Welcome to The Gimmicks. These Terms of Use, including any terms and conditions incorporated by reference (collectively, these “Terms”) constitute a binding agreement between you and Gimmicks LLC (referred to as “Gimmicks”, “we”, “us” or “our”) when you access any website offered by us, including therealgimmicks.com (the “Website”), any mobile app offered by us, or any other platform we may provide (individually and collectively, the “Platform”) and any features, functions, services, products, rewards, offers, Content (as defined below), materials, or information available on or through the Platform (collectively the “Services”), in existence now or in the future. You are referred to herein as “you” or “your”. Together, you and Gimmicks are referred to herein as “Parties.” The Privacy Policy posted at therealgimmicks.com also forms part of these Terms.
In the future, we may change these Terms. If we decide to change these Terms, the effective date will be posted so that you will always know what terms of use apply when you use the Platform or Services.
BY USING THE PLATFORM AND SERVICES, YOU: (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE OF LEGAL AGE IN YOUR JURISDICTION TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, YOU MUST DISCONTINUE YOUR ACCESS TO AND USE OF THE PLATFORM AND SERVICES.
You agree not to gain unauthorized access to the Platform or Services, or any account, computer system or network connected to the Platform or otherwise, for example, through hacking, password mining or any other illicit means.
Any breach of these Terms immediately terminates your right to access and use the Platform and Services and all rights and licenses granted to you by these Terms.
1. Linking Your Digital Wallet
- You do not have to create an account in order to use or access the Platform. However, in order to access certain Services, including purchasing Gimmicks NFTs as described below, you will need to link a digital wallet that is compatible with the blockchain and is owned by you to our Services. We do not own or control any of the digital wallets that we may support, and our support of a specific digital wallet, or a description of how to obtain or use one, should not be interpreted as our endorsement or guarantee of the functionality of that digital wallet. Your use of the digital wallet you choose to use is at your own risk and subject to the terms and conditions of that digital wallet. You can find information regarding how to connect your digital wallet to our Services here: https://www.therealgimmicks.com/#faq.
- You are responsible for all uses of your digital wallet and for any actions that take place using your digital wallet, whether by you or by another person. You are solely responsible for keeping your digital wallet private key confidential and secure.
2. Gimmicks NFTs
- You may obtain a non-fungible token (“NFT”) through our Platform that links to and identifies a unique Gimmicks digital artwork (each such artwork, a “Gimmick,” and each such NFT, a “Gimmicks NFT”). A Gimmicks NFT identifies the Gimmick with which it is associated through a pointer or hash in the Gimmicks NFT metadata. We will not mint multiple NFTs of the specific Gimmick digital artwork you obtained from us, but we may mint NFTs of different variations of your Gimmick digital artwork (e.g., different poses or characteristics).
- Owners of a Gimmicks NFT have certain rights and benefits as described in further detail in Section 6.
- The Gimmicks NFTs are minted through a smart contract on the blockchain. A blockchain is a distributed digital ledger of transactions maintained by a distributed peer-to-peer computer network that cryptographically validates transactions and records such transactions on the ledger. Gimmicks NFTs are recorded on the blockchain, and we use smart contracts to allow you to send and receive Gimmicks NFTs. You acknowledge and agree that certain information, including your digital wallet address and the transactions you conduct through that digital wallet address, may be publicly available and viewable on the blockchain. Your Gimmicks NFT can be transferred on the blockchain (or another blockchain as technology permits) from one digital wallet address to another digital wallet address.
- Each Gimmicks NFT will include metadata with information about that specific Gimmicks NFT, including, but not limited to, title, description, image URL, and any attributes we might include.
3. Obtaining Your Gimmicks NFT
- All Gimmicks NFTs offered on our Platform will be made available at no cost or charge except for the payment of the Gas Fees described below. At selected times determined by us, we will make a certain number of Gimmicks NFTs available to a category of individuals, such as individuals who attended a specific event. If you are in that category, you will be informed how you can submit your wallet address to be eligible for a free Gimmicks NFT. You may also be asked to verify your eligibility in that category, such as establishing that you attended the event. We will make Gimmicks NFTs available to be minted to those who are eligible in a category on a first-come, first-served basis. Our decision on who has the right to mint a Gimmicks NFT is final.
