ICY LABS, INC.
Last Revised: November 15, 2021
1. ACCEPTANCE OF AGREEMENT
PLEASE BE AWARE THAT THESE TERMS OF SERVICE REQUIRE THE USE OF ARBITRATION (SECTION 13.4) ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
3. DEFINITIONS AND INTERPRETATION
3.1 Defined Terms. Unless the context requires otherwise, capitalized terms in this Agreement shall have the following meanings:
- “Affiliate” means, with respect to a party, any person, firm, corporation, partnership (including, without limitation, general partnerships, limited partnerships, and limited liability partnerships), limited liability company, or other entity that now or in the future, directly controls, is controlled with or by or is under common control with such party.
- “Applicable Law” means all federal and state laws, as the same may be amended and in effect from time to time during the Term.
- “Business Day” means any day (other than a Saturday, Sunday, or legal holiday) on which federally-insured financial institutions in the State of Wyoming are permitted to be open to conduct substantially all of their business.
- “Profile Information” means the information you provide to us to register for the Service, including as applicable, Wallet address, name and address, as well as the username and password that allow you to access the Service, as such information shall change from time to time.
- “Wallet” means an Ethereum/Web3 electronic wallet, which allows Users to purchase and store cryptocurrencies, and sign/engage in transactions on the Ethereum (and other EVM compatible) Blockchain.
1.1 Interpretation. References to Sections and Appendices are to be construed as references to the Sections of, and Appendices to, this Agreement, unless otherwise indicated. The singular includes the plural, and the plural includes the singular. All references to hereof, herein, hereunder and other similar compounds of the word here shall mean and refer to this Agreement as a whole rather than any particular part of the same. The terms include and including are not limiting. Unless designated as Business Days, all references to days shall mean calendar days. The use of the word “including” in this Agreement to refer to specific examples will be construed to mean “including, without limitation” or “including but not limited to” and will not be construed to mean that the examples given are an exclusive list of the topics covered. The headings, captions, headers, footers and version numbers contained in this Agreement are intended for convenience or reference and shall not affect the meaning or interpretation of this Agreement.
4. THE SERVICE
4.2 Use of the Website. The Company grants you a non-exclusive license to access and use the Platform including the Website and the data, material, content, or information herein (collectively, the “Content”) solely for your personal use. Your right to access and use the Website shall be limited to the purposes described in these Terms unless you are otherwise expressly authorized by the Company to use the Website for your own commercial purposes. You agree to use the Website only for lawful purposes, comply with all rules governing any transactions on and through the Website and comply with applicable laws.
4.2.1 Standard Users. Icy Labs provides its “standard” access to all Users. All Users who do not pay for Premium Access are “Standard Users.” Standard Users will have limited data and refresh rates and do not have access to the same features as the Premium Users.
4.2.2 Premium Users. Users who pay for premium content will have access to more features than Standard Users. All Users who pay for premium content are Premium Users.” Initially, Users can become Premium users by paying either (1) in USD via debit or credit card or (2) in eth through their Wallets the (“Premium Fee”). Premium Users may choose to pay the Premium Fee monthly or semiannually. Debit or credit payments will be charged automatically upon monthly or semiannual renewal, as applicable. Users are under no obligation to renew. The Company reserves the right to change the cost of the Premium Fee at any time, without notification.
188.8.131.52 Monthly Premium. Premium Users who wish to pay the Premium Fee monthly must tender $75.00 USD or its equivalent in eth per 30 days of access (“Premium Monthly Fee”). Such monthly access will be available to the Premium User for 30 days calculated from the date of payment of the Premium Monthly Fee.
184.108.40.206 Semiannual Premium. Premium Users who wish to pay the Premium Fee semiannually must tender $375 USD or its equivalent in eth per 180 days of access (“Premium Semiannual Fee”). Such semiannual access will be available to the Premium User for 180 days calculated from the date of payment of the Premium Semiannual Fee.
220.127.116.11 PREMIUM FEES PAID IN ETH ARE NON-REFUNDABLE. Upon a written request by a User, Premium Fees paid by debit or credit card may be refundable in Company’s sole discretion.
