Last Updated: January 30, 2023 This Mutant Cats NFT Purchase and License Agreement (this “Agreement”) is a legally binding agreement by and between Mutant Cats DAO (“Mutant Cats”) and the purchaser, and any subsequent purchaser(s), (collectively and as applicable, “You” and “Your”) of the Mutant Cats Collectible (defined below). Mutant Cats is a decentralized, autonomous organization (“DAO”) run and managed by the individual owners of the Mutant Cats Collectibles. Each Mutant Cats Collectible acts as a governance token in the DAO with each Mutant Cats Collectible equal to one vote.
(a) “AAA” means the American Arbitration Association and its then current commercial arbitration rules.
(b) “Art” means the digital art that is provided by and owned by Mutant Cats and is linked to the Mutant Cats Collectibles. For avoidance of doubt, the Art is solely digital in nature and does not include any items or representations that have any physical dimensions such as mass or volume.
(c) “Commercial Use” means any activity that is performed with the intent to generate revenue, such as sale or transfer of items (including NFTs) on any marketplace, creating and selling merchandise or creating a story or video game.
(d) “Damages” means assessments, fines, penalties, interest and collection fees, assessment of taxes (whether on an actual or extrapolated basis), fees, fines, bona fide settlements, costs, damages (including consequential, indirect, special, incidental or punitive damages), expenses (including without limitation reasonable attorneys’ fees, expenses and costs), judgments, liabilities or losses incurred in connection with a Claim.
(e) “Dispute” means, collectively, any controversy, allegation, action, cause of action, cease and desist letter, charge, citation, demand, directive, lawsuit or other litigation or proceeding, or notice or claim arising out of or related to the Mutant Cats Collectibles or this Agreement.
(f) “Extension” means third party design that: (i) are intended for use as an extension or overlay to the Art, (ii) do not modify the underlying Art, and (iii) can be removed at any time without affecting the underlying Art.
(g) “JAMS” means Judicial Arbitration and Mediation Services Inc.
(h) “Mutant Cats Collectible” means an NFT that, as of its genesis issuance, is linked to a display of Art. Mutant Cats Collectibles are controllable electronic records recorded on the Ethereum blockchain.
(i) “Mutant Cats Parties” means Mutant Cats or its parent, subsidiary, and affiliate companies, and each of their respective officers, directors, members, affiliates, agents, attorneys, and employees.
(j) “NFT” means any blockchain-tracked non-fungible token, including those complying with the ERC-721A, ERC-721, ERC-1155, or other non-fungible token standard, each as may be amended from time to time.
(k) “Parties” (collectively) or “Party” (individually) means Mutant Cats and You, as may be referred to throughout this Agreement.
(l) “Primary Transaction” means a transaction in which the Mutant Cats Collectible is first sold.
(n) “Prohibited Transferees” means a person or entity which is (i) located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; or is (ii) listed on any U.S. Government list of prohibited or restricted parties.
(o) “Revenue Cap” means One Hundred Fifty Thousand Dollars ($150,000) in gross revenue each year.
(p) “Royalty Payment” means the royalty of 7.5% of the gross amounts paid by the Transferee pursuant to any Secondary Transaction, which is paid or payable to Mutant Cats.
(q) “Mint Date” means the Primary Transaction which occurred in October 2021 of the Mutant Cats Collectible.
(r) “Secondary Transaction” means any transaction in which a Mutant Cats Collectible is sold by one owner to another owner or is otherwise transferred in any manner that is not a Primary Transaction.
(s) “Third Party Content” means artwork, images, works of authorship, logos, trademarks, service marks, or trade dress owned by a third party.
(t) “Transferee” means the recipient/purchaser of a Mutant Cats Collectible pursuant to a Secondary Transaction.
(u) “Transferor” means the transferor/seller of a Mutant Cats Collectible in a Secondary Transaction.
(v) “Wallet” means a cryptocurrency wallet provided by a trusted service provider of Your choice (such as MetaMask or Wallet Connect) that may be utilized for the purchase of the Mutant Cats Collectible.
