Last Updated: April 27, 2022
Game of Silks, Inc. (“we”, “us” or “our”) is making the Silks derivative gaming platform (the “Platform”) available to you. The Platform will leverage a blockchain-enabled metaverse to parallel the real world of thoroughbred horse racing and is powered by a play-to-earn (P2E) gaming economy allowing players to reap tokens through gameplay and contributions to the ecosystem. By signing up for an account on the site, connecting your cryptocurrency wallet (e.g. MetaMask) to the site, or otherwise using or accessing the Platform, you acknowledge that you have read and agree to these Terms and Conditions of Use and any terms and conditions incorporated herein by reference herein (collectively, these “Terms”).
BY (I) USING THE PLATFORM OR ANY PART OF IT, (II) BUYING, SELLING OR OTHERWISE ACQUIRING OR TRANSFERRING A COLLECTIBLE (AS DEFINED BELOW) YOU ARE CONFIRMING THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY ALL OF THESE TERMS.
Any changes to these Terms will be in effect as of the “Last Updated” date referred to at the top of this page. You should review these Terms before using the Platform or purchasing any product or using any services that are available through this Platform.
Your continued use of this Platform after the “Last Updated” date will constitute your acceptance of and agreement to such changes.
By using this Platform, you affirm that you are of legal age to enter into these Terms, and you accept and are bound by these Terms. You affirm that if you are using this Platform on behalf of an organization or company, you have the legal authority to bind any such organization or company to these Terms.
THESE TERMS CONTAIN AN ARBITRATION PROVISION (SEE SECTION 15). PLEASE REVIEW THE ARBITRATION PROVISION CAREFULLY, SINCE IT AFFECTS YOUR RIGHTS. BY USING THE PLATFORM OR ANY PART OF IT, YOU UNDERSTAND AND AGREE TO BE BOUND BY THE ARBITRATION PROVISION.
You may not use this Platform if you: (i) do not agree to these Terms; (ii) are not of the age of majority in your jurisdiction of residence; or (iii) are prohibited from accessing or using this Platform or any of this Platform’s contents, products or services by applicable law.
1. USE OF THE PLATFORM; SECURITY
(i) Wallet Set-Up. To most easily use the Platform, you should first install a web browser (such as the Google Chrome web browser). You will also need to use a supported electronic wallet (e.g., MetaMask), which will enable you to purchase and store collectibles that you collect or purchase via the Platform. Each collectible is a non-fungible token (an “NFT”) on the Ethereum blockchain.
(ii) Security. You are responsible for the security of your electronic wallets.
(iii) Transactions. You can use your electronic wallet to purchase, store, and engage in transactions using one or more cryptocurrencies that we may elect to accept from time to time. Transactions that take place on the Platform are managed and confirmed via the Ethereum blockchain. You understand that your Ethereum blockchain public address will be made publicly visible whenever you engage in a transaction on the Platform.
2. PURCHASING YOUR COLLECTIBLES
(i) Acquiring Collectibles. The Platform allows you to purchase, earn, collect and showcase digital assets that represent or relate to the Silks metaverse (each, a “Collectible”).
(ii) Purchasing Collectibles. You can purchase Collectibles (a) by buying Collectibles from us on the Platform; or (b) by buying Collectibles from other Collectible owners outside of the Platform. If you decide to purchase Collectibles outside of the Platform, you understand that such purchases will be entirely at your sole risk.
(iii) Characteristics of Collectibles. Each Collectible represents or relates to an aspect of the Silks metaverse.
3. PAYMENT, GAS FEES, AND TAXES
(i) Financial Transactions on Platform. Any payments or financial transactions that you engage in via the Platform will be conducted solely through the Ethereum blockchain. We have no control over these payments or transactions, nor do we have the ability to reverse any payments or transactions. We have no liability to you or to any third party for any claims or damages that may arise as a result of any payments or transactions that you engage in via the Platform, or any other payment or transactions that you conduct via the Ethereum blockchain. We do not provide refunds for any purchases that you might make on or through the Platform – whether for Collectibles or anything else.
