Clicker Terms of Use Agreement
Welcome to Clicker! These Terms of Use constitute a binding legal agreement between you and Clicker.
By accessing or using the Services in any way, including without limitation by visiting the Website and/or connecting your Partner Application or Wallet to the Services, you represent that (1) you have read, understand, and agree to be bound by these Terms of Use; (2) you are of legal age to form a binding contract with us; and (3) you have the authority to enter into these Terms of Use. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THE SERVICES.
PLEASE BE AWARE THAT SECTION 15 (DISPUTE RESOLUTION) CONTAINS PROVISIONS GOVERNING HOW TO RESOLVE DISPUTES BETWEEN YOU AND COMPANY. AMONG OTHER THINGS, SECTION 15 INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US SHALL BE RESOLVED BY BINDING AND FINAL ARBITRATION. SECTION 15 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ SECTION 15 CAREFULLY.
UNLESS YOU OPT OUT OF THE AGREEMENT TO ARBITRATE WITHIN 30 DAYS: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
Your use of, and participation in, certain Services may be subject to Supplemental Terms, which will either be listed in the Terms of Use or will be presented to you for your acceptance when you sign up to use the supplemental Service. If the Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service.
The Services are intended to help you find actions you can take through third-party platforms and services by aggregating your communications channels across those platforms and services.
CLICKER CANNOT INITIATE A TRANSFER OF ANY OF YOUR CRYPTOCURRENCY OR DIGITAL ASSETS OR OTHERWISE ACCESS YOUR DIGITAL ASSETS. CLICKER DOES NOT INDEPENDENTLY VERIFY THE ACCURACY OR CONTENTS OF ANY INFORMATION AGGREGATED BY OR DELIVERED THROUGH THE SERVICES. CLICKER HAS NO FIDUCIARY RELATIONSHIP OR OBLIGATION TO YOU REGARDING ANY DECISIONS OR ACTIVITIES THAT YOU EFFECT IN CONNECTION WITH YOUR USE OF THE SERVICES, INCLUDING ANY ACTIONS THAT YOU TAKE IN RELIANCE ON ANY MESSAGES. CLICKER IS NOT CAPABLE OF PERFORMING TRANSACTIONS OR SENDING TRANSACTION MESSAGES ON YOUR BEHALF.
PLEASE NOTE THAT THE AGREEMENT IS SUBJECT TO CHANGE BY CLICKER IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Clicker will make a new copy of the Terms of Use available at the Website and any new Supplemental Terms will be made available from within, or through, the affected Service. We will also update the “Last Updated” date at the top of the Terms of Use. Any changes to the Agreement will be effective immediately for new users of the Website and/ or Services and will be effective thirty (30) days after posting notice of such changes on the Website and/or Services for existing users of the Services. Clicker may require you to provide consent to the updated Agreement in a specified manner before further use of the Website and/or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website and/or the Services. Otherwise, your continued use of the Website and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
DEFINITIONS.
“Account” means a registered account on the Services as accessed through a Wallet.
“Agreement” means these Terms of Use and any Supplemental Terms applicable to your use of the Services.
“App Store Sourced Application” means any application accessed through or downloaded from the Apple App Store.
“Arbitration Agreement” means the dispute resolution process set forth in Section 15.
“Clicker,” “we,” or “us” means Daylight Studios, Inc.
“Clicker Parties” means Clicker, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors.
“Connected Content” means any Content or personal financial data that you have provided to and/or stored in your Wallet or other Partner Application.
“Content” means any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials.
“Copyswap” means any transaction in Digital Assets initiated by a Registered User (i) that is effected via a Swap Comment through the Platform or Partner Application; and/or (ii) who opens a push notification from or in the Platform or Partner Application containing or referencing a Swap Comment.
“Digital Asset” means any cryptocurrency, cryptoasset, blockchain-based token, or other digital asset.
“Fee(s)” means any fees or charges assessed by Clicker and incurred by any customer (including both Registered Users and Partners) in connection with any Services.
“Feedback” means any ideas, suggestions, documents, and/or proposals that you submit to Clicker through the Services.
“Gas Fees” means transaction fees determined by market conditions on the applicable Crypto Platform. Gas Fees are not determined, set, or charged by Clicker.
“Google Play Sourced Application” means any application accessed through or downloaded from the Google Play store.
“Make Available” or “Made Available” means to upload, post, e-mail, transmit or otherwise make available through the Services.
“Order” means any order form or supplemental documentation pursuant to which any Registered User purchases any Services from Clicker.
“OSS” or “Open-Source Software” means any software or components thereof subject to “open source” or “free software” licenses.
“Partner” means a Clicker partner or customer that, pursuant to an agreement with Clicker, uses the Software to enable Crypto Platforms to connect with such Crypto Platforms’ end users, including without limitation to (i) make Swap Comments available through the Services and (ii) review and display Swap Comments made available to Registered Users.
“Partner Application” means a service (including without limitation Crypto Platforms and suppliers or service providers thereto) owned or operated by a Partner and integrated with the Services.
“Platform” means Clicker’s proprietary platform (i) that displays and allows Registered Users to aggregate disparate Swap Comments created by selected Registered Users and related notifications in one simple interface; (ii) through which Registered Users can initiate actions, including drafting and sending Transaction Messages, including Copyswaps, in connection with Swap Comments; (iii) that allows Registered Users to create, post, search, read, and otherwise Make Available Swap Comments or replies to Swap Comments; (iv) that recommends to Registered Users certain Wallet addresses that such Registered Users may want to follow; and (v) that may allow Registered Users to receive fees for Copyswaps performed in reliance on such Registered User’s Swap Comments.
