DIGITAL TWIN LABS, LLC
Updated: 11 May 2022
Creating a space where high end luxury products meet the metaverse, Digital Twin Labs, LLC (“Digital Twin”, the “Company” or “we”) enables users to access the Platform (as defined below) and purchase NFTs (as defined in Section 1 of these Terms) directly from fine jewelry brands. Each NFT corresponds to a physical piece of jewelry. Consumers have the ability to redeem the NFT for the physical piece of jewelry. Upon redemption pursuant to the terms herein, the purchaser will receive a digital-only version of the NFT and be prompted to enter their shipping information. The digital-only NFT serves as their certificate of authentication. Before shopping with Digital Twin, please read these Terms of Service (“Terms of Service” or “Terms”) carefully.
These Terms govern any access or use of the website at www.digitalxtwin.io and any other web site, mobile application, marketplace or application program interface operated or made available by Digital Twin (the “Platform”) as well as any services provided on or through the Platform (“Services”). By using our Services, you agree to these Terms, including Section 20 which contains a class action waiver and a mandatory arbitration provision that waives your right to sue in court or have a jury trial. If you do not agree to these Terms, do not use our Services.
We may make changes to these Terms from time to time. If we make changes, we will provide you with notice of such changes, such as by sending an email, providing a notice through our Services or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of our Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using our Services.
Prices and availability of products and services are subject to change without notice. Errors will be corrected where discovered and we have the right to refuse or cancel any orders placed for products and/or services listed at an incorrect price, rebate or refund or other promotional offer or containing any incorrect information or typographical errors. We have the right to refuse or cancel any such orders, whether or not the order has been confirmed and/or your credit card charged. If your credit card has already been charged for the purchase and your order is canceled, we shall issue a credit to your credit card account in the amount of the charge. Individual bank policies will dictate when this amount is credited to your account.
If you have any questions about these Terms or our Services, please contact us at firstname.lastname@example.org
1. Services and Digital Collectibles
The Digital Twin Platform allows users of the Platform to purchase NFTs (as defined below) using cryptocurrency which may be used to access and download an MP4 file featuring a digital 3D rendering of the purchaser’s NFT (the “3D Model”) and allows users to either: (i) resell the NFT via a secondary marketplace or (ii) claim the physical collectible associated with the Digital Collectible (the “Physical Asset”). Services as used herein includes any services, features and functionality of the Platform related to the purchase or sale of any blockchain-based, cryptographic nonfungible token (“NFT”) on the Ethereum blockchain (the “Ethereum Platform”) using smart contracts, which, together with the license rights to any associated digital works of authorship or other content, whether or not copyrighted or copyrightable, and regardless of the format in which any of the foregoing is made available (“Related Content”), comprises and is referred to herein as a “Digital Collectible”. The terms of your license to the Related Content and other terms applicable to the Digital Collectible will be presented to you at the time of purchase.
All NFTs sold via the Digital Twin Platform are created by third party creators (each a “Brand”), or by Digital Twin on behalf of the Brand. All NFTs are derived from a smart contract deployed by Digital Twin with each Brand’s digital wallet.
Additionally, certain Services may be made available exclusively to the owner of a particular Digital Collectible. You may be required to demonstrate ownership of the applicable Digital Collectible in order to access these Services, which Services include, but are not limited to: (i) the ability to view the NFT in a 3D environment or in augmented reality or in connection with a user’s avatar; or (ii) the ability to purchase a Physical Asset. Without limiting any other right to terminate or suspend Services under these Terms, we may terminate your access or use of these Services in the event that you transfer the applicable Digital Collectible to someone else.
Any digital works of authorship or other content made available through the Platform to an owner of a Digital Collectible that is intended as an “Additional Benefit” (as defined in Section 5.3 herein) will be identified as such on the Platform or at the time of download. Any such content will be licensed to you for as long as you own the applicable Digital Collectible pursuant to the terms of any license presented at the time of download or, if no such terms are presented, pursuant to these Terms as Related Content for that particular Digital Collectible. Any other digital works of authorship and other content made available through the Platform is part of the Services and no license rights are granted to you with respect to any such content.
None of Digital Twin or any third party has any obligation to provide any Additional Benefit and none of Digital Twin or any third party will have any responsibility or liability for, arising out of, or relating to any Additional Benefit.
