MYTHICAL MARKETPLACE
DIGITAL ASSET TRADING TERMS AND CONDITIONS
Last Updated: April 10, 2024
These Mythical Marketplace Digital Asset Trading Terms and Conditions (these “Terms” or this “Agreement”) pertain to the Mythical Marketplace and/or other Mythical operated website or webstore (collectively, the “Marketplace”) for the buying, selling and trading of non-fungible token based digital assets (“NFT(s)”) and constitute a legally binding agreement between you, the user, (“you”, “your” or “User”) and Mythical, Inc. (“Mythical”, “we”, “us” or “our”). These Terms, the Mythical Privacy Policy, and such other terms or conditions as may be included in any of them by reference govern your use of the Marketplace and the services offered by Mythical and its affiliates, vendors and agents as part of the Marketplace (collectively, the “Services”). The Glossary at the end of these Terms contains definitions for capitalized terms that are not otherwise defined in the body of these Terms.
BY CLICKING ‘I AGREE’ OR ‘ACCEPT’ OR OTHERWISE ACCEPTING THESE TERMS, YOU ARE AGREEING TO BE LEGALLY BOUND BY THESE TERMS, SO PLEASE READ THESE TERMS CAREFULLY PRIOR TO DOING SO.
1. Users and Accounts
A User is prohibited from accessing or using the Services unless the User: (a) has accepted these Terms; (b) is located and domiciled in an Approved Region; (c) is eighteen (18) years of age or older or a parent or guardian has provided express consent for User to use the Services; (d) is not a Prohibited User; and (e) is not otherwise prohibited from using the Services. Persons under thirteen (13) years of age are not permitted to use the Services, even if they have parental consent.
It is prohibited for a Person to have more than one Account. Mythical reserves the right, in its sole discretion, to determine whether a Person or User has or controls more than one Account and reserves the right suspend any Account that is in addition to the one Account permitted per Person. Should Mythical determine, in its sole discretion, that a User, directly or indirectly, holds or controls more than one Account, all of said User Accounts, including User’s original Account, may be suspended or frozen pending investigation and the Accounts may also be terminated once Mythical has completed its investigation. When an Account is suspended or frozen, the User may be prohibited from performing any Transactions via the Account.
User is exclusively responsible for all Transactions in the Account and may not transfer or sell an Account to another Person. Except as required to deliver the Services or as required by law, Mythical will not grant any third-party access to the User’s Account.
At Mythical’s discretion, User must, when and as requested, supply Mythical with User KYC Information. User represents that all User KYC Information provided is true and accurate and shall immediately update such information in the Account or by notice to Mythical if any of it changes. Mythical reserves the right to terminate these Terms or suspend performance hereunder immediately on determining that any User KYC Information is false or inaccurate.
The use of a VPN to access an Account or the Services is highly discouraged. Use of a VPN may make it more difficult for a User to access their Account or the Services. Use of a VPN by a User entitles Mythical, without limitation, to freeze or terminate the User Account accessed via VPN.
2. Prohibited Users and Regions
The following Persons are prohibited from using the Services (each, a “Prohibited User”): (a) Persons who appear on the United States Department of the Treasury, Office of Foreign Assets Control (“OFAC”), Specially Designated Nationals List (SDN), United States Commerce Department’s Denied Persons or other similar lists; (b) Persons who are nationals or residents of Cuba, Iran, North Korea, Sudan, Syria or any country, territory, or other jurisdiction that is restricted or embargoed by the United States (“Prohibited Regions”); (c) Persons who are less than 13 years of age; (iv) Persons who are not residents of and located in an Approved Region; (d) Persons, or their Affiliates, who have been subject to an Account termination for cause; (e) Persons that are not individual natural persons, unless such Persons pass additional KYC requirements as indicated by Mythical; and (f) a Person who, directly or indirectly, uses, employs, operates or creates a computer program to simulate the human behavior of a User, such as computer bots (“Bot”). Mythical reserves the right to add or remove Approved Regions at its sole discretion.
You are prohibited from accessing or using the Services in, from or through a non-Approved or Prohibited Region or a location where your use of the Services would otherwise violate any Applicable Law. You represent and warrant that you are not a citizen or resident of any such jurisdiction (including a Prohibited Region), nor will you use the Services while located in any such jurisdiction. The Services are not available in all countries or jurisdictions. Mythical prohibits the use of the Services in certain jurisdictions, including Prohibited Regions, which jurisdictions may vary at Mythical’s (and its third party vendor’s) sole discretion. Mythical may implement controls to restrict access to the Services from any territory or jurisdiction.
3. Prohibited Activities
User shall use the Services for only good faith Transactions for its own purposes and not on behalf of third parties. User shall not use the Services to, directly or indirectly, assist in any activity that is illegal in the U.S. or the jurisdiction of User or use the Services in relation to any other any Prohibited Activities (all of which are listed below in the Glossary). Mythical reserves the right to add or remove Prohibited Activities at its sole discretion.
If Mythical believes in its sole discretion, or has reasonable grounds to suspect, that an NFT in a User Hosted Wallet was, in any prior transaction, purchased with a stolen payment card, obtained by fraudulent means or otherwise in violation of these Terms, User grants Mythical the right and hereby expressly instructs Mythical to transfer all NFTs in question from the Hosted Wallet, External Wallet or other wallet, to an Other User that was previously in rightful possession thereof, even if the User who loses possession of the NFT was a good faith holder in due course of the NFT and even if the NFT is no longer in the User’s Hosted Wallet. You shall not accept into your Hosted Wallet any NFT from an Other User that you have any grounds to believe is not rightfully in possession thereof. In the event of a dispute over which User has the right to be in possession of an NFT, Mythical reserves the right to block transfers thereof pending joint written instructions of all parties to the dispute or the order of a court of competent jurisdiction; any fees related to Mythical involvement in such dispute shall be paid by User and the Other User and may, at the discretion of Mythical, be recovered by Mythical taking possession of and disposing of NFTs in either of their Hosted Wallets.
Without limitation, Mythical may also suspend, freeze or terminate an Account pursuant to a court order, order by a Regulator, order of a key supplier to Mythical, as required under Applicable Law or where Mythical determines, in its sole discretion, that the User has violated these Terms, engaged in any Prohibited Activities or the Account otherwise poses excessive legal, security, financial or reputational risk to Mythical, another User or another third party. Accounts may also be suspended or frozen throughout the course of internal or external investigations have been completed. Mythical shall have no liability to User for the suspension, freezing or termination of an Account.
4. Risks: NFTs
User expressly acknowledges and agrees that the purchase of NFTs does not constitute an investment and User should have no expectation of earning profits or realizing any financial value from the purchase and sale of NFTs.
You acknowledge and agree that there are inherent risks associated with NFTs and that such risks extend to your use of the Services. These risks include, but are not limited to, the failure of hardware, software or internet connections, the risk of malicious software introduction and the risk of unauthorized access to your Account or Wallets. It is your responsibility to familiarize yourself with the risks involved with NFTs, their protocols and networks.
Transactions can take time to be confirmed and may, in some cases, not be completed. For example, if you initiate a withdrawal Transaction to settle NFTs or Cryptocurrency to an External Wallet and you provide an incorrect or incomplete address, the withdrawn NFTs or Cryptocurrency may be lost and may not be recoverable. If you attempt to send or receive NFTs or Cryptocurrency that are not supported by the Services, they may be lost entirely and may not be recoverable.