“Registered User” is a user who has registered an Account and may include, without limitation, a Partner or an individual end user.
“Services” means any products and services Made Available by Clicker, including without limitation the Website, the Platform, and the Software.
“Software” means Clicker’s proprietary software that powers personalized interactions between other crypto developers and their end users by tailoring developers’ communications to such end users’ preferred messaging platforms.
“Supplemental Terms” means any terms or policies applicable to any products or services offered by Clicker that are not addressed in these Terms of Use.
“Swap Comment” means Content created by a Registered User and Made Available on the Platform referencing an on-chain swap transaction such Registered User made through a Wallet.
“Terms of Use” means this Clicker Terms of Use Agreement that governs your access to and use of the Services.
“Third-Party Account” means a valid account on a Crypto Platform; a social networking service supported by the Services; or a valid third-party Wallet compatible with the Services.
“Third-Party Content” means any Content that is Made Available by or through Third-Party Services or any other applicable third party.
“Third-Party Services” means any third-party websites, applications, and advertisements for third parties accessible or otherwise connected to the Services but not provided by Clicker, including, without limitation, Partner Applications, and Wallets.
“Transaction Message” means any transaction message written and digitally signed by a Registered User through or in connection with the Platform.
“User Content” means any Content that is Made Available by a Registered User, but excluding Connected Content.
“Wallet” means a software-based system for secure storage of cryptocurrency, cryptoassets, and payment information related thereto.
“Website” means the Clicker website and any associated subdomains.
“Crypto Platform” means a blockchain-based or other crypto service provider that facilitates the availability of Swap Comments for its end users.
“You” means the individual or legal entity, as applicable, that is using or accessing the Services, or that is identified as the user when you registered on the Services.
USE OF THE SERVICES.
Services. Our Services include, without limitation, the Website, the Platform and the Software. The Services are protected by copyright laws throughout the world. Unless otherwise specified by Clicker in a separate license (including without limitation applicable Supplemental Terms), your right to use any and all Services is subject to the Agreement.
Access to the Platform. Subject to the Agreement, Clicker grants you a limited license to access and use the Platform for the sole purpose of using the Services for your personal or internal business purposes and solely in accordance with the functionality of the Services.
Token-Gated Access. In order to access certain Content and/or Services, including without limitation to access certain beta services Made Available by Clicker, you may need to have certain Digital Asset(s) in the Wallet linked to your Account. Except as expressly set forth in connection with any Digital Asset(s) Made Available by us, we are not liable for, and take no responsibility for, any failure or incompatibility of any such Digital Assets.
License to the Software. Use of the Software is subject to any Supplemental Terms, including any payment terms, Made Available to you in connection with such Software. These license terms may be posted at the Website page where the Software can be accessed. You shall not access, use, download or install any Software (including without limitation any SDK, API, or API key) that is accompanied by or includes a license agreement unless you agree to the terms of such license agreement and this Agreement. At no time will Clicker provide you with any tangible copy of our Software. Clicker shall deliver access to the Software via electronic transfer and shall not use or deliver any tangible media in connection with the (a) delivery, installation, updating or problem resolution of any Software (including any new releases); or (b) delivery, correction or updating of documentation. For the purposes of this section, tangible media shall include, but not be limited to, any tape disk, compact disk, card, flash drive, or any other comparable physical medium. Any redistribution of the Software is prohibited except as expressly set forth in the applicable license agreement, including any redistribution or use on a service bureau basis. If there is any conflict between the Agreement and the license agreement, the license agreement shall take precedence in relation to that Software (except as provided in the following sentence). If the Software is a pre-release version, then, notwithstanding anything to the contrary included within an accompanying license agreement, you are not permitted to use or otherwise rely on the Software for any commercial or production purposes. If no license agreement accompanies use of the Software, use of the Software will be governed by the Agreement. Subject to your compliance with the Agreement, Clicker grants you a non-assignable, non-transferable, revocable non-exclusive license to use the Software for the sole purpose of enabling you to use the Services in the manner contemplated and to the extent permitted by the Agreement. Some Software may be offered under an open source license that we will make available to you. There may be provisions in the OSS licenses that expressly override some of these terms.
Certain Restrictions. The Services are for your personal use only (without limiting the foregoing, no “service bureau” use or any other use by, or on behalf or for the benefit of, any third party is permitted). Unless explicitly provided for in a separate Order, the rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion of the Services; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Services (including images, text, page layout or form) of Clicker; (c) you shall not use any metatags or other “hidden text” using Clicker’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services. Any future release, update or other addition to the Services shall be subject to the Agreement. Clicker, its suppliers and service providers reserve all rights not granted in the Agreement. Clicker reserves the right to terminate the licenses granted pursuant to the Agreement in the event of any unauthorized use of the Services, as determined in Clicker’s sole discretion.
Updates. You understand that the Services are evolving. You acknowledge and agree that Clicker may update the Services with or without notifying you. You may need to update third-party software from time to time in order to use the Services.