DIGITAL TWIN IS A PLATFORM, NOT A BROKER, FINANCIAL INSTITUTION, OR CREDITOR. THE SERVICES ARE INTENDED TO BE AN ADMINISTRATIVE PLATFORM ONLY. DIGITAL TWIN FACILITATES TRANSACTIONS BETWEEN THE BUYER AND SELLER IN THE AUCTION/SALE BUT IS NOT A PARTY TO ANY AGREEMENT BETWEEN THE BUYER AND SELLER OF ANY DIGITAL COLLECTIBLE OR BETWEEN ANY USERS.
In order to use our Services, you must meet the following eligibility criteria:
? You must not be located in a country that is subject to the United States government embargo, or that has been designated by the United States government as a “terrorist supporting” country.
? You must not be listed on any United States government list of prohibited or restricted parties.
? You must be at least 13 years of age. If you are under 18 years of age (or the age of legal majority where you live), you may use our Services only under the supervision of a parent or legal guardian who agrees to be bound by these Terms. If you are a parent or legal guardian of a user under the age of 18 (or the age of legal majority), you agree to be fully responsible for the acts or omissions of such user in relation to our Services. If you use our Services on behalf of another person or entity, (a) all references to “you” throughout these Terms will include that person or entity, (b) you represent that you are authorized to accept these Terms on that person’s or entity’s behalf, and (c) in the event you or the person or entity violates these Terms, both you and the person or entity agree to be responsible to us.
4. Your User Account and Account Security
At a future date, we may require you to register for an account to access our Services. When you register for an account, you must provide accurate account information and promptly update this information if it changes. You also must maintain the security of your account and promptly notify us if you discover or suspect that someone has accessed your account without your permission. You must not permit others to use your account credentials. You are responsible for the activities of any users that occur in connection with your account. We reserve the right to reclaim usernames, including on behalf of businesses or individuals that hold legal claim, including trademark rights, in those usernames.
Access to your account is limited solely to you. You will not sell, rent, lease, or grant access to your account to any person without our prior written permission.
You are solely responsible for maintaining the security of your account and control over any usernames, passwords, or any other codes that you use to access our Services. You will not hold us responsible for managing and maintaining the security of your account. We are not responsible (and you will not hold us responsible) for any unauthorized access to or use of your account. You are responsible for monitoring your account. If you notice any unauthorized or suspicious activity in your account, please notify us immediately.
5. Purchases of Digital Collectibles and Redemption of Physical Asset
Purchase of an NFT does not represent actual ownership in the Physical Asset. The NFT represents proof of authenticity, verification of ownership and the right to apply for redemption of the associated Physical Asset. If the conditions are satisfied for redemption, the Purchaser may redeem the Physical Asset pursuant to the terms herein.
5.1 Digital Collectibles. We do not offer a hosted digital wallet on the Platform or otherwise custody Digital Collectibles for our users. You will be required to link a supported blockchain-based digital wallet (“Supported Wallet”) provided by supported third-party un-hosted wallet providers (“Supported Wallet Provider”) to the Platform before you will be able to purchase a Digital Collectible. The list of Supported Wallets and Supported Wallet Providers, which we may update at our discretion, is as follows: Metamask, Torus, WalletConnect, and Fortmatic. We will deliver any Digital Collectibles that you purchase from us directly to your Supported Wallet and you will be responsible for safekeeping the passwords and keys associated with your Supported Wallet. We will not be able to recover purchased Digital Collectibles for you in the event that you lose access to your Supported Wallet account or under any other circumstances.
Each Supported Wallet Provider is a third-party company that offers un-hosted digital wallet products and services. We are not in any way affiliated or partnered with Supported Wallet Providers. Your use of each Supported Wallet Provider’s products and services is subject to its applicable terms of service. We will not be liable to you for any loss that results from your use of a Supported Wallet Provider’s products and services, including Supported Wallets.
Currently, the Digital Twin NFTs are stored on the Ethereum blockchain, and we currently only accept payments for Digital Collectibles in Ether. However, we may amend the list of supported cryptocurrencies from time to time. You cannot maintain a balance of cryptocurrency with us for purposes of making purchases through our Services. You must link your Supported Wallet to the Services and use a supported type of cryptocurrency from your Supported Wallet to complete your purchase.