18.104.22.168 Temporary Premium User Promotions. Company may choose to run promotions that grant Premium User status to members of various NFT communities (“Premium User Promotions”). Such Premium User Promotions are entire discretionary and may be commenced and terminated at any time in the Company’s sole discretion. Premium Users who are also holders of NFTs subject to Premium User Promotions will not receive any additional access or benefits and are not entitled to any refund of Premium Fees previously tendered.
4.2.3 User Account Responsibility. User understands and agrees that it is solely responsible for maintaining the security of User’s account and control over any usernames, passwords, public and/or private keys, or any other codes that User uses to access the Service. If you are given or create a password to access the Platform, you are responsible for maintaining the confidentiality of your account and your password. If you use a Wallet to access the Platform, Icy Labs has no way of granting you access to the site if you lose access to, or control of, your Wallet. You are responsible for all activities that occur under your account, and you agree to notify the Company immediately of any suspected unauthorized use of your account. The Company is not responsible for any loss that you may incur as a result of any unauthorized person using your account, Wallet. or your password. Any unauthorized access to your account by third parties could result in the loss or theft of funds held in your account and any associated accounts, including your linked bank account(s) and credit card(s).
4.2.4 Additional Considerations
22.214.171.124 Transactions Are Recorded on the Public Blockchains. Transactions that take place on the Platform are managed and confirmed via public blockchains including but not limited to the Ethereum blockchain. The User understands that its public address on the relevant blockchain will be made publicly visible whenever it engages in a transaction on the Platform. We neither own nor control MetaMask, or any other Wallet, the Ethereum network, or any other blockchain network We choose to interface with, or any other third-party site, product, or service that Users might access, visit, or use for the purpose of enabling the user to access and utilize the various features of the Platform. We will not be liable for the acts or omissions of any such third parties, nor will we be liable for any damage that a User may suffer as a result of its transactions or any other interaction with any such third parties.
126.96.36.199 Gas. All transactions on the Platform are facilitated by smart contracts existing on a blockchain network. Blockchain networks generally require the payment of a transaction fee for every transaction. For example, the Ethereum network requires the payment of a transaction fee (a “Gas fee”) for every transaction that occurs on the Ethereum network, and thus every transaction occurring on the Platform through the Ethereum network. The value of the Gas Fee changes, often unpredictably, and is entirely outside of the control of Company or the Platform. User acknowledges that under no circumstances will a transaction on the Platform, including payment of the Premium Fee be invalidated, revocable, retractable, or otherwise unenforceable on the basis that the Gas Fee for the given transaction was unknown, too high, or otherwise unacceptable to User.
188.8.131.52 Our Use of Account Information. Premium Users authorize us to use the account information for all purposes related to the Service, provided that such access shall be used solely for the purpose of providing the Service.
4.3 License. Subject to this Agreement, Icy Labs grants you a non-transferable, non-exclusive, revocable, limited license to use and access the Service solely for your own use, and solely as permitted by and in compliance with the Terms and Applicable Law. Such limited license may be revoked at any time in Icy Labs’s sole discretion.
4.4 Prohibitions and Restrictions
4.4.1 Prohibited Uses. You agree that you will not:
- Use the Website in any manner that could damage, disable, overburden, or impair the Website or interfere with any other party’s use and enjoyment of it;
- Attempt to gain unauthorized access to any Website account, computer systems or networks associated with the Company or the Website;
- Obtain or attempt to obtain any materials or information through the Website by any means not intentionally made available or provided by the Company;
- Use any robot, spider, or other automatic device, process or means to access the Website for any purpose, including monitoring or copying any of the material on the Website;
- Introduce any viruses, Trojan horses, worms, logic bombs, or other material which is malicious or technologically harmful;
- Attack the Website via a denial-of-service attack or a distributed denial-of-service attack; or
- Impersonate or attempt to impersonate the Company, a Company employee, another user or any other person or entity (including, without limitation, by using email addresses associated with any of the foregoing);
- License, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Service, whether in whole or in part, or any content displayed on the Service;
- Modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Service; or
- Access the Service in order to build a similar or competitive website, product, or service.
4.4.2. Restrictions. Except as expressly stated herein, no part of the Service may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Service shall be subject to this Agreement. All copyright and other proprietary notices on the Service (or on any content displayed on the Service) must be retained on all copies thereof. You will not use the Website or Service for any illegal purpose.
4.5 Modification. Icy Labs reserves the right, at any time, to modify, suspend, or discontinue the Website (in whole or in part) with or without notice to you. You agree that Icy Labs will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Website or any part thereof.