If the Services post a dollar value in association with a specific NFT in your Wallet, such posting shall not constitute a representation as to the actual or projected value of such asset. Instead, such posting constitutes either: (a) the potential value attributed to the NFT by another User; or (b) Third Party Content published to the Marketplace or Account for your general information only, and you should not rely on such posting for any financial decision. You agree that it is your responsibility to independently ascertain the potential value of your NFTs, without relying on the Services. Mythical is not, itself, offering to purchase or sell any NFTs from you or to you under these Terms.
You understand and accept that there are also inherent risks associated with using any blockchain network, including Approved Networks. These risks include, but are not limited to, unanticipated changes to the network protocol or unknown vulnerabilities which may include or result in underlying technology attacks. Other possible risks may include forks or rollbacks of NFTs, networks, or blockchains. Mythical has no control over any Approved Networks and will not be responsible for any loss you suffer when you transact via any Approved Network.
You acknowledge that an NFT has no inherent value nor does Mythical or any third party promise or guarantee that an NFT has or will ever have any specific financial value. The prices of blockchain digital assets are extremely volatile. Fluctuations in the price or value of other digital assets could materially and adversely affect the value of your Purchased NFT, especially in secondary markets such as the Marketplace, which may also be subject to significant price volatility. Mythical cannot guarantee that any NFT will not lose money or economic value, or have any economic value whatsoever.
In addition, Mythical makes no warranty or guarantee that any NFT will be able or permitted to be imported into or used or have any functionality on or in connection with any Third Party Sites and it is your sole responsibility to be informed about and determine these matters and/or any suitability or fitness for a particular intended use or purpose for any NFT.
The regulatory regime and Applicable Laws governing the purchase, sale and transfer of digital assets, issuance, exchange and transmission of virtual currencies, blockchain technologies, and NFTs is uncertain and varies widely from jurisdiction to jurisdiction, and new regulations or policies may materially adversely affect the potential utility, value and/or transferability of Purchased NFTs. Due to legal and regulatory restrictions, among other things, there is no guarantee of the existence or availability of demand or a secondary market for the resale of your Purchased NFT at any given time or in any particular state, country or region, and even if such demand or market is available, there is no guarantee that your Purchased NFT will have any particular resale value in such secondary marketplaces, including the Marketplace.
5. The Services
The Services may include the right, subject to the terms of these Terms, to: (a) use the Marketplace to access the Account and Services; (b) create and use a Hosted Wallet or External Wallet, described in greater detail below; (c) cause Mythical to send and receive User Data to and from PSP Provider and other Third Party Servicers; and (d) interact with the Services in order to connect the Services with an External Wallet in order to cause the initiation and execution of Transactions, as further described below.
6. Creation and Use of Wallets
The Services may involve the creation and use of either a Hosted Wallet or External Wallet by the User and/or permit the User to connect an External Wallet to the Services or to another External Wallet.
(a) Wallet Deposits
Any deposits of NFTs or Cryptocurrency to a Wallet may not be immediately available for use in the Services; they may be subject to delays on the Approved Network, holds imposed to reduce fraud or other risks, or other limitations pursuant to the AML Program or otherwise. User must not transfer NFTs or Cryptocurrency that are not supported by Mythical to a Wallet, as indicated in the Services and the Account. If User transfers any NFTs tor Cryptocurrency hat are not supported by Mythical to a Wallet, such may be rejected by the Services or permanently lost, for which Mythical shall not be liable. NFTs and Cryptocurrency in a Wallet can only be used in connection with Services and not for any transactions outside of the Services. If User wishes to use their NFTs or Cryptocurrency for activities other than the Services, User must first transfer them to an External Wallet that is not connected to the Services.
(b) Wallet Withdrawals
Should the Services allow or enable a withdrawal feature, on instructions from User through the Account, the Services shall debit the User’s Wallet and send the User-specified NFT or Cryptocurrency to an External Wallet specified by the User. The Wallet will also be debited when User initiates an Exchange Transaction that includes a debit of the User-specified NFT. As discussed below in these Terms, Mythical shall automatically debit User PSP for the amount of Fees owing under these Terms. Mythical shall also freeze or debit the User’s Wallet where it is required to do so by Applicable Law, to prevent fraud, protect security or where Mythical believes that freezing a given NFT or Transaction is necessary. Without limitation, Mythical may apply a cooling-off period for Transactions such that any NFTs or Cryptocurrency involved in such Transaction cannot be withdrawn from the Wallet before a period of time determined by Mythical, in its sole and absolute discretion. User represents that User is not purchasing NFTs for investment purposes nor as a conduit to obtaining other Assets, therefore a freeze on the contents of a Wallet shall not be the basis of a claim by User for economic or other losses. Fees may apply to deposit or withdrawals of NFTs and Cryptocurrency and as otherwise set forth herein or in the Services. Mythical reserves the right to impose delays, limitations, additional security features and other controls on Wallets and/or Transactions at its sole and absolute discretion.
(d) External Wallets
If the Services allow and enable the creation, use and/or connection of an External Wallet or Non-Custodial Wallet, User hereby grants Mythical and its Affiliates all rights, authority and permissions necessary to connect the Services and User’s Account to such Wallet in order to facilitate Transactions as initiated by User, which may occur through automated technological means, such as via a “smart contract”, according to User’s instructions and actions when using the Services.
As an External Wallet is considered a Non-Custodial Wallet, User is solely responsible for all use, maintenance, custody and control of such External Wallet (including maintenance and security of all passwords, seed phrases and/or private keys) and all actions taken and Transactions initiated and executed by the User through an External Wallet. Mythical does not maintain or assume any custody, control, or permissions with respect to any External Wallet or Transactions in connection therewith. User must familiarize themselves with the terms of use, technology and security protocols of any External Wallet (e.g. passwords; saving private keys in a safe place etc.), as Mythical will not have the ability to recover any lost passwords, seed phrases or private keys associated with an External Wallet (or any ability to recover the External Wallet itself) and Mythical shall have no liability to User for any loss thereof. External Wallets may levy fees on User for Transactions; Mythical is not liable for any such fees. If an External Wallet rejects NFTs or Cryptocurrency sent to it from a Hosted Wallet, Mythical shall not be liable for any losses related thereto.
User represents to Mythical that any External Wallet used by User in connection with the Services is owned and controlled exclusively and directly by User and no other Person. Mythical reserves the right to put a hold on funds from an External Wallet or block the use of an External Wallet for withdrawals from another Wallet connected to the Services where Mythical is not satisfied, in its sole discretion, that the foregoing representation is true.
7. User PSP
Mythical shall assist User in entering into a User PSP Agreement with a PSP Provider, which, if approved by PSP Provider, shall result in User obtaining a User PSP. The User PSP is not provided by Mythical and Mythical does not take possession of Fiat or Cryptocurrency therein. All User rights and privileges with respect to the User PSP are set out in the User PSP Agreement. Mythical has no liability for Fiat or Cryptocurrency Transactions, all of which liability rests with PSP Provider.
Mythical does not process refunds, returns, chargebacks for User; such Transactions are between User and a PSP Provider, another Third Party Servicer or other third party and Mythical has no liability in respect of such third parties. Mythical has no liability to User concerning refunds, returns, chargebacks or other commercial elements of its Transactions with third parties, whether or not they involve transactions in the Hosted Wallet. User has exclusive control and holds exclusive responsibility for their Hosted Wallet and Transactions therein or elsewhere.
Solely to the extent necessary and if appliable, you agree that Mythical is authorized and appointed to act as your agent for the limited purpose of collecting and receiving payments owed to you by a buyer in the Marketplace of your NFT on your behalf for payment to you via a PSP Provider. User further appoints Mythical as its agent to send and receive User Data to and from PSP Provider, including but not limited to instructions to initiate Transactions from and to the User PSP.