(ii) Gas Fees. Every transaction on the Ethereum blockchain requires the payment of a transaction fee (each, a “Gas Fee”). The Gas Fees fund the network of computers that run the decentralized Ethereum blockchain. This means that you will need to pay a Gas Fee for each transaction that you instigate via the Platform. Except as otherwise expressly set forth in these Terms, you will be solely responsible to pay any Gas Fee for any transaction that you instigate via the Platform.
(iii) Responsibility for Taxes. You will be solely responsible to pay any and all sales, use, value-added and other taxes, duties, and assessments (except taxes on our net income) now or hereafter claimed or imposed by any governmental authority (collectively, the “Taxes”) associated with your use of the Platform.
4. OWNERSHIP, LICENSE, AND OWNERSHIP RESTRICTIONS
YOUR OWNERSHIP OF COLLECTIBLES WILL ONLY BE RECOGNIZED BY US IF YOU HAVE PURCHASED OR OTHERWISE RIGHTFULLY ACQUIRED SUCH COLLECTIBLES FROM A LEGITIMATE SOURCE AND NOT THROUGH ANY OF THE CATEGORY B PROHIBITED ACTIVITIES (AS DEFINED BELOW).
For the purposes of this Section 4, the following capitalized terms will have the following meanings:
“Own” means, with respect to a Collectible, a Collectible that you have purchased or otherwise rightfully acquired from a legitimate source (and not through any of the Category B Prohibited Activities (as defined below)), where proof of such purchase is recorded on the Ethereum blockchain.
(i) Ownership of Collectible. Because each Collectible is an NFT on the Ethereum blockchain, when you purchase a Collectible in accordance with these Terms (and not through any of the Category B Prohibited Activities), you own the underlying NFT. This means that you have the right to swap your Collectible, sell it, or give it away. Ownership of the Collectible is mediated entirely by the Ethereum blockchain. Except as otherwise permitted by these Terms, such as in cases where we determine that the Collectible has not been rightfully acquired from a legitimate source (including, without limitation, through any of the Category B Prohibited Activities), at no point will we seize, freeze, or otherwise modify the ownership of any Collectible.
(ii) We Own the Platform. You acknowledge and agree that we own or control all legal right, title and interest in and to all other elements of the Platform, and all intellectual property rights therein (including, without limitation, all designs, 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 “Platform Materials”)). You acknowledge that the Platform Materials are protected by copyright, trade dress, patent, and trademark laws, international conventions, other relevant intellectual property and proprietary rights, and applicable laws. All Platform Materials are the copyrighted property of us, or affiliates. All trademarks, service marks, and trade names associated with the Platform or otherwise contained in the Platform Materials are proprietary to us.
(iii) No User License or Ownership of Platform Materials. Your use of the Platform does not grant you ownership of or any other rights with respect to any content, code, data, or other Platform Materials that you may access on or through the Platform. We reserve all rights in and to the Platform Materials that are not expressly granted to you in these Terms.
(iv) Further User Ownership Acknowledgements. For the sake of clarity, you understand and agree: (a) that your purchase of a Collectible, whether via the Platform or otherwise, does not give you any rights or licenses in or to the Platform Materials other than those expressly contained in these Terms; (b) that you do not have the right, except as otherwise set forth in these Terms, to reproduce, distribute, or otherwise commercialize any elements of the Platform Materials our prior written consent in each case, which consent we may withhold in our sole and absolute discretion; and (c) that you will not apply for, register, or otherwise use or attempt to use any of our trademarks or service marks, or any confusingly similar marks, anywhere in the world without our prior written consent in each case, which consent we may withhold at our sole and absolute discretion.
(v) User Feedback. You may choose to submit comments, bug reports, ideas or other feedback about the Platform, including without limitation about how to improve the Platform (collectively, “Feedback”). By submitting any Feedback, you agree that we are free to use such Feedback at our discretion and without additional compensation to you, and to disclose such Feedback to third parties (whether on a non-confidential basis, or otherwise). You hereby grant us a perpetual, irrevocable, nonexclusive, worldwide license under all rights necessary for us to incorporate and use your Feedback for any purpose.