4.6 No Support or Maintenance. You acknowledge and agree that Icy Labs will have no obligation to provide you with any support or maintenance in connection with the Website or Services.
4.8 Affiliates. The rights, duties and/or obligations of Icy Labs under this Agreement may be exercised and/or performed by Icy Labs and/or any of Icy Labs’s Affiliates, or any of their subcontractors and/or agents. Icy Labs acknowledges and agrees that it shall be solely responsible for the acts or omissions of Icy Labs’s Affiliates, and any subcontractor or agent of Icy Labs or any of Icy Labs’s Affiliates, related to the subject matter hereof. You agree that any claim or action arising out of or related to any act or omission of any of Icy Labs or Icy Labs’s Affiliates, or any of their respective subcontractors or agents, related to the subject matter hereof, shall only be brought against Icy Labs, and not against any of Icy Labs’s Affiliates, or any subcontractor or agent of Icy Labs or any of Icy Labs’s Affiliates.
6. COMMUNICATION WITH USERS
The Company, its affiliates, and the Platform are not the custodians of any NFTs viewable on the Platform. You affirm that you are aware and acknowledge that Company is a non-custodial service provider and has designed this Platform to be directly accessible by the Users without any involvement or actions taken by Company or any third-party. The Company does not have a way to communicate directly with Users.
7. THIRD-PARTY LINKS, PRODUCTS AND APPLICATIONS
7.2 Third-party Applications. You acknowledge that your access and use of any third-party applications or software on our Website and Content, such as Know Your Customer “KYC” verification software (the “Third-Party Applications”), is at your discretion and risk, and the Company has no liability to you arising from your use of the Third-Party Applications. The Company hereby disclaims any representation, warranty, or guaranty regarding the Third-Party Applications, whether expressed, implied or statutory, including, without limitation, the implied warranties of merchantability or fitness for a particular purpose, and any representation, warranty, or guaranty regarding the availability, quality, reliability, features, appropriateness, accuracy, completeness, or legality of the Third-Party Applications, and you agree to indemnify and hold the Company harmless for any direct, indirect, punitive, incidental, special, or consequential damages, or any damages whatsoever including, without limitation, damages for loss of use, arising out of or in any way connected with the use or performance of the Third-Party Applications. The Company is not responsible for any personally identifiable information shared with any Third-Party Applications.
7.3 Release. You hereby release and forever discharge Icy Labs (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Service (including any interactions with, or act or omission of, our partners or any other third party or any Third-party Links and Applications). IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
8. INTELLECTUAL PROPERTY
8.1 Company Intellectual Property. User acknowledges and agrees that Company (or, as applicable, our licensors) own all legal right, title, and interest in and to all elements of the Platform. The Icy Labs logo, graphics, design, systems, methods, information, computer code, software, services, “look and feel”, organization, compilation of the content, code, data, and all other elements of the Platform (collectively, the “Company Materials”) are owned by Icy Labs. The Website, Platform, Company Materials, and Content are protected by copyrights, trademarks, or are subject to other proprietary rights. Accordingly, you are not permitted to use the Website or Content in any manner, except as expressly permitted by the Company in these Terms. The Website or Content may not be copied, reproduced, modified, published, uploaded, posted, transmitted, performed, or distributed in any way, and you agree not to modify, rent, lease, loan, sell, distribute, transmit, broadcast, or create derivatives without the express written consent of the Company or the applicable owner. Except as expressly set forth herein, User’s use of the Platform does not grant User ownership of or any other rights with respect to any content, code, data, or other materials that User may access on or through the Platform. Company reserves all rights in and to the Company Materials not expressly granted to Users in the Terms.
You may not use any Icy Labs Content to link to the Website or Content without our express written permission. You may not use framing techniques to enclose any Icy Labs Content without our express written consent. In addition, the look and feel of the Site and Content, including without limitation, all page headers, custom graphics, button icons, and scripts constitute the service mark, trademark, or trade dress of Icy Labs and may not be copied, imitated, or used, in whole or in part, without our prior written permission.
Notwithstanding anything to the contrary herein, You understand and agree that You shall have no ownership or other property interest in your account, and You further agree that all rights in and to your account are and shall forever be owned by and inure to the benefit of Icy Labs.