Digital Twin offers its users access to the Digital Twin Concierge Service whereby a user may request that Digital Twin purchase a Digital Collectible using a Supported Wallet owned by Digital Twin and Digital Twin will mint and deliver the Digital Collectible to the user, upon successful billing of such user’s Supported Credit Card (as defined below) and subject to any other applicable terms, which Digital Twin may revise or add to from time to time, in its sole discretion.
On the Digital Twin Platform, when you have chosen a Digital Collectible for purchase, you may select the Digital Twin Concierge Service as payment method at checkout which will apply a Supported Wallet owned by Digital Twin as the payment method for the purchase.
Upon selecting this option, you will be required to enter information to place the order. Some information may be personal, including your full name, mailing address, Supported Credit Card information, Supported Credit Card billing address and the address of your Supported Wallet. This information will be used by Digital Twin to issue you an invoice for the purchase (the “Concierge Invoice”). Currently, Digital Twin and its Point of Sale (“POS”) System accept the following major credit cards: Visa, MasterCard, American Express, Discover, JCB, or UnionPay (each a “Supported Credit Card”).
The Concierge Invoice will include, among other things, the price of the Digital Collectible, the Digital Twin Concierge Fee (inclusive of the gas fee for minting and delivering the Digital Collectible to the user’s Supported Wallet), sales tax, and any other applicable taxes, costs, or fees (the “Concierge Invoice Amount”). The Concierge Invoice Amount will be billed immediately to the Supported Credit Card you provide at checkout. The POS System will charge your Supported Credit Card based on the then-current price of Ether. You may also incur a premium service fee to account for any fluctuation in the value of Ether between when the user requests to redeem the Physical Asset and when the POS System charges the user’s Supported Credit Card.
Upon successful billing of the total Concierge Invoice Amount to the Supported Credit Card using our POS System, Digital Twin will mint the Digital Collectible and deliver the Digital Collectible to your Supported Wallet.
We will not be liable for any costs or fees you incur from your use of a Supported Credit Card, nor will we be liable for any loss that results from your use of the Digital Twin Concierge Service, including but not limited to any loss that results from errors in user or payment information, errors in delivery of the Digital Collectible or payment processing issues that arise from your use of a Supported Credit Card. You will, at all times, remain liable for the total Concierge Invoice Amount, regardless of any errors in user or payment information, errors in delivery of the Digital Collectible or payment processing issues that arise from your use of a Supported Credit Card.
All pricing and payment terms are as set forth on the Platform, and any payment obligations you incur are binding at the time of purchase. All sales are final. Unless otherwise required by applicable law, we will not provide a refund on any purchase.
You represent and warrant that any purchase of a Digital Collectible by you is solely for your personal collection, use and enjoyment, and not for speculative or investment purposes, for use as a substitute for currency or other medium of exchange, or for resale or redistribution. You acknowledge and understand that by purchasing a Digital Collectible you are not acquiring any equity or other ownership or profit-sharing interest in Digital Twin, or any of its affiliates or any brand or other business venture.
You will not portray any Digital Collectible as an opportunity to gain economic benefit or profit, or as an investment, equity, or other ownership or profit-sharing interest in Digital Twin, or any of its affiliates or any brand or other business venture. You will comply with any marketing policies or guidelines published by Digital Twin for NFTs or Digital Collectibles.
LEGISLATIVE OR REGULATORY CHANGES AT THE STATE, FEDERAL OR INTERNATIONAL LEVEL MAY ADVERSELY AFFECT THE USE, TRANSFER, OR EXCHANGE OF THE DIGITAL COLLECTIBLES.
5.2 Redemption of the Digital Collectible as a Physical Asset.
Each Digital Collectible does not represent ownership in the actual Physical Asset it corresponds to. Each Digital Collectible is an independent work of art purchased directly from the Brand via the Platform. The purchaser of each Digital Collectible has the ability to redeem the Physical Asset associated with the Digital Collectible. All redemptions are final and may not be reversed.