(w) “Website” means www.MutantVerse.io and any Website or mobile app related to the Mutant Cats Collectibles. The Website is only an interface allowing participants to exchange digital collectibles.
(x) “Website Terms” means the TERMS for the Website (www.MutantVerse.io/TermsofUse).
By Accepting any new Art provided for in a metadata refresh, or otherwise purchasing a Mutant Cats Collectible, You acknowledge that You have carefully read and agree to the terms of this Agreement. This Agreement governs Your ownership and use of the Mutant Cats Collectible, as well as participation in the Primary Transactions on the Website, which is facilitated by the Ethereum blockchain and subsequent transactions between any Transferors and Transferees. Ethereum is not a party to this Agreement.
(a) Additional Terms: These Terms also expressly incorporate the Website Terms, and any other documents referenced herein and govern Your access to and use of the Website, as well as all content, functionality, and services offered on or through the Website, including the Mutant Cats Collectibles. You further acknowledge that You have carefully read and have accepted Website Terms. If there is a conflict between the Website Terms and this Agreement with respect to the Mutant Cats Collectibles, and Art, this Agreement controls. Your Mutant Cats Collectible may be subject to additional terms and conditions which will be available to You on the Website or otherwise communicated to You in writing (email to suffice). In the event of a conflict between the terms of this Agreement and the terms of such additional terms and conditions, the terms of such additional terms and conditions will govern solely as it relates to the conflicting provision(s).
(a) License Grant. Subject to Your continued compliance with this Agreement and only for so long as You own a Mutant Cats Collectible, Mutant Cats grants You with a non-exclusive, worldwide, royalty-free, non-sublicensable license to use, copy, and display the Mutant Cats Collectible, along with any Extensions that You choose to create or use, solely for the following purposes, all subject to Section 4 (Restrictions): (i) for Your own personal, non-commercial use; (ii) as part of a marketplace that permits the purchase and sale of Your Mutant Cats Collectible; (iii) as part of a third party website/application that permits the inclusion, involvement, or participation of Your Mutant Cats Collectible; and (iv) to participate as a voting member in the Mutant Cats DAO. Notwithstanding anything to the contrary contained in this Agreement, in no event will You be permitted to use, copy, or modify any of the Art for Your Mutant Cats Collectibles for any commercial purpose except as provided for in Section 3(b) (Commercial Use). For the avoidance of doubt, the license granted in this Agreement applies only to the extent that You continue to own the applicable Mutant Cats Collectible. If at any time you sell, trade, donate, give away, transfer, or otherwise dispose of Your Mutant Cats Collectible for any reason, the license granted herein will immediately expire with respect to that Mutant Cats Collectible without the requirement of notice, and You will have no further rights in or to the Art for that Mutant Cats Collectible.
(b) Commercial Use. Subject to Your continued compliance with this Agreement and only for so long as You own a Mutant Cats Collectible, Your purchase and license of the Mutant Cats Collectible permits You to make Commercial Use of Your Mutant Cats Collectible provided that: (i) such Commercial Use does not result in You earning more than the Revenue Cap; and (ii) You don't reference or identify Mutant Cats, or otherwise use Mutant Cats’ trademarks, service marks, or logo on, or to promote, such Commercial Use. For the avoidance of doubt, subject to Section 4 (Restrictions), nothing in this Section restricts You from: (x) owning or operating a marketplace that permits the use and sale of NFTs generally; (y) owning or operating a third-party website or application that permits the inclusion, involvement, or participation of NFTs generally; or (z) earning revenue from any of the foregoing, even where such revenue is in excess of the Revenue Cap. If You know or reasonably should know that You will exceed the Revenue Cap, You must send an email to Mutant Cats at legal@Mutantlabs.io within fifteen (15) days of such acknowledgment, with the phrase “Mutant Cats Collectible License - Commercial Use” in the subject line, requesting a discussion with Mutant Cats regarding entering into a broader license agreement or obtaining an exemption (which may be granted or withheld in Mutant Cats’ sole and absolute discretion). If You exceed the scope of the license grant in this Section without entering into a broader license agreement with or obtaining such exemption, You acknowledge and agree that: (A) You are in material breach of this Agreement; (B) in addition to any remedies that may be available to Mutant Cats at law or in equity, Mutant Cats may immediately terminate this Agreement and the rights granted to You hereunder, without the requirement of notice; and (C) You will be responsible to reimburse Mutant Cats for any costs and expenses incurred by Mutant Cats during the course of enforcing the terms of this Agreement against You.