8. Transactions
The Services allow Users to engage in Transactions. Transactions are subject to the following rules and disclaimers, without limitation:
(a) You represent that you are using NFTs primarily as objects of play and not for investment or speculative purposes or using NFTs or the Hosted Wallet as a means to acquire other Assets;
(b) You are prohibited from using a Bot or other automated interface to deliver Transaction instructions to Mythical;
(c) Mythical does not control any Approved Network and makes no representations to its ability to complete a given Transaction;
(d) Mythical does not take possession or control of any Fiat or Cryptocurrency and makes no representations as to the PSP Provider’s ability to store or fulfill Transactions;
(e) Mythical shall have no liability if a Transaction is delayed or fails on account of errors, lack of processing capacity or other failure of an Approved Network, or PSP Provider;
(f) Mythical does not control or hold custody of any External Wallets or User PSPs and shall have no liability to User for their failures, fees and other risks associated with User’s use of the same;
(g) Without prior notice or consent of User, Mythical reserves the right to impose, in its sole discretion, User, geographic, time, velocity, financial, NFT kind and any other limits or restrictions on Transactions in order to protect User, Other Users, Mythical and its suppliers from legal, fraud, security or other risks and to otherwise comply with Applicable Law;
(h) Mythical is not able to reverse any Transaction. Mythical bears no responsibility or liability for Transactions initiated by User that contain incorrect, erroneous or improperly formatted User Data or are intended for a different type or destination of NFT, External Wallet, or PSP Provider;
(i) User has the exclusive responsibility to ensure that their Transactions are carried out: (i) in compliance with Mythical requirements set out herein and in the Account; (ii) in compliance with any applicable Third Party Servicer or NFT requirements; (iii) using addresses and information that are true, correct, and free of error; and (iv) in compliance with the User PSP Agreement, and any other applicable Third Party Servicer Agreement;
(j) Mythical reserves the right, in its sole discretion, to prohibit Transactions from or to any External Wallet or User PSP in order to reduce the risk of fraud, security breaches, or other risks and also to comply with Applicable Law; and
(k) ALL TRANSACTIONS ARE FINAL AND NON-REFUNDABLE, EXCEPT AS REQUIRED BY APPLICABLE LAW OR INSTANCES IN WHICH THERE IS DOCUMENTED AND VERIFIED FRAUD AND THE SMART CONTRACT, AS APPLICABLE, ENABLES MYTHICAL TO REVERSE OR CANCEL THE TRANSACTION. NEVERTHELESS YOU ACKNOWLEDGE THAT MYTHICAL DOES NOT IN MOST CASES HAVE THE ABILITY TO REVERSE OR CANCEL A TRANSACTION AND IS NOT REQUIRED OR OBLIGATED TO PROVIDE A REFUND OF ANY PURCHASE FOR ANY REASON.
If you fail to adhere to these Terms, you understand and agree as follows: (i) that such failure may result in the permanent loss of your NFTs or Fiat or Cryptocurrency (for which Mythical shall have no liability); and (ii) that Mythical reserves the right to suspend, freeze and/or terminate Accounts and Wallets and confiscate any NFTs or Fiat or Cryptocurrency purchased or acquired in a manner not expressly permitted by these Terms, without notice or liability to you.
9. Mythical Regulatory Status
Mythical is providing the Marketplace and the Services solely as a hosted NFT marketplace that is integrated with third parties who provide Fiat and Cryptocurrency custodial and money transmission services directly to and on behalf of User, including any PSP Provider.
Mythical is not registered with the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC) or U.S. Department of the Treasury Financial Crimes Enforcement Network (FinCEN) as a money services business. Mythical is not a bank. There is no FDIC insurance on Hosted Wallets. User acknowledges that NFTs have no intrinsic value. Fiat or Cryptocurrency balances, if any, are hosted and held by User (via an External Wallet) or through a PSP Provider and not by Mythical.
10. Third Party Servicers
If User has a User PSP, then Mythical shall share User Data with the PSP Provider and also retrieve User Data from PSP Provider. Such exchanges of information shall be in furtherance of instructions given by User through the Account and may result in Transactions. User also authorizes Mythical to send and receive User Data to and from other Third Party Servicers. If User authorizes Mythical to take instructions from User, or in respect of an Account, via a Third Party Servicer, then such instructions shall be deemed delivered to Mythical by User directly.
User represents that each Third Party Servicer is party to a Third Party Servicer Agreement with User and that User assumes exclusive responsibility for acts and omissions of all Third Party Servicers whether under the Third Party Servicer Agreement, with respect to User Data or otherwise. The use of a Third Party Servicer does not relieve User of any of its responsibilities or obligations under these Terms. User is liable for any and all fees charged by Third Party Servicers. Unless indicated to the contrary in the Account, Fees for Services do not include fees applicable under Third Party Servicer Agreements.
11. User KYC Information/Personal Information Consent
On sign-up for the Services and at other times as a condition to accessing and using the Services, User shall provide User KYC Information to Mythical for purposes of verifying User identity, implementing the requirements of the AML Program and monitoring the User, Account and Transactions for suspicious activity. These identity verifications and screening procedures may include, but are not limited to, detection of money laundering, terrorist financing, fraud, or any other financial crime, pursuant to Specially Designated Nationals and Blocked Persons list maintained by the United States Department of the Treasury Office of Foreign Assets Control (OFAC), the United States Department of Commerce Denied Persons list, or any other similar list issued by any United States governmental authority or any other Regulator having jurisdiction under Applicable Law prohibiting or limiting business activities with any person.
User authorizes Mythical to, directly or through third parties, make inquiries and take any other actions Mythical deems reasonably necessary to verify User identity, and the information User has provided. User acknowledges and agrees that such inquiries will result in User KYC Information being disclosed to credit reference and fraud prevention or financial crime agencies and services. Where Mythical is not entirely satisfied that it has verified User identity, it reserves the right to limit User access to some or all Services.
User consents to Mythical collecting, storing, processing and disclosing User KYC Information and other User Data as required to perform the Services and in accordance with the Mythical Privacy Policy and AML Program.
12. Fees
Fees are as disclosed in the Account and the Marketplace. You authorize Mythical to instruct PSP Provider to release the amount of Fees, or other amounts of which you are liable hereunder, to Mythical from the External Wallet maintained by you or your PSP Provider. If there is no such External Wallet or if there is insufficient value therein to pay Fees, you agree to pay them to Mythical by such means as Mythical may reasonably require within five (5) days of when they are first posted as owing in your Account.
Mythical may make third party products or services available via the Marketplace or otherwise through the Services. Such third parties, including PSP Provider, may charge fees for their services. Mythical is not responsible for the fees charged by any such third parties.
Approved Networks charge network fees. These fees are often required to cover the transaction costs on virtual currency or blockchain networks and may apply to Transactions. Unless indicated otherwise in your Account or elsewhere in the Services, you are solely responsible for paying all network fees. Mythical will not advance nor fund network fees on your behalf, nor be responsible should the network fee paid be insufficient or excessive. Your Hosted Wallet or User PSP from which you wish to send must hold sufficient NFTs, Fiat or Cryptocurrency to cover the transaction and its associated network fees, failing which the transaction may be blocked, might fail or result in your value being suspended temporarily or forever.
