TERMS OF USE

1. Introduction

These General Terms of Use (the “Terms”) govern the use and access to our website (the “Website”) and available services at all times. 

The Website is owned and operated by The Smurfs Society SA (« The Smurfs Society » or « us » or « we »). If you have any requests, please contact us at hello@blueplan.et.

The services we offer include the sale of cryptographic tokens in the form of NFTs that are associated to the digital illustration of a smurf or of elements pertaining to Smurfs (the “Smurf(s)”), in the form of a JPEG, as well as any other service offered to you by the Smurfs Society (the “Service(s)”).

By clicking the terms “I have read, understood and hereby agree with the Terms” button, check box or other indicator of agreement presented with these Terms, you fully accept to be bound to these Terms and agree to comply full therewith. 

In particular, you acknowledge that you understand and assume all risks defined under Exhibit A below and that you are not located in a restricted country as defined under Exhibit B below (“Eligible Purchaser”). 

You may not use the Website and may not accept these Terms if you are a person barred from engaging in the activities or purchasing the offerings or consuming the Services offered/available through/in the Website under the laws of the country in which you are resident or from which you use the Website. In order to use our Services, you must be 18 years or older, or be 13 years or older and have your parent or guardian’s consent to the Terms. If you are agreeing to be bound by these Terms on behalf of your employer or other entity, you represent and warrant that you have full legal authority to bind your employer or such entity to these Terms. If you do not have the requisite authority, you may not accept these Terms or use the Website on behalf of your employer or other entity. By accessing or using our Services, you represent and warrant that you meet all of the foregoing eligibility requirements.

If you do not wish to be bound and to comply with these Terms in full, please do not access and use the Website.

Further, these Terms should be read in conjunction with our Privacy Policy (https://thesmurfssociety.com/privacy) which constitute an integral part of these Terms.

2. Changes to the Terms

Occasionally we may make changes to the Terms in our sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Services thereafter. However, when we make material changes to the Terms, we will provide you with notice as appropriate under the circumstances, e.g., by displaying a notice within the Service or by sending you an email. In some cases, we will notify you in advance.

Your continued use of the Services following the posting of revised Terms means that you accept and agree to the changes. You are expected to check this page so you are aware of any changes, as they are binding on you.

3. Using & Enjoying the Smurfs

Every Smurf is or may be part of a collection of designs with various degrees of rarity, as determined at our sole discretion and presented on our Website.

Our NFTs are based on the 721a-ERC protocol and are “non-fungible” tokens identified by a unique ID (a “NFT”) thus allowing the representation of ownership and authenticity over the NFT and associated Smurfs.

Each NFT may contain certain properties, including the name and description of the NFT, a link to the associated digital illustration (Smurf) and potentially other metadata associated with the NFT (collectively, the “NFT ID”). Each NFT may also include certain terms pertaining to its price when so traded, bought, sold, transferred, offered or received, transaction history, its license governing the use of the associated digital illustration (Smurf), terms and conditions and content visible only upon the occurrence of the NFT’s purchase and/or transfer (the “NFT Characteristics”). 

We shall retain all intellectual property rights in the Smurfs, as provided at article 5 below.

4. Accessing and Using our Services 

You understand that your public address will be made publicly visible whenever you engage in a transaction on the Website or with a third-party. You may be required to download, install or use third party services (such as MetaMask, Coinbase, OpenSea, Google Chrome) in order to use the Website. You acknowledge and agree that you may not be able to use all features of the Website in the event that you do not use these third-party services. 

To access and use the Services or some of the resources offered therein, you may be asked to register and create a user account. During your sign-up process you may be presented with applicable terms and conditions which you will be required to review and accept before creating the user account (“Account”). You may include in your Account, without limitation, your name, email address, username, telephone number, address, date of birth, credit card information, cryptocurrency wallet information, gender, picture, and social media pages. Pieces of information which shall be indicated as mandatory fields in the registration process are required in order for us to provide you with the Services. It is a condition of your use of the Services that all the information you provide is correct, current, and complete.

If you choose, or are provided with, a user name, password, or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your Account is personal to you and agree not to provide any other person with access to our Services or portions of it using your user name, password, or other security information. You agree that in order to enhance your Account’s security, electronic authentication (by multi-factor authentication) linked to your mobile phone through a third-party authenticator may be conditioned as to access your Account. You agree to notify us immediately of any unauthorized access to or use of your Account or any other breach of security.