- We may also announce that we will make Gimmicks NFTs available to the general public on first-come, first-served basis based on who provided us with a valid digital wallet address first. Our decisions on who has the right to mint a Gimmicks NFT is final.
- Once you are told you have the right to mint a Gimmicks NFT under Sections 3(a) or 3(b), you will also be given a deadline by when you have to mint your Gimmicks NFT. If you do not mint your Gimmick NFT by the end of that deadline, you will lose your right to mint a Gimmicks NFT.
- To mint your free Gimmicks NFT, you are required to have a minimum amount of SOL cryptocurrency in your digital wallet to cover the transaction fee (also known as a “Gas Fee”) imposed by the blockchain. Gas Fees are paid to the network of computers that operate the blockchain and are not paid to Gimmicks. Note that Gas Fees often fluctuate based on a number of factors. If you attempt to mint your Gimmicks NFT and do not have sufficient SOL to cover the gas fees, the transaction may fail and you may be required to complete the process again.
- Each Gimmick is unique and you acknowledge and agree that when you obtain a Gimmicks NFT on the Platform you will not know which Gimmick will be associated with that NFT. Gimmicks NFTs are minted directly into the digital wallet you have connected to our Service and through which you made your Gas Fee payment. We never hold custody nor take ownership or possession of a Gimmicks NFT.
4. Secondary Marketplaces and Third-Party Sites
- You are permitted to sell, trade, or distribute your Gimmicks NFT on any smart contract enabled secondary marketplaces, platforms and exchanges operated by us or third parties where users can sell, purchase, transfer, list for auction and bid on NFTs (“Secondary Marketplaces”). Note that Gimmicks NFTs may not be compatible with all Secondary Marketplaces, and we make no guarantee about the availability or functionality of any Secondary Marketplace. If you seek to transfer your Gimmicks NFT via a Secondary Marketplace you may also incur additional Gas Fees or other transaction costs.
- These Terms only relate to your use of the Services, and do not relate to any other website or Internet-based services, including Secondary Marketplaces or other websites or browser extensions to which the Services may link (“Third-Party Sites”). References or links to any Third-Party Site are provided for your convenience and information only, for example, to make it convenient for you to trade your Gimmicks NFT. Such links should not be interpreted as our endorsement of any Third-Party Site. When you click such link, we may not warn you that you have left our Services and are subject to the terms and conditions and privacy policies of a Third-Party Site. We are not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on any content, advertising, products, services, information or other materials on Third-Party Sites.
- You acknowledge and agree that we are not a party to any agreement or transaction where you trade on any Secondary Marketplace a Gimmicks NFT which was initially obtained via our Service, whether or not we receive a commission or fee as a consequence of the transaction. We are not liable for any loss incurred by you in connection with any transaction that takes place on Secondary Marketplaces or on any other Third-Party Sites or services.
- We may provide experiences on social media platforms that enable online sharing and collaboration among users who have registered to use them. Any content you post is subject to the terms of use and privacy policies of those platforms and related services. We have no control over such social media platforms or related services.
5. Taxes
- You are solely responsible for determining and paying (or reimbursing for the payment of) any and all sales, use, value-added and other taxes, duties, and assessments (excluding taxes imposed on our net income) now or hereafter claimed or imposed by any tax or other governmental authority associated with your use of the Platform (collectively, the “Taxes”). You will pay or reimburse us for all Taxes of any jurisdiction (whether national, federal, state, local, foreign or other), including value added taxes and taxes as required by international tax treaties, customs or other import or export taxes, and amounts levied in lieu thereof based on charges set, services performed or payments made hereunder, as are now or hereafter may be imposed under the authority of any national, federal, state, local, foreign or other taxing jurisdiction; and will not be entitled to deduct the amount of any such Taxes or amounts levied in lieu thereof from payments (including Gas Fees) made to us pursuant to these Terms.