13. Term and Termination
User can terminate these Terms at any time for any reason or for no reason by closing their Account. Prior to termination by User, User shall remove their NFTs from the Hosted Wallet and cause them to be sent to an External Wallet. Such Transactions on termination may be subject to at least a 30 day fraud-prevention hold term, and such other restrictions as may be necessary to prevent fraud or security breaches.
Mythical may, at any time and in its sole discretion, without prior notice, and without any liability to you, modify or discontinue any portion of our Services, either temporarily or permanently.
At any time and in its sole discretion, without prior notice, and without any liability to you, Mythical may: (a) cancel, suspend, terminate or deactivate User’s Account; or (b) temporarily or permanently, suspend, restrict, or terminate access to any or all of Services for any reason or for no reason. Mythical is under no obligations to disclose its reason for any restriction, termination or suspension of the Service for User or generally.
Mythical shall not be liable for any losses suffered by User resulting from any restriction, suspension or termination of the Services. You agree that your NFTs will be impossible to access during a suspension of Services.
In the event of any termination of these Terms, discontinuation of all Services, or termination of your right to access all Services: (a) all Fees and amounts payable to Mythical by you shall immediately become due, (b) Mythical may delete User Data without any liability to User, provided that Mythical also reserves the right to retain User Data for seven (7) years following termination; and (c) Mythical may cancel any Transactions that are pending at the time of the termination of your right to access all Services or discontinuation of the Services. Mythical reserves the right to retain aggregated anonymized User Data for longer in order to improve Services, prevent fraud and produce aggregated statistics.
If these Terms are terminated as a result of violations hereof by User, User agrees to forego all right title and interest in NFTs stored via the Service, and Mythical reserves the right to confiscate any such NFTs without notice or liability to you.
14. Taxes
It is your sole responsibility to comply with Applicable Laws related to your use of the Services, including, without limitation, to collect, remit and pay any and all taxes, including without limitation sales and income taxes, that apply to any Transactions you have made using the Services. It is your sole responsibility to report and remit the correct tax amount to any and all tax authorities. You acknowledge and agree that Mythical is not responsible for determining the amount of any taxes you owe, nor is Mythical responsible for determining if taxes apply to your use of the Services, nor is Mythical responsible for collecting, reporting, or withholding any taxes arising from your use of the Services. Mythical reserves the right to collect and remit sales, value added or other applicable or required taxes in respect of Transactions of the User with Other Users and the User shall cooperate in such activity by providing the necessary Assets, information and forms, each as determined by Mythical in its sole discretion.
15. Unclaimed Property
If a User Account is inactive for one year, then Mythical will make an attempt to return any NFT balances to the User, but if it is unable to find the User, Mythical shall escheat those NFTs to the relevant governmental authorities in the jurisdiction where the User last indicated they were residing within thirty (30) days of the end of such year.
16. Property Disputes
If Mythical receives notice or allegation that any NFTs held in your Wallet are stolen or lawfully not yours to possess, Mythical may, but has no obligation to, place an administrative hold of undetermined length on those NFTs or the whole of the Wallet, User PSP, or Account. Such hold may include but may not be limited to a suspension of access to the Services. Mythical shall not be liable for any losses incurred by User, or diminished value in NFTs, that occur in the course of an administrative hold, suspension or termination of access to any portion of or all of the Services in a property dispute. Mythical retains the right to report illegal or suspicious activity to the appropriate Regulators.
17. Electronic Notices
User agrees to receive all communications, including but not limited to, User Agreement, other applicable policies, updates to the same, statements, reports, invoices, receipts, notices, disclosures, legal or regulatory statements, or documents (collectively, the “Communications”) with respect to User’s Account and User’s use of the Services via electronic delivery.
By consenting to electronic delivery, User authorizes Mythical to deliver Communications by (i) email notification, or (ii) via SMS or text message to a mobile phone number User has provided, or (iii) by sending User an email message containing a link to, or a notice that directs User to, the Marketplace where the communication or document can be read or printed.
It is the responsibility of User to provide Mythical with an up to date, true, accurate, and complete email address and to make sure Mythical emails are not deleted or otherwise missed on account of spam filters.
User’s consent to receipt of electronic statements, reports and other Communications shall be valid until User withdraws such consent by notifying Mythical in writing, in which case: (i) Mythical shall provide statements, reports and other Communications on paper; and (ii) Mythical may suspend or terminate the Account and access to the Services.
18. Assumption of Risks, and Release of Mythical
Other than as expressly set forth in these Terms, Mythical shall not be liable for any risks inherent in the Services or related NFTs or losses that may be incurred by User as a result thereof. User agrees to and does hereby: (a) release Mythical from any and all liability related to or arising from risks inherent in the Services and related NFTs, except as expressly set forth in these Terms, and (b) assume all risks inherent in the Services and related NFTs including, but not limited to, the following:
Risk of the Approved Network ceasing to operate rendering a NFT impossible to be subject to a Transaction and entirely without use. T
There is risk that changes in Applicable Law could adversely affect User’s right to legally use, transfer, exchange, and/or obtain value from NFTs. It may be illegal, now or in the future, to own, hold, sell or use NFTs in one or more countries, including the United States.
Transactions in NFTs are, as a rule, irreversible. Consequently, losses due to fraudulent or accidental Transactions are generally not recoverable. It is possible that, through computer or human error, or through theft or fraud, User NFTs could be transferred in incorrect amounts or to unauthorized third parties.
NFTs are a target of fraud and cyber-attacks. On your Devices and External Wallets, such fraud and attacks can result in total loss to the User. In the Hosted Wallet, Mythical makes commercially reasonable efforts to verify that User is the true initiator of Transactions, but where User’s Account is compromised such efforts may fail and could result in total loss of User NFTs in the Hosted Wallet. Attacks on Mythical may also result in unplanned and significant Unscheduled Downtime during which Transactions will not be executed. Absent fraud or intentional wrongdoing on the part of Mythical, Mythical shall not be liable for User losses on account of any of the foregoing circumstances or compromised Account credentials. As a good faith holder of an NFT in your Hosted Wallet, there is a risk that you will lose possession thereof if Mythical determines that it was previously transferred by fraudulent means or otherwise in violation hereof, even if you had not part in the wrongdoing.
The Services and NFTs rely on the internet, that includes third party hardware, software, and internet connections, all of which may suffer communication failures, disruptions, errors, distortions or delays that might affect User’s ability to access and use the Services such as the Account and Hosted Wallet.
User shall carry out their own independent analysis and assessment of the risks specific to the NFTs and the Services.
19. Approved NFTs
Mythical’s decision to support any particular NFT on the Marketplace and via its Services is not an endorsement or approval of the NFT’s value, security, operation, underlying technology or functionality, including that any use or functionality may exist for such NFT on any Third Party Sites. Mythical’s decision to support any individual NFT does not reduce any risks associated with the NFT. Mythical does not make any warranty about the suitability of any NFT for ownership, sale, trading, functionality or use, including any such functionality or use on or in connection with any Third Party Sites.
You acknowledge and agree that Mythical retains the right, in its sole discretion, to determine whether to support, or not support, certain NFTs to be used in conjunction with the Marketplace and the Services. Mythical may discontinue or terminate support for any NFT at any time, for any or no reason. Mythical will make reasonable efforts to provide advance notification of any termination or discontinuation of support of an NFT. If you do not transfer an NFT out of your Hosted Wallet by the date specified in such advance notice, the NFT may be lost. Mythical will not be liable to you for any losses, liability, or expenses related to any discontinuation or termination of support of any NFTs.