Digital Twin reserves the right at all times to set a date, in its sole discretion, by which a purchaser (or secondary purchaser as the case may be) of a Digital Collectible must redeem the Physical Asset associated with the Digital Collectible (a “Redemption Date”). Digital Twin will notify purchasers of the Redemption Dates on one or more of Digital Twin’s social media channels: Instagram, Twitter, & Discord (the “Channels”). Purchasers of Digital Collectibles on Digital Twin’s Platform are expected to regularly check the Channels for updated Redemption Dates.
If there is a Redemption Date set and the purchaser of the Digital Collectible fails to redeem the Physical Asset on or before the Redemption Date, the purchaser will lose any right it has to redeem the Physical Asset, and Digital Twin reserves the right to update the token URI to highlight that the NFT only exists in its Digital form beyond the Redemption Date and is no longer asset-backed. If the Physical Asset cannot be redeemed, the Digital Collectible will remain in the custody of the purchaser of the Digital Collectible.
Each Brand is a third-party company, engaged by Digital Twin to create Physical Assets and satisfy orders of Physical Assets. We are not in any way affiliated or partnered with the Brands. Your use of a Brand’s Physical Asset is subject to the Brand’s applicable terms of service.
In order to redeem the Physical Asset, you must arrange for and carry out all shipping with the Brand. At the time of purchase of the NFT, you may be asked to provide certain information required for order processing including but not limited to providing your full name and a valid shipping address.
Your receipt of an electronic or other form of order confirmation does not signify an acceptance of your order, nor does it constitute confirmation of an offer to sell. The Brand fulfilling your order may accept or decline your order for any reason.
We reserve the right to reject any order you place with us, and/or to limit quantities on any order, without giving any reason. If we make changes to or reject your order, we will attempt to notify you at the e-mail address and/or billing address you provided to us when placing the order. Your credit or debit card will normally not be charged if we reject an order, but we will process a refund if the charge has been made against your card.
All orders placed on our Platform are subject to product availability and will be shipped according to the Brand’s shipping policies. In the event your order never arrives, notification of lost items must be received by us at email@example.com within thirty (30) days from your receipt of the shipping confirmation email. You will be required to pay all shipping fees, duties, and taxes associated with the shipment of the Physical Asset.
All purchases of Physical Assets must be made in U.S. Dollars or in another internationally-recognized currency permitted by these Terms and such Brand’s terms of service and other policies (not in cryptocurrency). All pricing and payment terms are as set forth on the Platform, and any payment obligations you incur are binding at the time of purchase. All sales are final. Unless otherwise required by applicable law, we will not provide a refund on any purchase. If your Physical Asset is damaged or defective, please contact our Support Team: firstname.lastname@example.org. We will do our best to resolve the issue.
We will not be liable to you for any loss that results from your use of such provider’s Physical Assets. The Brand is solely responsible for shipment of the Physical Asset. We may elect to assist in arranging transportation or shipping of any Physical Asset, however we will not be liable for any errors in user, shipment, or delivery information, errors in packing, packaging, handling, shipment, tracking, transport or delivery, any problems in the placing, packaging, shipment, transport or delivery of the Physical Asset, or any Physical Asset damage or defects. By having us arrange the shipping on your behalf, you are also representing that you are acting in compliance with the laws and regulations of your State, municipality and any other State that apply to you and the purchase, shipping, transportation and delivery of the Physical Asset, including all importation and customs laws. You affirm and represent that you have obtained any and all required permission or consent, paid any required fees, and are working through properly licensed intermediaries where required, and you, or the purchaser or other intended or actual recipient, is entitled to receive and take possession of the Physical Asset.
5.3 Additional Benefits
From time to time at their discretion, Digital Twin or third parties may make additional content, physical items or other benefits available to the holder of the applicable NFT such as exclusive access to presales on future drops or entrance to metaverse experiences (any of the foregoing, an “Additional Benefit”). None of Digital Twin or any third party has any obligation to inform you of, or to provide you with, any Additional Benefit, and you should therefore not expect any Additional Benefit when acquiring an NFT. It will be your responsibility to keep yourself apprised of the availability of any Additional Benefit and to take the necessary steps to apply for or collect any Additional Benefit. The terms and conditions applicable to any Additional Benefit will be set forth in the information or materials provided with the Additional Benefit. Except to the extent set forth in such information or materials which shall supersede and govern over any conflicting or inconsistent provisions in these Terms, any digital works of authorship made available by Digital Twin as an Additional Benefit will be licensed on the same terms set forth herein for, and will otherwise be treated as Related Content. With respect to any physical item provided as an Additional Benefit, except as otherwise provided in any separate terms and conditions applicable to the Additional Benefit, you will not have any license rights under any intellectual property rights in or to any such physical item.