Third-Party Application Access. With respect to an App Store Sourced Application, you shall only use the App Store Sourced Application (a) on an Apple-branded product that runs iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple Media Terms of Service, except that such App Store Sourced Application may be accessed, acquired, and used by other accounts associated with the purchaser via Apple’s Family Sharing function, volume purchasing, or Legacy Contacts function. Notwithstanding the first sentence in this section, with respect to a Google Play Sourced Application, you may have additional license rights with respect to use of the application on a shared basis within your designated family group.
Accessing and Downloading the Application from the Apple App Store. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
You acknowledge and agree that (i) this Agreement is concluded between you and Clicker only, and not Apple, and (ii) Clicker, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Clicker and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Clicker.
You and Clicker acknowledge that, as between Clicker and Apple, Apple is not responsible for addressing any claims you have or of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
You and Clicker acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Clicker and Apple, Clicker, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement.
You and Clicker acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
Without limiting any other terms of this Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
REGISTRATION.
Connecting Your Wallet. In order to access certain features of the Services (including to create an Account) you need to connect a Wallet that is supported by or compatible with the Services. You cannot create a Wallet using the Services. You represent that you are entitled to connect any Wallet that you connect to the Services and to grant any permissions that you grant us in and to such Wallet in order to facilitate any Services, including but not limited to for the purposes described herein, without breach by you of any of the terms and conditions that govern your use of the applicable Wallet and without obligating Clicker to pay any fees or making Clicker subject to any usage limitations imposed by such third-party service providers. Please note that if a Wallet or associated service becomes unavailable or Clicker’s access to such Wallet is terminated by the third-party service provider, then you will no longer be able to integrate such Wallet with the Services, and we disclaim all liability in connection with the foregoing. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR WALLET IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND CLICKER DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE OR OTHER INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH WALLET OR OTHER THIRD-PARTY ACCOUNTS.
Registering an Account. In order to access certain features of the Services, including without limitation the Platform, you may be required to create an Account, in accordance with the functionality of the Services, by connecting one or more Wallets to the Service. When you connect a unique Wallet to the Services, you register an Account for such Wallet. In registering an Account, you agree to (a) provide true, accurate, current and complete information about yourself; and (b) maintain and promptly update such information to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Clicker has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Clicker has the right to suspend or terminate your Account and refuse any and all current or future use of Services (or any portion thereof). You agree not to create an Account using a false identity or information or a Wallet that you do not have the authorization to use, or on behalf of someone other than yourself unless expressly authorized to do so.
Eligibility. You represent and warrant that:
You are (i) at least eighteen (18) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using Services under the laws of the United States, your place of residence or any other applicable jurisdiction. If you are acting on behalf of a DAO or other entity, whether or not such entity is formally organized under the laws of any jurisdiction, you represent and warrant that you have all right and authority necessary to act on behalf of such entity;
None of: (i) you; (ii) any affiliate of any entity on behalf of which you are entering into this Agreement; (iii) any other person having a beneficial interest in any entity on behalf of which you are entering into this Agreement (or in any affiliate thereof); or (iv) any person for whom you are acting as agent or nominee in connection with this Agreement is: (A) a country, territory, entity or individual named on an OFAC list as provided at http://www.treas.gov/ofac, or any person or entity prohibited under the OFAC programs, regardless of whether or not they appear on the OFAC list; or (B) a senior foreign political figure, or any immediate family member or close associate of a senior foreign political figure. There is no legal proceeding pending that relates to your activities relating to buying, selling, staking, or otherwise using cryptocurrency or any other token- or digital asset- trading or blockchain technology related activities; and
You have not failed to comply with, and have not violated, any applicable legal requirement relating to any blockchain technologies or token-trading activities or any other applicable laws, including, but not limited to, anti-money laundering or terrorist financing laws, and no investigation or review by any governmental entity is pending or, to your knowledge, has been threatened against or with respect to you, nor does any government order or action prohibit you or any of your representatives from engaging in or continuing any conduct, activity or practice relating to cryptocurrency.
Necessary Equipment and Software. You must provide all equipment, software, and hardware necessary to connect to the Services. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Services. You are solely responsible for keeping your hardware devices secure.
RESPONSIBILITY FOR CONTENT.
Types of Content. You acknowledge that all Content, including without limitation Content Made Available in connection with the Services, Transaction Messages, and Swap Comments, is the sole responsibility of the party from whom such Content originated. This means that you and other Registered Users of the Services, and not Clicker, are responsible for all User Content.
Transaction Message Content. When you use the Services to draft and send Transaction Messages to a Crypto Platform or other Third-Party Service, you acknowledge and agree that, as between Clicker and you, you are solely responsible for any Content contained in any such Transaction Messages and any action effected as a result of such Transaction Messages.
Swap Comments. When you use the Services to submit Swap Comments, you acknowledge and agree that you are solely responsible for such Content. Clicker reserves the right, but has no obligation, to monitor any Content submitted by you in connection with a Swap Comment. Clicker may, but has no obligation to, identify you as the source of such Content.
Swap Comment Content. When you use the Services to receive Swap Comments from a Crypto Platform or other Third-Party Service, you acknowledge and agree that such Crypto Platform or other Third-Party Service, and not Clicker, is responsible for any Content contained in any such Swap Comments, including without limitation any inaccuracies with respect to the same. When you use the Services, including the Software, to (a) initiate or transmit any Swap Comments or (b) facilitate the transmission of a Swap Comment on behalf of a Crypto Platform, you acknowledge and agree that, as between you and Clicker, you, and not Clicker, are responsible for the Content of any such Swap Comment. Clicker shall have no liability to you in connection with such Content, including without limitation if such Content (i) violates applicable law, including without limitation securities law; or (ii) violates the terms or rules applicable to any Third-Party Service to or through which such Swap Comment is transmitted.