(a) Mutant Cats Reservation of Rights. All rights in and to the Art not expressly provided for in this Agreement are hereby reserved by Mutant Cats. The Art is licensed, not sold. Mutant Cats owns and will retain all title, interest, ownership rights and intellectual property rights in and to the Art. You acknowledge and agree that Mutant Cats may: (x) modify, create derivative works of, and update any Art or other products which are similar or identical to Your Mutant Cats Collectible; and (y) be able to freely use said adaptation, derivative work or modifications without any fee to You or cost to Mutant Cats.
(b) Restrictions on Use. Without limitation, You shall not, nor permit any third party to do or attempt to do any of the following without express prior written consent from Mutant Cats, in its sole and absolute discretion: (i) use the Art in connection with media that depicts hatred, intolerance, violence, cruelty, explicit sexual acts, or any other subject matter that reflects negatively on the Mutant Cats brand; (ii) modify or create derivatives of the Art for Your Mutant Cats Collectible in any way, including, without limitation, the shapes, designs, drawings, attributes, or color schemes (Your use of Extensions will not constitute a prohibited use hereunder); (iii) use the Art for Your Mutant Cats Collectible to advertise, market, or sell any third party product or service; (iv) use the Art for Your Mutant Cats Collectibles in movies, videos, or any other forms of media, except to the limited extent that such use is expressly permitted in Section 3(b) (Commercial Use) or solely for Your own personal, non-commercial use; (v) sell, distribute for commercial gain (including, without limitation, giving away in the hopes of eventual commercial gain), or otherwise commercialize merchandise that includes, contains, or consists of the Art for Your Mutant Cats Collectible, except as expressly permitted in Section 3(b) (Commercial Use); (vi) attempt to register any trademark, copyright, or otherwise acquire additional intellectual property rights in or to the Art; or (vii) otherwise utilize the Mutant Cats, trade dress, name or logo for Your or any third party’s commercial benefit (including to register any domain names or social media accounts using any such intellectual property). Mutant Cats Collectibles may only be used and/or displayed on marketplaces, websites, and/or applications which cryptographically verify each owner’s rights to display the Art for their Mutant Cats Collectible to ensure that only the actual owner can display the Art and provided further that the Art is no longer visible once the owner of the Mutant Cats Collectible leaves the marketplace, website, or application, as applicable.
(c) Third Party Content. From time to time, Mutant Cats may collaborate with third parties to create Mutant Cats Collectibles which include Third Party Content. You understand and agree that: (i) You will not have the right to use such Third Party Content in any way except as incorporated in the Art, and subject to the license and restrictions contained herein; (ii) that the Commercial Use license in Section 3(b) (Commercial Use) above will not apply; (iii) depending on the nature of the license granted from the owner of the Third Party Content, Mutant Cats may need to pass through additional restrictions on Your ability to use the Art; and (iv) to the extent that Creator informs You of such additional restrictions in writing, as provided for in Section 2(a) (Additional Terms), You will be responsible for complying with all such restrictions from the date that You receive the notice, and that failure to do so will be deemed a breach of this license.
(a) Mint Date. The Primary Transaction for Mutant Cats Collectibles have occurred during the Mint Date provided by a prior developer who is unrelated to Mutant Cats. Mutant Cats was not a party to the Primary Transaction, other than for individual members of Mutant Cats’ purchase of a Mutant Cat Collectible on the Mint Date. To Mutant Cats’ knowledge, such prior developer is no longer involved with the Mutant Cats Collectibles.