6. Digital Collectibles Acquired through Third Party Platforms
With respect to any Digital Collectible originally sold through the Platform but that you acquired from a third party through a third party platform or service, by agreeing to these Terms, you agree to be bound by the applicable terms for the Digital Collectible. In addition, you acknowledge and agree that in the event the third party from whom you purchased the Digital Collectible does not pay any amounts owed to Digital Twin in connection with the transfer to you, Digital Twin may, at its option and discretion (and without limiting its right or ability to do so as otherwise provided in these Terms) refuse to provide you with access to the Platform or any Service, unless and until all outstanding amounts have been paid.
7. Suspension of Account
In the event that you are required to create an account with us, we have the right to immediately suspend your account, pause or cancel your access to our Services, or close your account if we suspect, in our sole discretion, that (a) your account is being used for money laundering, to evade sanctions or to engage in illegal activity, (b) you have concealed or provided false identification information or other details, (c) you have engaged in fraudulent activity, or (d) you have engaged in transactions in violation of these Terms.
8. License to Services and Ownership
Our Services, including the text, graphics, images, photographs, videos, illustrations and other content contained therein, are owned by Digital Twin or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to our Services are reserved by us or our licensors. Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services for your own personal, noncommercial use. Any use of our Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited, will terminate the license granted herein and violate our intellectual property rights.
9. Related Content
9.1 Generally. Each Digital Collectible is a limited-edition digital asset comprised of an NFT and associated Related Content. Related Content is licensed to you, not acquired by you when you acquire the NFT. Ownership of any Related Content is retained in full by Digital Twin, the Brand, or the third party that developed or acquired ownership of the Related Content (any such third party, a “Third Party Developer”). No ownership or title in or to any Related Content is transferred to you, and no other right or interest in any Related Content is transferred to you. For clarification, the Related Content is neither stored nor embedded in the Digital Collectible, but is accessible through the Digital Collectible, subject to compliance with these Terms.
9.2 Restrictions. You will not, attempt to, or permit or enable any third party to: (a) separate the Related Content from the Digital Collectible; (b) modify the Related Content; (c) register or attempt to register any trademark or copyright or otherwise acquire additional intellectual property rights in or to any Related Content; (d) use any Related Content to create, endorse, support, promote or condone any content, material or speech that is defamatory, obscene, pornographic, indecent, abusive, offensive, harassing, violent, hateful, racist, discriminatory, inflammatory or otherwise objectionable or inappropriate as determined by Digital Twin at its discretion; (e) commercialize the Related Content or use the Related Content in connection with any business, message, product, or service, or in any manner that may imply endorsement of any business, message, product, or service; (f) use the Related Content in any manner that is likely to cause confusion or dilute, blur, or tarnish the Related Content or any intellectual property rights in the Related Content; or (g) use the Related Content in any manner that infringes, violates or misappropriates any third party intellectual property or intellectual property right, or that violates the these Terms.
9.3 Transfer or other Fees. Digital Twin and Third Party Developers, as well as our affiliates, licensors and designee(s), may be entitled to receive transfer or other fees or royalties from your purchase or subsequent sales of a Digital Collectible, which defray costs associated with licensing the Related Content, administration of the Digital Collectible ownership and corresponding license rights, and making any optional Additional Benefits (as defined below) available to you or subsequent holders of the Digital Collectible.
10. Prohibited Conduct and Content
You will not violate any applicable law, contract, intellectual property right or other third-party right or commit a tort, and you are solely responsible for your conduct while using our Services. You will not:
? use or attempt to use another user’s account without authorization from that user and Digital Twin;
? impersonate or otherwise misrepresent your affiliation with a person or entity;
? sell, resell or commercially use our Services;
? copy, reproduce, distribute, publicly perform or publicly display all or portions of our Services, except as expressly permitted by us or our licensors;
? modify our Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Services;
? use our Services other than for their intended purpose and in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services in any manner;
? reverse engineer any aspect of our Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Services;
? attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of our Services that you are not authorized to access;
? use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract
data from our Services;
? develop or use any applications that interact with our Services without our prior written consent; or
? use our Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.
