to registration or licensing, including but not limited to using the Service to transact in securities, debt financings, equity financings or other similar transactions; (t) use the Service to participate in fundraising for a business, protocol, or platform, including but not limited to creating, listing, or buying assets that (I) are redeemable for financial instruments, (II) give owners rights to participate in an ICO or any securities offering, or (III) entitle owners to financial rewards, including but not limited to, DeFi yield bonuses, staking bonuses, and burn discounts; or (u) inflict emotional distress on other people, humiliate or degrade other people, assault or threaten other people, enter onto private property without permission, impersonate any other person or misrepresent your affiliation, title, or authority, or otherwise engage in any activity that may result in injury, death, property damage, and/or liability of any kind.
GamerGains retains the absolute right to terminate access to the Service for and remove the User Content of any user who violates or infringes our rights or the rights of any third party. Without limiting the foregoing, if you believe that your intellectual property has been used on the Service in a way that constitutes infringement, please provide our Copyright Agent with the following information:
a. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
b. a description of the copyrighted work that you claim has been infringed;
c. a description of the location on the Service of the material that you claim is infringing;
d. your address, telephone number and e-mail address;
e. a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and
f. a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Contact information for GamerGains’ Copyright Agent for notice of claims of copyright infringement is as follows: [____], SUBJ: Copyright Agent.
If GamerGains becomes aware of any possible violations by you of this Agreement, GamerGains reserves the right, but GamerGains will not have any obligation, to investigate such violations. If, as a result of the investigation, GamerGains believes that criminal activity may have occurred, GamerGains reserves the right, but GamerGains will not have any obligation, to refer the matter to, and to cooperate with, any and all applicable legal authorities. GamerGains is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Service, including your Content, in GamerGains’ possession in connection with your use of the Service, (i) to comply with applicable laws, legal process or governmental request; (ii) to enforce this Agreement, (iii) to respond to any claims that User Content violates the rights of third parties, (iv) to respond to your requests for customer service, or (v) to protect the rights, property or personal safety of GamerGains, its users, or the public, and all law enforcement or other government officials, as GamerGains in its sole discretion believes to be necessary or appropriate. By agreeing to this Agreement, you hereby provide your irrevocable consent to the foregoing. You acknowledge and agree that you have no expectation of privacy concerning your use of the Service, including without limitation text, voice, or video communications.
To the fullest extent permitted by applicable law, you agree to indemnify, defend, and hold harmless GamerGains from and against all actual or alleged third party claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses (including, without limitation, attorneys’ fees and expenses) and costs (including, without limitation, court costs, costs of settlement, and costs of or associated with pursuing indemnification and insurance), of every kind and nature whatsoever arising out of or related to this Agreement or your use of the Service, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise (collectively, “Claims”), including, but not limited to, damages to property or personal injury, that are caused by, arise out of or are related to (a) your use or misuse of the Service, Content, or Tokens, including, without limitation, any act or omission involving any third party in connection with the Tokens; (b) any Feedback you provide; (c) your violation of this Agreement or applicable law; (d) your violation of the rights of any third party, including another user; (e) any breach or non-performance of any covenant or agreement made by you; or (f) your Content. You agree to promptly notify GamerGains of any third-party Claims and cooperate with the GamerGains Entities in defending such Claims. You further agree that the GamerGains Entities shall have control of the defense or settlement of any third-party Claims. THIS INDEMNITY IS IN ADDITION TO, AND NOT IN LIEU OF, ANY OTHER INDEMNITIES SET FORTH IN A SEPARATE WRITTEN AGREEMENT BETWEEN YOU AND GAMERGAINS.
a. As-Is. THE SERVICE, THE CONTENT CONTAINED THEREIN, AND TOKENS LISTED THEREIN ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. GAMERGAINS (AND ITS SUPPLIERS) MAKE NO WARRANTY THAT THE SERVICE: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, COMPLETE, LEGAL, OR SAFE. GAMERGAINS DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT AS TO THE SERVICE OR ANY CONTENT CONTAINED THEREIN. GAMERGAINS DOES NOT REPRESENT OR WARRANT THAT CONTENT ON THE SERVICE IS ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE. WE WILL NOT BE LIABLE FOR ANY LOSS OF ANY KIND FROM ANY ACTION TAKEN OR TAKEN IN RELIANCE ON MATERIAL OR INFORMATION CONTAINED ON THE SERVICE. WHILE GAMERGAINS ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF THE SERVICE AND CONTENT SAFE, GAMERGAINS CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICE, CONTENT, OR ANY TOKENS LISTED ON OUR SERVICE OR OUR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE CANNOT GUARANTEE THE SECURITY OF ANY DATA THAT YOU DISCLOSE ONLINE. YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET AND WILL NOT HOLD US RESPONSIBLE FOR ANY BREACH OF SECURITY UNLESS IT IS DUE TO OUR GROSS NEGLIGENCE.
b. Errors. WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSSES YOU SUSTAIN AS A RESULT OF YOUR USE OF THE SERVICE. WE TAKE NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO YOU FOR, ANY USE OF TOKENS, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (I) USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED ADDRESSES; (II) SERVER FAILURE OR DATA LOSS; (III) CORRUPTED DIGITAL WALLET FILES; (IV) UNAUTHORIZED ACCESS TO APPLICATIONS; OR (V) ANY UNAUTHORIZED THIRD-PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTE FORCING OR OTHER MEANS OF ATTACK AGAINST THE SERVICE, TOKENS OR DIGITAL WALLETS.
