By agreeing to these Terms, you hereby certify that you are at least 18 years of age. If you do not agree to these Terms, you must not access or use the Frogland Platform.
PLEASE READ THESE TERMS CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST Frogland ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.
SMART CONTRACT ENABLED
Each Frogland NFT is a non-fungible Ethereum-based token that uses smart contracts on the Ethereum blockchain (“Smart Contracts”). The Ethereum blockchain provides an immutable ledger of all transactions that occur on the blockchain. This means that all Frogland NFTs are outside of the control of any one party, including Frogland, and are subject to many risks and uncertainties. Frogland neither owns nor controls MetaMask, WalletConnect, the Ethereum network, your browser, or any other third party site, product, or service (including third party wallets or marketplaces) that you might access, visit, or use for the purpose of enabling you to use the Frogland Platform or to purchase, list, auction, or sell Frogland NFTs (“Transaction”), and that, except with respect to transferring control of a Frogland NFT to the initial purchaser through the Frogland Platform (“Initial Purchaser”), Frogland has no responsibility with respect to any Transaction. Frogland will not be liable for the acts or omissions of any third parties, nor will Frogland be liable for any damage that you may suffer as a result of your transactions or any other interaction with any third parties. You understand that your Ethereum public address will be made publicly visible whenever you engage in a Transaction. Aside from transferring control of the Frogland NFT to the Initial Purchaser, Frogland has no control over the transfer, storage, ownership or maintenance of the Frogland NFT.
CHANGES TO THE Frogland PLATFORM
Frogland reserves the right to modify or discontinue, temporarily or permanently, the Frogland Platform (or any part thereof) with or without notice. You agree that Frogland will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Frogland Platform, including in relation to any Frogland NFT.
A Collector (as defined below) of a Frogland NFT may receive special perks, experiences, or opportunities such as access to the multiplayer game, community activities and public discussions as determined by Frogland in its sole discretion (“Perks”) for a period of time after the Frogland NFTs are first made available for sale (i.e., dropped) by Frogland. Frogland does not make any representation or guarantee that any Collector will receive any Perks or achieve any particular outcome as a result of Owning (as defined below) any Frogland NFT. Frogland reserves the right, at its sole discretion, to restrict, limit, or deny any Perks to any Collector, including to limit the period of time when a Perk is available, for any reason, at any time. Perks are not intended to be an endorsement of any project, creator, NFT, individual or any other thing, and Frogland makes no recommendation and provides no investment advice in connection with any Perks or otherwise as a result of holding or Owning the Frogland NFT. “Own,” “Owning,” or “Ownership” means, with respect to an NFT, (i) controlling exclusively and lawfully the private key associated with the public Ethereum address holding the NFT or having the exclusive right at any time to hold the NFT, unless such control or right is subject to a contract contemplated in clause (ii); or (ii) lawfully and by way of an enforceable contract exclusively having the right to transfer, or direct the transfer of, the NFT to a public Ethereum address associated with a private key that is exclusively and lawfully controlled.
MEMBER ACCOUNT, PASSWORD, AND SECURITY
You are responsible for maintaining the confidentiality of your account and password, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify Frogland of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Frogland Platform. Frogland will not be liable for any loss or damage arising from your failure to comply with this Section.
CONNECTING YOUR WALLET
In order to access and use the Frogland Platform, including engaging in a Transaction on the Frogland Platform, you must connect your account to your digital wallet supported on MetaMask, WalletConnect or other wallet extensions or gateways as allowed on the Frogland Platform. Such digital wallets allow you to purchase, store, and engage in transactions using the native Ethereum cryptocurrency, ETH. When you link your cryptocurrency wallet, you understand and agree that you are solely responsible for maintaining the security of your wallet and your control over any wallet-related authentication credentials, private or public cryptocurrency keys, non-fungible tokens or cryptocurrencies that are stored in or are accessible through your wallet. Any unauthorized access to your cryptocurrency wallet by third parties could result in the loss or theft of Frogland NFTs and/or funds held in your wallet and any associated wallets, including any linked financial information such as bank account(s) or credit card(s). Frogland is not responsible for managing and maintaining the security of your cryptocurrency wallet. Frogland has no responsibility or liability to you for any unauthorized access to or use of your cryptocurrency wallet or if you are unable to locate your credentials. If you notice any unauthorized or suspicious activity in your cryptocurrency wallet that seems to be related to the Frogland Platform, please notify us immediately.