20. Ownership; Copyright; Intellectual Property Rights; Third Party Rights: NFTs and Mythical Materials
a. NFTs
Your Ownership Rights. When you purchase a NFT on the Marketplace, you acquire ownership rights in and to the NFT and the rights to use the NFT and related functionality solely as permitted by the blockchain smart contract associated with the NFT and any Third Party Sites. As owner of the NFT, you have the right to trade your NFT, sell it, or give it away. Ownership and purchases and sales of the NFT are governed and mediated entirely by the terms of the Smart Contract associated with such NFT and the NFT initially issued and deployed on any Approved Network.
Mythical/Third Party Ownership Rights. Mythical, or, as applicable, any third party owners or licensors (e.g., artists, celebrities, brands, media and publishing companies, owners of film and tv shows, sports leagues), own all legal right, title and interest in and to all Copyrightable Elements, including any and all Intellectual Property Rights underlying and embodied in the NFT. Mythical, or, as applicable, third party owners or licensors, reserve all rights in and to the Purchased NFTs that are not expressly granted to you in these Terms. For the sake of clarity, you understand and agree: (a) that a Purchased NFT does not give you any rights or licenses in or to the Copyrightable Elements or other Intellectual Property Rights embodied in the NFT other than those expressly contained in these Terms; and (b) that you do not have the right, except as otherwise set forth in these Terms, to reproduce, distribute, or otherwise commercialize any Copyrightable Elements without our prior written consent (or, as applicable, the consent of any third party Intellectual Property Rights owners or licensors) in each case, which consent we (or our licensors) may withhold in our sole and absolute discretion.
License to Copyrightable Elements; Use of Functionality of NFTs. Subject to your continued compliance with these Terms, Mythical (or, as applicable, any third party owner or licensor of Intellectual Property Rights in and to the NFT) grants you a limited, worldwide, non-exclusive, non-transferable, royalty-free, revocable license to use, copy, and display the Copyrightable Elements for your Purchased NFTs solely for the following purposes: (a) your own personal, non-commercial use and use of the software functionality of the NFT in connection with any Third Party Sites (provided that you acknowledge and agree that a Purchased NFT has no use, functionality or playability outside of any Third Party Sites, you must have a valid registered account with a Third Party Site in order to use and/or transfer or import a Purchased NFT into such Third Party Site, and your use and the functionality of the NFT will be at all times subject to the applicable terms and conditions of the applicable Third Party Sites); and (b) for purposes of posting, advertising, and offering for sale your Purchased NFTs as part of the Marketplace or other approved or sanctioned secondary marketplace that permits the purchase, sale and transfer of ownership of your Purchased NFTs, provided that any such secondary marketplace cryptographically verifies each NFT owner’s rights to display the Copyrightable Elements for their NFTs to ensure that only the actual owner can display the Copyrightable Elements, and provided that the Copyrightable Elements are no longer visible once the owner of the NFT leaves such secondary marketplace.
Restrictions. Subject to the express license rights granted above, you agree that you may not do, nor permit any third party to do or attempt to do, any of the foregoing without Mythical’s (or the third party owner of licensor of Intellectual Property Rights underlying and embodied in the NFT) express prior written consent (or expressly authorized in these Terms) in each case: (a) modify the Copyrightable Elements for your Purchased NFT in any way, including, without limitation, the shapes, designs, drawings, attributes, or color schemes; (b) use the Copyrightable Elements or related software functionality for your Purchased NFT to advertise, market, or sell any third party product or service or any other Prohibited Activities; (c) use the Copyrightable Elements for your Purchased NFT in movies, videos, or any other forms of media; (d) sell, distribute for commercial gain (including, without limitation, giving away in the hopes of eventual commercial gain), or otherwise commercialize merchandise that includes, contains, or consists of the Copyrightable Elements for your Purchased NFT; or (e) attempt to trademark, copyright, or otherwise acquire additional Intellectual Property Rights in or to your Purchased NFT. To the extent that Copyrightable Elements associated with your Purchased NFT are based on, incorporate or contain any third party owned Intellectual Property Rights (e.g., licensed Intellectual Property Rights, such as images, logos and trademarks, from a content licensor, media company, sports league, celebrity, athlete, or other public figure), you understand and agree as follows: (x) that you will not have the right to use such third party Intellectual Property Rights in any way except as incorporated in the Copyrightable Elements, and subject to the license and other restrictions associated with such Purchased NFT; (y) that, depending on the nature of the license granted from the owner of the third party Intellectual Property Rights, Mythical may need to pass through additional restrictions on your ability to use the Copyrightable Elements; and (z) to the extent that Mythical informs you of such additional restrictions in writing (email is permissible), you will be responsible for complying with all such restrictions from the date that you receive the notice, and that failure to do so will be deemed a breach of this license. The restrictions in this Section will survive the expiration or termination of these Terms.
Termination. The licenses granted above apply only to the extent that you continue to own the applicable Purchased NFT. If at any time you sell, trade, give away, transfer, or otherwise dispose of your Purchased NFT for any reason, such licenses will immediately expire without the requirement of notice, and you will have no further rights in or to the Purchased NFT, including any Copyrightable Elements or Intellectual Propoerty Rights incorporated or embodied therein. The licenses granted above will also automatically terminate if: (a) you transfer, sell, donate or otherwise dispose of the Purchased NFT in a way not allowed specifically under these Terms; (b) you breach any of these Terms; or (c) you otherwise engage in any Prohibited Activities related to the Purchased NFT (or, any Copyrightable Elements or Intellectual Property Rights incorporated therein).
b. Mythical Materials
Unless otherwise expressly indicated by Mythical, all copyright and intellectual property rights in all content and materials (including but not limited to our logo, designs, text, graphics, files, videos, and displayed text, collectively “Mythical Materials”) contained on our Marketplace provided in connection with our Services are the proprietary property of Mythical, or our suppliers, licensors, or third party affiliates, and are protected by U.S. and international intellectual property laws.
We grant you a limited, non-exclusive, non-sublicensable license to access and use the Mythical Materials for your personal use. Such license does not permit the: (a) distribution of Mythical Materials, (b) resale of Mythical Materials, (c) making derivative works of Mythical Materials, or (d) decompilation, disassembling, reverse engineering, or any other attempt to discover the source code of the Marketplace, Services, or Mythical Materials. This license shall automatically terminate if your access to the Services is suspended or terminated by us. “Mythical”, “Mythical Marketplace”, any product or service names, logos, and other marks used on the Marketplace or in Mythical Materials, or that we otherwise use in connection with the Services are trademarks owned by Mythical and our licensors. Without our prior written consent, you may not copy, imitate, or use Mythical trademarks.
21. Disclaimer of Warranties
THE MARKETPLACE AND THE SERVICES ARE PROVIDED TO YOU ON A STRICTLY “AS IS,” “WHERE IS,” AND “WHERE AVAILABLE” BASIS. MYTHICAL EXPRESSLY REFUSES TO REPRESENT OR WARRANT THE ACCURACY, COMPLETENESS, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF THE SERVICES, MARKETPLACE, OR THE INFORMATION CONTAINED THEREIN OR ANY ASPECT OF ANY SERVICE CONTAINED THEREON, OR THE EXISTENCE OR AVAILABILITY OF A MARKET OR DEMAND TO SELL YOUR PURCHASED NFT AT ANY GIVEN TIME OR IN ANY PARTICULAR STATE, COUNTRY OR REGION (DUE TO, AMONG OTHER THINGS, LEGAL, REGULATORY OR OTHER PROHIBITIONS OR CONDITIONS IMPOSED ON SUCH RESALE OR TRANSFER OR OPERATION OF THE MARKETPLACE), OR IF SUCH DEMAND OR MARKET IS AVAILABLE, THAT YOUR PURCHASED NFT WILL HAVE ANY PARTICULAR RESALE VALUE IN THE MARKETPLACE.