(b) Conditions of Participation in the DAO. As a condition to Your participation in the Mutant Cats Dao, You agree:
(b.i) to avoid any anticompetitive conduct, such as actions that are deceptive or would artificially inflate or deflate the price of a Mutant Cats Collectible, or stimulate demand for a Mutant Cats Collectible;
(b.ii) to report any suspicious activity of a Mutant Cats at email@example.com;
(b.iii) that You will not attack, hack, DDOS, interfere with, or otherwise tamper with the smart contract associated with any Mutant Cats Collectible;
(b.iv) that You will not participate in a sale to conceal or transfer proceeds relating to criminal activity or purchase a Mutant Cats Collectible for any reason other than to obtain the Mutant Cats Collectible;
(b.v) that Ethereum is a volatile asset that often experiences periods of high price volatility and instability. Often a consequence of rapidly changing prices and demand, the Ethereum blockchain can also experience significant periods of network congestion, slow to stagnant processing speeds, and unpredictable failures; and (b.vi) that You understand and acknowledge that purchases made during a Mutant Cats Collectible may never be received or processed by the Mutant Cats Collectible smart contract due to network or smart contract failures.
(i) the Transferee shall, by receiving an ownership interest in the Mutant Cats Collectible, be deemed to accept all of the terms of this Agreement; (ii) the Transferor shall provide notice to the Transferee of this Agreement, including a link or other method by which the terms of this Agreement can be accessible by the Transferee, and (iii) the Transferor shall pay Mutant Cats the Royalty Payment. Mutant Cats shall be paid on the same terms and at the same time as Transferor is paid by the Transferee. You acknowledge and agree that the amounts payable to Mutant Cats under this Section herein do not include and is not intended to cover any additional fees imposed or required by the transferring platform through which You transfer the Mutant Cats Collectible. For example, if You sell a Mutant Cats Collectible for $100 to a Transferee, $7.50 will automatically be transferred to Mutant Cats and You will receive $92.50 (minus any applicable transaction or other third-party fees). Mutant Cats has the right to collect the Royalty Payment for Mutant Cats Collectible sales in perpetuity and may use those funds in any manner Mutant Cats sees fit. As such, if You sell a Mutant Cats Collectible on a third-party NFT marketplace, You agree to include a statement substantially similar to the following in the description of the Mutant Cats Collectible: “7.5% Royalty Applies. See Mutant Cats Purchase and License Agreement for additional terms.”
(a) You further acknowledge and agree that all Secondary Transactions will be effectuated on the Ethereum blockchain, the blockchain network governing the Mutant Cats Collectibles, and You will be required to make or receive payments exclusively through Your cryptocurrency wallet.
(b) You represent and warrant that You will not transfer a Mutant Cats Collectible in any Secondary Transaction to a Transferee that is a Prohibited Transferee. Without limitation of any other termination rights, Mutant Cats may suspend or terminate the license to the Art if it has a reasonable basis for believing that You have engaged in an off-chain sale of the Mutant Cats Collectible, or otherwise engaged in any off-chain transactions for the purchase or sale of the Mutant Cats Collectible without making the applicable Royalty Payment. You, and all subsequent Transferees, shall be responsible for paying the Royalty Payment associated with the Secondary Transaction purchase price, regardless of whether such purchase price is fulfilled on-chain, off-chain, or in a combination of the foregoing. How do You Purchase a Mutant Cats Collectible?
(a) Your Warranties. You represent and warrant that You: (a) are at least the age of majority in Your place of residence (which is typically 18 years of age in most U.S. states) and have the legal capacity to enter into this Agreement; (b) will use and interact with the Mutant Cats Collectibles and Art only for lawful purposes and in accordance with this Agreement and all applicable laws; (c) will not use the Mutant Cats Collectibles or Art to violate any law, regulation or ordinance or any right of Mutant Cats, its licensors or any third party, including without limitation, any right of privacy, publicity, copyright, trademark, or patent; (d) 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 (e) are not listed on any U.S. Government list of prohibited or restricted parties.