SALE OF Frogland NFT
When each Frogland NFT is sold for the first time, the agreement for sale is between Frogland and the Initial Purchaser. If the Initial Purchaser decides to sell a Frogland NFT (“Secondary Sale”), then Frogland is not a party to any agreement between the applicable buyer, seller, or facilitator of the Secondary Sale.
If you or any Owner of a Frogland NFT (“Collector”) sells or transfers a Frogland NFT to another collector, (a) the you, as Collector, represents and warrants that you will notify the subsequent collector of these Terms and require the subsequent collector to comply with these Terms, (b) the Collector License (as defined below) as set forth herein will automatically transfer to such subsequent collector, and such other collector will be deemed the “Collector” (for purposes of such Frogland NFT and the Collector License to the underlying NFT Artwork (as defined below)) and will be subject to these Terms, and (c) you, as the seller or transferor of such Frogland NFT, will cease to have any further rights to such Frogland NFT or underlying NFT Artwork.
By placing an order on the Site or through the Frogland Platform (including by bidding in an auction), you agree that you are submitting a binding offer to purchase a Frogland NFT, you agree to pay all applicable fees associated with the Transaction, and you authorize Frogland to automatically charge and collect such fees from your payment instrument or wallet. If you are an Initial Purchaser, then all amounts due are to be paid to Frogland. If you are not the Initial Purchaser of a Frogland NFT, then amounts may be paid to the seller of such Frogland NFT.
No refunds are permitted except with respect to any statutory warranties or guaranties that cannot be excluded or limited by law.
You are responsible for any and all sales, use, value-added and other taxes, duties, and assessments now or hereafter claimed or imposed by any governmental authority, associated with your use of the Frogland Platform, Perks or Frogland NFTs (including, without limitation, any taxes that may become payable as the result of your ownership, transfer, purchase, or sale of a Frogland NFT).
Frogland INTELLECTUAL PROPERTY RIGHTS
You acknowledge and agree that the Frogland Platform may contain content or features (“Frogland Platform Content”) that are protected by copyright, patent, trademark, trade secret, or other proprietary rights and laws. Except as expressly authorized by Frogland, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute, or create derivative works based on the Frogland Platform or the Frogland Platform Content, in whole or in part. Any use of the Frogland Platform or the Frogland Platform Content other than as specifically authorized herein is strictly prohibited.
Frogland’s name and logos (e.g. Frogland, Land Synthesis Device, LSD, Notorious Frogs are trademarks and service marks of Frogland (collectively the “Frogland Trademarks”). Other company, product, and service names and logos used and displayed via the Frogland Platform may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Frogland. Except as expressly set forth herein, nothing in these Terms or the Frogland Platform should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Frogland Trademarks displayed on the Frogland Platform, without Frogland’s prior written permission in each instance. All goodwill generated from the use of Frogland Trademarks will inure to our exclusive benefit.
You will not at anytime, anywhere in the world, directly or indirectly: (i) file any application to register any intellectual property rights embodied in the Frogland Trademarks or otherwise claim ownership of any intellectual property rights embodied in the Frogland Trademarks; (ii) register or attempt to register in any jurisdiction any trademark that is similar to any of the Frogland Trademarks or which would reasonably be expected to result in dilution of any of the Frogland Trademarks; (iii) combine any of the Frogland Trademarks with any other trademarks, or (iv) challenge or contest the validity of any of the Frogland Trademarks.