YOU ACKNOWLEDGE THAT INFORMATION AND NFTS YOU STORE OR TRANSFER USING OUR SERVICES MAY BECOME IRRETRIEVABLY LOST OR CORRUPTED, OR TEMPORARILY UNAVAILABLE DUE TO A VARIETY OF CAUSES INCLUDING, BUT NOT LIMITED TO, INTERNET OUTAGES, FORCE MAJEURE EVENTS OR OTHER DISASTERS INCLUDING THIRD PARTY DOS ATTACKS, SOFTWARE FAILURES, PROTOCOL CHANGES BY THIRD PARTY PROVIDERS, SCHEDULED OR UNSCHEDULED DOWNTIME OR MAINTENANCE, COMPUTER OR HUMAN ERROR, OR OTHER CAUSES EITHER WITHIN OR OUTSIDE OUR CONTROL. YOU ARE SOLELY RESPONSIBLE FOR BACKING UP AND MAINTAINING DUPLICATE COPIES AND RECORDS OF ANY INFORMATION YOU STORE OR TRANSFER THROUGH OUR SERVICES.
MYTHICAL (AND ITS LICENSORS) WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSSES YOU INCUR AS THE RESULT OF YOUR PURCHASE OF ANY NFT OR USE OF THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (i) USER ERROR, SUCH AS FORGOTTEN PASSWORDS OR INCORRECTLY CONSTRUED SMART CONTRACTS OR OTHER TRANSACTIONS; (ii) SERVER FAILURE OR DATA LOSS; (iii) CORRUPTED WALLET FILES; (IV) UNAUTHORIZED ACCESS OR ACTIVITIES BY THIRD PARTIES, INCLUDING BUT NOT LIMITED TO THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK AGAINST THE SERVICES, MARKETPLACE OR NETWORKS; (V) INABILITY OR RESTRICTIONS ON YOUR ABILITY TO RESELL OR TRANSFER ANY PURCHASED NFT DUE TO LEGAL, REGULATORY OR OTHER PROHIBITIONS OR CONDITIONS IMPOSED ON SUCH RESALE OR TRANSFER OR OPERATION OF THE MARKETPLACE.
NFTS ARE INTANGIBLE DIGITAL ASSETS THAT EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED ON APPROVED NETWORKS AND SMART CONTRACTS. ALL SMART CONTRACTS ARE CONDUCTED AND OCCUR ON A DECENTRALIZED LEDGER. MYTHICAL HAS NO CONTROL OVER AND MAKES NO GUARANTEES OR PROMISES WITH RESPECT TO SMART CONTRACTS WHEN DEPLOYED IN THE MARKETPLACE, ON APPROVED NETWORKS, OR THIRD PARTY SITES.
MYTHICAL AND ITS LICENSORS ARE NOT RESPONSIBLE FOR LOSSES DUE TO BLOCKCHAINS OR ANY OTHER FEATURES OF APPROVED NETWORKS OR THIRD PARTY SITES, OR ANY LOSS OR DECLINE IN ECONOMIC VALUE ASSOCIATED WITH YOUR PURCHASED NFTS.
MYTHICAL CANNOT GUARANTEE THAT YOU WILL BE PERMITTED TO IMPORT OR USE ANY NFT ON OR IN CONNECTION WITH A THIRD PARTY SITE OR TO SELL OR TRANSFER YOUR PURCHASED NFT AT ANY GIVEN TIME, AND IT IS POSSIBLE THAT YOU MAY NEVER BE PERMITTED TO SELL OR TRANSFER YOUR PURCHASED NFT IF PROHIBITED BY LAWS OR REGULATIONS APPLICABLE TO MYTHICAL, YOU, THE SERVICES, THIRD PARTY LICENSORS AND/OR SECONDARY MARKETPLACE(S).
SOME JURISDICTIONS DO NOT PERMIT THE disclaimer OF IMPLIED TERMS IN CONTRACTS; THEREFORE, SOME OR ALL OF THE disclaimer OF IMPLIED WARRANTIES IN THIS SECTION MAY NOT APPLY TO YOU.
22. Limitation of Liability
IN NO EVENT SHALL MYTHICAL, ITS AFFILIATES OR SERVICE PROVIDERS, LICENSORS OR THEIR RESPECTIVE DIRECTORS, SHAREHOLDERS, MEMBERS, OFFICERS, EMPLOYEES, AGENTS, JOINT VENTURERS, OR REPRESENTATIVES, BE LIABLE FOR: (A) ANY AMOUNTS GREATER THAN THE VALUE OF THE FEES PAID BY YOU TO MYTHICAL DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF ANY CLAIM GIVING RISE TO SUCH LIABILITY; (B) ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY ANY USER ON ANY INFORMATION OBTAINED FROM MYTHICAL, OR THAT RESULTS FROM MISTAKES, OMISSIONS, INTERRUPTIONS, ERRORS, DEFECTS, VIRUSES, OR DELAYS IN SERVICES OPERATION OR TRANSMISSION; (C) ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM A FORCE MAJEURE EVENT, COMMUNICATIONS FAILURE, THEFT, OR DESTRUCTION ARISING OUT OF OR IN CONNECTION WITH AUTHORIZED OR UNAUTHORIZED USE OF THE SERVICES, OR THESE TERMS; OR (D) ANY LOST PROFITS, OR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, WHETHER BASED IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE EVEN IF AN AUTHORIZED REPRESENTATIVE OF MYTHICAL HAS BEEN ADVISED OF, OR KNEW OF, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
IN THE EVENT THAT MYTHICAL INCURS ANY LOSSES ON ACCOUNT OF ACTS OR OMISSIONS OF USER, USER HEREBY EXPRESSLY INSTRUCTS MYTHICAL TO, WITHOUT PRIOR NOTICE OR CONSENT OF USER, DEBIT ASSETS OF USER UP TO THE AMOUNT OWING TO MYTHICAL FROM (A) THE USER HOSTED WALLET; AND (B) USER BALANCES WITH PSP PROVIDERS TO REIMBURSE MYTHICAL THE AMOUNTS OWING TO MYTHICAL. MYTHICAL RESERVES THE RIGHT TO USE THE ASSETS DEBITED FROM THE USER HOSTED WALLET (INCLUDING, WITHOUT LIMITATION, ANY NFTS IN THE USER HOSTED WALLET) TO OFFSET ANY AND ALL ACTUAL OR POTENTIAL LOSSES INCURRED AS A RESULT OF THE USER’S ACTS OF OMISSIONS.
MYTHICAL SHALL HAVE NO LIABILITY FOR ACTS AND OMISSIONS OF OTHER USERS IN THEIR TRANSACTIONS OR OTHER DEALINGS WITH THE USER. WHILE MYTHICAL HAS IMPLEMENTED POLICIES TO MONITOR TRANSACTIONS FOR FRAUD AND OTHER PROHIBITED ACTIVITIES, MYTHICAL MAKES NO REPRESENTATION AS TO THE EFFECTIVENESS OF SUCH POLICIES AND THE USER SHOULD EXERCISE CAUTION IN ANY TRANSACTION TO OBTAIN COMFORT THAT THE OTHER USER HAS BEEN PERFORMING IN ACCORDANCE WITH THESE TERMS AND ANY AGREEMENT WITH THE USER.
