TERMS OF SERVICE
Effective as of 22 August, 2022
C. Agreement. PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE CREATING AN ACCOUNT WITH US, PLAYING OUR GAME, OR USING ANY OF OUR SERVICES, INCLUDING OUR WEBSITE. YOU CANNOT CREATE AN ACCOUNT, PLAY OUR GAME, OR USE ANY SERVICES, INCLUDING OUR WEBSITE IF YOU DO NOT ACCEPT THESE TERMS. BY CREATING AN ACCOUNT, PLAYING THE GAME, USING ANY OF THE OTHER SERVICES, INCLUDING THE WEBSITE OR BY CLICKING “I ACCEPT,” YOU AFFIRMATIVELY INDICATE THAT YOU HAVE:
(i) READ AND ACCEPT THESE TERMS;
(ii) AGREE TO BE BOUND BY THESE TERMS; AND
(iii) ARE AUTHORIZED AND ABLE TO ACCEPT THESE TERMS.
D. Arbitration, Class Action Wavier, and Dispute Resolution. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ANY CLAIM, DISPUTE OR CONTROVERSY OF WHATEVER NATURE (“CLAIM”) ARISING OUT OF OR RELATING TO THESE TERMS AND/OR OUR GAME, WEBSITE, OR ANY OTHER SERVICES MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION IN ACCORDANCE WITH THE PROCESS DESCRIBED IN SECTION 9 BELOW. PLEASE READ SECTION 9 CAREFULLY. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, YOU ARE GIVING UP THE RIGHT TO LITIGATE (OR PARTICIPATE IN AS A PARTY OR CLASS MEMBER) ALL DISPUTES IN COURT BEFORE A JUDGE OR JURY.
E. Changes to these Terms. We reserve the right to change, revise, or otherwise modify these Terms at any time, with or without notice. We will strive to post any such changes on our website, but it is solely your responsibility to review and read the Terms, as they may change from time to time. Continued use of the Services and use of the Game means you accept and agree to be bound by the revised Terms. We strongly suggest that you periodically review these Terms for any changes.
F. Violation of these Terms. If you violate any of these Terms or if we believe that you have violated these Terms, we may terminate your Account with or without notice, limit or restrict your access to the Services (including the Game), and you may forfeit any funds in your Account or any prizes that you may have associated with your Account, with such forfeited funds used to defray the costs of administration and enforcement or donated or otherwise used for a nonprofit purpose. Taking any action against you listed in this paragraph does not limit our ability to take any other action permitted by law or to pursue any other legal or equitable remedies that may be available, including without limitation damages and injunctive relief.
G. User Eligibility. To be eligible for an Account, to use our Services, and play our Game, you must:
(i) be a natural person who is at least 18 years of age or older;
(ii) have the power and ability to enter into a contract with us;
(ii) be physically located within a jurisdiction in which use of our Services and playing the Game is unrestricted and not otherwise prohibited by that jurisdiction’s laws;
(v) not be in violation of any state, local, federal, or other law when accessing your Account and playing the Game; and
(vi) at all times abide by these Terms.
If you violate any of these requirements at any time, we may suspend or close your Account, prohibit your access to the Services (including the Game), and you may forfeit any funds associated with your accounts and any prizes. We may take these actions with or without notice.
H. Racing is a Game of Skill.
(i) The racing component of our Game involves the entry of virtual dogs represented by NFTs (“Doges”) into virtual races around virtual tracks (also represented by NFTs), with some races requiring payment of an entry fee in cryptocurrency.
(ii) All races that require an entry fee will distribute a purse to the winner or winners in the corresponding cryptocurrency. For example, a race where the entry fees were paid in Solana (SOL) will distribute a purse to the winners in SOL.
(iii) Certain races may also involve the payment of the entry fee in our in-game currency $DTRK and distribution of a purse in $DTRK. We may also award $DTRK as a prize to winners of certain free-to-enter races.
(iv) As described in more detail below, each Doge NFT has characteristics that affect performance and interact with the particular track and its characteristics. The players must use their various skills to enter their NFTs in the appropriate race. Owners of track NFTs must also use various skills to manage their track and attract races. The outcome of each race is determined by the skill of the players and accordingly, the Game is a “game of skill.”