YOUR INTELLECTUAL PROPERTY RIGHTS
You acknowledge and agree that Frogland (or, as applicable, its licensors) owns all legal rights, title and interest in all intellectual property rights of the artwork and content underlying Frogland NFTs (“NFT Artwork”), including but not limited to copyrights and trademarks in the NFT Artwork. As the copyright owner, Frogland has the exclusive right to reproduce, prepare derivatives of, distribute, display, perform and otherwise exercise and exploit the NFT Artwork, subject to Collector Licenses. Subject to the terms and conditions of this Agreement, with respect to any Frogland NFTs that you Own, Frogland hereby grants you an irrevocable (during your Ownership of such Frogland NFT), worldwide, fully paid up, non-exclusive, non-sublicensable, non-assignable (except as set forth below) license to (a) publish, reproduce, copy, modify and create derivative works of the applicable NFT Artwork associated with such Frogland NFTs and (b) display the Frogland Trademarks depicted in the original version of such NFT Artwork in the same manner and format as depicted in such original version, in copies or derivative works of such Frogland NFTs, but not on a standalone basis or otherwise separately from such copies or derivative works (the “Collector License”). For clarity, for purposes of the Collector License, the term “you” refers to the Owner of the applicable Frogland NFT and does not include any person or entity who may acquire a fractional interest in a Frogland NFT.
You agree to maintain and preserve the quality of the Frogland Trademarks and the goodwill and good reputation associated with the Frogland Trademarks, and use the Frogland Trademarks in accordance with Frogland’s trademark usage guidelines that it may publish or provide from time to time. You will not, by any act or omission, (i) alter any Frogland Trademarks without the prior written consent of Frogland; or (ii) use or permit use of the Frogland Trademarks in any manner that tarnishes, degrades, disparages or reflects adversely on Frogland or its business or reputation, or that would be detrimental to the Frogland Trademarks. You will abide by any requests by Frogland regarding the use of the Frogland Trademarks if Frogland determines that such use does not comply with Frogland’s quality control standards.
You may sell, transfer, assign, trade, donate, give away or otherwise dispose of all (and not less than all) of your right, title and interest in and to your Frogland NFT, which will include your rights under the Collector License for such Frogland NFT (“Transfer”), and you will notify the subsequent Owner of these Terms and require such subsequent Owner to agree to these Terms. If any recipient of a Frogland NFT asserts, whether in connection with a dispute or otherwise, that such recipient is not subject to these Terms, then the Transfer to such recipient will be void ab initio and you will continue to be deemed to be the Owner of such Frogland NFT for purposes of the Collector License.
Upon a Transfer, (i) all of your right, title and interest in and to your Frogland NFT and your Collector License will immediately and automatically be transferred to the recipient of such Frogland NFT, and such recipient will be bound by and subject to the then-current version of these Terms; (ii) any rights you have in the NFT Artwork and Frogland Trademarks will immediately and automatically terminate and be revoked; and (iii) you will have no further right, title or interest in and to such NFT Artwork and Frogland Trademarks.
No Investment Advice; Investment Risks
The information on this Site and any information provided in connection with the Frogland Platform or Perks are provided to Frogland NFT owners only and for information only and do not constitute, and should not be construed as, investment advice or a recommendation to buy, sell, or otherwise transact in any digital asset including any products or services or an invitation, offer or solicitation to engage in any investment activity with respect to any digital asset.
The information on this Site and any information provided in connection with the Frogland Platform or Perks provided to Frogland NFT owners are provided solely on the basis that you will make your own investment and trading decisions, and Frogland does not take account of any person’s investment objectives, particular needs, or financial situation. In addition, nothing on this Site or any information provided in connection with the Frogland Platform or Perks provided to Frogland NFT owners shall, or is intended to, constitute financial, legal, accounting or tax advice. It is strongly recommended that you seek professional investment advice before making any investment decision. Any investment decision that you make should be based on an assessment of your risks in consultation with your investment adviser.