MYTHICAL SHALL HAVE NO LIABILITY FOR ANY DECREASE OR INCREASE IN VALUE OF ANY NFT AS USER ACKNOWLEDGES AND AGREES THAT THEY HAVE NO INTRINSIC VALUE AND PURCHASES OF NFTS ARE STRICTLY FOR ENTERTAINMENT, COLLECTIBLE AND FUNCTIONAL PURPOSES AND NOT FOR PROFIT, SPECULATION OR INVESTMENT PURPOSES.
SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES; THEREFORE, SOME OR ALL OF THE LIMITATIONS IN THIS SECTION MAY NOT APPLY TO USER WHERE THEIR APPLICATION IS REDUCED BY APPLICABLE LAW.
23. Indemnification
You agree to indemnify and hold harmless Mythical, our officers, directors, shareholders, employees, agents, affiliates, attorneys, suppliers, contractors, representatives, licensors, and service providers (collectively, “Indemnified Parties”), from any and all claims, demands, actions, lawsuits, proceedings, investigations, liabilities, damages, losses, costs, expenses, fines and penalties including, without limitation, reasonable attorney’s fees, arising out of or related to: (a) your breach of these Terms; (b) your violation of any Applicable Law, or the rights, including intellectual property rights, of any other person or entity; (c) your use or misuse of our Services; (d) your conduct in connection with the use or misuse of our Services; and (d) your negligence, fraud, willful misconduct or misrepresentations. If you are obligated to indemnify us, we will have the right, in our sole discretion, to control any action or proceeding and determine if we wish to settle it, and if so, on what terms.
24. Governing Law and Binding Arbitration
Please read this Section carefully as it limits the manner in which you can seek relief from Mythical.
A. Mandatory Arbitration of Disputes.
You agree that any dispute, claim or controversy arising out of or relating to these Terms and this Agreement or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (“Dispute(s)”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Mythical agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this Agreement, and that you and Mythical are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of this Agreement.
B. Exceptions and Opt-out.
As limited exceptions to the above: (i) you may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights. In addition, you will retain the right to opt out of arbitration entirely and litigate any Dispute if you provide us with written notice of your desire to do so by email to legalmythical.games within thirty (30) days following the date you first agree to these Terms.
C. Conducting Arbitration and Arbitration Rules.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this Dispute Resolution section. The AAA Rules are available on the AAA website and are hereby incorporated by reference. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state where the arbitration hearing is to be conducted, and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
D. Arbitration Costs.
Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. If we prevail in arbitration we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
E. Class Action Waiver.
YOU AND MYTHICAL AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
F. Severability.
If an arbitrator or court of competent jurisdiction decides that any part of this Agreement is invalid or unenforceable, the other parts of this Agreement will still apply.
G. Governing Law and Venue.
Disputes will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of California without regard to its conflict of law provisions. Except as otherwise expressly set forth above, you agree that the California state and U.S. federal courts located in the County of Los Angeles shall have exclusive jurisdiction over all Disputes that you and Mythical are not required to arbitrate and you agree to the venue of such courts.
25. Assignment
Mythical may assign any of its rights or obligations under these Terms without your consent and without prior notice to you. You may not assign or transfer any of your rights or obligations under these Terms, in whole or in part, by operation of law or otherwise, without the prior written consent of Mythical, which may be withheld in Mythical’s sole discretion. Any actual or attempted assignment hereof by User contrary to these Terms shall be null and void. Mythical may, at its discretion, assign some or all of its rights or obligations to a third party, without consent or approval of User. In the event that Mythical is acquired by, sold to, or merged with a third party entity, Mythical reserves the right to transfer or assign all User Data as part of such merger, acquisition, sale, or change of control.
26. Non-Waiver of Rights
Any failure or delay by Mythical to exercise any right, privilege, or power under these Terms shall not operate as a waiver thereof. These Terms shall not be construed to waive any rights that cannot be waived under Applicable Laws.
27. Force Majeure
Mythical shall have no liability or responsibility for (a) failure in performance or interruption of service, (b) any inaccuracy, error, delay in, or omission of information or transmission of information, or (c) any loss or damage that you may incur, which results directly or indirectly from any force majeure event including, but not limited to flood, act of civil or military authorities, terrorist acts, extraordinary weather conditions, pandemic, fire, pandemic, war, strike or other labor dispute, interruption of telecommunication services, accident, power failure, hardware or software malfunction, any act of god, or any other act that is beyond our reasonable control.
28. Independent Relationship; No Broker or Agent; No Advice
Mythical is an independent contractor, and, except as expressly set forth in these Terms, nothing in the nature of the Services or any provisions in these Terms shall be deemed, or cause, or is intended to cause User and Mythical to be treated as partners, joint venturers, or as an agent of the other party. Mythical is not User’s broker, intermediary, agent, or financial advisor, and Mythical has no fiduciary obligation to User in connection with any Transactions, or other acts or omissions of User with respect to the Services. For the avoidance of doubt, Mythical is in no manner providing investment advice, tax advice, legal advice, or other professional advice whether through the Services or otherwise. Mythical does not recommend or endorse that you purchase or sell any NFT or that you enter into any trade or Transaction. Before engaging in any trade or Transaction, User should always consult a qualified professional.
29. Survival
All provisions of these Terms, and any policies incorporated herein by reference, which by their nature extend beyond the expiration or termination of these Terms shall survive the termination or expiration of these Terms. Such provisions include, but are not limited to, sections and provisions relating to Account termination or suspension, funds due to Mythical, disputes with Mythical, Risk Disclosures, Unclaimed Property, Copyrights, Disclaimer of Warranties, Limitation of Liability, Indemnification, Binding Arbitration, and Governing Law.
30. Entire Agreement; Amendment
These Terms, and the policies incorporated herein by reference, constitute the entire understanding and agreement between User and Mythical regarding the Services. These Terms, and the policies incorporated herein by reference supersede all other representations, agreements and understandings, both written and oral, including without limitation any prior versions of these Terms, among User and Mythical with respect to the Services. In the event of any conflict between these Terms and any other agreement User may have with Mythical, unless the other agreement specifically references and identifies these Terms, these Terms shall control. Mythical reserves the right to amend these Terms at its sole discretion, without your consent. These Terms may be amended by Mythical by Mythical providing notice of the amendment: (a) by email to the email account used to create your Account; (b) by posting a new version hereof to the Services; or (c) by your accepting a revised version of these Terms at an Account login. Where you have accepted the amendment or where the amendment is required by a change in Applicable Law, or to address a security or compliance requirement, as indicated in the notice of amendment contemplated above, the amendment shall take effect as of when these Terms is updated or the notice contemplated above has been sent, otherwise, the amendment shall take effect if you do not close your Account within thirty (30) days following the notice contemplated above. If you do not agree with a proposed or actual amendment to these Terms, your sole remedy is to discontinue use of the Services and close your Account.
31. Glossary
For the purposes of these Terms, the terms below in this Glossary have the meanings indicated below:
“Account” means a unique account created and hosted by Mythical and shall serve as a record of: (a) your acceptance of these Terms; (b) your use of the Services; and (c) Transactions.
“Affiliate” means, in relation to a Party, another person or entity that directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or common control with the Party, or a Party's principal partners, shareholders, or owners of some other ownership interest.
“AML Program” means the anti-money laundering and know your customer programs, policies and procedures in place at Mythical and any PSP Provider, such as they may be from time to time.