(v) IMPORTANT: While we may restrict the Game’s availability in certain jurisdictions, it is solely your responsibility to determine your jurisdiction’s laws and ensure your compliance therewith. We disclaim any and all liability related to your non-compliance with your local jurisdiction’s laws or rules as related to the Game.
I. No Investment Value or Intent. The Game, Website, and Services are solely for entertainment purposes. You agree that you are playing the Game, accessing the Website, and using our Services for entertainment purposes only (and no other purposes). ADDITIONALLY, YOU EXPRESSLY REPRESENT AND WARRANT THAT YOU ARE NOT PLAYING THE GAME, ACCESSING THE WEBSITE, OR OUR SERVICES WITH ANY EXPECTATION TO EARN A PROFIT OR OTHERWISE AS AN INVESTMENT. If you access or use (or attempt to access or use) our Game, Website, or Service for any purpose other than personal entertainment, you are in violation of these Terms. Any Doge NFT, Track NFT, cryptocurrency prize or token, or $DTRK in-game currency token acquired as part of playing the Game (i) do not have any inherent or assigned value; and (ii) are not guaranteed to have any future value on the secondary market, which value may be zero at any given time.
2. User Account.
A. Registration and Username. To register for a user account, you must connect a cryptowallet on the SOLANA blockchain, like Phantom, Solflare, or Sollet.io. Please ensure that your access credentials are kept secret, as you are responsible for all activity associated with your Account.
B. Use of the Account. As the holder of the Account, you are the sole person responsible for complying with these Terms. You are also the sole person entitled to the benefits associated with using the Account. You are prohibited from allowing any other person to (i) access your Account; (ii) use the Services (including the Game) through your Account; (iii) accept or use any prizes or other winnings. Your Account is not transferrable to any other person and may not be merged with any other account.
C. Compromised Account. You agree to immediately notify us of any unauthorized use of your username, password, or Account, or any other security breach, whether actual, threatened, or suspected, associated with your Account or the Services.
D. Use of Information Collected. We may use the information you provide us to send you periodic promotional materials, special announcements, and other related communications. You have the opportunity to opt out of these communications at any time.
3. Services and Related Software.
A. Services. We may at any time, with or without prior notice to you, (i) modify, suspend, or terminate your access to the Services (including the Game) without any liability to you and for any reason (or no reason) whatsoever; (ii) interrupt access to the Services at any time and without liability for the purposes of maintenance, repairs, and patching.
B. Software. To access the Game and use our Services, you may be required to download certain software and associated program interfaces, license keys, and patches (“Software”) on your device. By downloading the Software, you agree and understand that periodic updates may be necessary and if you do not allow access for the purposes of updates, the Software may no longer be usable and you may no longer be able to access the Game.
4. The Game.
A. Description and Nature of the Game. The Game is a distributed application that runs on the SOLANA blockchain for the sole purpose of entertainment. Users may acquire Doge NFTs from the secondary market for the purpose of training, breeding, and racing virtual racing dogs. Each Doge NFT has a set of unique characteristics (such as strength, endurance, and agility) that determine how well that particular Doge performs on a particular track. Track NFT owners are also able to change the characteristics of their particular track to attract racers to their particular racetrack.
B. Game of Skill Description. The racing aspect of the Game is designed as a contest of pure skill that allows participants to compete against each other’s Doge NFTs for a “purse” or "prize" awarded to the winner. Each track has certain characteristics that interact with a particular Doge NFT’s traits and characteristics and improve its chance of success in a race. Utilizing the skills of historical research and statistical analysis enables Doge NFT owners to determine which races are best suited for the traits of their particular Doge. In addition to the inherent skill traits like strength, agility, and endurance, each Doge has a “win percentage” associated with the percentage of races that the Doge entered and won. A higher win percentage increases the chances of the Doge winning subsequent races and a lower win percentage decreases such chances. This means that a player who attempts to play “randomly” or without exercising skill, will incur a penalty for each unsuccessful race that is entered. Accordingly, it is critical for players to use their skill to win the Game – and it is skill that materially and predominantly determines the result and outcome. The successful track ownership aspect of the game is also determined by skill – a track owner must use their own historical research and statistical analysis skills to adjust traits to meet demand of the Doge NFT owners. Additionally, a track NFT owner must continuously update their track and make it eligible for racing, which means that the track NFT owner must actively exercise their track management skills as part of playing the Game.