8.2 Non-Company Intellectual Property. Outside the Company Materials, all other trademarks, product names, logos, and similar intellectual property on the Platform are the property of their respective owners and may not be copied, imitated, or used, in whole or in part, without the permission of the applicable trademark holder.
8.3 Digital Millennium Copyright Act Compliance
8.3.1 Notification. We take claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from the Website or Service infringes your copyright, you may request removal of those materials (or access to them) from the Website by submitting written notification to our copyright agent (designated below). In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) ("DMCA"), the written notice (the "DMCA Notice") must include substantially the following:
(a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Service are covered by a single notification, a representative list of such works from the Service;
(c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Company to locate the material;
(d) information reasonably sufficient to permit the Company to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
(e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
(f) a statement that the information in the notification is accurate; and
(g) under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective. Upon removing any allegedly infringing material, the Company will notify the alleged infringer of such takedown.
(h) Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
8.3.2. Counter Notification. If you elect to send our copyright agent a counter notice, to be effective it must be a written communication that includes the following (please consult your legal counsel or See 17 U.S.C. Section 512(g)(3) to confirm these requirements):
(a) a physical or electronic signature;
(b) identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
(c) a statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
(d) adequate information by which we can contact you, including your name, address, and telephone number; and
(e) a statement that the subscriber consents to the jurisdiction of a federal district court for the judicial district in which the address is located, or if the subscriber's address is outside of the United States, for any judicial district in which the Company may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.
The DMCA allows us to restore the removed content if the party filing the original DMCA Notice does not file a court action against you within ten (10) business days of receiving the copy of your counter notice. Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
The Company’s designated copyright agent or authorized official to receive notifications and counter-notifications of claimed infringement is:
Icy Labs, Inc
600 S. Cherry St., Ste 835, Denver, CO 80246
A summary of the DMCA can be obtained from theU.S. Copyright Office.
You agree to release, indemnify, and hold harmless Icy Labs and its Affiliates, and their respective officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way related to: (a) your access to, use of, or inability to use the Platform, the Website, or Service; (b) your breach of this Agreement; (c) your violation of any rights of a third party; (d) your violation of any Applicable Law; and (e) any and all financial losses you may suffer, or cause others to suffer, due to trading NFTs whether or not such trades were made due to information learned on the Platform or through the Service.
10. ASSUMPTION OF RISK
10.1 User Acknowledges the Risk of Cryptocurrency and Smart Contracts. YOU REPRESENT AND WARRANT THAT YOU UNDERSTAND AND ARE WILLING TO ACCEPT THE RISKS ASSOCIATED WITH CRYPTOGRAPHIC SYSTEMS SUCH AS SMART CONTRACTS, PUBLIC BLOCKCHAIN NETWORKS (INCLUDING BUT NOT LIMITED TO THE ETHEREUM BLOCKCHAIN NETWORK), NON-FUNGIBLE TOKENS, AND THE INTERPLANETARY FILE SYSTEM.
10.2 Company is Not Responsible for Technical Errors on Any Blockchain. COMPANY IS NOT RESPONSIBLE FOR LOSSES DUE TO BLOCKCHAINS OR ANY OTHER FEATURES OF THE ETHEREUM NETWORK OR ANY OTHER BLOCKCHAIN NETWORK COMPANY MAY INTERFACE WITH, OR THE METAMASK WALLET OR ANY SIMILAR BROWSER OR WALLET ON ANY BLOCKCHAIN NETWORK INCLUDING BUT NOT LIMITED TO LATE REPORT BY DEVELOPERS OR REPRESENTATIVES (OR NO REPORT AT ALL) OF ANY ISSUES WITH THE BLOCKCHAIN SUPPORTING THE ETHEREUM NETWORK OR ANY OTHER BLOCKCHAIN NETWORK COMPANY MAY INTERFACE WITH, INCLUDING FORKS, TECHNICAL NODE ISSUES, OR ANY OTHERISSUES HAVING FUND LOSSES AS A RESULT.