c. Third Parties. YOU ACKNOWLEDGE AND AGREE THAT GAMERGAINS IS NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD GAMERGAINS LIABLE, FOR THE CONDUCT OF THIRD PARTIES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICE. YOU UNDERSTAND THAT GAMERGAINS DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SERVICE. GAMERGAINS MAKES NO WARRANTY THAT ANY GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. Nothing in this Agreement shall exclude or limit liability of either party for fraud, death or bodily injury caused by negligence, violation of laws, or any other activity that cannot be limited or excluded under the laws applicable to your jurisdiction. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN CONTRACTS WITH CONSUMERS, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL GAMERGAINS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM THIS AGREEMENT, THE SERVICE, ANY TOKENS, OR FOR ANY DAMAGES RELATED TO LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, OR LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE AND EVEN IF GAMERGAINS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICE IS UNDERTAKEN BY YOU AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA RESULTING THEREFROM.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF GAMERGAINS ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, YOUR ACCESS TO AND USE OF THE SERVICE, CONTENT (INCLUDING YOUR CONTENT), OR ANY TOKENS RECEIVED, PURCHASED, OR SOLD THROUGH THE SERVICE EXCEED THE GREATER OF (A) $100 OR (B) THE AMOUNT PAID BY YOU TO GAMERGAINS AND THE VALUE OF ANY TOKENS AWARDED TO YOU IN THE TRANSACTION OR INCIDENT THAT IS THE SUBJECT OF THE CLAIM.
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.
Please carefully read the following arbitration agreement (“Arbitration Agreement”). It requires you to arbitrate disputes with GamerGains and limits the manner in which you can seek relief from us.
a. Informal negotiations. To expedite resolution and control the cost of any dispute, claim, or request for relief relating in any way to your access or use of the Service, to any products sold or distributed through the Service, to any aspect of your relationship with GamerGains, or otherwise to these Terms (each a “Dispute” and collectively, the “Disputes”) brought by either you or us (individually, a “Party” and collectively, the “Parties”), the Parties agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least thirty (30) days before initiating the arbitration. Such informal negotiations commence upon written notice from one Party to the other Party.
b. Binding Arbitration. If a Party is unable to resolve a Dispute through informal negotiations, the Disputes (except those Disputes expressly excluded below) will be finally and exclusively resolved by binding arbitration. YOU UNDERSTAND THAT WITHOUT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer-Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org. Your arbitration fees and your share of arbitration compensation shall be governed by the AAA Consumer Rules and, where appropriate, limited by the AAA Consumer Rules. The arbitration shall take place in San Francisco, California. Except as otherwise provided herein, the Parties may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgement on the award entered by the arbitrator. If for any reason, a Dispute proceeds in court rather than arbitration, the Dispute shall be commenced or prosecuted in the courts located in San Francisco, California, and the Parties hereby consent to and waive all defenses of lack of personal jurisdiction, and forum non-convenience with respect to venue and jurisdiction in such courts.
c. Exceptions to the Informal Negotiations and Arbitration. The Parties agree that the following Disputes are not subject to the above provision concerning informal negotiations and binding arbitration: (a) any Dispute seeking to enforce or protect, or concerning the validity of, and of the intellectual property rights of a Party, (b) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use; and (c) any claim for injunctive relief. If this provision is found to be illegal and unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable, and such Dispute shall be decided by a court of competent jurisdiction, and the Parties agree to submit to the personal jurisdiction of that court.
d. Waiver of Jury Trial. YOU AND GamerGains HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and we are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 16.c (Exceptions to the Informal Negotiations and Arbitration) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
e. Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this section’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the courts located in San Francisco, California. All other disputes, claims, or requests for relief shall be arbitrated.
f. Severability. Except as provided in Section 18.e (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
g. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with us.
a. Governing Law. Any dispute, claim or request for relief relating in any way to your use of the services will be governed and interpreted by and under the laws of the state of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded from this Agreement.
b. Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and GamerGains agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in San Francisco, California.
c. Electronic Communications. By contacting GamerGains via email or by using the Service, you consent to receive electronic communications from GamerGains (e.g., via email or by posting notices to the Service or to GamerGains’ official accounts on social media properties, including but not limited to Discord). These communications may include notices about your use of the Service (e.g., transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy. We have no obligation to store for your later use or access any such electronic communications that we make to you.
d. Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without GamerGains’ prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
e. Changes to this Agreement. GamerGains reserves the right to change or modify this Agreement at any time and in our sole discretion. If we make changes to this Agreement, we will provide notice of such changes, such as by sending an email notification, providing notice through the Service, or updating the “Last Updated” date at the beginning of this Agreement. By continuing to access or use the Service at any point after such update, you confirm your acceptance of the revised Terms and all of the terms incorporated therein by reference. We encourage you to review this Agreement frequently to ensure that you understand the terms and conditions that apply when you access or use the Service. If you do not agree to the revised Terms, you may not access or use the Service.
f. Force Majeure. GamerGains shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, pandemics, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
g. Choice of Language. It is the express wish of the parties that the Agreement and all related documents have been drawn up in English.
h. Notice. Where GamerGains requires that you provide an email address, you are responsible for providing GamerGains with your most current email address. In the event that the last email address you provided to GamerGains is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, GamerGains’ dispatch of the email containing such notice will nonetheless constitute effective notice. You may give notice to GamerGains at the following address: Corporation Trust Center, 1209 Orange Street, Wilmington, County of New Castle, 19801. Such notice shall be deemed given when received by GamerGains by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
i. Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
j. Severability. If any portion of the Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
k. Export Control. You may not use, export, import, or transfer any Service except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Service, and any other applicable laws. In particular, but without limitation, the Service may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Service, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Service for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by GamerGains are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer GamerGains products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
l. Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
m. Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.