Enforcement of this Section 10 is solely at Digital Twin’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. In addition, this Section 10 does not create any private right of action on the part of any third party or any reasonable expectation that our Services will not contain any content that is prohibited by such rules.
Digital Twin and our logos, our product or service names, our slogans and the look and feel of our Services are trademarks of Digital Twin and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned on our Services are the property of their respective owners. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by us.
You may voluntarily post, submit or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials or other information about Digital Twin or our Services (collectively, “Feedback”). We may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including, without limitation, to develop, copy, publish, or improve the Feedback in Digital Twin’s sole discretion. You understand that Digital Twin may treat Feedback as nonconfidential.
13. Third Party Content
We may provide information about Additional Benefits made available by third parties or other third-party products, services, activities or events, or we may allow third parties to make their content and information available on or through our Services (collectively, “Third-Party Content”). We provide Third-Party Content as a service to those interested in such content. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party. Digital Twin does not control or endorse, and makes no representations or warranties regarding, any Third-Party Content, and your access to and use of such Third-Party Content is at your own risk.
To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless Digital Twin and our subsidiaries and affiliates, and each of our respective officers, directors, agents, partners and employees (individually and collectively, the ” Digital Twin Parties”) from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising out of or related to (a) your access to or use of our Services (including, without limitation, Digital Collectibles, Additional Benefits and Related Content); (b) your Feedback; (c) your violation of these Terms (including, without limitation, the terms and conditions with respect to any Digital Collectible, Additional Benefit or Related Content); (d) your violation, misappropriation or infringement of any intellectual property, privacy, or other rights of another; or (e) your conduct in connection with our Services. You will cooperate with the Digital Twin Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys’ fees). Digital Twin Parties will have control of the defense or settlement, at Digital Twin’s sole option, of any third-party Claims.
YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. EXCEPT AS OTHERWISE PROVIDED IN A WRITING BY US, THE SERVICES AND ANY CONTENT IN THE SERVICES, AND ANY AND ALL RELATED CONTENT, THIRD-PARTY CONTENT, BENEFIT AND DIGITAL COLLECTIBLE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. IN ADDITION, DIGITAL TWIN DOES NOT REPRESENT OR WARRANT THAT OUR SERVICES, RELATED CONTENT, THIRD-PARTY CONTENT, BENEFITS OR ANY DIGITAL COLLECTIBLES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. WHILE DIGITAL TWIN ATTEMPTS TO MAKE YOUR USE OF OUR SERVICES SAFE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT OUR SERVICES OR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF OUR SERVICES. WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSS AND TAKE NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO YOU FOR, ANY ACCESS TO OR USE OF ANY RELATED CONTENT, THIRD-PARTY CONTENT, BENEFIT OR DIGITAL COLLECTIBLE INCLUDING BUT NOT LIMITED TO ANY LOSS, DAMAGE OR CLAIM ARISING FROM: (A) USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED ADDRESSES; (B) SERVER FAILURE OR DATA LOSS; (C) CORRUPTED WALLET FILES; (D) UNAUTHORIZED ACCESS TO APPLICATIONS; OR (E) ANY UNAUTHORIZED THIRD PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK AGAINST THE SITE OR APPLICABLE BLOCKCHAIN.
THE DIGITAL COLLECTIBLES ARE INTANGIBLE DIGITAL ASSETS. THEY EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED ON THE BLOCKCHAIN NETWORK. ANY TRANSFER OF CONTROL THAT MIGHT OCCUR IN ANY UNIQUE DIGITAL ASSET OCCURS ON THE APPLICABLE BLOCKCHAIN NETWORK.
The Digital Collectibles are currently available only on the Ethereum Blockchain. You will not be able to transfer your Digital Collectibles to any digital wallet that is not compatible with the Ethereum Blockchain. In the event that you inadvertently transfer a Digital Collectible to a digital wallet that is not compatible with the Ethereum Blockchain, your Digital Collectible may be lost or destroyed.