6. Rights and Benefits Associated with Your Gimmicks NFT.
Your ownership of a Gimmicks NFT shall confer the following rights and benefits to you which are subject to change:
- The ability to obtain early access to episodes of The Gimmicks animated series (the “Animated Series”). You can find details on how to gain access to the Animated Series with your Gimmicks NFT here: https://www.therealgimmicks.com/#faq. We reserve the right to make the Animated Series available to the general public following such early access period, at our discretion;
- The ability to vote on certain plot directions of the Animated Series in our discretion;
- The opportunity to create and write backstories for Gimmicks characters that we might include in the canon on the Gimmicks;
- Monthly access to the writers rooms for the Animated Series;
- The opportunity to participate in voice and art contests, the result of which may be included in the Animated Series;
- Access to exclusive Gimmicks merchandise; and
- The opportunity to be selected as an “Associate Producer” and have your character incorporated in the Animated Series.
- We may, from time to time, make certain announcements regarding your Gimmicks NFT, including, but not limited to, the availability of any Gimmicks NFT features or offers (“Announcements”). Announcements will be made by us on our Website, dedicated Discord channel or Twitter account. It is your responsibility to check our Website and these accounts for all Announcements. Gimmicks is not responsible for your failure to check Announcements, nor are we liable for the availability of our Website, Discord or Twitter.
7. Ownership and Intellectual Property
- The Platform and Services, including any Gimmick, Animated Series, media, web applications, mobile applications, software, materials, design, text, images, photographs, illustrations, animation, audio and video material, content, media files, artwork, graphic material, databases, proprietary information, sound recordings, voices, graphics and visual effects, as well as any accompanying documentation or other written materials, tangible or intangible, and all legally protectable elements of the foregoing, including, without limitation, all derivative works, translations, adaptations or variations of same, regardless of the medium, format or form, now known or hereinafter developed or discovered, and regardless of where produced, and all intellectual property rights therein (all of the foregoing, individually and collectively, the “Content”), are the property of Gimmicks and/or where applicable, its licensors or suppliers.
- You are hereby granted a limited license (without the right to sublicense) to access and use the Content solely for your personal, non-commercial use, provided that you keep all copyright or other proprietary notices intact. Notwithstanding the foregoing, you are also granted a limited license (without the right to sublicense) to copy, access, use and otherwise exploit the graphical image of your Gimmick for commercial purposes, which shall include the right to produce and sell tangible merchandise (such as t-shirts, hats, and mugs) as well as digital goods (collectively, “User Goods”), subject to the following conditions: (i) you may not alter any characteristic of the graphical image of your Gimmick, meaning you cannot modify or embellish any feature (e.g., if your Gimmick is wearing a blue collar, you may not make it red), but you are permitted to alter the pose of your Gimmick (e.g., if your Gimmick is standing, you may alter the graphical image such that your Gimmick is sitting down), so long as such alteration does not impair or tarnish the quality of the graphical image; (ii) you do not have any right to mint any NFTs linked to or associated with your Gimmick; (iii) you may not use the name “Gimmick” or any Gimmick logo, the character name of your Gimmick, the name of any other Gimmick characters, or any animation, characters, plots, themes or other material related to the Animated Series; (iv) you do not have any right to create any digital animation or animated video or graphic that includes your Gimmick or any right to use your Gimmick in connection with any gaming service or application (including NFT-based card games); and (v) you may not combine your Gimmick with any Gimmick you do not own, unless you have the explicit permission of that Gimmick owner. The foregoing license applies only during the period that you own the Gimmick NFT associated with your Gimmick. Your license terminates immediately at such point that you no longer own your Gimmick NFT. You acknowledge and agree that you are fully liable and responsible for any User Goods, and that Gimmicks shall have no liability or responsibility in connection therewith whatsoever, other than claims that the Gimmicks NFT in the form licensed to you infringes the intellectual property rights of a third party.
- Nothing in these Terms shall be interpreted as granting any license of intellectual property rights to you other than as explicitly set forth in these Terms.
- For each Gimmicks NFT you obtain from us or from a Secondary Marketplace, you have full ownership rights in the Gimmicks NFT, including the right to store, sell and transfer your NFT. However, you acknowledge and agree that your Gimmicks NFT does not provide you any rights, express or implied, in (including, without limitation, any copyrights or other intellectual property rights in or to) the Gimmick associated with the NFT other than a limited license to use, copy, view, and display such Gimmick and exploit such Gimmick pursuant to Section 7(b), and a limited license to view and display any associated Animated Series, for your own personal, non-commercial use and in connection with a proposed sale or transfer of the Gimmicks NFT. You do not have the right to distribute, or otherwise commercialize your Gimmick or any Animated Series other than as set forth herein without our explicit prior written authorization. This means, for example, that you cannot post any Animated Series on any platform or service where it will be accessible by others. Your rights and interest in your Gimmicks NFT and its associated Gimmick, including the rights and benefits set forth in Section 6, will immediately terminate upon any subsequent sale, transfer, dispossession, burning, or other relinquishment of your Gimmicks NFT.