YOU ARE RESPONSIBLE FOR ALL MATTERS RELATING TO YOUR ACCOUNT AND, FOR REMOVAL OF ANY DOUBT, YOUR BLOCKCHAIN ACCOUNTS OR ADDRESSES LINKED, BANK ACCOUNT(S), CREDIT CARD(S), WALLETS AND FOR ENSURING THAT ALL USES THEREOF COMPLY FULLY WITH THESE TERMS AND ANY APPLICABLE LAW.

We have the right to disable any user name, password, or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any reason, including if, in our opinion, you have violated any provision of these Terms. We reserve the right at all times to disclose any information as we deem necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in our sole discretion.

We reserve the right to withdraw or amend our Services or any part thereof, in our sole discretion without notice. We will not be liable if for any reason all or any part of our Services is unavailable at any time or for any period. From time to time, we may restrict access to or usage of some parts of the Services, or the entire Services, to users, including registered users.

We may from time to time remove certain Smurfs that are for sale from the Website, or restrict the creation of new NFTs associated to Smurfs in our sole and absolute discretion. We do not commit and shall not be liable for any failure to support, display or offer or continue to support, display or offer any Smurfs through our Website and Services.

5. NFT OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS ON THE SMURFS

5.1. The Smurfs Society’s rights on the Smurfs

Studio Peyo S.A and its exclusive agent, IMPS, a.k.a. International Merchandising, Promotion and Services S.A., companies governed under Belgian law, are the owners of all the intellectual property rights on the Smurfs. The Smurfs Society operate the Service in accordance with IMPS.

We (on our behalf and, if applicable, on behalf of our licensors) reserve all rights in and to the Smurfs, including all copyrights in and to it, like the right to reproduce and make copies of it, to represent it, to prepare derivate works, to distribute, sell, or transfer, to display, to perform, and to publicly display and publicly perform.

5.2. NFT holder’s rights

The buyer of an NFT shall be the sole and exclusive holder of the NFT and digital file designated by this NFT.

Subject to the provisions herein, it is understood that you, as the holder of an NFT (i) shall not be the owner, assignee or licensee of any intellectual property right on the digital illustration of the NFT and in particular on the names, texts, trademarks, artwork and designs describing, designating, reproducing or representing the Smurfs ; (ii) shall solely be the owner of the digital file designated by the NFT; (iii) as the owner of the digital file designated by the NFT, shall be free to assign the ownership of the NFT and the digital file designated by the latter, gratuitously or in return for remuneration, by any means, to any third party at its discretion.   

Upon purchase of an NFT, you will not be receiving any intellectual property right with respect of the Smurfs, but rather a limited worldwide, exclusive (but without derogating from our rights hereunder), personal right (the “Limited Right”) to display the Smurf underlying the NFT you have purchased, privately or publicly, solely for personal, non-commercial purposes, including on social media platforms, digital galleries, or otherwise on the Internet or in association with your offer to sell or trade the Smurf in a marketplace as set forth herein. This right does not grant you any rights in or to the artwork underlying the Smurfs separate from the associated NFT. Said right will only apply as long as you continue to hold the NFT. If at any time you will sell, trade, donate, give away, or transfer your NFT to a new owner through a marketplace or by any other mean, the right shall be transferred to that new owner, and you will have no further rights in or to the NFT and the Smurf associated with it.

Any use beyond this Limited Right will constitute an infringement of the Smurfs Society, Studio Peyo and IMPS rights.

There is no guarantee or assurance of the uniqueness, originality or quality of any Smurfs and/or NFT Characteristics. In the absence of an express legal agreement, there cannot be any guarantee or assurance that the purchase or possession of a NFT confers any license to or ownership of the NFT ID or other intellectual property associated with the NFT or any other right or entitlement, notwithstanding that you may rightfully own or possess the NFT.

6. Acceptable & Prohibited Uses of The Services

Our Services, as provided on the Website, are reserved only for lawful purposes. You represent and warrant that you have full right and authority to use our Services and to be bound by these Terms. You agree that you will fully comply with these Terms and all applicable domestic and international laws, regulations, statutes and ordinances that govern your use of such Services. Without limiting the foregoing and in recognition of the global nature of the internet, you agree to comply with all local and international rules regarding online conduct. 