The Digital Collectibles are transferable blockchain-based non-fungible tokens that evidence a limited license to Related Content, and, in some cases, a limited license to Third-Party Content and/or to access Additional Benefits, that is exclusive to the owner and thereby collectible as a form of alienable digital property. Like physical collectibles, the price of non-fungible tokens may be subject to fluctuation based upon broader industry trends and sentiment. Legislative and regulatory changes or actions at the state, federal, or international level may adversely affect the use, transfer, exchange, and value of non-fungible tokens. Unlike cryptocurrencies and other fungible digital assets, non-fungible tokens are not used to make payments. Non-fungible tokens are not mutually interchangeable and cannot be divided into smaller parts. These design features limit the usefulness of non-fungible tokens as a form of payment or substitute for currency. Instead, non-fungible tokens are enjoyed as digital collectibles.
There is no guaranteed future value for Digital Collectibles. Any future value of a Digital Collectible is based solely on consumer interest and demand for that Digital Collectible and not something that Digital Twin or any Third Party Developer or other third party can control or will attempt to control or influence. We are not responsible for sustained losses due to vulnerability or any kind of failure, abnormal behavior of software (e.g., wallet, smart contract), the applicable blockchain or other third party service or infrastructure, including Supported Wallets and Supported Wallet Providers, or any other features of Digital Collectibles. We are not responsible for sustained losses due to late reports by developers or representatives (or no report at all) of any issues with the applicable blockchain supporting Digital Collectibles including forks, technical node issues or any other issues having fund losses as a result.
Digital Twin will have no responsibility or liability, and you hereby waive and release any and all claims, arising out of or in connection with (a) any blockchain or related technology, (b) any digital wallet, MetaMask technology, similar technology or related service, (c) the transfer or loss of any NFT or the inability to demonstrate ownership or control of any NFT, (d) any marketplace or other platform for buying, selling or transferring any NFT other than the Website, (e) any platform or service provided by any third party or any technology related thereto, (f) any Additional Benefit provided by any third party, or any terms or conditions applicable to any such Additional Benefit, (g) any computer, server, network device or other hardware or any Internet service provider or other telecommunications service or hardware, or (h) any other service, equipment, technology or network or data transfer infrastructure not owned and controlled by Digital Twin.
In some cases, Digital Twin integrates directly with third parties, including but not limited to, online merchant platforms, mailing list platforms, and social media platforms (“Third Party APIs”). Digital Twin has no control over the uptime and functionality made available through Third Party APIs and as such certain aspects of the Platform could incur an outage outside of Digital Twin’s control, and certain aspects of the Platform’s functionality could be impacted by changes of features made available through Third Party APIs.
The Digital Twin platform is subject to flaws and acknowledge that you are solely responsible for evaluating any code provided by the Platform. Digital Twin may experience cyber-attacks, unexpected surges in activity, or other operational or technical difficulties that may cause interruptions to or delays on the Platform. You 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.
16. Disclaimer of Damages
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, DIGITAL TWIN AND THE OTHER DIGITAL TWIN PARTIES WILL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY—WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY, OR OTHERWISE—FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES OR LOST PROFITS, EVEN IF DIGITAL TWIN OR THE OTHER DIGITAL TWIN PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
17. Limitation of Liability
THE TOTAL LIABILITY OF DIGITAL TWIN AND THE OTHER DIGITAL TWIN PARTIES FOR ANY CLAIM ARISING OUT OF OR RELATING TO THESE TERMS OR OUR SERVICES, OR ANY AND ALL RELATED CONTENT, BENEFIT AND DIGITAL COLLECTIBLE, REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO THE GREATER OF $100 OR THE AMOUNT PAID BY YOU TO USE OUR SERVICES.
The limitations set forth in Sections 16 and 17 will not limit or exclude liability for the gross negligence, fraud or intentional misconduct of Digital Twin or the other Digital Twin Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.
To the fullest extent permitted by applicable law, you release Digital Twin and the other Digital Twin Parties from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to (a) disputes between users, (b) acts or omissions of third parties, or (c) anything else for which you have agreed that Digital Twin will have no responsibility or liability pursuant to these Terms. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which provides: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
19. Transfer and Processing Data
In order for us to provide our Services, we may process, transfer and store information about you in the United States and other countries, where you may not have the same rights and protections as you do under local law.