Upgrades to the Ethereum platform or any other blockchain network with which Company may interface, a hard fork in any such platform, or a change in how transactions are confirmed on any such platform may have unintended, adverse effects on all blockchains using the ERC-20, ERC-721, or ERC-1155 standards, including the Icy Labs ecosystem
10.3 The User Acknowledges the Risks of the Platform. You acknowledge that the Platform is subject to flaws and acknowledge that you are solely responsible for evaluating any information provided by the Platform. This warning and others provided in this Agreement by Company in no way evidence or represent an ongoing duty to alert you to all of the potential risks of utilizing or accessing the Platform. The Platform may experience sophisticated cyber-attacks, unexpected surges in activity or other operational or technical difficulties that may cause interruptions to or delays on the Platform. You agree to accept the risk of the Platform failure resulting from unanticipated or heightened technical difficulties, including those resulting from sophisticated attacks, and you agree not to hold us accountable for any related losses. The Company will not bear any liability, whatsoever, for any damage or interruptions caused by any viruses that may affect your computer or other equipment, or any phishing, spoofing or other attack
10.4 Company Does Not Make Any Representations Regarding the Value of NFTs or Other Digital Assets. The prices of blockchain assets are extremely volatile. Fluctuations in the price of other digital assets could materially and adversely affect the value of NFTs, which may also be subject to significant price volatility. A lack of use or public interest in the creation and development of distributed ecosystems could negatively impact the development, potential utility, or value of NFTs. The Platform, ETH, NFTs, and other digital assets could be impacted by one or more regulatory inquiries or regulatory action. For all of the foregoing reasons, as well as for reasons that may not presently be known to the Company, the Company makes absolutely no representations or warranties of any kind regarding the value of NFTs or other digital assets.
10.5 User Acknowledges Financial Risk of Digital Assets. The risk of loss in trading digital assets can be substantial. You should, therefore, carefully consider whether such creating, buying or selling digital assets is suitable for you in light of your circumstances and financial resources. By using the Platform, you represent that you have been, are and will be solely responsible for making your own independent appraisal and investigations into the risks of a given transaction and the underlying digital assets. You represent that you have sufficient knowledge, market sophistication, professional advice, and experience to make your own evaluation of the merits and risks of any transaction conducted via any digital asset. Under no circumstances shall the Company be liable in connection with your use of the Platform in connection with your performance of any digital asset transactions. Under no circumstances will the operation of all or any portion of the Platform be deemed to create a relationship that includes the provision or tendering of investment advice. User acknowledges and agrees that Company is not a party to any agreement or transaction between one or more Users and/or third-parties involving the purchase, sale, charge, or transfer of NFTs.
10.6 Violations by Other Users. User irrevocably releases, acquits, and forever discharges Company and its subsidiaries, affiliates, officers, and successors for and against any and all past or future causes of action, suits, or controversies arising out of another user’s violation of these Terms.
11. LIMITATION OF LIABILITY AND WARRANTY DISCLAIMER
11.1 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL ICY LABS (OR OUR AFFILIATES) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY FINANCIAL LOSS, LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, PLATFORM, THE WEBSITE OR THE SERVICES, CONTENT OR INFORMATION ACCESSED VIA THE WEBSITE OR ANY HYPERLINKED WEBSITE, OR ANY DISRUPTION OR DELAY IN THE PERFORMANCE OF THE WEBSITE, OR THE SERVICE EVEN IF ICY LABS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITES OR SERVICE IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