C. Account Funding and Fees. The Game uses various cryptocurrencies as entry fees and pays out the prizes or purses to the winners in the corresponding cryptocurrency. The Game also uses the in-game token $DTRK as entry fees and prizes for certain races, cosmetic purchases, Doge-O training fees, “breeding” or “stud” fees, Track NFT features and modifications. We may also allow payment for these features in certain cryptocurrenices (such as but not limited to Solana (SOL)). However, you are not required to purchase, convert, or own any $DTRK to play or enjoy our Game. We have the sole right to determine acceptable payment methods and to impose conditions, including additional fees, for the use of certain payment methods.
D. Payment of Fees. All race entry fees and other fees are deemed prepaid and nonrefundable. All fees paid to enter a race, augment or improve a Track NFT, breed a Doge, train a Doge, otherwise related to track ownership, or purchase a product in our marketplace are final and you are not entitled to a refund of those fees for any reason. You shall be responsible with any additional transaction fees associated with any purchase of any cryptocurrency or $DTRK, exchange of any cryptocurrency or $DTRK, or withdrawal or transfer of any cryptocurrency or $DTRK. It is your sole responsibility to determine what amounts you are able to deposit for use in the Game and you take full and sole responsibility for the funds you deposit. We are not liable to you for any delays in processing, gameplay, or withdrawals, and you assume the sole risk that you may lose any cryptocurrency, money, or other assets that you contribute through gameplay.
E. Prizes to Race Winners. If your Doge wins or places in a race, the Doge is awarded a purse or prize for its performance in the cryptocurrency used to pay the entry fees or $DTRK. The awarded amount is credited to the owner’s account or connected cryptowallet. The amount of the prize is disclosed to the Doge owners and predetermined ahead of the start of each race. Once a race concludes, a smart contract process authorizes the payment of the prizes or purse to the winning Doge owner’s account or cryptowallet.
F. Taxes. You are solely responsible for paying all federal and other taxes in accordance with the laws that apply in your local, state, province, and/or country of residence. We are not responsible for or liable for any of your tax obligations and liabilities. We make no representations about the tax treatment of any cryptocurrency, any NFT, in-game assets, our in-game currency $DTRK, or any other aspect of the Game, Website, or our Services.
G. Restrictions on Use. You may not use, copy, reproduce, or redistribute the Services, Software, or Game or related or derivative products or services without our express written permission. You may not engage in, or assist others to engage in, conduct that would damage or impair our property including, without limitation: (i) copying, distributing, transmitting, displaying, performing, framing, linking, hosting, caching, reproducing, publishing, licensing, or creating derivative works from any information, software, products or services obtained from us; (ii) providing unauthorized means through which others may use Services such as through server emulators or IP spoofing programs; (iii) taking actions that impose an unreasonable or disproportionately large load on network infrastructure, or that could damage, disable, overburden or impair our Services or Game; (iv) interfering with any other party’s use and enjoyment of Services and/or Game (including cheating); and/or (iv) attempting to gain unauthorized access to third party accounts, the Service, Software, or the Game.
H. Conditions of Participation; Rules of Conduct. By playing the Game, players agree to be bound by these specific Rules of Conduct and our decisions and interpretations with respect thereto, which shall be final and binding in all respects. We, in sole discretion, may disqualify any entrant from a race, refuse to award benefits or prizes and require the return of any prizes, if a player engages in conduct or otherwise utilizes any information that we deem to be improper, unfair or otherwise adverse to the operation of the Game or is in any way detrimental to other players.