The digital assets about which information is provided on the Site and any information provided in connection with the Frogland Platform or Perks provided to Frogland NFT owners are not viewed by the issuer or sponsor of any such digital assets, or those buying or selling the digital asset, as securities under U.S. laws or relevant applicable laws. As a result it is unlikely that fulsome disclosures from the issuer or sponsor, or any executive officer associated with the digital asset or related protocol have been provided, and others may have better or more information than the information made available to you via the Site, any information provided in connection with the Frogland Platform or Perks provided to Frogland NFT owners or to which you may independently have access.
There are risks associated with purchasing and holding digital assets. Loss of the full amount of the purchase price is possible. Volatility is highly likely, and some of the protocols and platforms may fail entirely due to forking, flaws in the code, hacking or other malicious attacks.
THESE TERMS DO NOT REPRESENT A COMPLETE STATEMENT OF RISK FACTORS ASSOCIATED WITH THE DIGITAL ASSETS OR PRODUCTS THAT MAY BE VIEWED OR TRACKED ON THIS SITE OR THAT MAY BE FEATURED OR DISCUSSED IN CONNECTION WITH THE Frogland PLATFORM OR PERKS FOR Frogland NFT OWNERS. YOU SHOULD CONSIDER THESE RISK WARNINGS CAREFULLY AND TAKE APPROPRIATE ADVICE BEFORE TAKING ANY DECISION TO PURCHASE OR TRADE A DIGITAL ASSET.
You agree that you will not, and will not permit any third party to, do or attempt to do any of the following without the Frogland’s express prior written consent in each case:
a. interfere with or disrupt the Frogland Platform or servers or networks connected to the Frogland Platform in any manner that could negatively affect or inhibit other Users from fully enjoying the Frogland Platform or that could damage, disable, overburden or impair the functioning of the Frogland Platform in any manner;
b. violate any applicable local, state, national or international law, or any regulations having the force of law, including but not limited to the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”), or which would involve proceeds of any unlawful activity;
c. obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Frogland Platform; and
d. use the Frogland Platform or any Frogland NFT, Frogland Trademark or NFT Artwork (i) to advertise or offer to sell or buy any goods or services for any purpose that is not specifically authorized herein, (ii) to further or promote any criminal activity or enterprise or provide instructional information about illegal activities, including for the purpose of concealing economic activity, laundering money, or financing terrorism, (iii) in connection with defamatory or dishonest statements about Frogland or any other use that otherwise is reasonably likely to damage the goodwill, value or reputation of Frogland, or in a manner that represents or implies that Frogland endorses or supports your or anyone else’s exercise of rights using the Collector License, (iv) in connection with images, videos or other forms of media that depict hatred, intolerance, violence, cruelty or anything else that could reasonably be found to constitute hate speech or otherwise infringe upon the rights of others, or (v) to carry out financial activities subject to registration or licensing, including but not limited to creating, listing, or buying securities, commodities, options, real estate, or debt instruments.
Please note the following risks in accessing, purchasing, selling or using Frogland NFTs: The price and liquidity of blockchain assets, including Frogland NFTs, are extremely volatile and may be subject to large fluctuations. Fluctuations in the price of other digital assets could materially and adversely affect Frogland NFTs, which may also be subject to significant price volatility. Legislative and regulatory changes or actions at the state, federal, or international level may adversely affect the use, transfer, exchange, and value of Frogland NFTs. Frogland NFTs are not legal tender and are not backed by any government. Transactions of Frogland NFTs may be irreversible, and, accordingly, losses due to fraudulent or accidental transactions may not be recoverable. Some Transactions of Frogland NFTs shall be deemed to be made when recorded on a public ledger, which is not necessarily the date or time that you initiated the Transaction. The value of Frogland NFTs may be derived from the continued willingness of market participants to exchange fiat currency or digital assets for Frogland NFTs, which may result in the potential for permanent and total loss of value of a particular Frogland NFT.