11.2 No Warranties. ALL INFORMATION OR SERVICES PROVIDED BY THE COMPANY TO YOU VIA THE WEBSITE, INCLUDING, WITHOUT LIMITATION, ALL CONTENT, ARE PROVIDED “AS IS” AND “WHERE IS” AND WITHOUT ANY WARRANTIES OF ANY KIND. THE COMPANY AND ANY THIRD-PARTY LICENSORS WITH CONTENT ON THE WEBSITE EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. NOTWITHSTANDING ANY PROVISION CONTAINED HEREIN TO THE CONTRARY, THE COMPANY AND ITS THIRD-PARTY LICENSORS MAKE NO REPRESENTATION, WARRANTY OR COVENANT CONCERNING THE ACCURACY, QUALITY, SUITABILITY, COMPLETENESS, SEQUENCE, TIMELINESS, SECURITY OR AVAILABILITY OF THE WEBSITE OR ANY CONTENT POSTED ON OR OTHERWISE ACCESSIBLE VIA THE PLATFORM. YOU SPECIFICALLY ACKNOWLEDGE THAT THE COMPANY AND ITS THIRD-PARTY LICENSORS ARE NOT LIABLE FOR THE DEFAMATORY, OBSCENE OR UNLAWFUL CONDUCT OF OTHER THIRD PARTIES OR USERS OF THE WEBSITE AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. NEITHER THE COMPANY NOR ANY OF ITS THIRD-PARTY LICENSORS REPRESENT, WARRANT OR COVENANT THAT THE WEBSITE WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE. THE COMPANY FURTHER MAKES NO WARRANTY THAT THE WEBSITE WILL BE FREE OF VIRUSES, WORMS OR TROJAN HORSES OR THAT IT WILL FUNCTION OR OPERATE IN CONJUNCTION WITH ANY OTHER PRODUCT OR SOFTWARE. YOU EXPRESSLY AGREE THAT USE OF THE WEBSITE IS AT YOUR SOLE RISK AND THAT THE COMPANY, ITS AFFILIATES AND THEIR THIRD-PARTY LICENSORS SHALL NOT BE RESPONSIBLE FOR ANY TERMINATION, INTERRUPTION OF SERVICES, DELAYS, ERRORS, FAILURES OF PERFORMANCE, DEFECTS, LINE FAILURES, OR OMISSIONS ASSOCIATED WITH THE WEBSITE OR YOUR USE THEREOF. YOUR SOLE REMEDY AGAINST THE COMPANY FOR DISSATISFACTION WITH THE WEBSITE OR THE CONTENT IS TO CEASE YOUR USE OF THE PLATFORM, WEBSITE AND/OR THE SERVICE. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. YOU MAY HAVE OTHER RIGHTS, WHICH VARY BY JURISDICTION. WHEN THE IMPLIED WARRANTIES ARE NOT ALLOWED TO BE EXCLUDED IN THEIR ENTIRETY, YOU AGREE THAT THEY WILL BE LIMITED TO THE GREATEST EXTENT AND SHORTEST DURATION PERMITTED BY LAW.
11.3 Not a financial planner, investment adviser or tax advisor. NEITHER ICY LABS NOR THE PLATFORM NOR THE SERVICES ARE INTENDED TO PROVIDE LEGAL, TAX, INVESTMENT OR FINANCIAL ADVICE. ICY LABS IS NOT A FINANCIAL OR TAX PLANNER AND DOES NOT OFFER LEGAL ADVICE TO ANY USER OF THE SERVICE.
12. TERM AND TERMINATION
Subject to this Section, this Agreement will remain in full force and effect while you use the Platform or use the Service (the “Term”). We may suspend or terminate your rights to use the Platform or use the Service at any time for any reason at our sole discretion, including for any use of the Platform or the Service in violation of this Agreement. You may terminate this Agreement at any time by ending your use of the Platform and the Service and notifying Icy Labs at[email protected]. Regardless of whether the User or the Company terminates this Agreement, the User will not be entitled to any refunds. Upon termination of your rights under this Agreement, your right to access and use the Sites and the Service will terminate immediately. Icy Labs will not have any liability whatsoever to you for any termination of your rights under this Agreement. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
13. GENERAL TERMS
13.2 Waiver. The waiver by Icy Labs of a breach of any provision contained herein shall be in writing and shall in no way be construed as a waiver of any subsequent breach of such provision or the waiver of the provision itself.
13.3 Governing Law & Jurisdiction. These Terms are governed by the laws of the State of Wyoming, U.S.A. You hereby irrevocably consent to the exclusive jurisdiction and venue of the courts in the City and County of Denver, Colorado U.S.A. in all disputes arising out of or relating to the use of the Website not subject to the Arbitration Agreement outlined in 13.4.
13.4 Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Icy Labs and limits the manner in which you can seek relief from us. It is part of your contract with Icy Labs and affects your rights. It contains procedures of MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
13.4.1 Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Agreement or the use of any product or service provided by Icy Labs that cannot be resolved informally shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and Icy Labs, and to any subsidiaries, Affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Agreement. This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
13.4.2 Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Icy Labs should be sent to:
600 S. Cherry St. Suite 835
Denver, CO 80246
After the Notice is received, you and Icy Labs may attempt to resolve the claim or dispute informally. If you and Icy Labs do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
13.4.3 Arbitration Procedure. Arbitration shall be held in Denver, Colorado, and will be governed exclusively by the Colorado Revised Uniform Arbitration Act, C.R.S. §§ 13-22-201, et seq. (the “CRUAA”). The arbitrator will be selected from the roster of arbitrators at Judicial Arbiter Group, Inc. in Denver, Colorado (“JAG”), unless the Parties agree otherwise. If the Parties do not agree on the selection of a single arbitrator within ten (10) days after a demand for arbitration is made, then the arbitrator will be selected by JAG from among its available professionals. Arbitration of all disputes and the outcome of the arbitration will remain confidential between the Parties except as necessary to obtain a court judgment on the award or other relief or to engage in collection of the judgment.