(i) Prohibited conduct includes:
A. Engaging in any type of financial fraud including unauthorized use of credit instruments to enter a race, play the Game, purchase or transact in $DTRK or claim a prize;
B. Colluding with any other individual(s) or engaging in any type of syndicate play;
C. Any violation of these Rules of Conduct or any other Terms;
D. Using a single Account to participate in a race on behalf of multiple entrants or otherwise collaborating with others to participate in any race or playing the Game;
E. Using automated means (including but not limited to scripts and third-party tools) to interact with our Services, Software, or Game in any way;
F. Using automated means (including but not limited to harvesting bots, robots, parser, spiders or screen scrapers) to obtain, collect or access any information from our Services, Software, or Game or other players;
G. Tampering with the administration of a race or trying to in any way tamper with the computer programs or any security measure associated with our Game, Website, or Service;
H. Obtaining other players’ information and spamming other players; or
I. Abusing or misusing our Services, Software, or Game in any way;
J. Harassing any players through any means, including but not limited to any Game chat, Discord, posts, or other interactions. We have a zero-tolerance policy towards any conduct that we deem inappropriate in our sole discretion, and reserve to take any action that we deem appropriate in response, with or without prior notice. Our Game is an entertainment platform and we strive to ensure that all users are treated equally and feel comfortable interacting with our Services, playing our Game, and otherwise using any of our products;
K. Using or attempting to use our Game or Services for the purpose of investment, whether individually or in a group; claiming our Game or Services can result in financial gains or profits; using our Game or Services in conjunction with your own financial instrument or financial product, whether or not such activities result in gains or actual profits;
L. Using or attempting to use our Game or Services in association with any sort of betting, bookmaking, or wagering service or product (including centralized bookmaking and peer-to-peer wagering);
M. Using our Game or Services to violate the law in any manner.
I. Termination/Cancellation of Race and Refund of Entry Fee. Prior to the start of any race, we reserve the right at any time to terminate and cancel any race for any or no reason at all. Our termination and cancellation right is absolute. Players who have paid entry fees for a terminated or cancelled race will have their entry fees refunded through a credit to their account or cryptowallet or account; however, we reserve the right to refuse refund to any player who violates these Terms.
J. No Limitation on our Remedies. Players further acknowledge that the forfeiture and/or return of any prize amount shall in no way prevent us from pursuing criminal or civil proceedings in connection with such conduct.
K. Waiver and Indemnification. By entering into a race, contributing or paying in cryptocurrency, purchasing $DTRK, registering an account, linking a cryptowallet, or otherwise interacting with our Game, Services, and Website, you agree to indemnify, release and to hold harmless us, our affiliates and agents, as well as the officers, directors, employees, shareholders, attorneys, and any of their representatives (collectively, the "Released Parties"), from any and all liability, claims or actions of any kind whatsoever, including but not limited to injuries, damages, or losses to persons and property which may be sustained in connection with participation in the race, playing our Game, acquiring or transacting in any cryptocurrency and/or in $DTRK, the receipt, ownership, use or misuse of any prize or while preparing for, participating in and/or traveling to or from any race related activity, as well as any claims based on publicity rights, defamation, or invasion of privacy. We may, in our sole and absolute discretion, require a player to execute a separate release of claims similar to the one listed above in this paragraph as a condition of being awarded or receiving any prize. We are not responsible for: any incorrect, invalid or inaccurate entry information; human errors; postal delays/postage due mail; technical malfunctions; failures, including public utility or telephone outages; omissions, interruptions, deletions or defects of any telephone system or network, computer online systems, data, computer equipment, servers, providers, or software (including, but not limited to software and operating systems that do not permit an entrant to participate in a race or any other Service associated transaction), including without limitation any injury or damage to any entrant's or any other person's computer or video equipment; inability to access the our Game, or any related Services; theft, tampering, destruction, or unauthorized access to, or alteration of, entries and/or images of any kind; data that is processed late or incorrectly or is incomplete or lost due to telephone, postal issues, computer or electronic malfunction or traffic congestion on telephone lines or transmission systems, or the Internet, or any service provider's facilities, or any phone site or website or for any other reason whatsoever; typographical, printing or other errors, or any combination thereof. We are not responsible for incomplete, illegible, misdirected or stolen entries. If for any reason a race is not capable of running as originally planned, or if a race, computer application, or website associated therewith (or any portion thereof) becomes corrupted or does not allow the proper entry to a race or other use of our Services in accordance with these Terms or applicable rules, or if infection by a computer (or similar) virus, bug, tampering, unauthorized intervention, actions by entrants, fraud, technical failures, or any other causes of any kind, in our sole opinion corrupts or affects the administration, security, fairness, integrity, or proper conduct of a race or any other use of our Services, we reserve the right, at its sole discretion, to disqualify any individual implicated in such action and/or to cancel, terminate, extend, modify or suspend the race or other activity associated with our Services. If such cancellation, termination, modification or suspension occurs, notification will be given.