5. CONDITIONS OF USE AND PROHIBITED ACTIVITIES
YOU AGREE THAT YOU ARE RESPONSIBLE FOR YOUR OWN CONDUCT WHILE ACCESSING OR USING THE PLATFORM, AND FOR ANY CONSEQUENCES THEREOF. YOU AGREE TO USE THE PLATFORM ONLY FOR PURPOSES THAT ARE LEGAL, PROPER AND IN ACCORDANCE WITH THESE TERMS AND ANY PLATFORMLICABLE LAWS OR REGULATIONS.
(i) User Warranties. Without limiting the foregoing, you warrant and agree that your use of the Platform will not (and will not allow any third party to): (a) in any manner:
(1) involve the sending, uploading, distributing or disseminating any unlawful, defamatory, harassing, abusive, fraudulent, obscene, or otherwise objectionable content;
(2) involve the distribution of any viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or any other items of a destructive or deceptive nature;
(3) involve the uploading, posting, transmitting or otherwise making available through the Platform any content that infringes the intellectual proprietary rights of any party;
(4) involve using the Platform to violate the legal rights (such as rights of privacy and publicity) of others;
(5) involve engaging in, promoting, or encouraging illegal activity (including, without limitation, money laundering);
(6) involve interfering with other users’ enjoyment of the Platform;
(7) involve exploiting the Platform for any unauthorized commercial purpose;
(8) involve modifying, adapting, translating, or reverse engineering any portion of the Platform;
(9) involve removing any copyright, trademark or other proprietary rights notices contained in or on the Platform or any part of it;
(10) involve reformatting or framing any portion of the Platform;
(11) involve displaying any content on the Platform that contains any hate-related or violent content or contains any other material, products or services that violate or encourage conduct that would violate any criminal laws, any other applicable laws, or any third party rights;
(12) involve using any spider, site search/retrieval application, or other device to retrieve or index any portion of the Platform or the content posted on the Platform, or to collect information about its users for any unauthorized purpose;
(13) involve accessing or using the Platform for the purpose of creating a product or service that is competitive with any of our products or services;
(14) involve abusing, harassing, or threatening another user of the Platform or any of our authorized representatives, customer service personnel, chat board moderators, or volunteers (including, without limitation, filing support tickets with false information, sending excessive emails or support tickets, obstructing our employees from doing their jobs, refusing to follow the instructions of our employees, or publicly disparaging us by implying favoritism by our employees or otherwise); or
(15) involve using any abusive, defamatory, ethnically or racially offensive, harassing, harmful, hateful, obscene, offensive, sexually explicit, threatening or vulgar language when communicating with another user of the Platform or any of our authorized representatives, customer service personnel, chat board moderators, or volunteers
(each, a “Category A Prohibited Activity”); and/or
(b) in any manner:
(1) involve the impersonation of another person (via the use of an email address or otherwise);
(2) involve using, employing, operating, or creating a computer program to simulate the human behavior of a user (“Bots”);
(3) involve using, employing, or operating Bots or other similar forms of automation to engage in any activity or transaction on the Platform;
(4) involve acquiring Collectibles through inappropriate or illegal means (including, among other things, using a payment mechanism that you do not have the right to use, or purchasing a Collectible and then attempting to charge the cost back to your payment method while still maintaining ownership or control of the Collectible or selling, gifting or trading the Collectible to someone else);
(5) otherwise involve or result in the wrongful seizure or receipt of any Collectibles or other digital assets; or
(6) engage in any practice that aims to manipulate the outcome of any Silks race. All players should play to the best of their abilities and any sort of match-fixing, win-trading, or colluding between competitors is strictly prohibited.
(each, a “Category B Prohibited Activity” and, together with Category A Prohibited Activity, the “Prohibited Activities”).
(ii) Effect of Your Breaches. If you engage in any of the Prohibited Activities, we may, at our sole and absolute discretion, without notice or liability to you, and without limiting any of our other rights or remedies at law or in equity, immediately delete your Collectibles’ images and descriptions from the Platform. If we delete your Collectibles’ images and/or descriptions from the Platform, such deletion will not affect your ownership rights in any Collectibles that you already Own, but you will not receive a refund of any amounts you paid for those Collectibles.