You agree and understand that you are solely responsible for determining the nature, potential value, suitability, and appropriateness of these risks for yourself, and that we do not give advice or recommendations regarding Frogland NFTs, including the suitability and appropriateness of, and investment strategies for, Frogland NFTs. You agree and understand that you access and use the Frogland Platform, Frogland NFTs, NFT Artwork, and Perks at your own risk; however, this brief statement does not disclose all of the risks associated with Frogland NFTs and other digital assets. You agree and understand that Frogland will not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience when using Frogland NFTs, however caused.
Without limiting the foregoing, you acknowledge that if an Ethereum Persistent Fork (as defined below) is created, it could result in the existence of copies of Frogland NFTs at the same network addresses at which they were then held on Ethereum, in which case the scope of the term “you” or “User” and these Terms will be deemed expanded to include each person or entity who Owns the copies of Frogland NFTs on the Ethereum Persistent Fork. THE PARTIES ACKNOWLEDGE AND AGREE THAT, AS A RESULT OF AN ETHEREUM PERSISTENT FORK, THE AGGREGATE NUMBER OF FROGLAND NFTS MAY BE INCREASED. “Ethereum Persistent Fork” means an Ethereum network and blockchain generally recognized in the blockchain industry as the mainnet and consensus blockchain of a persistent “contentious hardfork” from Ethereum, provided that such hardfork has or would reasonably be expected to have material value independent from Ethereum.
DISCLAIMER OF WARRANTIES
YOUR USE OF THE FROGLAND PLATFORM, FROGLAND NFTS, NFT ARTWORK AND PERKS IS AT YOUR SOLE RISK. EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY FROGLAND, THE FROGLAND PLATFORM, PERKS, Frogland PLATFORM CONTENT, AND ANY AND ALL FROGLAND NFTS AND NFT ARTWORK ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.
FROGLAND AND ITS AFFILIATES AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, REPRESENTATIVES, DIRECTORS AND AGENTS (COLLECTIVELY, “REPRESENTATIVES”) MAKE NO WARRANTY THAT (I) THE FROGLAND PLATFORM, FROGLAND NFTS, NFT ARTWORK OR PERKS WILL MEET YOUR REQUIREMENTS, (II) THE FROGLAND PLATFORM, FROGLAND NFTS, NFT ARTWORK OR PERKS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE FROGLAND PLATFORM, FROGLAND NFTS, NFT ARTWORK OR PERKS WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY FROGLAND PLATFORM, FROGLAND NFTS, NFT ARTWORK OR PERKS, OR ANY PRODUCTS, PLATFORMS, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE FROGLAND PLATFORM, FROGLAND NFTS OR PERKS WILL MEET YOUR EXPECTATIONS.
FROGLAND AND ITS REPRESENTATIVES WILL NOT BE LIABLE FOR ANY LOSS OF ANY KIND FROM ANY ACTION TAKEN OR TAKEN IN RELIANCE ON MATERIAL OR INFORMATION, CONTAINED ON THE FROGLAND PLATFORM, FROGLAND NFTS, NFT ARTWORK OR PERKS. FROGLAND DOES NOT REPRESENT OR WARRANT THAT FROGLAND PLATFORM CONTENT IS ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE.