L. Hacking. ANY ATTEMPT BY A PLAYER OR ANY OTHER INDIVIDUAL TO DELIBERATELY DAMAGE THE GAME OR UNDERMINE THE LEGITIMATE OPERATION OF ANY RACE OR OTHER ACTIVITY RELATED TO OUR SERVICES IS A VIOLATION OF CRIMINAL AND/OR CIVIL LAWS AND SHOULD SUCH AN ATTEMPT BE MADE, WE RESERVE THE RIGHT TO SEEK DAMAGES AND OTHER REMEDIES FROM ANY SUCH PERSON TO THE FULLEST EXTENT PERMITTED BY LAW.
M. Publicity. Participation in each race or any other activity related to our Website and Services must be made only as specified in these Terms. Where such consent is permitted by law, all players and winners of any race consent to the use of their name, voice, and likeness/photograph in and in connection with the development, production, distribution and/or exploitation of any race or the Game or any other matter related to our Services. This includes granting us a limited, royalty-free, non-exclusive, non-transferrable license to feature your Doge NFT in connection with the development, production, distribution and/or exploitation of any race or any other aspect of the Game.
N. Acquisition, Disposition, and Transactions Using $DTRK. As part of the Game experience, players have the opportunity to acquire an in-game token $DTRK. The $DTRK token has no inherent value assigned by us or controlled by us. The $DTRK token is not a currency and has no intrinsic, inherent, or assigned value outside of the Game. 1 $DTRK = 1 $DTRK. The $DTRK token may be used to pay race entry fees; pay training fees to augment the Doge NFT with new traits in the Doge-O; pay stud fees to breed Doges and create new NFTs; purchase cosmetic items to augment Doges in the marketplace; and otherwise. Players can win the $DTRK token by winning races with their Doge NFT; earn $DTRK through track ownership; earn $DTRK as a stud fee for breeding of their Doge NFT; or lock up their Doge or Track NFTs to improve network security and token validation, in exchange for $DTRK.
O. No Representation Regarding Value of Any NFTs or Cryptocurrencies. Any NFTs acquired for use as part of our Game, as well as any improvements thereto (such as training and cosmetic enhancements) have no inherent or assigned value. The NFT’s value on any secondary market can be zero at any given time. Likewise, any cryptocurrencies (such as but not limited to Solana (SOL)) that are compatible with our Game and may be used to pay race and other fees are volatile in value and such value is determined by a secondary market outside of our control. The value of any cryptocurrency used as part of our Game may be zero at any given time. Additionally, we are not liable for your decision to use cryptocurrency to fund your account or engage with our Game and we are not liable to you for any delays or other impediments to your ability to withdraw or transfer cryptocurrency from your account.
5. Legal and Regulatory Compliance.
A. Gaming Laws. You understand and agree that laws and regulations regarding payment of prizes, participation in competitions, and playing the Game (“Gaming Laws”) vary between the various states in the United States and among the different countries of the world. We do not make any representation or guarantee that your ability to access the Services or the Game from any particular location means that your activities in relation to the Game and Services comply with all applicable laws. It is your sole responsibility to research and determine your own compliance with all applicable laws.
B. Additional Laws. It is your sole responsibility to determine whether there are any laws that prohibit or restrict your ability to access the Services, play the Game, and/or transact in cryptocurrency or our in-game token $DTRK (“Other Laws”). Even if you are able to access our Game, Website, Services, and purchase and transact a cryptocurrency or $DTRK, it is your responsibility to verify all applicable federal, state, and local laws and regulations to ensure that your activities related to the Services and the Game comply with all those laws and regulations. You expressly understand, agree, and acknowledge that you will not undertake any activities related to our Game, Website, or Service (including purchasing and transacting in any cryptocurrency or $DTRK) that violate any law or regulation.