- Any use of the Content other than as expressly authorized herein, without the prior explicit written permission of Gimmicks, is strictly prohibited and shall immediately terminate your right to access and use the Services and all rights and licenses granted to you by these Terms. Such unauthorized use may also violate applicable laws including copyright and trademark laws and applicable communications regulations and statutes.
- The trademarks, service marks, trade names and logos, including GIMMICKS, and any third-party marks used and displayed through the Services are trademarks of Gimmicks, its licensors, affiliates or sponsors, and may not be used by you other than to factually describe your Gimmicks NFT when listing it for sale or distribution or for non-commercial purposes.
- The animations, music, page headers, custom graphics, button icons, style sheets and scripts that contribute to the “look and feel” of the Platform and Services are service marks, trademarks and/or trade dress of Gimmicks and may not be copied, imitated or used, in whole or in part, in connection with any product or service that is not expressly authorized by Gimmicks in writing, in any manner that is likely to cause confusion among consumers, or in any manner that disparages or discredits Gimmicks.
- You may choose to submit comments, bug reports, ideas or other feedback about the Platform, including, without limitation, about how to improve the Platform or Services through the email address provided at the end of these Terms (collectively, “Feedback”). By submitting any Feedback, you agree that we are free to use such Feedback at our discretion and without additional compensation to you, and to disclose such Feedback to third parties (whether on a non-confidential basis, or otherwise). You hereby grant us a perpetual, irrevocable, nonexclusive, worldwide license under all rights necessary for us to incorporate and use your Feedback for any purpose.
- You agree not to circumvent, disable or otherwise interfere with security-related features of the Platform that prevent or restrict use or copying of any Content or enforce limitations on use of the Services or the Content. By accessing our Platform, you agree not to use any data mining, robots, scraping or similar data gathering or extraction methods.
8. Acknowledgments and Assumptions of Risk
- You acknowledge and agree that there are risks associated with purchasing, holding, and using your Gimmicks NFT. By purchasing, holding and using a Gimmicks NFT, you expressly acknowledge and assume all risks including, but not limited to: forgotten passwords; inability to access or use your digital wallet for any reason; mistyped addresses or improperly constructed instructions when transmitting or receiving Gimmick NFTs or any cryptocurrency; errors in the smart contract that mints Gimmicks NFTs; errors in the Gimmicks NFTs; errors in our Platform or Services; inability to access or transfer a Gimmicks NFT; inability to use, access, copy, or display the Gimmick or any Animated Series; missed opportunities related to claiming a Gimmicks NFT; blockchain malfunctions or other technical errors; server failure or data loss; telecommunications failures; unfavorable regulatory determinations or actions (including with respect to NFTs or cryptocurrencies); taxation of NFTs or cryptocurrencies; uninsured losses; unanticipated risks; volatility risks in the value of Gimmicks NFTs and cryptocurrencies; cybersecurity attacks; weaknesses in Gimmicks’ security; personal information disclosure; unauthorized access to applications; unauthorized third-party activities, including, without limitation, the introduction of viruses or other malicious code; and the use of phishing, sybil attacks, 51% attacks, bruteforcing, changes to the protocol rules of the blockchain (i.e., “forks”), or other means of attack that affect, in any way, the Gimmicks NFTs or the Animated Series (the foregoing, collectively, “Platform Risks”). If you have any questions regarding these risks, please contact us at the email address provided at the end of these Terms.
- You acknowledge that you have a sufficient understanding of the functionality, usage, storage, transmission mechanisms and other material characteristics of, blockchain technology, NFTs, digital assets, digital wallets, and cryptocurrencies to understand these Terms and to appreciate the risks and implications of purchasing a Gimmicks NFT.