Messages Content Disclaimer. Clicker makes no representation that the Platform is or will be compatible with all Crypto Platforms or Third-Party Services, and Clicker does not and cannot verify that the Content of any Swap Comment or Transaction Message will be accurate or complete, or that any Swap Comment or Transaction Message will be effectively or completely transmitted by the Platform. Clicker shall have no liability to you or any third party in connection with such Content. Before taking any action in reliance on any Swap Comment or any other Content, you should verify the accuracy of such Content.
OWNERSHIP.
The Services. Except with respect to any OSS, your Wallet, and any User Content that you Make Available, you agree that Clicker and its licensors own all rights, title and interest in and to the Services. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Services.
Open Source Software. You acknowledge that the Services may use, incorporate or link to certain OSS and that your use of the Services is subject to, and you will comply with any, applicable OSS licenses. Each item of OSS is licensed under the terms of the end-user license that accompanies such OSS. Nothing in this Agreement limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for the OSS. If required by any license for particular OSS, Clicker makes such OSS, and Clicker’s modifications thereto, available by written request at the notice address specified below.
Trademarks. Clicker’s stylized logos and all related graphics, logos, service marks and trade names used on or in connection with any the Services or in connection with the Services are the trademarks of Clicker and may not be used without permission in connection with your, or any third-party, products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners.
Your User Content. Clicker does not claim ownership of your User Content. However, when you as a Registered User post, publish, or otherwise Make Available your User Content on or in the Services, including without limitation to use the Software to initiate or facilitate the transmission of any Transaction Message or to publish or interact with any Swap Comment, you represent that you own and/or have, and have all rights necessary to grant to Clicker and do hereby grant to Clicker, a royalty-free, perpetual, irrevocable, worldwide, non-exclusive, sublicensable right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display your User Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in your User Content. Notwithstanding anything contained herein to the contrary, by submitting your User Content to any forums, comments, or any other public area on the Platform, including without limitation by publishing any Swap Comment, you hereby expressly permit Clicker to identify you by your ENS address or other associated username (which may be a pseudonym) as the contributor of such User Content in any form, media or technology now known or later developed in connection with such User Content.
Feedback. You agree that submission of Feedback is at your own risk and that Clicker has no obligations with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Clicker a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, for any purpose.
FEES; PAYMENTS.
Fees. In the event that Clicker Makes Available, and you elect to purchase, any Services in connection with which Clicker charges Fees, you agree that you will pay Clicker all such Fees as set forth in a separate Order or at Clicker’s then-current standard rates. You agree that, unless otherwise set forth in an Order or otherwise prior to purchase: (i) all Fees are non-cancellable, non-refundable, and non-recoupable; and (ii) all invoices for Fees are due and payable in United States dollars (or an alternative currency or cryptocurrency to be agreed-upon by the parties in writing) within 30 days after the invoice date, without deduction or setoff. Notwithstanding any fluctuation in the value of any currency, whether fiat or cryptocurrency, you shall pay all Fees in the currency in which you have agreed to pay such Fees. You are responsible for all federal, state, local, sales, use, value added, excise, or other taxes, fees, or duties arising out of the Agreement or the transactions contemplated by the Agreement (other than taxes based on Clicker’s net income).
Gas Fees. You are solely responsible for ensuring that any payment made by you is sufficient to cover any Gas Fee required to complete any transaction in connection with or effect any other use of the Services.
Swap Comment Payments. If a Registered User effects a Copyswap as a result of a Swap Comment you Made Available on the Platform or Partner Application, you may be entitled to receive a fee based on the Fees collected by Clicker or the Partner that operates such Partner Application, as applicable.
Taxes. You are responsible for all federal, state, local, sales, use, value added, excise, or other taxes, fees, or duties arising out of the Agreement or the transactions contemplated by the Agreement (other than taxes based on Clicker’s net income).