C. Your Representations and Warranties to Us. In consideration of accessing and/or using the Services (including the Game), you represent and warrant that: (i) You have the right, capacity, and authority to agree to and to be bound by these Terms, to register for an Account, and to play the Game and participate in related races; (ii) You will comply with these Terms; (iii) All of the information that you provide to us at the time of Account registration and as we may request from time to time is accurate and complete to the best of your knowledge, and you will promptly notify us in writing of any inaccuracies or incompleteness; and (iv) you are located in a jurisdiction (whether state, territory, or country) where it is not unlawful for you to access the Game or the Services, purchase and transact in any cryptocurrency or $DTRK, and you may otherwise use the Services and play the Game without violating any applicable federal, state, local, or other law or administrative regulation.
D. Illegal Use. You agree that you will not engage in, attempt to engage in, or assist others engaging in any illegal or unlawful conduct related to or utilizing the Services, Software, or the Game, including but not limited to fraud, cheating, hacking, tampering, or any other conduct in violation of applicable civil or criminal laws.
6. Indemnification. You agree that you will, at your own cost and expense, indemnify and hold us and our directors, officers, employees and agents harmless from and against any and all claims, disputes, liabilities, judgments, settlements, actions, debts or rights of action, losses of whatever kind, and all costs and fees, including reasonable legal and attorneys’ fees, arising out of or relating to (A) your breach of these Terms; (B) any or misuse of your Account, the Software, the Services, and the Game by any person including yourself; (C) your violation of any applicable laws; and/or (D) your negligence or misconduct that results in actual or potential liability to us.
7. Licensing and Ownership.
A. User License. Subject to these Terms, we grant you a personal, nonexclusive, limited, non-transferable, non-assignable, non-sublicensable, limited license to install and run the Software and play the Game on a device owned or controlled by you, solely for the purpose of accessing and using the Services and playing the Game in accordance with these Terms, and solely for personal entertainment purposes. You acknowledge that you are receiving licensed rights only. You may not directly or indirectly, or authorize any person or entity to: (i) reverse engineer, decompile, disassemble, re-engineer or otherwise create or attempt to create or permit, allow or assist others to create the source code of the Software, the Game, or its structural framework; (ii) create derivative works of the Software or the Game; (iii) use the Software or the Game in whole or in part for any purpose except as expressly provided in these Terms; or (iv) disable or circumvent any access control or related device, process or procedure established with respect to the Software or the Game. You acknowledge that you have access to sufficient information such that you do not need to reverse engineer the Software or Game in any way to permit other products or information to interoperate with the Software. You are responsible for all use of the Software or the Game that is under your possession or control.
B. Ownership. All Services, Software, Game, and related materials, all logos, symbols, expansion names and symbols, play symbols, trade dress or “look and feel”, all digital assets and those portions of the Software and Services which are our property as well as all derivative works or modifications of any of the foregoing, and all related and underlying intellectual property (including without limitation patents, trademarks, trade secrets and copyrights), are our sole and exclusive property. We reserve all rights not expressly granted herein. Except as expressly set forth herein, no right or license is granted hereunder, express or implied or by way of estoppel, to any intellectual property rights and your use of our Services, Software, or playing the Game does not convey or imply the right to do so in combination with any other information or products.
C. NFT and $DTRK Ownership. Notwithstanding the foregoing, you retain absolute ownership and rights in all Doge and Track NFTs that you may acquire (whether through our Game, Website, or Services, or elsewhere), and all $DTRK that you purchase, win, or otherwise acquire. The Doge and Track NFTs and $DTRK are immutable blockchain assets and not under our control. We do not claim any rights in or control over such Doge or Track NFTs that are usable within our Game. Accordingly, we are not liable for or responsible for any transaction, purchase, sale, or acquisition of an NFT or $DTRK in-game token that may occur between you and a third party not affiliated with us. We are not the owners of any Doge NFT license or Track NFT license and make no representation otherwise.