NOTWITHSTANDING THE FOREGOING, HOWEVER, IF WE REASONABLY BELIEVE THAT YOU ARE ENGAGED IN ANY OF THE CATEGORY B PROHIBITED ACTIVITIES, IN ADDITION TO OUR RIGHT TO IMMEDIATELY DELETE YOUR COLLECTIBLES’ IMAGES AND DESCRIPTIONS FROM THE PLATFORM, WE ALSO RESERVE THE RIGHT, AT OUR SOLE AND ABSOLUTE DISCRETION, WITHOUT NOTICE OR LIABILITY TO YOU, TO TAKE ANY OR ALL OF THE FOLLOWING ACTIONS: (A) TO DEEM ANY TRANSACTION THAT TOOK PLACE VIA OR AS THE RESULT OF SUCH ACTIVITIES TO BE VOID AB INITIO; AND/OR (B) TO IMMEDIATELY CONFISCATE ANY COLLECTIBLES (INCLUDING THEIR UNDERLYING NFTS) THAT WERE PURCHASED OR ACQUIRED AS THE RESULT OF SUCH ACTIVITIES.
(i) You Terminate. You may terminate these Terms discontinuing your access to and use of the Platform. If you terminate these Terms, you will not receive any refunds for any purchases that you might make on or through the Platform – whether for Collectibles or anything else.
(ii) We Terminate. You agree that we, in our sole discretion and for any or no reason, may terminate these Terms without the provision of prior notice. You agree that any suspension or termination of your access to the Platform may be without prior notice, and that we will not be liable to you or to any third party for any such suspension or termination.
(iii) Other Remedies Available. If we terminate these Terms or suspend or terminate your access to or use of the Platform due to your breach of these Terms or any suspected fraudulent, abusive, or illegal activity (including, without limitation, if you engage in any of the Prohibited Activities), then termination of these Terms will be in addition to any other remedies we may have at law or in equity.
(iv) Referral to Governmental Authority. We have the right, without provision of prior notice, to take appropriate legal action, including, without limitation, referral to law enforcement or regulatory authority, or notifying the harmed party of any illegal or unauthorized use of the Platform. Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone using the Platform.
(v) Effect of Termination. Upon any termination or expiration of these Terms, whether by you or us, you may no longer have access to information that you have posted on the Platform, and you acknowledge that we will have no obligation to maintain any such information in our databases or to forward any such information to you or to any third party. Sections 1 and 3 through 16 will survive the termination or expiration of these Terms for any reason.
YOU WAIVE AND HOLD US AND OUR PARENT, SUBSIDIARIES, AFFILIATES AND OUR AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, CONTRACTORS, LICENSEES, SUPPLIERS, AND SUCCESSORS HARMLESS FROM ANY AND ALL CLAIMS RESULTING FROM ANY ACTION TAKEN BY US AND ANY OF THE FOREGOING PARTIES RELATING TO ANY INVESTIGATIONS BY EITHER US OR SUCH PARTIES OR BY LAW ENFORCEMENT AUTHORITIES.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR ACCESS TO AND USE OF THE PLATFORM IS AT YOUR SOLE RISK, AND THAT THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WE, OUR SUBSIDIARIES, AND AFFILIATES MAKE NO EXPRESS WARRANTIES AND HEREBY DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE PLATFORM AND ANY PART OF IT, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, CORRECTNESS, ACCURACY, OR RELIABILITY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE, OUR PARENT, SUBSIDIARIES, AND AFFILIATES DO NOT REPRESENT OR WARRANT TO YOU THAT: (I) YOUR ACCESS TO OR USE OF THE PLATFORM WILL MEET YOUR REQUIREMENTS; (II) YOUR ACCESS TO OR USE OF THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR; (III) USAGE DATA PROVIDED THROUGH THE PLATFORM WILL BE ACCURATE; (IV) THE PLATFORM OR ANY CONTENT, SERVICES, OR FEATURES MADE AVAILABLE ON OR THROUGH THE PLATFORM ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (V) THAT ANY DATA THAT YOU DISCLOSE WHEN YOU USE THE PLATFORM WILL BE SECURE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN CONTRACTS WITH CONSUMERS, SO SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET, AND AGREE THAT WE HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY BREACH OF SECURITY UNLESS IT IS DUE TO OUR GROSS NEGLIGENCE.
WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSSES YOU INCUR AS THE RESULT OF YOUR USE OF THE ETHEREUM BLOCKCHAIN, OR YOUR ELECTRONIC WALLET, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (I) USER ERROR, SUCH AS FORGOTTEN PASSWORDS OR INCORRECTLY CONSTRUED SMART CONTRACTS OR OTHER TRANSACTIONS; (II) SERVER FAILURE OR DATA LOSS; (III) CORRUPTED WALLET FILES; OR (IV) UNAUTHORIZED ACCESS OR ACTIVITIES BY THIRD PARTIES, INCLUDING, BUT NOT LIMITED TO, THE USE OF VIRUSES, PHISHING, BRUTE-FORCING OR OTHER MEANS OF ATTACK AGAINST THE PLATFORM, THE ETHEREUM BLOCKCHAIN, OR ANY ELECTRONIC WALLET.
COLLECTIBLES ARE INTANGIBLE DIGITAL ASSETS THAT EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE ETHEREUM BLOCKCHAIN. ALL SMART CONTRACTS ARE CONDUCTED AND OCCUR ON THE DECENTRALIZED LEDGER WITHIN THE ETHEREUM BLOCKCHAIN. WE HAVE NO CONTROL OVER AND MAKE NO GUARANTEES OR PROMISES WITH RESPECT TO SMART CONTRACTS.
COLLECTIBLES ARE INTENDED FOR CONSUMER ENJOYMENT, USE AND CONSUMPTION ONLY. A COLLECTIBLE IS NOT A “SECURITY,” AS DEFINED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED, OR UNDER THE SECURITIES LAWS OF ANY U.S. STATE.
WE ARE NOT RESPONSIBLE FOR LOSSES DUE TO BLOCKCHAINS OR ANY OTHER FEATURES OF THE ETHEREUM BLOCKCHAIN, OR ANY ELECTRONIC WALLET, 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 BLOCKCHAIN, INCLUDING FORKS, TECHNICAL NODE ISSUES, OR ANY OTHER ISSUES HAVING FUND LOSSES AS A RESULT.
8. LIMITATION OF LIABILITY
YOU UNDERSTAND AND AGREE THAT WE, OUR PARENT, SUBSIDIARIES, AND AFFILIATES WILL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES WHICH YOU MAY INCUR, HOWSOEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF PROFITS (WHETHER INCURRED DIRECTLY OR INDIRECTLY), LOSS OF GOODWILL OR BUSINESS REPUTATION, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, DIMINUTION OF VALUE OR ANY OTHER INTANGIBLE LOSS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
YOU AGREE THAT OUR AND OUR PARENTS’, SUBSIDIARIES’, AND AFFILIATES’ TOTAL, AGGREGATE LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR ACCESS TO OR USE OF (OR YOUR INABILITY TO ACCESS OR USE) ANY PORTION OF THE PLATFORM, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, IS LIMITED TO THE GREATER OF (I) THE AMOUNTS YOU HAVE ACTUALLY AND LAWFULLY PAID US UNDER THESE TERMS IN THE TWO (2) MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE, OR (II) $250 U.S. DOLLARS.
YOU ACKNOWLEDGE AND AGREE THAT WE HAVE MADE THE PLATFORM AVAILABLE TO YOU AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE REPRESENTATIONS AND WARRANTIES, DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN, WHICH REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN US AND YOU AND FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN US AND YOU. WE WOULD NOT BE ABLE TO PROVIDE THE PLATFORM TO YOU WITHOUT THESE LIMITATIONS.