20. Dispute Resolution; Binding Arbitration
Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Digital Twin and limits the manner in which you can seek relief from us, unless you opt out of arbitration by following the instructions set forth below. No class or representative actions or arbitrations are allowed under this arbitration provision. In addition, arbitration precludes you from suing in court or having a jury trial.
20.1 No Representative Actions. You and Digital Twin agree that any dispute arising out of or related to these Terms or our Services is personal to you and Digital Twin and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action or any other type of representative proceeding.
20.2 Arbitration of Disputes. Except for small claims disputes in which you or Digital Twin seeks to bring an individual action in small claims court located in the county of your billing address or disputes in which you or Digital Twin seeks injunctive or other equitable relief for the alleged infringement or misappropriation of intellectual property, you and Digital Twin waive your rights to a jury trial and to have any other dispute arising out of or related to these Terms or our Services, including claims related to privacy and data security, (collectively, “Disputes”) resolved in court. Instead, for any Dispute that you have against Digital Twin you agree to first contact Digital Twin and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to Digital Twin by email at email@example.com or by certified mail addressed to Digital Twin Labs, LLC, 2055 Limestone Road STE 200-C, Wilmington, Delaware, United States 19808. The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the Dispute; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and Digital Twin cannot reach an agreement to resolve the Dispute within thirty (30) days after such Notice is received, then either party may submit the Dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court. All Disputes submitted to JAMS will be resolved through confidential, binding arbitration before one arbitrator. Arbitration proceedings will be held in the County of Miami-Dade in the State of Florida. You and Digital Twin agree that Disputes will be held in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”). The most recent version of the JAMS Rules are available on the JAMS website and are hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason.
20.3 You and Digital Twin agree that these Terms affect interstate commerce and that the enforceability of this Section 20 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
20.4 The arbitration will allow for the discovery or exchange of non-privileged information relevant to the Dispute. The arbitrator, Digital Twin, and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including information gathered, prepared and presented for purposes of the arbitration or related to the Dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.
20.5 You and Digital Twin agree that for any arbitration you initiate, you will pay the filing fee and you and Digital Twin will split equally the remaining JAMS fees and costs; provided that if you are a consumer the maximum amount you will be required to pay for the filing fee is $250 and Digital Twin will pay any remaining amount of the filing fee and the remaining JAMS fees and costs. For any arbitration initiated by Digital Twin, Digital Twin will pay all JAMS fees and costs. You and Digital Twin agree that the state or federal courts of the State of Floridaand the United States sitting in County of Miami-Dade in the State of Florida have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
20.6 Any Dispute must be filed within one (1) year after the relevant claim arose; otherwise, the Dispute is permanently barred, which means that you and Digital Twin will not have the right to assert the claim.
20.7 You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section 20 by emailing us at firstname.lastname@example.org . 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. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 21.
20.8 If any portion of this Section 20 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 20 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 20; 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 20 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 20 will be enforceable.
21. Governing Law and Venue
Any dispute arising from these Terms and your use of our Services will be governed by and construed and enforced in accordance with the laws of the State of Florida without regard to conflict of law rules or principles that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts located in the State of Florida and you consent to jurisdiction and venue in such courts.
22. Modifying and Terminating our Services
We reserve the right to modify our Services or to suspend or stop providing all or portions of our Services at any time. You also have the right to stop using our Services at any time. We are not responsible for any loss or harm related to your inability to access or use our Services. You are personally liable for any orders that you place or charges that you incur prior to suspension or termination. We reserve the right to amend, modify, discontinue or suspend all or any aspects of the Platform or Services at any time without prior notice or liability.
If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.
Notwithstanding any other provisions of these Terms, Sections 6 through 24 survive any expiration or termination of these terms. The failure of Digital Twin to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. 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 agree that communications and transactions between us may be conducted electronically. These Terms may not be transferred, assigned or delegated by you, by operation of law or otherwise, without our prior written consent, and any attempted transfer, assignment or delegation without such consent will be void and without effect. We may freely transfer, assign or delegate these Terms or our Services, in whole or in part, without your prior written consent.