(b) Mutant Cats Disclaimer of Warranties. THE MUTANT CATS COLLECTIBLES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, MUTANT CATS EXPLICITLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. MUTANT CATS MAKES NO WARRANTY THAT THE MUTANT CATS COLLECTIBLES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. THE MUTANT CATS COLLECTIBLES ARE INTANGIBLE DIGITAL ASSETS. THEY EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE APPLICABLE BLOCKCHAIN NETWORK. ANY TRANSFER OF TITLE THAT MIGHT OCCUR IN ANY UNIQUE DIGITAL ASSET OCCURS ON THE DECENTRALIZED LEDGER WITHIN SUCH BLOCKCHAIN NETWORK, WHICH MUTANT CATS DOES NOT CONTROL. MUTANT CATS DOES NOT GUARANTEE THAT MUTANT CATS CAN AFFECT THE TRANSFER OF TITLE OR RIGHT IN ANY MUTANT CATS COLLECTIBLE. YOU BEAR FULL RESPONSIBILITY FOR VERIFYING THE IDENTITY, LEGITIMACY, AND AUTHENTICITY OF ASSETS YOU PURCHASE THROUGH THE APPLICABLE BLOCKCHAIN NETWORK. NOTWITHSTANDING INDICATORS AND MESSAGES THAT SUGGEST VERIFICATION, MUTANT CATS MAKES NO CLAIMS ABOUT THE IDENTITY, LEGITIMACY, OR AUTHENTICITY OF ASSETS FOR ANY PURPORTED SECONDARY TRANSACTIONS. MUTANT CATS IS NOT RESPONSIBLE FOR ANY KIND OF FAILURE, ABNORMAL BEHAVIOR OF SOFTWARE (E.G., WALLET, SMART CONTRACT), BLOCKCHAINS OR ANY OTHER FEATURES OF THE MUTANT CATS COLLECTIBLES. MUTANT CATS IS NOT RESPONSIBLE FOR CASUALTIES DUE TO LATE REPORT BY DEVELOPERS OR REPRESENTATIVES (OR NO REPORT AT ALL) OF ANY ISSUES WITH THE BLOCKCHAIN SUPPORTING THE MUTANT CATS COLLECTIBLES, INCLUDING FORKS, TECHNICAL NODE ISSUES OR ANY OTHER ISSUES HAVING FUND LOSSES AS A RESULT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN CONTRACTS WITH CONSUMERS, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
(a) You are solely responsible for determining what, if any, taxes apply to Your purchase, sale, or transfer of Mutant Cats Collectibles. Mutant Cats is not responsible for determining or paying the taxes that apply to such transactions.
(b) Mutant Cats does not store, send, or receive cryptocurrency assets. Any transfer of cryptocurrency assets occurs within the supporting blockchain that is not controlled by Mutant Cats. Transactions in Mutant Cats Collectibles may be irreversible, and, accordingly, losses due to fraudulent or accidental transactions may not be recoverable. Some transactions of the Mutant Cats Collectibles shall be deemed to be made when recorded on a public blockchain ledger, which is not necessarily the date or time that You initiated the transaction.
(c) There are risks associated with using an Internet based digital asset, including but not limited to, the risk of hardware, software and Internet connections, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to information stored within Your Wallet. Mutant Cats will not be responsible for any communication failures, disruptions, errors, distortions or delays You may experience when effecting Mutant Cats Collectible transactions, however caused.
(d) Digital assets, including blockchain based assets such as the Mutant Cats Collectibles, are subject to developing laws and regulations throughout the world.