- You acknowledge that we do not provide any application or other service to receive, access, view, or display your Gimmick or any Animated Series, and do not guarantee you will be able to do so. It is your responsibility to procure a digital wallet or other means to allow for you to access or view your Gimmick and the Animated Series, and to store the requisite private key(s) or other credentials necessary to access your digital wallet or other technologies. You acknowledge that the risk of acquiring a Gimmicks NFT from us; holding and using the Gimmicks NFT; and transferring your Gimmicks NFT to others rests entirely with you. If your private key(s) or other access credentials are lost, you may lose access to your Gimmicks NFT. We are not responsible for any such losses, including, but not limited to, losses arising from third-party service providers.
- You acknowledge and represent that there is substantial uncertainty as to the characterization of NFTs and other digital assets under applicable law. You acknowledge that you are complying with all applicable laws and regulation in your jurisdiction in connection with obtaining a Gimmicks NFT from us.
- We are not responsible if your Gimmick or any Animated Series becomes inaccessible to you for any reason, or for any modifications or changes to your Gimmick or any Animated Series, including any deletion, removal, or inaccessibility on our Platform or otherwise. Further you acknowledge and agree that we may use decentralized storage systems to store the Animated Series, and we are not responsible for any risks that may be presented by such storage systems. You acknowledge that the Gimmick graphical image can be copied and distributed and that we cannot guarantee that additional copies of the Gimmick associated with your Gimmicks NFT will not be created by others. You also acknowledge and agree that we or any third party on our behalf could make additional copies of, and distribute, the Gimmick associated with your Gimmicks NFT, and could sell or otherwise assign the copyright or other intellectual property rights or economic rights in such Gimmick.
- You acknowledge and agree that there are risks associated with purchasing, holding, and using your Gimmicks NFT. By purchasing, holding and using a Gimmicks NFT, you expressly acknowledge and assume all risks including, but not limited to: forgotten passwords; inability to access or use your digital wallet for any reason; mistyped addresses or improperly constructed instructions when transmitting or receiving Gimmick NFTs or any cryptocurrency; errors in the smart contract that mints Gimmicks NFTs; errors in the Gimmicks NFTs; errors in our Platform or Services; inability to access or transfer a Gimmicks NFT; inability to use, access, copy, or display the Gimmick or any Animated Series; missed opportunities related to claiming a Gimmicks NFT; blockchain malfunctions or other technical errors; server failure or data loss; telecommunications failures; unfavorable regulatory determinations or actions (including with respect to NFTs or cryptocurrencies); taxation of NFTs or cryptocurrencies; uninsured losses; unanticipated risks; volatility risks in the value of Gimmicks NFTs and cryptocurrencies; cybersecurity attacks; weaknesses in Gimmicks’ security; personal information disclosure; unauthorized access to applications; unauthorized third-party activities, including, without limitation, the introduction of viruses or other malicious code; and the use of phishing, sybil attacks, 51% attacks, bruteforcing, changes to the protocol rules of the blockchain (i.e., “forks”), or other means of attack that affect, in any way, the Gimmicks NFTs or the Animated Series (the foregoing, collectively, “Platform Risks”). If you have any questions regarding these risks, please contact us at the email address provided at the end of these Terms.
- You also acknowledge and agree that:
- We are making the Gimmicks NFTs available for free (other than Gas Fees that may apply). If you elect to sell your Gimmicks NFT, or purchase one on a Secondary Marketplace, you do so at your own risk, and we have no liability in connection with such sale nor the price at which you decide to sell or purchase a Gimmicks NFT.
- Our Services do not store, send, or receive Gimmicks NFTs. Your Gimmicks NFTs exist only by virtue of the ownership record maintained on the blockchain. Any transfer of Gimmicks NFTs occurs within the blockchain and not on the Service or Platform.
- 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, and the risk that third parties may obtain unauthorized access to information stored within your digital wallet.
- The regulatory regime governing blockchain technologies, cryptocurrencies and tokens is uncertain, and new regulations or policies may materially adversely affect the development of the Platform or Services, and therefore the potential utility or value of your Gimmicks NFTs.
- Upgrades to the blockchain, a hard fork in the blockchain, or a change in how transactions are confirmed on the blockchain may have unintended, adverse effects on all blockchains using the blockchain’s NFT standard, including the Platform.