USER CONDUCT. You agree that you are solely responsible for your conduct in connection with the Service. You agree that you will abide by this Agreement and will not (and will not attempt to): (a) provide false or misleading information to Clicker; (b) pose as another person or entity; (c) Use the Services in any manner that could interfere with, disrupt, negatively affect or inhibit other Registered Users from fully enjoying the Services, or that could damage, disable, overburden or impair the functioning of the Services in any manner; (d) develop, utilize, or disseminate any software, or interact with any API in any manner, that could damage, harm, or impair the Services; (e) bypass or circumvent measures employed to prevent or limit access to any service, area, or code of the Services; (f) attempt to circumvent any content-filtering techniques we employ; (g) use any robot, spider, crawler, scraper, script, browser extension, offline reader, or other automated means or interface not authorized by us to access the Services, extract data or otherwise interfere with or modify the rendering of Service pages or functionality; (h) collect or harvest data from our Services that would allow you to contact individuals, companies, or other persons or entities, or use any such data to contact such entities; (i) use data collected from our Services for any direct marketing activity (including without limitation, email marketing, SMS marketing, telemarketing, and direct marketing); (j) bypass or ignore instructions that control all automated access to the Services; (k) use the Service for any illegal or unauthorized purpose, or engage in, encourage, or promote any activity that violates any applicable law or this Agreement; (l) use your Wallet to carry out any illegal activities in connection with or in any way related to your access to and use of the Services, including but not limited to money laundering, terrorist financing or deliberately engaging in activities designed to adversely affect the performance of the Services; (m) Make Available any Content (including any Transaction Message or Swap Comment) that infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (n) attempt to access any Wallet that you do not have the legal authority to access; (o) engage in or knowingly facilitate any “front-running,” “wash trading,” “pump and dump trading,” “ramping,” “cornering” or fraudulent, deceptive or manipulative trading activities, including: (i) trading Digital Assets at successively lower or higher prices for the purpose of creating or inducing a false, misleading or artificial appearance of activity in such Digital Asset, unduly or improperly influencing the market price for such Digital Asset on the Services or any Crypto Platform or establishing a price which does not reflect the true state of the market in such Digital Asset; (ii) for the purpose of creating or inducing a false or misleading appearance of activity in a Digital Asset or creating or inducing a false or misleading appearance with respect to the market in a Digital Asset: (1) executing or causing the execution of any transaction in a Digital Asset which involves no material change in the beneficial ownership thereof; or (2) entering any order for the purchase or sale of a Digital Asset with the knowledge that an order of substantially the same size, and at substantially the same price, for the sale of such Digital Asset, has been or will be entered by or for the same or different parties; or (iii) participating in, facilitating, assisting or knowingly transacting with any pool, syndicate or joint account organized for the purpose of unfairly or deceptively influencing the market price of a Digital Asset; (p) use the Services to carry out any financial activities subject to registration or licensing, including but not limited to using the Services to transact in securities, debt financings, equity financings or other similar transactions except in strict compliance with applicable law; or (q) use the Service to participate in fundraising for a business, protocol, or platform except in strict compliance with applicable law. Any unauthorized use of any Services terminates the licenses granted by Clicker pursuant to the Agreement.
INVESTIGATIONS. Clicker may, but is not obligated to, monitor or review the Services and Content at any time. Without limiting the foregoing, Clicker shall have the right, in its sole discretion, to remove any of your User Content for any reason (or no reason), including if such User Content violates the Agreement or any applicable law. Although Clicker does not generally monitor user activity occurring in connection with the Services or Content, if Clicker becomes aware of any possible violations by you of any provision of the Agreement, Clicker reserves the right to investigate such violations, and Clicker may, at its sole discretion, immediately terminate your license to use the Services, or change, alter or remove your User Content, in whole or in part, without prior notice to you.
INTERACTIONS WITH OTHER USERS.
User Responsibility. You are solely responsible for your interactions with other Registered Users, Crypto Platforms, and any other parties with whom you interact through or in connection with the Service; provided, however, that Clicker reserves the right, but has no obligation, to intercede in such disputes. You agree that Clicker will not be responsible for any liability incurred as the result of such interactions, including without limitation any interactions resulting from or arising in connection with any Swap Comments.
Connected Content. Clicker is not liable to you in connection with Clicker’s or any third party’s use of the Services to view any Connected Content that you have Made Available. CLICKER DISCLAIMS ANY LIABILITY FOR CONNECTED CONTENT, INCLUDING WITHOUT LIMITATION PERSONALLY IDENTIFIABLE INFORMATION AND FINANCIAL INFORMATION, THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH WALLETS. Clicker has no obligation to review or verify any Connected Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Clicker is not responsible for any Connected Content.
INDEMNIFICATION. You agree to indemnify and hold the Clicker Parties harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) your User Content; (b) your use of, or inability to use, any of the Services; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any Registered Users; or (e) your violation of any applicable laws, rules or regulations. Clicker reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Clicker in asserting any available defenses. This provision does not require you to indemnify any of the Clicker Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of the Agreement and/or your access to the Services.
ASSUMPTION OF RISK RELATED TO BLOCKCHAIN TECHNOLOGY.
Risk of Financial Loss. When you use the Services, you understand and acknowledge that Clicker is not a financial or investment advisor and that your use of the Services may subject your Digital Assets to a risk of loss and may not meet your needs. Clicker shall not be responsible for foreseeing or anticipating technical or other difficulties which may result in data loss or other service interruptions. Clicker encourages you to periodically confirm the valuation of your Digital Assets through independent sources. Clicker does not and cannot make any guarantee that your Digital Assets will not lose value. The prices of cryptocurrency assets can be extremely volatile. Clicker makes no warranties as to any Crypto Platform or the markets in which your Digital Assets are staked, transferred, purchased, or traded.
Cybersecurity Risks. You understand, acknowledge and agree that, like any other software, the Platform, and the Services could be exploited without authorization by third-party malware, hacks or cybersecurity breaches. You further understand, acknowledge and agree that it is your responsibility to monitor your Digital Assets regularly and confirm their proper use and deployment consistent with your intentions.
General Risks. In order to be successfully completed, any transaction involving Digital Assets initiated by or sent to your Wallet must be confirmed by and recorded on the blockchain supporting such Digital Asset. Clicker has no control over any blockchain and therefore cannot and does not ensure that any transaction details that you submit or receive via our Services (including without limitation any Transaction Message or Swap Comment) will be validated by or confirmed on the relevant blockchain, and Clicker does not have the ability to facilitate any cancellation or modification requests. You accept and acknowledge that you take full responsibility for all activities that you effect through your Wallet and accept all risks of loss, including loss as a result of any authorized or unauthorized access to your Wallet, to the maximum extent permitted by law. You further accept and acknowledge that:
You (i) have the necessary technical expertise and ability to review and evaluate the security, integrity and operation of your Wallet and any Crypto Platforms accessed in connection with the Services; (ii) have the knowledge, experience, understanding, professional advice and information to make your own evaluation of the merits, risks and applicable compliance requirements under applicable laws of any use of your Wallet and any Crypto Platforms accessed in connection with the Services; (iii) know, understand and accept the risks associated with your Wallet and any Crypto Platforms accessed in connection with the Services; and (iv) accept the risks associated with blockchain technology and Crypto Platforms generally, and are responsible for conducting your own independent analysis of the risks specific to your use of the Services. You further agree that Clicker will have no responsibility or liability for, such risks.