8. Disclaimers and Liability Limitations.
A. Disclaimer of Liability; No Warranty. IN NO EVENT SHALL WE, OUR AFFILIATES AND SERVICE PROVIDERS, OR ANY RESPECTIVE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, EMPLOYEES, ATTORNEYS, OR REPRESENTATIVES, BE LIABLE:
(i) FOR ANY LOST PROFITS, DIMINUTION IN VALUE OR BUSINESS OPPORTUNITY, ANY LOSS, DAMAGE, CORRUPTION OR BREACH OF DATA OR ANY OTHER INTANGIBLE PROPERTY OR ANY SPECIAL, INCIDENTAL, INDIRECT, INTANGIBLE, OR CONSEQUENTIAL DAMAGES, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH AUTHORIZED OR UNAUTHORIZED USE OF OUR SERVICES, GAME, OR SOFTWARE OR THESE TERMS, EVEN IF AN AUTHORIZED REPRESENTATIVE OF OURS HAS BEEN ADVISED OF OR KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE, EXCEPT TO THE EXTENT OF A FINAL DETERMINATION THAT SUCH DAMAGES WERE A RESULT OF OUR GROSS NEGLIGENCE, FRAUD, WILLFUL MISCONDUCT OR INTENTIONAL VIOLATION OF LAW. THIS MEANS, BY WAY OF EXAMPLE ONLY (AND WITHOUT LIMITING THE SCOPE OF THE PRECEDING SENTENCE), THAT IF YOU CLAIM THAT OUR GAME FAILED TO PROCESS A TRANSACTION PROPERLY, YOUR DAMAGES ARE LIMITED TO NO MORE THAN THE VALUE OF YOUR ENTRY FEE, AND THAT YOU MAY NOT RECOVER FOR LOST PROFITS, LOST BUSINESS OPPORTUNITIES, DIMINUTION IN VALUE OR OTHER TYPES OF SPECIAL, INCIDENTAL, INDIRECT, INTANGIBLE, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
(ii) OUR SERVICES, GAME, AND SOFTWARE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR NON-INFRINGEMENT. WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT ACCESS TO OUR SERVICES, GAME, SOFTWARE, OF ANY PART THEREOF, OR ANY OF THE MATERIALS CONTAINED THEREIN, WILL BE CONTINUOUS, UNINTERRUPTED, TIMELY, OR ERROR-FREE.
(iii) We are not liable for any malfunction within our Game, Software, or Services that may impact your gameplay or performance in our Game. The Game is solely for entertainment purposes. If you believe that there was a malfunction, glitch, or other issue that affected your Game experience, please contact our customer service.
(iv) NEW TECHNOLOGY RISK: You acknowledge and understand that there may be issues and malfunctions with the smart contracts or network stability that may impact our provision of the Game, Services, or Website. There may be a network failure or code error that may impact our provision of the Game, its stability, or integrity. We are not responsible for any such issues or malfunctions, including those that result in the loss of assets, such as cryptocurrency, NFTs, or $DTRK tokens. By playing the Game, you voluntarily assume the risk of new technology, and while we will use our reasonable efforts to ensure Game stability and security, such stability and security cannot be guaranteed and you are contributing any assets to your account, purchasing and owning NFTs, and $DTRK solely at your own risk.
B. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, WE ARE NOT AND WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) OR INCIDENTAL DAMAGES, ARISING OUT OF OR RELATING TO THESE TERMS OR ANY PRODUCTS OR SERVICES, INCLUDING THE GAME, GOVERNED BY THESE TERMS.
C. Release of Us. If you have a dispute with one or more users or players in the Game (or users of the Services or Software), you release us, our affiliates and service providers, and each of their respective officers, directors, agents, joint venturers, employees, attorneys, and representatives from any and all claims, demands and damages (actual and consequential) of every kind and nature arising out of or in any way connected with such disputes. In addition to your indemnification obligations in Section 6, you agree to indemnify and hold us, our affiliates and service providers, and each of their respective officers, directors, agents, joint venturers, employees, attorneys, and representatives, harmless from any claim or demand (including attorneys' fees and any fines, fees or penalties imposed by any regulatory authority) arising out of or related to your breach of these Terms or your violation of any law, rule or regulation, or the rights of any third party.