11. Restrictions on Use of Animated Series and Gimmicks
- You agree that you may not, nor permit any third party to do or attempt to do any of the following without our (or, as applicable, our licensors’) express prior written consent in each case:
- modify any Gimmick or Animated Series in any way, including, without limitation, the shapes, designs, drawings, attributes, or color schemes; (ii) use any Gimmick or Animated Series to advertise, market, or sell any third-party product or service; (iii) use any Gimmick or Animated Series in connection with images, videos, or other forms of media that depict hatred, intolerance, violence, cruelty, or anything else that could reasonably be found to constitute hate speech or otherwise infringe upon the rights of others; (iv) use any Gimmick or Animated Series in movies, videos, or any other forms of media, except to the limited extent that such use is expressly permitted in these Terms or solely for your own personal, non-commercial use; (v) 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 any Gimmick or Animated Series, other than as explicitly permitted herein; (vi) attempt to trademark, copyright, or otherwise acquire intellectual property rights in or to any Gimmick or Animated Series; or (vii) otherwise utilize any Gimmick or Animated Series for your or any third party’s unauthorized commercial benefit.
10. Your Warranties
- You agree that you are responsible for your own conduct while accessing or using the Platform and Services, and for any consequences thereof. You agree to use the Platform only for purposes that are legal, proper and in accordance with these Terms and any applicable laws or regulations. You warrant and agree that your use of the Platform and Services will not (and will not allow any third party to), in any manner, involve:
- sending, uploading, distributing or disseminating any unlawful, defamatory, harassing, abusive, fraudulent, obscene, or otherwise objectionable content; (ii) the distribution of any viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or any other items of a destructive or deceptive nature; (iii) uploading, posting, transmitting or otherwise making available through the Platform or Services any content that infringes the intellectual proprietary rights of any party; (iv) using the Platform or Services to violate the legal rights (such as rights of privacy and publicity) of others; (v) engaging in, promoting, or encouraging illegal activity (including, without limitation, money laundering); (vi) interfering with other users’ enjoyment of the Platform or Services; (vii) exploiting the Platform or Services for any unauthorized commercial purpose; (viii) modifying, adapting, translating, or reverse engineering any portion of the Platform or Services; (ix) removing any copyright, trademark or other proprietary rights notices contained in or on the Platform or Services or any part of it; or reformatting or framing any portion of the Platform or Services; (x) displaying any content on the Platform or through the Services that contains any hate-related or violent content or contains any other material, products or services that violate or encourage conduct that would violate any criminal laws, any other applicable laws, or any third-party rights; (xi) using any spider, site search/retrieval application, or other device to retrieve or index any portion of the Platform or Services, or to collect information about its users for any unauthorized purpose; (xii) accessing or using the Platform or Services for the purpose of creating a product or service that is competitive with any of our products or services; (xiii) abusing, harassing, or threatening another user of the Platform or Services or any of our authorized representatives; (xiv) using any abusive, defamatory, ethnically or racially offensive, harassing, harmful, hateful, obscene, offensive, sexually explicit, threatening or vulgar language when communicating with another user of the Platform or Services or any of our authorized representatives; (xv) impersonating another person (via the use of an email address or otherwise); or (xvi) acquiring Gimmicks NFTs through inappropriate or illegal means.
12. Digital Millennium Copyright Act Take-Down Procedures
- Gimmicks LLC
200 Park Ave South, 8th Floor
New York, NY 10003 - Once notice is received, we will act expeditiously to review and if necessary to remove content on the Platform that infringes the copyrights of others and may disable the access to the Platform and its Services of anyone who uses them to repeatedly infringe the copyrights of others. We are not liable for any such removal and the claims of the Complaining Party may be referred to the United States Copyright Office for adjudication as provided in the DMCA.
- We respect the intellectual property of others, and we ask you to do the same. Accordingly, Gimmicks has adopted the following policy. If you or any user of the Platform or Services believes its copyrights have been infringed, the copyright owner (“Complaining Party”) should send notification to our Designated Agent (as identified below) immediately. To be effective, the notification must include:
- A physical or electronic signature of the Complaining Party or such person authorized to act on behalf of the Complaining Party;
- Identification of the copyrights claimed to have been infringed;
- Information reasonably sufficient to permit us to contact the Complaining Party or such person authorized to act on behalf of the Complaining Party, such as address, telephone number and, if available, an electronic mail address at which the Complaining Party may be contacted;
- Identification of the material that is claimed to be infringing or to be subject to infringing activity on the Complaining Party’s copyrights that is to be removed and information reasonably sufficient to permit us to locate such materials;
- A statement that the Complaining Party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, agent, or by law; and
- A statement that the information in the notification is accurate and, under penalty of perjury, the Complaining Party or such person authorized to act on behalf of the Complaining Party is the owner of an exclusive copyright that is allegedly infringed. Pursuant to the Digital Millennium Copyright Act of 1976 (“DMCA”), our Designated Agent for notice of claims of copyright infringement can be reached as indicated below.