Clicker does not store, send, or receive Digital Assets.
There are risks associated with using an Internet based currency, including but not limited to, the risk of hardware, software and Internet connections; the risk of malicious software introduction; the risk that third parties may obtain unauthorized access to information stored within your Wallet; the risk of counterfeit assets, mislabeled assets, assets that are vulnerable to metadata decay, assets on smart contracts with bugs, and assets that may become untransferable; and the risk that such Digital Assets may fluctuate in value. You accept and acknowledge that Clicker will not be responsible for any communication failures, disruptions, errors, distortions or delays or losses you may experience when using blockchain technology, however caused.
The regulatory regimes governing blockchain technologies, cryptocurrencies, and tokens is uncertain, and new regulations or policies, or new or different interpretations of existing regulations may materially adversely affect the development of the Services.
Clicker makes no guarantee as to the functionality of any blockchain’s decentralized governance, which could, among other things, lead to delays, conflicts of interest, or operational decisions that are unfavorable to certain owners of certain Digital Assets. You acknowledge and accept that the protocols governing the operation of a blockchain may be subject to sudden changes in operating rules which may materially alter the blockchain and affect the value and function of Digital Assets supported by that blockchain.
Clicker makes no guarantee as to the security of any blockchain. Clicker is not liable for any hacks, double spending, stolen Digital Assets, or any other attacks on a blockchain.
The Services rely on, and Clicker makes no guarantee or warranties as to the content of, functionality of, or access to, any Partner Application, Crypto Platform, Wallet, or other Third-Party Service.
Clicker makes no guarantee as to the security of any Partner Application or Crypto Platform.
Crypto Platforms may slash or otherwise impose penalties on certain validators in response to activity not condoned by such Crypto Platform. You acknowledge and agree that Clicker shall have no liability in connection with any such slashing or penalties, including any slashing or penalties that result in a loss or depreciation of value of your Digital Assets.
You control your Wallet, and Clicker is not responsible for its performance, or for any risks associated with the use, misuse or unauthorized use thereof.
DISCLAIMER OF WARRANTIES AND CONDITIONS.
As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. CLICKER PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE. CLICKER PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE. ANY CONTENT ACCESSED THROUGH THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. CLICKER MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM CLICKER OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
CLICKER IS NOT AN INVESTMENT OR FINANCIAL ADVISOR. NONE OF CLICKER, ITS SUPPLIERS OR ITS LICENSORS SHALL BE RESPONSIBLE FOR INVESTMENT AND OTHER FINANCIAL DECISIONS, OR DAMAGES, OR OTHER LOSSES RESULTING FROM USE OF THE SERVICES OR ANY CLICKER WALLET. NONE OF CLICKER, ITS SUPPLIERS OR ITS LICENSORS SHALL BE CONSIDERED AN “EXPERT” UNDER THE APPLICABLE SECURITIES LEGISLATION IN YOUR JURISDICTION. NONE OF CLICKER, ITS SUPPLIERS OR ITS LICENSORS WARRANT THAT ANY OF THE SERVICES COMPLIES WITH THE REQUIREMENTS OF ANY APPLICABLE REGULATORY AUTHORITY, SECURITIES AND EXCHANGE COMMISSION, OR ANY SIMILAR ORGANIZATION OR REGULATOR OR WITH THE SECURITIES LAWS OF ANY JURISDICTION.
No Liability for Blockchain Losses. CLICKER HAS NO RESPONSIBILITY, AND WILL NOT BE LIABLE, FOR ANY USE OR MISUSE OF DIGITAL ASSETS, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (a) USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED ADDRESSES; (b) SERVER FAILURE OR DATA LOSS; (c) CORRUPTED DIGITAL WALLET FILES; (d) UNAUTHORIZED ACCESS TO APPLICATIONS; (e) REMOVAL OF ANY USER CONTENT ASSOCIATED WITH SUCH DIGITAL ASSETS; OR (f) ANY UNAUTHORIZED THIRD PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK AGAINST THE SERVICES, DIGITAL ASSETS, OR DIGITAL WALLETS. Clicker is not responsible for any losses or harms sustained by you due to vulnerability or any kind of failure, of any software (e.g., smart contract), blockchains, or any other features of or inherent to Digital Assets. Clicker is not responsible for any delay or failure to report any issues with any blockchain supporting Digital Assets, including without limitation forks, technical node issues, or any other issues that result in losses of any sort.
No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT CLICKER PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD CLICKER PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING WITHOUT LIMITATION OPERATORS OF EXTERNAL SITES, CRYPTO PLATFORMS, AND DECENTRALIZED APPLICATIONS, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. CLICKER MAKES NO WARRANTY THAT THE GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. CLICKER MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH GOODS OR SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT (INCLUDING SWAP COMMENTS) OBTAINED THROUGH THE SERVICES.