FROGLAND NFTS ARE INTANGIBLE DIGITAL ASSETS. THEY EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE ETHEREUM NETWORK. ANY TRANSFER OF TITLE THAT MIGHT OCCUR IN ANY UNIQUE DIGITAL ASSET OCCURS ON THE DECENTRALIZED LEDGER WITHIN THE ETHEREUM PLATFORM. WE DO NOT GUARANTEE THAT FROGLAND CAN EFFECT THE TRANSFER OF TITLE OR RIGHT IN ANY FROGLAND NFT.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL FROGLAND OR ITS REPRESENTATIVES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM THESE TERMS, THE SITE, THE FROGLAND PLATFORM, FROGLAND PLATFORM CONTENT, FROGLAND NFTS, NFT ARTWORK, PERKS OR THIRD PARTY SITES AND PRODUCTS, OR FOR ANY DAMAGES RELATED TO LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, OR LOSS OF DATA, WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE AND EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITE, THE FROGLAND PLATFORM, FROGLAND PLATFORM CONTENT, FROGLAND NFT, NFT ARTWORK, PERKS OR THIRD PARTY SITES AND PRODUCTS ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA RESULTING THEREFROM.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF FROGLAND OR ANY OF ITS REPRESENTATIVES ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS, THE ACCESS TO AND USE OF THE SITE, THE FROGLAND PLATFORM, FROGLAND PLATFORM CONTENT, FROGLAND NFT, NFT ARTWORK OR PERKS EXCEED $100.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE FROGLAND PLATFORM, FROGLAND NFTS, NFT ARTWORK OR PERKS OR WITH THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE FROGLAND PLATFORM.
IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
To the fullest extent permitted by applicable law, you agree to indemnify, defend and hold harmless Frogland and its Representatives (collectively, the “Indemnitees”), from and against all actual or alleged third party claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses (including, without limitation, attorneys’ fees and expenses) and costs (including, without limitation, court costs, costs of settlement and costs of pursuing indemnification and insurance), of every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise (collectively, “Claims”), including, but not limited to, damages to property or personal injury, that are caused by, arise out of or are related to (a) your use or misuse of the Site, the Frogland Platform, Frogland Platform Content, Frogland NFTs, Frogland Trademarks, NFT Artwork or Perks, (b) your violation of these Terms, or (c) your violation of the rights of a third party, including another User. You agree to promptly notify Frogland of any third party Claims and cooperate with the applicable Indemnitee in defending such Claims. You further agree that the Indemnitees shall have the right to control of the defense or settlement of any third party Claims. THIS INDEMNITY IS IN ADDITION TO, AND NOT IN LIEU OF, ANY OTHER INDEMNITIES SET FORTH IN A WRITTEN AGREEMENT BETWEEN YOU AND US.
SUSPENSION, TERMINATION AND AUDIT RIGHTS
You agree that Frogland, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Frogland Platform or Perks and remove and discard any content within the Frogland Platform, for any reason, including, without limitation, for lack of use or if Frogland believes that you have violated or acted inconsistently with the letter or spirit of these Terms. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of the Frogland Platform or Perks may be referred to appropriate law enforcement authorities. Frogland may also in its sole discretion and at any time discontinue providing the Frogland Platform or Perks, or any part thereof, with or without notice. You agree that any termination of your access to the Frogland Platform or Perks under any provision of these Terms may be effected without prior notice, and acknowledge and agree that Frogland may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Frogland Platform or Perks. Further, you agree that Frogland will not be liable to you or any third party for any termination of your access to the Frogland Platform or Perks.
Without limiting the foregoing, your Collector License(s) will immediately and automatically terminate, with all rights returning to Frogland, if (i) you breach Sections 8, 9, 11 or 16 of these Terms; (ii) you engage in any unlawful practice or activity related to Frogland NFTs or NFT Artwork; (iii) you or your directors, officers, employees, agents, affiliates or representatives, as applicable, are or become owned or controlled by a person or entity that (A) is the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control (“Sanctions”), or (B) is located, organized or resident in a country or territory that is the subject of Sanctions; or (iv) you and your directors, officers, employees, agents, affiliates or representatives, as applicable, are or become owned or controlled by a person or entity, or any immediate family relation of any of the foregoing persons, as applicable, is or becomes (A) an officer, employee, agent, contractor or representative of any government or military, including a customs official, (B) any department, agency, corporate entity, instrumentality or political subdivision of any government or military, (C) any person or commercial entity acting in an official capacity for or on behalf of any government or military, (D) any candidate for political office, any political party or any official of a political party, or (E) any officer, employee, agent, contractor or representative of any public international organization, including the United Nations and World Bank (collectively, the foregoing (A) through (E), “Public Official or Entity”).