12. General Disclaimers
- GIMMICKS MAKES NO WARRANTY, EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE GIMMICKS NFTS, THE GIMMICKS OR ANIMATED SERIES, OR THE PLATFORM OR SERVICES, INCLUDING ANY WARRANTIES WITH RESPECT TO TITLE, NON-INFRINGEMENT, TECHNICAL OPERATION OR PERFORMANCE, DESCRIPTION, QUALITY (INCLUDING A GIMMICK’S DIGITAL DISPLAY), CONDITION, ATTRIBUTION, AUTHENTICITY, SCARCITY, IMPORTANCE, MEDIUM, PROVENANCE, OR ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EACH OF WHICH IS SPECIFICALLY DISCLAIMED. EACH GIMMICKS NFT AND EACH GIMMICK IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND. EXCEPT AS IS REQUIRED BY LOCAL LAW, ANY WARRANTY OF ANY KIND IS EXCLUDED BY THIS SECTION 12(a).
- GIMMICKS IS A PLATFORM PROVIDER. WE ARE NOT A BROKER, FINANCIAL INSTITUTION, OR CREDITOR. THE SERVICES ARE AN ADMINISTRATIVE PLATFORM ONLY.
- We are not responsible to you for any reason (whether for breaching these Terms or any other matter relating to your Gimmicks NFT) other than in the event of fraud or fraudulent misrepresentation by us or other than as expressly set out in these Terms. We have no responsibility to any person other than the person that obtains a Gimmicks NFT on this Platform.
- Neither we nor you will be responsible for any failure to meet any obligation which we or you have under these Terms which is caused by circumstances beyond our or your reasonable control. This includes, but is not limited to fire, flood, natural disasters, armed conflict, terrorist attack, labor matters, pandemic, technology or telecommunications failures, cyberattacks, or any unauthorized third-party activities.
- We will not be responsible or liable to you or any other party for errors or failures to execute any transaction related to obtaining your Gimmicks NFT, including, without limitation, errors or failures caused by: (i) your failure to follow our instructions; (ii) any loss of connection to our Platform or Services unless caused by our gross negligence; (iii) a failure of any software or device used by you to obtain your Gimmicks NFT; or (iv) for any other failure to execute your Gimmicks NFT transaction (including due to insufficient funds to cover the Gas Fees) or for errors or omissions in connection with this activity unless caused by our gross negligence.
- Gimmicks makes no representation that Gimmick NFTs or any Services are legal or appropriate for use outside of the United States or that Gimmick NFTs or any Services may be exported from the United States or for import into any foreign country. You are solely responsible for complying with all import and export laws and regulations and all applicable laws of any jurisdiction inside and outside of the United States from which you may access the Platform.
13. Limitation of Liability
- TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: IN NO EVENT WILL GIMMICKS BE LIABLE FOR (I) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, WHERE RELATED TO LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, OR DAMAGES FOR BUSINESS INTERRUPTION); AND (II) ANY DAMAGES ARISING FROM ANY PLATFORM RISKS, ARISING OUT OF OR IN ANY WAY RELATED TO THE SALE OR USE OF GIMMICK NFTS OR CRYPTOCURRENCIES OR OTHERWISE RELATED TO THESE TERMS, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF GIMMICKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE).
- IN NO EVENT WILL THE AGGREGATE LIABILITY OF GIMMICKS, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), OR OTHER THEORY, ARISING OUT OF OR RELATING TO THESE TERMS OR THE OWNERSHIP OF THE GIMMICKS NFTS, EXCEED THE AMOUNT OF THE INITIAL SALE ON OUR PLATFORM OF THE GIMMICKS NFT THAT IS THE SUBJECT OF THE CLAIM.