9. Dispute Resolution.
A. General. This Section 9 applies to any Dispute except for Disputes relating to the enforcement or validity of our intellectual property rights, which we may address through litigation or any other appropriate method without regard to this Section. The term “Dispute” means any dispute, action or other controversy between you and us concerning these Terms, the Services, the Game, or any other product, service or information we make available to you, whether in contract, warranty, tort, statute, regulation, ordinance or any other legal or equitable basis. “Dispute” will be given the broadest possible meaning allowable under law. In the event of a Dispute, you or we must give the other a Notice of Dispute, which is a written statement that sets forth the name, address and contact information of the party giving it, the facts giving rise to the Dispute, any supporting evidence (such as communications or screenshots), and the relief requested. You must send any Notice of Dispute by email to [email protected]. We will send any Notice of Dispute to you by U.S. Mail to your address if we have it, or otherwise to your email address, and you agree to receive any Notices of Dispute either by mail or email. The parties will strive to negotiate and attempt to resolve the dispute for a period of at least sixty (60) days (“Formal Complaint Process”). After the sixty (60) day period, either party may initiate arbitration as provided in this Section. You agree to use the Formal Complaint Process before initiating arbitration or any small claims case.
Any dispute, controversy, difference or claim arising out of or relating to these Terms, including the existence, validity, interpretation, performance, breach or termination of any contract or other relationship or any dispute regarding non-contractual obligations arising out of or relating to it shall be referred to and finally resolved by arbitration administered by the American Arbitration Association under its Consumer Arbitration Rules. The law of this Arbitration Agreement shall be Delaware law.
CLASS ACTION WAIVER: TO THE EXTENT PERMISSIBLE BY LAW, ALL CLAIMS MUST BE BROUGHT IN A PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE PROCEEDING (COLLECTIVELY “CLASS ACTION WAIVER”). THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS OR ENGAGE IN ANY CLASS ARBITRATION. YOU ACKNOWLEDGE THAT, BY AGREEING TO THESE TERMS, YOU AND US ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION.
The arbitration will be conducted by a single, neutral arbitrator and shall take place telephonically, via video conferencing technology, or in Miami, Florida, in the English language. The arbitrator may award any relief that a court of competent jurisdiction could award and the arbitral decision may be enforced in any court. An arbitrator’s decision and judgment thereon will not have a precedential or collateral estoppel effect. At your request or at the order of the arbitrator, hearings may be conducted in person or by telephone or via video conferencing technology, and the arbitrator may provide for submitting and determining motions on briefs, without oral hearings. To the extent permitted by law, the prevailing party in any action or proceeding to enforce this Agreement, any arbitration pursuant to this Agreement, or any small claims action shall be entitled to costs and attorneys' fees.
The arbitrator shall apply the laws of the State of Delaware, without reference to its conflict of laws principles.
You have the right to opt out of and not to be bound by the arbitration and class action waiver provisions set forth in these Terms. To exercise this right, you must send written notice of your decision by email to [email protected]. Your notice must include your name, mailing address, and user name associated with your Account, and state that you do not wish to resolve disputes with us through arbitration. To be effective, this notice must be postmarked or deposited or received by us (if sent by email) within 30 days of the date on which you first accepted these Terms unless a longer period is required by applicable law; otherwise you will be bound to arbitrate disputes in accordance with this section. You are responsible for ensuring that we receive your opt-out notice, so you may wish to send it by a means that provides for a delivery receipt. If you opt out of these arbitration provisions, we will not be bound by them with respect to any Disputes with you.
10. Miscellaneous Provisions.
A. Entire Agreement. These Terms are the entire agreement between you and us. There are no other agreements, any prior agreements, arrangements, or understandings have been merged into these Terms.
B. Severability. To the extent that any part of the Terms is found to be unenforceable or invalid by a court, the unenforceable or invalid portion shall be severed from the rest of the Terms, and the remaining Terms shall be given their full effect to the maximum extent permitted by law.
C. Notices to You by Email. You agree that we may provide any and all notices to you via email to the email associated with your Account, and that all such notices shall be deemed given at the time that they are sent.
D. Assignment. We may assign these terms at our discretion, in whole or in part, at any time without any notice to you. You may not assign these Terms or any license given to you by us in relation to the Terms.
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