(e) Transactions involving the Mutant Cats Collectibles may rely on third-party platforms to perform transactions which are outside of Mutant Cats’ control (including Ethereum). Therefore, (i) access to and interactions for the Mutant Cats Collectibles may be limited or unavailable, and (ii) You agree that in no event will Mutant Cats be liable for the acts or omissions of any such third-party platforms.
11. Links to Third Party Websites or Resources. Use and interaction of the Mutant Cats Collectibles and Art may allow You to access third-party websites (including websites that host the Art) or other resources. Mutant Cats provides access only as a convenience and is not responsible for the content, products or services on or available from those resources or links displayed on such Websites. You acknowledge sole responsibility for and assumes all risk arising from Your use of any third-party resources. Under no circumstances shall Your inability to view the Art on a third-party website serve as grounds for a claim against Mutant Cats.
12. Termination of License to Art. Your license to the Art shall automatically and immediately terminate without notice, and all rights shall revert to Mutant Cats if at any time: (i) You breach any portion of this Agreement; (ii) You engage in any unlawful activity related to the Mutant Cats Collectible (including transferring the Mutant Cats Collectible to a Prohibited Transferee); (iii) You initiate any legal actions, except an arbitration as specifically provided herein, against the Mutant Cats Parties; or (iv) at Mutant Cats’ sole determination and discretion, You disparage any of the Mutant Cats Parties, or their brands or products. Upon any termination, discontinuation or cancellation of Your license to Art, Mutant Cats may disable Your access to the Art, and You must delete, remove, or otherwise destroy any back up or single digital or physical copy of the Art. Upon any termination, discontinuation or cancellation of the license in this Agreement, any terms which would be reasonably expected to survive shall so survive.
13. Indemnity. By owning or purchasing the Mutant Cats Collectible or otherwise accessing and using the Mutant Cats Collectible or Art, You agree to defend, indemnify and hold the Mutant Cats and its officers, directors, employees, successors, licensees, and assigns from and against the liability and Damages arising out of third-party Disputes to the extent attributable to: (i) Your violation or breach of any term of this Agreement or any applicable law or regulation; (ii) Your violation of any rights of any third-party; (iii) Your access to or use of the Mutant Cats Collectible or Art; (iv) any modifications to or derivative works of the Art You create, or (v) any fraud, negligence or willful misconduct committed by You. You will cooperate as fully required by Mutant Cats in the defense of any Dispute. Notwithstanding the foregoing, Mutant Cats retains the exclusive right to settle, compromise, and pay any and all Damages. Mutant Cats reserves the right to assume the exclusive defense and control of any Disputes. You will not settle any Disputes without, in each instance, the prior written consent of an officer of Mutant Cats.
14. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER MUTANT CATS NOR ANY OF ITS MEMBERS WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE MUTANT CATS COLLECTIBLES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THI AGREEMENT OR FROM THE USE OF OR INABILITY TO USE OR INTERACT WITH THE MUTANT CATS COLLECTIBLES OR ACCESS THE ART, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT MUTANT CATS OR ITS MEMBERS HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. FURTHER, MUTANT CATS WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSS AND TAKES NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO YOU FOR, ANY USE OF THE MUTANT CATS COLLECTIBLE, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (I) USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED WALLET ADDRESSES; (II) SERVER FAILURE OR DATA LOSS; (III) CORRUPTED CRYPTOCURRENCY WALLET FILES; (IV) UNAUTHORIZED ACCESS TO MUTANT CATS COLLECTIBLE; OR (V) ANY UNAUTHORIZED THIRD-PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK AGAINST BLOCKCHAIN NETWORK UNDERLYING THE MUTANT CATS COLLECTIBLES. TO THE MAXIMUM EXTENT PERMITTED BY THE LAW OF THE APPLICABLE JURISDICTION, IN NO EVENT WILL MUTANT CATS’ TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OF OR INABILITY TO USE OR INTERACT WITH THE MUTANT CATS COLLECTIBLES OR ACCESS THE ART EXCEED $100. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN MUTANT CATS AND YOU.