No Liability in Connection with Partner Applications. Notwithstanding anything to the contrary in these Terms of Use, Clicker shall be under no obligation to inquire into and shall not be liable for any damages, other liabilities or harm to any person or entity relating to any losses, delays, failures, errors, interruptions or loss of data occurring directly or indirectly by reason of circumstances beyond Clicker’s control, including without limitation through the use of any Partner Applications in connection with the Services.
No Liability in Connection with Third-Party Content Obtained through the Services. Notwithstanding anything to the contrary in these Terms of Use, you acknowledge and agree that Clicker does not independently verify or analyze any Third-Party Content and Swap Comments that are Made Available on the Services, including through any Swap Comment, and you will independently verify the accuracy and source of such Third-Party Content. Do not act on any Third-Party Content or other material obtained through the Services without first seeking relevant professional counsel.
No Liability in Connection with Unavailability of Third-Party Services. Certain features of the Services may rely on Third-Party Services. Notwithstanding anything to the contrary in these Terms of Use, you acknowledge and agree that Clicker shall not be liable for any damages, liabilities, or other harms in connection with your inability to access the Third-Party Services. Notwithstanding anything to the contrary in these Terms of Use, Clicker shall be under no obligation to inquire into and shall not be liable for any damages, other liabilities or harm to any person or entity relating to any losses, delays, failures, errors, interruptions or loss of data occurring directly or indirectly by reason of circumstances beyond Clicker’s control, including without limitation the failure of a blockchain or third-party services provider.
No Liability in Connection with Open-Sourced Clicker Content. Notwithstanding anything to the contrary in these Terms of Use, you acknowledge and agree that any Content you access under the terms of an OSS license is at your own risk, and Clicker shall not be liable for any damages, other liabilities or harm to any person or entity relating to any losses, delays, failures, errors, interruptions or loss of data occurring directly or indirectly by reason of circumstances outside beyond Clicker’s control, including without limitation through your use of any content under the terms of an OSS License.
No Liability in Connection with Beta Services. FROM TIME TO TIME, CLICKER MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT CLICKER’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
You are solely responsible (and Clicker shall have no responsibility) to verify any claims, content, designs, algorithms, estimates, roadmaps, specifications, and performance measurements described in the Services. Furthermore, nothing in the Service constitutes a solicitation for investment. Clicker does not encourage, induce, or sanction the deployment, integration, or use of the Service in violation of applicable laws or regulations and hereby prohibits any such deployment, integration or use. This includes use of any such applications by you (a) in violation of export control or sanctions laws of the United States or any other applicable jurisdiction, (b) if you are located or are ordinarily resident in a country or territory subject to comprehensive sanctions administered by OFAC, or (c) if you are or are working on behalf of a Specially Designated National (“SDN”) or a person subject to similar blocking or denied party prohibitions. You should be aware that U.S. export control and sanctions laws prohibit U.S. person (and other persons that are subject to such laws) from transacting with persons in certain countries and territories or that are on the SDN list.
LIMITATION OF LIABILITY.
Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL CLICKER PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, ETHEREUM OR OTHER VIRTUAL CURRENCY, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT CLICKER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (a) THE USE OR INABILITY TO USE THE SERVICES; (b) THE COST OF PROCUREMENT OF SUBSTITUTE DIGITAL ASSETS, GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED, OR MESSAGES RECEIVED OR DRAFTED THROUGH OR IN CONNECTION WITH THE SERVICES; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR (e) ANY OTHER MATTER RELATED TO THE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A CLICKER PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A CLICKER PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A CLICKER PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, CLICKER PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a) $100; OR (b) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES WHERE SUCH REMEDY OR PENALTY CANNOT BE WAIVED OR REDUCED PURSUANT TO THIS AGREEMENT. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A CLICKER PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A CLICKER PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A CLICKER PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
User Content. CLICKER ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT, COMMUNICATIONS, OR PERSONALIZATION SETTINGS.
Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN CLICKER AND YOU.
TERM AND TERMINATION.
Term. The Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Services, unless terminated earlier in accordance with the Agreement.
Termination of Services by Clicker. Clicker is free to terminate (or suspend access to) your use of the Services for any reason, or for no reason, in our discretion, including your breach of this Agreement. Clicker has the sole right to decide whether you are in violation of any of the restrictions set forth in this Agreement. If we suspend your use of the Services, you may continue to access your Wallet directly or through other services not hosted by us. Clicker will not have any liability whatsoever to you for any suspension or termination.
Termination of Services by You. If you want to terminate the Services provided by Clicker, you may do so by ceasing your use of the Services. You may continue to access your Wallet directly or through other services not hosted by us.
Survival. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, indemnification, and limitation of liability.
No Subsequent Use. If your ability to access the Services or any other Clicker service is discontinued by Clicker, then you agree that you shall not attempt to access the Services or any Clicker service through use of a different Wallet, Third-Party Account, member name or otherwise. In the event that you violate the immediately preceding sentence, Clicker reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
DISPUTE RESOLUTION. Please read this Arbitration Agreement carefully. It requires you to arbitrate disputes with Clicker and limits the manner in which you can seek relief from us.
Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and we agree that any dispute, claim, or request for relief relating in any way to your access or use of the Services or to any aspect of your relationship with Clicker, including any claims and disputes that arose between us before the effective date of this Agreement, (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that (a) you may assert claims or seek relief in small claims court if your claims qualify; and (b) you or Clicker may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Agreement as well as claims that may arise after the termination of this Agreement.