9. ASSUMPTION OF RISK
(i) Value and Volatility. The prices of collectible blockchain assets are extremely volatile and subjective and collectible blockchain assets have no inherent or intrinsic value. Fluctuations in the price of other digital assets could materially and adversely affect the value of your Collectibles, which may also be subject to significant price volatility. Each Collectible has no inherent or intrinsic value. We cannot guarantee that any Collectibles purchased will retain their original value, as the value of collectibles is inherently subjective and factors occurring outside of the Silks ecosystem may materially impact the value and desirability of any particular Collectible.
(ii) Tax Calculations. You are solely responsible for determining what, if any, taxes apply to your Collectible-related transactions. We are not responsible for determining the taxes that apply to your transactions on the Platform.
(iii) Use of Blockchain. The Platform does not store, send, or receive Collectibles. This is because Collectibles exist only by virtue of the ownership record maintained on the Ethereum blockchain. Any transfer of Collectibles occurs within the Ethereum blockchain, and not on the Platform.
(iv) Inherent Risks with Internet Currency. There are risks associated with using an Internet-based currency, 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 electronic wallet. You accept and acknowledge that we will not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience when using the Ethereum blockchain, however caused.
(v) Regulatory Uncertainty. The regulatory regime governing blockchain technologies, cryptocurrencies and tokens is uncertain, and new regulations or policies may materially adversely affect the development of the Silks ecosystem, and therefore the potential utility or value of your Collectibles.
(vi) Software Risks. Upgrades to the Ethereum blockchain, a hard fork in the Ethereum blockchain, or a change in how transactions are confirmed on the Ethereum blockchain may have unintended, adverse effects any network on the Ethereum blockchain, including the Silks ecosystem.
You agree to hold harmless and indemnify us and our parent, subsidiaries, affiliates, officers, agents, employees, advertisers, suppliers or partners from and against any claim, liability, loss, damage (actual and consequential) of any kind or nature, suit, judgment, litigation cost and attorneys' fees arising out of or in any way related to: (i) your breach of these Terms; (ii) your misuse of the Platform; or (iii) your violation of applicable laws, rules or regulations in connection with your access to or use of the Platform. You agree that we will have control of the defense or settlement of any such claims.
11. EXTERNAL SITES
The Platform may include hyperlinks to other websites or resources (collectively, the “External Sites”), which are provided solely as a convenience to our users. We have no control over any External Sites. You acknowledge and agree that we are not responsible for the availability of any External Sites, and that we do not endorse any advertising, products or other materials on or made available from or through any External Sites. Furthermore, you acknowledge and agree that we are not liable for any loss or damage which may be incurred as a result of the availability or unavailability of the External Sites, or as a result of any reliance placed by you upon the completeness, accuracy or existence of any advertising, products or other materials on, or made available from, any External Sites.
12. FORCE MAJEURE
(i) Force Majeure Events. We will not be liable or responsible to the you, nor be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any of these Terms, when and to the extent such failure or delay is caused by or results from the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, epidemics, pandemics, including the 2019 novel coronavirus pandemic (COVID-19), tsunami, explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this agreement; (f) strikes, labor stoppages or slowdowns or other industrial disturbances; (g) shortage of adequate or suitable Internet connectivity, telecommunication breakdown or shortage of adequate power or electricity; and (h) other similar events beyond our control.
(ii) Performance During Force Majeure Events. If we suffer a Force Majeure Event, we will use reasonable efforts to promptly notify you of the Force Majeure Event, stating the period of time the occurrence is expected to continue. We will use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. We will resume the performance of our obligations as soon as reasonably practicable after the removal of the cause. In the event that our failure or delay remains uncured for a period of forty-five (45) consecutive days following written notice given by us under this Section 12, we may thereafter terminate these Terms upon fifteen (15) days' written notice.
13. CHANGES TO THE PLATFORM
We are constantly innovating the Platform to help provide the best possible experience. You acknowledge and agree that the form and nature of the Platform, and any part of it, may change from time to time without prior notice to you, and that we may add new features and change any part of the Platform at any time without notice.
You affirm that you are over the age of 18. The Platform is not intended for children under 18. If you are under the age of 18, you may not use the Platform. We do not knowingly collect information from or direct any of our content specifically to children under the age of 18. If we learn or have reason to suspect that you are a user who is under the age of 18, we will unfortunately have to close your account. Other countries may have different minimum age limits, and if you are below the minimum age for providing consent for data collection in your country, you may not use the Platform.