15. Governing Law and Forum Choice. This Agreement and any action related thereto will be governed by the laws of the State of Delaware, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 16 (Dispute Resolution), the exclusive jurisdiction for all Disputes that You and Mutant Cats are not required to arbitrate will be the state and federal courts located in the Los Angeles, California, and You and Mutant Cats each waive any objection to jurisdiction and venue in such courts.
(a) Good Faith Resolution Between the Parties. In the event of any first-party Dispute between You and Mutant Cats, then You and Mutant Cats agree to send a written notice to the other pursuant to Section 18(e) (Notice) providing a reasonable description of the Dispute, along with a proposed resolution of it. For a period of 60 days from the date of receipt of notice from the other party, the Parties shall use their best efforts to resolve their differences. To this effect, the Parties involved shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to all such Parties. Mutant Cats’ decision to pursue amicable resolution, however, shall not be weighed against a finding of irreparable harm to Mutant Cats in any subsequent legal action.
(b) Mediation. If the Parties are not able to resolve such Dispute, the Parties shall next attempt to do so through the process of mediation before a single, mutually acceptable mediator. The mediator shall be a retired judge or a practicing attorney with experience in mediating disputes which are similar in nature to the dispute in question. If the Parties are unable to agree upon the mediator, then the Parties shall file for mediation with the AAA and hereby agree to accept the mediator appointed by AAA. The mediation shall be conducted and concluded within thirty (30) days after the mediator has been engaged. The Parties shall split evenly all mediation costs. The mediation shall be conducted at a suitable location within the County of Los Angeles in the State of California. In the event that such dispute is not resolved through mediation, then the Parties shall be permitted to pursue other remedies which may be available to them at law or in equity. In the event a party fails to participate in the negotiations or mediation required pursuant to this Section, such party shall be unable to recover its reasonable attorneys’ fees and related costs.
(c) Arbitration. If the Parties cannot resolve a Dispute as set forth in Section 16(b) (Mediation), then either Party may submit the Dispute to formal, binding arbitration in accordance with this Section 16(c). To the fullest extent permitted by applicable law, a Dispute will be resolved solely by binding arbitration in accordance with the AAA. If the Dispute has a claimed value of equal to or less than $250,000, then the arbitration will be heard and determined by a single neutral arbitrator who is a retired judge or a lawyer with not less than 15 years’ experience as a practicing member of the bar in the substantive practice area related to the Dispute, who will administer the proceedings in accordance with the AAA’s Supplementary Procedures for Consumer Related Disputes. If the Dispute has a claimed value of more than $250,000, or if Mutant Cats elects in its sole discretion to bear the costs of arbitration in excess of those that would occur for a proceeding before a single neutral arbitrator, then the arbitration will be heard and determined by a three member panel, with one member to be selected by each party and the third (who will be chair of the panel) selected by the two party appointed members or by the AAA in accordance with the Commercial Arbitration Rules. The arbitrator or arbitration panel, as the case may be, will apply applicable law and the provisions of this Agreement and any other applicable terms, will determine any Dispute according to the applicable law and facts based upon the record and no other basis, and will issue a reasoned award. Notwithstanding the foregoing, nothing in this Agreement shall prohibit a party from seeking equitable relief in a court of competent jurisdiction located in the County of Los Angeles in the State of California.