Informal Dispute Resolution. There might be instances when a Dispute arises between you and Clicker. If that occurs, Clicker is committed to working with you to reach a reasonable resolution. You and Clicker agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and Clicker therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference. The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Clicker that you intend to initiate an Informal Dispute Resolution Conference should be sent by email or regular mail to the address(es) set forth in Section 18.8. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address or Wallet address associated with your Account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute. The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
Waiver of Jury Trial. YOU AND CLICKER HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Clicker are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the subsection entitled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
Waiver of Class and Other Non-Individualized Relief. YOU AND CLICKER AGREE THAT, EXCEPT AS SPECIFIED IN SUBSECTION 15.9, EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the subsection 15.9 entitled “Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this subsection, “Waiver of Class and Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Clicker agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of New York. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or Clicker from participating in a class-wide settlement of claims.
Rules and Forum. This Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Conference process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and Clicker agree that either party shall have the right to finally resolve the Dispute through binding arbitration. 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 section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf. A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address and/or Wallet address of the party seeking arbitration and the Account username (if applicable) as well as the email address associated with any applicable Account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution Conference process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration. If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. Unless you and Clicker otherwise agree, or the Batch Arbitration process discussed in subsection 15.9 is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA Rules. You and Clicker agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of New York 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 thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under subsection 15.9 is triggered, the AAA will appoint the arbitrator for each batch.
Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to the subsection entitled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of the subsection entitled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such subsection entitled “Waiver of Class and Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in the subsection entitled “Batch Arbitration,” all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in the subsection entitled “Batch Arbitration.” The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Clicker need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Conference process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Clicker agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against Clicker by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”). All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Clicker. You and Clicker agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings. This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the address set forth in Section 18.8, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address and digital wallet you used to set up your Account (if applicable), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
Invalidity, Expiration. Except as provided in the subsection entitled “Waiver of Class and Other Non-Individualized Relief”, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Clicker as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Clicker makes any future material change to this Arbitration Agreement, it will notify you. Unless you reject the change within thirty (30) days of such change become effective by writing to Clicker at the address set forth in Section 18.8, your continued use of the Services following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of this Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Services, this Agreement, the provisions of this Arbitration Agreement as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement) remain in full force and effect. Clicker will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.
Confidentiality. All aspects of any arbitration proceeding, including but not limited to any award of an arbitrator, shall be strictly confidential. The parties agree to maintain the confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
Survival of Agreement. This Arbitration Agreement will survive the expiration or any termination of your relationship with Clicker.
THIRD-PARTY SERVICES. The Services may contain, link to, or integrate with certain Third-Party Services. When you click on a link to or access or use a Third-Party Service, we will not warn you that you have left the Services and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Services are not under the control of Clicker. Clicker is not responsible for any Third-Party Services. Clicker provides these Third-Party Services only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Services, or any product or service provided in connection therewith. You use all links in Third-Party Services at your own risk. When you leave our Services, this Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Services, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
MONITORING AND ENFORCEMENT. If Clicker becomes aware of any possible violations by you of the Agreement, Clicker reserves the right to investigate such violations and/or to refer the matter to, and to cooperate with, any and all applicable legal authorities. Clicker is entitled to disclose any information or material, including any information in order (i) to comply with applicable laws, legal process or governmental request, (ii) to enforce the Agreement, or (iii) to protect the rights, property or personal safety of Clicker, its Registered Users or the public.
GENERAL PROVISIONS.
Electronic Communications. For contractual purposes, you (a) consent to receive communications from Clicker in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Clicker provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
Release. You hereby release Clicker Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Services, including but not limited to, any interactions with or conduct of other Registered Users or third-party websites of any kind arising in connection with or as a result of the Agreement or your use of the Services. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Clicker’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
Force Majeure. Clicker shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at legal@daylight.xyz. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Clicker agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in the State of New York.
Governing Law. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT.
Notice. You may give notice to Clicker at the following address: legal@daylight.xyz. Such notice shall be deemed given when received by Clicker by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address, or, if by email sent and expressly referencing this Section 18.8, within 24 hours of confirmed transmission to the email address set forth in this Section 18.8.
Independent Contractors. The relationship of Clicker and you under this Agreement is that of independent contractors. Notwithstanding anything else set forth herein, neither party will be deemed to be an employee, agent, partner or legal representative of the other for any purpose and neither party will have any right, power or authority to create any obligation or responsibility on behalf of the other party. Your use of the Services shall not imply, suggest, or create an employment relationship between Clicker and you.
Copyright Policy. Clicker respects the intellectual property of others and asks that users of our Services do the same. In connection with our Services, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Website who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Website, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent: your physical or electronic signature; identification of the copyrighted work(s) that you claim to have been infringed; identification of the material on our services that you claim is infringing and that you request us to remove; sufficient information to permit us to locate such material; your address, telephone number, and e-mail address; a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner. Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement. The designated Copyright Agent for Clicker is: Daylight Studios, ATTN: Copyright Agent, c/o Corporation Service Company, 251 Little Falls Drive, Wilmington, New Castle County, Delaware 19808.
Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
International Users. The Services can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Clicker intends to announce such Services or Content in your country. The Services are controlled and offered by Clicker from the United States of America. Clicker makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
Export Control. You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws.
Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.