15. DISPUTE RESOLUTION; BINDING ARBITRATION
IN THIS SECTION 15, YOU ARE AGREEING TO GIVE UP RIGHTS TO LITIGATE CLAIMS IN A COURT. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
YOU HEREBY EXPRESSLY GIVE UP YOUR RIGHT TO HAVE A TRIAL BY JURY.
YOU HEREBY EXPRESSLY GIVE UP YOUR RIGHT TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS IN ANY LAWSUIT, INCLUDING, BUT NOT LIMITED TO, CLASS ACTION LAWSUITS INVOLVING ANY SUCH DISPUTE.
(i) Binding Arbitration. All disputes arising out of or in connection with this contract, or in respect of any defined legal relationship associated therewith or derived therefrom, shall be referred to and finally resolved by arbitration administered by JAMS under its Streamlined Arbitration Rules and Procedures and the JAMS Consumer Arbitration Minimum Standards (together, the “Rules”). The most recent version of the Rules is available at www.jamsadr.com/rules-download and are hereby incorporated by reference. The place of arbitration shall be in New York, New York, unless the arbitrator determines that the dispute can be resolved on the submission of written papers or you exercise your right to an in-person hearing in your hometown area.
(ii) Arbitration Fees. You and we agree that for any arbitration you initiate, you will pay the filing fee (up to a maximum of $250 if you are a consumer), and we will pay the remaining JAMS fees and costs. For any arbitration initiated by us, we will pay all JAMS fees and costs.
(iii) Award Enforcement. The award of the arbitrator will be final and binding, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The parties agree that they will not appeal any arbitration decision to any court.
(iv) Additional Remedies. Notwithstanding the foregoing, we may seek and obtain injunctive relief in any jurisdiction in any court of competent jurisdiction, and you agree that these Terms are specifically enforceable by us through injunctive relief and other equitable remedies without proof of monetary damages.
(v) You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section 15 by submitting a request at support.silks.io. In order to be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration.
(vi) If any portion of this Section 15 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 15 or the parties' ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 15; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 15 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this section will be enforceable.
(ii) Third-Party Beneficiaries. Other than as otherwise expressly set forth herein, these Terms do not and are not intended to confer any rights or remedies upon any person or entity other than you.
(iii) Interpretation. The language in these Terms will be interpreted as to its fair meaning, and not strictly for or against any party.
(iv) Severability. Should any part of these Terms be held invalid, illegal, void or unenforceable, that portion will be deemed severed from these Terms and will not affect the validity or enforceability of the remaining provisions of these Terms.
(v) No Waivers. Our failure or delay to exercise or enforce any right or provision of these Terms will not constitute or be deemed a waiver of future exercise or enforcement of such right or provision. The waiver of any right or provision of these Terms will be effective only if in writing and signed for and on behalf of us by a duly authorized representative.
(vi) Governing Law. All matters arising out of or relating to these Terms will be governed by and construed in accordance with the laws of the state of Delaware and the federal laws of the United States applicable therein without giving effect to any choice or conflict of law provision or rule (whether of the state of Delaware or any other jurisdiction).
(vii) Venue. Subject to Section 15 of these Terms, any legal action or proceeding arising under these Terms will be brought exclusively in state or federal courts located in Wilmington, Delaware and we and you irrevocably consent and attorn to the personal jurisdiction and venue there.
(viii) Notices. We may provide you with any notices (including, without limitation those regarding changes to these Terms) by email or postings on the Platform. By providing us with your email address, you consent to our using the email address to send you any notices. Notices sent by email will be effective when we send the email, and notices we provide by posting will be effective upon posting. It is your responsibility to keep your email address current.
(ix) Assignment. You may not assign any of your rights or obligations under these Terms, whether by operation of law or otherwise, without our prior written consent. We may assign our rights and obligations under these Terms in our sole discretion to an affiliate, or in connection with an acquisition, sale or merger. These Terms shall be binding upon and inure to the benefit of the applicable parties and their successors and permitted assigns.