“Applicable Law” means, with respect to any Person, any domestic or foreign, federal, state, provincial or local statute, law, ordinance, rule, administrative interpretation, regulation, order, writ, injunction, judgment, decree or other requirement of any Regulator which is legally binding and applicable to such Person or any of its Affiliates or any of their respective properties, assets, equity holders, officers, directors, members, partners, employees, consultants or agents.
“Approved Network” means the blockchain or computer network supporting a NFT and Transactions in that NFT.
“Approved Regions” means such states of the United States and other countries and territories where the Services are expressly made available and expressly authorized by Mythical and PSP Provider, as determined in their sole discretion at any time.
“Assets” means, collectively, all NFTs in a Hosted Wallet and all Fiat and Cryptocurrency in the User PSP.
“Copyrightable Elements” means any art, designs, drawings, color schemes, attributes, characteristics, traits and other visual or audio elements embodied or incorporated or associated with an NFT.
“Cryptocurrency” means a designated medium of exchange involving cryptographic coins or tokens, such as Bitcoin or Ethereum, or a stablecoin such as USDC.
“External Wallet” means a Wallet created and owned by the User (which, if applicable, may be enabled by the Services), or a third party, and of which Mythical does not hold any custody or control (i.e., User or third party maintains sole control of any permissions, private keys and/or passwords) and from which Mythical is not capable of initiating or executing any Transaction, unless expressly authorized by the User through the use of the Services as further described herein. An External Wallet may also be referred to herein as a “Non-Custodial Wallet”.
“Fees” means the fees applicable to the Services, or any element thereof, indicated in the Services or in your Account, such as they may be from time to time.
“Fiat” means real currency, specifically United States Dollars.
“Hosted Wallet” means, if applicable through the Services, a Mythical-hosted custodial Wallet.
“Intellectual Property Rights” means any patent rights, copyrights, trade secrets, trademarks, know-how or any other intellectual property or proprietary rights recognized in any country or jurisdiction in the world.
“NFT” means a one-of-a-kind, non-fungible, cryptographic token representing a unique digital asset for which there is no copy or substitute. An NFT cannot be substituted for another NFT as each NFT is distinctive and unique in some way. An NFT is not an investment, a medium of exchange and is not convertible virtual currency. A “Blanko” character from Mythical’s Blankos Block Party game is an NFT.
“NFT Transaction” means a Transaction involving NFTs being transferred from one Wallet to another.
“Non-Custodial Wallet” see definition of External Wallet above.
“Other User” means a Person that is not the User or an Affiliate of the User, who is party to an agreement with Mythical substantively identical to these Terms and that is a user of the Services;
“Person” means any individual, corporation, limited liability company, partnership, joint venture, trust, unincorporated organization, Regulator or government or any agency or political subdivision thereof.
“Privacy Policy” means the Mythical Privacy Policy, posted on the Mythical Marketplace website, such as it is from time to time.
“PSP Provider” means a third party payments service and/or Wallet provider who provides Users with Fiat or Cryptocurrency payments capabilities and custodial wallets subject to the User PSP Agreement.
“Purchased NFT” means a NFT that you have validly purchased via the Marketplace, or otherwise rightfully acquired by other means, and have not subsequently transferred or sold, where proof of such purchase is recorded on an Approved Network.
“Regulator” means any federal, provincial, state or local or foreign government or any court, arbitrator, administrative or regulatory agency or commission or other governmental authority or agency.
“Third Party Servicer Agreement” means an agreement between User and a Third Party Servicer pursuant to which the Third Party Servicer delivers their services. User PSP Agreement is a Third Party Servicer Agreement.
“Third Party Servicer” means a third party: (a) whose service are compatible with the Services, as indicated by Mythical in the Account; and (b) that User has retained under a Third Party Servicer Agreement. Each PSP Provider is a Third Party Servicer.
“Third Party Site(s)” means any third party applications, games or websites that may authorize the importation, display and/or use of an NFT.
“Transaction” means any of an NFT Transaction, Fiat or Cryptocurrecny Transaction, or other transaction in NFTs or financial currency within or initiated by the Services.
“User Data” means the information collected, stored, accessed or used by Mythical in the course of supplying the Services in respect of the Account.
“User Device” means an electronic device used by User to access the Services, such as a computer, tablet, mobile phone or other device.
“User KYC Information” means information requested by Mythical or provided by User in relation to the initial establishment of the Account or the subsequent operation of the Account and includes, but is not limited to, User name, address, email address, date of birth, government-issued photo identification, taxpayer identification number, government identification number, bank or other payment account information, IP address, a photo or video of the User, MAC address of User Device, payment account information (e.g. credit card) and User Wallet information.
“User PSP Agreement” means the agreement between User and PSP Provider governing the User PSP.
“User PSP” means an account of the User at the PSP Provider.
“Wallet” means a digital or technological mechanism used to deposit and store NFTs and Cryptocurrency and/or otherwise initiate and execute Transactions.
“Prohibited Activity” means the operation of or the direct or indirect facilitation of any of the following:
Any act that is illegal in the United States or in the jurisdiction where the Person carrying out the activity is resident, domiciled or located;
Operation of a business that is similar to or competitive with the Services;
Operation of a crypto currency exchange;
Operation of a crypto currency wallet;
Operation of a payment processor, money transmitter, check casher, foreign exchange dealer, provider of prepaid access or other money services business;
Betting, including lottery tickets, casino gaming chips, off-track betting, memberships on gambling-related internet Marketplaces and wagers at races;
Direct marketing or subscription offers;
Internet, mail or telephone order pharmacies or pharmacy referral services;
Creation, promotion or sale of items that encourage, promote, facilitate or instruct others to engage in illegal activity;
Creation, promotion or sale of items that may be counterfeit;
Creation, promotion or sale of items that may infringe or violate any Intellectual Property Rights or privacy or any other proprietary right under the laws of any jurisdiction;
Creation, promotion or sale of items that promote hate, violence, racial intolerance, or the financial exploitation of a crime;
Creation, promotion or sale of items that promote, support or glorify acts of violence or harm towards self or others;
Using the Services in any manner related to payment aggregators;
Purchase, sale or promotion of drugs, alcohol, or drug paraphernalia, or items that may represent these uses;
Unregulated sales of money-orders or foreign currency;
Using the Services for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property, taxation and other proprietary rights and data collection and privacy;
Using the Services in a manner that Mythical or any of its suppliers reasonably believes to be an abuse of the Services;
Using the Services in any manner that could damage, disable, overburden, or impair Mythical or any of the Services including without limitation, using the Services in an automated manner;
Using the Services in any way that assists User or others in the violation of any law, statute or ordinance;
Using the Services to sell any NFTs which entitle the owner or other third parties to receive or share in income or revenue streams, rental fees, royalties or other compensation (other than receiving income as part of the sales price of the NFT or royalties payable to third party creators, owners or licensors of Intellectual Property Rights underlying the NFT) or collect payments that support pyramid or ponzi schemes, matrix programs, other “business opportunity” schemes or certain multi-level marketing programs;
Using the Services to control an Account that is linked to another Account that has engaged in any of the foregoing activities;
Using the Services to defame, harass, abuse, threaten or defraud others, or collect, or attempt to collect, personal information about users, registered recipients, or third parties without their consent;
Using the Services to intentionally interfere with another user’s enjoyment of it, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms or other malicious code;
Using the Services to make unsolicited offers, advertisements, proposals, or to send junk mail or spam to others;
Using the Services to send or receive what Mythical considers to be funds for something that may have resulted from fraud or other illegal behavior;
Using the Services while impersonating any person or entity or falsely claiming an affiliation with any person or entity; or
Using the Services in any manner related to firearms or weapons including replicas and collectible items.