If your Collector License terminates, you will discontinue all use and display of the NFT Artwork and Frogland Trademarks, and Frogland may disable your access to the applicable NFT Artwork (or request that a third party hosting any of the NFT Artwork disable your access to the applicable NFT Artwork) or deny access to any Perks associated with Frogland NFTs, and you will immediately delete, remove or otherwise destroy any backup or single digital copy of the applicable NFT Artwork.
You agree that Frogland will have the right to audit your use and other exploitation of the NFT Artwork and Frogland Trademarks, and you will cooperate with all requests by Frogland related to the enforcement of its rights therein or under these Terms (including any request that may require you to reveal your identity to Frogland).
DISPUTES WITH OTHER USERS OR COLLECTORS
You agree that you are solely responsible for your interactions with any other Users and Collectors in connection with the Frogland Platform, NFT Artwork, Frogland NFTs and Perks, and Frogland will have no liability or responsibility with respect thereto. Frogland reserves the right, but has no obligation, to become involved in any way with disputes between you and any other User or Collector.
DISPUTE RESOLUTION BY BINDING ARBITRATION
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
a. Agreement to Arbitrate
This Dispute Resolution by Binding Arbitration section is referred to in these Terms as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Frogland, whether arising out of or relating to these Terms (including any alleged breach thereof), the Frogland Platform, NFT Artwork, Frogland NFTs, Perks, any advertising, or any aspect of the relationship or transactions between us, will be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into these Terms, you and Frogland are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
b. Prohibition of Class and Representative Actions and Non-Individualized
Relief YOU AND Frogland AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND Frogland AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
c. Pre-Arbitration Dispute Resolution
Frogland is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing Frogland at [__________]. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Frogland should be sent to [______________] (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Frogland and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Frogland may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Frogland or you will not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Frogland is entitled. Arbitration Procedures Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, https://www.adr.org/consumer. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms as a court would. All issues are for the arbitrator to decide, including issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under these Terms and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Frogland and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination will be made by AAA. If your claim is for $10,000 or less, Frogland agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
e. Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Frogland will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Frogland will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Frogland will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement will be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement will be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of these Terms will continue to apply.
h. Future Changes to Arbitration Agreement
Notwithstanding any provision in these Terms to the contrary, Frogland agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a User of the Frogland Platform, you may reject any such change by sending Frogland written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
NOTICE FOR CALIFORNIA USERS
Notice for California Users Under California Civil Code Section 1789.3, Users of the Frogland Platform from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted (a) via email at email@example.com; (b) in writing at: Department of Consumer Affairs, Consumer Information Division, 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834; or (c) by telephone at (800) 952-5210 or (800) 326-2297 (TDD). Sacramento-area consumers may call (916) 445-1254 or (916) 928-1227 (TDD). You may contact us at HELP@FROGLAND.IO
If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect.
Except as expressly set forth herein, you may not assign these Terms or a Collector License without the prior written consent of Frogland. Frogland may assign or transfer these Terms, in whole or in part, without restriction.
These Terms will be governed by the laws of the State of Delaware without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Frogland submit to the personal and exclusive jurisdiction of the state and federal courts located within San Francisco County, California.
These Terms constitute the entire agreement between you and Frogland and govern your use of the Frogland Platform, Frogland NFTs, NFT Artwork and Perks, superseding any prior agreements between you and Frogland with respect thereto. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity. You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content or third party software. The failure of Frogland to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Frogland Platform, any Frogland NFT, any Perks or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. The section titles in these Terms are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. Frogland may also provide notices to you of changes to these Terms or other matters by displaying notices or links to notices generally on the Frogland Platform.