The Parties irrevocably submit to the exclusive jurisdiction of the state courts located in Denver, Colorado, with respect to this section to compel arbitration, to confirm an arbitration award or order, or to handle court functions permitted under the CRUAA. The Parties irrevocably waive defense of an inconvenient forum to the maintenance of any such action or other proceeding. The Parties may seek recognition and enforcement of any state court judgment confirming an arbitration award or order in any United States state court or any court outside the United States or its territories having jurisdiction with respect to recognition or enforcement of such judgment.
This provision for arbitration will not preclude a party from seeking temporary or preliminary injunctive relief (“Provisional Relief”) in a court of law while arbitration proceedings are pending in order to protect its rights pending a final determination by the arbitrator, nor will the filing of such an action for Provisional Relief constitute waiver by a party of its right to seek arbitration. Any Provisional Relief granted by such court will remain effective until otherwise modified by the arbitrator.
13.4.4 Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and Icy Labs in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND ICY LABS WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
13.4.5. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
13.4.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Wallet address, and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with the Company. Mail your written notification by certified mail to:
600 S. Cherry St. Suite 835
Denver, CO 80246
13.4.7 Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
13.4.8 Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
13.4.9 Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
13.4.10 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Icy Labs.
13.4.11 Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
13.4.12 Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secrets shall not be subject to this Arbitration Agreement.
13.4.13 Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the state courts located in the City and County of Denver, for such purpose.
13.5 Attorneys’ Fees and Costs. In addition to any relief, order, or award that is entered by an arbiter, or court as the case may be, any Party found to be the substantially losing Party in any dispute shall be required to pay the reasonable attorneys’ fees and costs of any Party determined to be the substantially prevailing Party, and such losing Party, shall also reimburse or pay any of the arbitrator’s fees and expenses incurred by the prevailing Party in any arbitration. In the context of this Agreement, reasonable attorneys’ fees and costs shall include but not be limited to:
13.5.1 legal fees and costs, the fees and costs of witnesses, accountants, experts, and other professionals, and any other forum costs incurred during, or in preparation for, a dispute;
13.5.2 all of the foregoing whether incurred before or after the initiation of a Proceeding; and
13.5.3 all such fees and costs incurred in obtaining Provisional Relief.
It is understood that certain time entries that may appear in the billing records of such Party’s legal counsel may be redacted to protect attorney-client or work-product privilege, and this will not prevent recovery for the associated billings.
13.6 Third Party Beneficiaries. Except as limited by Section 13.7, this Agreement and the rights and obligations hereunder shall bind and inure to the benefit of the parties and their successors and permitted assigns. Nothing in this Agreement, expressed or implied, is intended to confer upon any person, other than the parties and their successors and permitted assigns, any of the rights hereunder.
13.7 Entire Agreement. This Agreement and each of its exhibits or appendices, constitute and contain the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior or contemporaneous oral or written agreements. Each party acknowledges and agrees that the other has not made any representations, warranties or agreements of any kind, except as expressly set forth herein.
13.8 Severability. If any provision of this Agreement (or any portion thereof) is determined to be invalid or unenforceable, the remaining provisions of this Agreement shall not be affected thereby and shall be binding upon the parties and shall be enforceable, as though said invalid or unenforceable provision (or portion thereof) were not contained in this Agreement.
13.9 Assignment. You may not assign or transfer any rights hereunder without the prior written consent of Icy Labs. Except as provided in this section, any attempts you make to assign any of your rights or delegate any of your duties hereunder without the prior written consent of Icy Labs shall be null and void. Icy Labs may assign this Agreement or any rights hereunder without consent.
Company Contact Information. Questions can be directed to the Company at:[email protected]