(c.i) If a Party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling or unable to set a hearing date within 60 days of the filing of a “demand for arbitration,” then either party can elect to have the arbitration administered by the JAMS using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that You and a legal representative of Mutant Cats consents to in writing. The substantive practice area requirements for the arbitrator and the $250,000 threshold for the number of arbitrators assigned to the Dispute set forth in the paragraph above for the AAA arbitration will also apply to any such arbitration under JAMS or another arbitration service. (c.ii) You can obtain AAA and JAMS procedures, rules, and fee information as follows:
(1) AAA: (800)778-7879; http://www.adr.org/
(2) JAMS: (949)224-1810; http://www.jamsadr.com
(d) Nature, Limitations, and Location of Alternative Dispute Resolution. In arbitration, as with a court, the arbitrator must honor the terms of this Agreement and can award the prevailing party damages and other relief (including attorneys’ fees). However, WITH ARBITRATION (A) THERE IS NO JUDGE OR JURY, (B) THE ARBITRATION PROCEEDINGS AND ARBITRATION OUTCOME ARE SUBJECT TO CERTAIN CONFIDENTIALITY RULES, AND (C) JUDICIAL REVIEW OF THE ARBITRATION OUTCOME IS LIMITED. All parties to the arbitration will have the right, at their own expense, to be represented by an attorney or other advocate of their choosing. If an in-person arbitration hearing is required, then it will be conducted in Los Angeles, California. You and Mutant Cats will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require Mutant Cats to pay a greater portion or all of such fees and costs in order for Section 16 (Dispute Resolution) to be enforceable, then Mutant Cats will have the right to elect to pay such additional fees and/or costs and proceed to arbitration.
17. No Class Action Matters. YOU AND MUTANT CATS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN EACH PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the Parties’ Dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with Your Dispute and may not otherwise preside over any form of a representative or class proceeding. Disputes will be arbitrated only on an individual basis and will not be consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. But if, for any reason, any court with competent jurisdiction or any arbitrator selected pursuant to Section 16(c) (Arbitration) above holds that this restriction is unconscionable or unenforceable, then the Parties’ agreement in Section 16(c) (Arbitration) above to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 15 (Governing Law and Forum Choice).
(a) Limited Time to File Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU WANT TO ASSERT A DISPUTE AGAINST MUTANT CATS, THEN YOU MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE) WITHIN 1 YEAR AFTER THE DISPUTE ARISES -- OR IT WILL BE FOREVER BARRED.
(b) Relationship of Parties. Nothing contained in this Agreement will be deemed to create, or be construed as creating, a joint venture or partnership between the parties. Neither Party is, by virtue of this Agreement or otherwise, authorized as an agent or legal representative of the other Party. Neither Party to this Agreement is granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf or in the name of the other party, or to bind such other Party in any manner.
(c) Successors. This Agreement will transfer and be binding upon and will inure to the benefit of the parties and their permitted successors and assigns, in particular any Transferee. Nothing contained in this Agreement will be deemed to create any third-party beneficiary right upon any third party whatsoever.
(d) Notices. Any notices or other communications provided by Mutant Cats under this Agreement be given by posting to the Collectibles Website or other Website elected by Mutant Cats. Any notice to Mutant Cats related to a Dispute must be sent to Mutant Cats by certified mail to (effective upon receipt): Mutant Cats DAO, legal@MutantLabs.io, with a copy to Miller Haga Law Group, LLP, 23901 Calabasas Road, Suite 2001, Calabasas, CA 91302, Attention: Managing Partner. Any notice to You related to a Dispute will be sent to You based on Your contact information provided to Mutant Cats. But if no such information exists or if such information is not current, then Mutant Cats has no obligation to provide such notice.
(e) Neutral Construction. Neither Mutant Cats or You will be afforded or denied preference in the construction of this Agreement, whether by virtue of being the drafter or otherwise.
(f) Severability. The provisions of this Agreement shall be severable and the invalidity of any provision, or portion thereof, shall not affect the enforceability of the remaining provisions. In addition, if any one or more of the provisions of this Agreement should be ruled wholly or partly invalid or unenforceable, then the court or other government body is authorized to reform the provision(s) to the minimum extent necessary to render them valid and enforceable in conformity with the parties’ intent as manifested herein.
(g) Entire Agreement. This Agreement, including all additional terms, constitutes the entire agreement between the parties and supersedes all prior oral and written understandings between the parties with respect to the subject matter hereof. Notwithstanding the foregoing, Mutant Cats may amend this Agreement from time to time, pursuant to the issuance of some additional consideration to You, by posting an updated version of this Agreement to the Website.