- THE LIMITATIONS SET FORTH IN THIS SECTION 13 WILL NOT LIMIT OR EXCLUDE LIABILITY FOR THE GROSS NEGLIGENCE, FRAUD OR INTENTIONAL, WILLFUL OR RECKLESS MISCONDUCT OF GIMMICKS.
14. Release
- To the maximum extent permitted by applicable law, you hereby release and waive all claims against Gimmicks and its affiliates, licensors, suppliers and sponsors, and each of their respective directors, officers, agents, contractors, partners, advisors, employees, licensors, content creators, voiceover talent, and suppliers from any and all liability for claims, damages (actual and consequential), costs and expenses (including litigation costs and attorneys’ fees) of every kind and nature, arising out of or in any way connected with your use of the Platform or Services or obtaining a Gimmicks NFT.
- To the extent that you do have any claims against Gimmicks, you agree that: (i) any and all disputes, claims and causes of action against Gimmicks arising out of or connected with your use of the Platform or Services shall be resolved individually, without resort to any form of class action; and (ii) any and all claims, judgments and awards shall be limited to actual damages and out-of-pocket costs incurred, but shall in no event include attorneys’ fees.
15. Indemnification
- You agree to indemnify and hold Gimmicks, its affiliates, licensors, suppliers and sponsors, and each of their directors, officers, employees and agents harmless from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorneys’ fees, arising out of your breach of these terms; your violation of laws, rules or regulations; your violation of any intellectual property right or other rights of another party; your misuse of the Platform or Services; or any claim relating to your User Goods other than arising from a claim that the Gimmick in the form licensed to you infringes the intellectual property rights of a third party. The foregoing defense and indemnification obligation will survive these Terms and your use of the Services. You acknowledge and agree that Gimmicks may, at its option, control the defense or settlement of any such claims.
16. Termination
- We reserve the right, in our sole and exclusive discretion, to refuse, suspend, restrict or terminate your access to the Platform or Services, or any portion thereof, without notice and for any reason or no reason. You acknowledge that we have the right, but not the obligation, to suspend or terminate your access to all or part of the Platform or Services: at the request of law enforcement or other government agencies; if the Platform or Services are discontinued or materially modified; upon the occurrence of any technical or security issues or problems; if you engage in any conduct that we believe, in our sole and exclusive discretion, violates any provision of these Terms or other incorporated agreements or guidelines or violates the rights of Gimmicks or third parties; or upon any breach by you of these Terms.
17. Disputes; Governing Law; Choice Of Forum
- YOU ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
- Any dispute arising out of or in connection with these Terms, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the rules of the American Arbitration Association in effect at the time of the arbitration, except as they may be modified herein. The number of arbitrators shall be one who shall be selected by Gimmicks. The seat, or legal place, of arbitration shall be Los Angeles, California. The language to be used in the arbitral proceedings shall be English. The governing law of the Terms shall be the substantive laws of the State of New York, applicable to contracts made, executed and wholly performed in that State. A printed version of these Terms and of any notice given in electronic form shall be admissible in arbitral proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. The arbitration award shall be final and binding on the Parties. The Parties undertake to carry out any award without delay and waive their right to any form of recourse insofar as such waiver can validly be made. Judgment upon the award may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant party or its assets. You and Gimmicks shall be responsible for their respective attorneys’ fees and expenses.
- Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or these Terms must be filed within one (1) year after such claim or cause of action arose or will be forever barred.
18. Miscellaneous
- If any provision of these Terms is found to be invalid, unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
- These Terms and the Privacy Policy represent the entire agreement between you and Gimmicks relating to your right to access and use the Platform or Services, and supersede any and all prior or written or oral agreements between you and Gimmicks with respect to such subject matter.
- No waiver by Gimmicks of any breach or default by you under these Terms shall be deemed to be a waiver of any preceding or subsequent breach or default. Any waiver by Gimmicks must be in writing signed by Gimmicks.
- These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of Gimmicks. These Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. No provision of these Terms provides any person or entity not a party to these Terms with any remedy, claim, liability, reimbursement or cause of action, or creates any other third-party beneficiary rights.
- Thank you for using our Platform and Services. If you have any questions regarding these Terms, the Platform, or the Services, please contact us by email at fyb@therealgimmicks.com.
- These Terms were last updated on: Jan 1 2023.