You undertake that you shall not defraud, or attempt to defraud, us or other users, and that you shall not act in bad faith in your use of the Website, Services and smart contracts. If we determine that you do act in bad faith and/or in violation of these Terms, or if we determine that your actions fall outside of reasonable community standards, we may, at our sole discretion, terminate your Account and prohibit you from using our Services. You agree that your use of the Website, Services and smart contracts shall be lawful and that you will comply with the usage rules. In furtherance of the foregoing, and as an example and without limitation, you agree that you shall not: 

• Create an Account with or access the Services if you are barred from receiving the Services under the provisions of these Terms or any applicable law;
• Systematically retrieve data or other content from the Website or the smart contracts to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from us;
• Make any unauthorized use of the Website or smart contracts, including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email, or creating user accounts by automated means or under false pretenses;
• Use the Website or smart contracts as part of any effort to compete with us or otherwise use the Website or smart contracts and/or any content for any revenue-generating endeavor or commercial enterprise; 
• Sell or otherwise transfer your profile; 
• Copy or adapt the Website’s software, including but not limited to Flash, PHP, HTML, JavaScript, or other code;
• Engage in any automated use of the system, such as using scripts to send comments or messages, or using any data mining, robots, or similar data gathering and extraction tools;
• Make improper use of our support services or submit false reports of abuse or misconduct;
• Engage in unauthorized framing of or linking to the Website or smart contracts;
• Use a buying agent or purchasing agent to make purchases on the Website or smart contracts;
• Promote, host, upload, post, transmit or display or otherwise disseminate any obscene or pornographic material, hate speech, highly explosive subject matter (as determined by us), defamatory, libelous, gambling related, discriminatory, deceptive, abusive or otherwise offensive content;
• Use or apply in connection with the Website and Services any spyware, adware, or other malicious programs or code; 
• Perform any illegal subject matter or activities; incorporate any materials that infringe or assists others to infringe on any copyright, trademark, patent, trade secret or other intellectual property rights or otherwise act in any manner that infringes any other right of any party (including rights of privacy or publicity);
• infringe any right of any third party or violate any applicable law or regulation; 
• Libel, ridicule, defame, mock, stalk, intimidate, threaten, harass, or abuse anyone, hatefully, racially, ethnically or in any other manner;
• Copy, rent, lease, sell, transfer, assign, sublicense, disassemble, reverse engineer or decompile, modify or alter any part of the Services; 
• Upload or transmit (or attempt to upload or transmit) files that contain viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files or data, or any other similar software or programs that may damage the operation of the Services or the computers of other users of the Services;
• Advertise, solicit or transmit any commercial advertisements, including chain letters, junk email or repetitive messages (spim or spam) to anyone;
• Create false personas, multiple identities, multiple Accounts, set up an Account on behalf of someone other than yourself, use bots or other automated software programs to defraud or which otherwise violate these Terms and/or the terms of service of any third-party applications or social networks through which the Services are accessed; 
• Attempt to obtain passwords, private keys or other private information from other members including personally identifiable information (whether in text, image or video form), identification documents, or financial information;
• Encourage any third party to: (1) directly or indirectly generate usage, queries, impressions, or clicks through any automated, deceptive, fraudulent or other invalid means; (2) edit or modify any tag, or remove, obscure or minimize any tag in any way; or (3) engage in any action or practice that reflects poorly on us or otherwise disparages or devalues our reputation or goodwill; 
• Engage in or knowingly facilitate any “front-running,” “wash trading,” “pump and dump trading,” “ramping,” “cornering” or fraudulent, deceptive or manipulative trading activities;
• Engage in any fraudulent activity with respect to payment methods; or
• Violate any applicable laws or regulations, or encourage or promote any illegal activity including, but not limited to, invasion of privacy, identity theft, hacking, or cracking.

7. Fees, Commissions and Charges

Any Fees, Commissions and Charges are mentioned on the Website and must be complied with by Service users.

Any purchases of NFTs will be done through smart contracts on a blockchain using a wallet. We will have no insight into or control over these transactions, nor do we have the ability to reverse any transactions. With that in mind, we will have no liability to you or to any third party for any claims or damages that may arise as a result of any transactions that you engage in via the Website or using smart contracts. 

You will be solely responsible to pay any and all sales, use, value-added and other taxes, duties, and assessments (except taxes on our net income) now or hereafter claimed or imposed by any governmental authority (collectively, “Taxes”) associated with your use of the Website (including, without limitation, any Taxes that may become payable as the result of your ownership, transfer, or breeding of any of your NFT). Except for income taxes levied on The Smurfs Society, you: (i) will pay or reimburse us for all national, federal, state, local, or other taxes and assessments of any jurisdiction, 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, state, local or any other taxing jurisdiction; and (ii) shall not be entitled to deduct the amount of any such taxes, duties or assessments from payments made to us pursuant to these Terms.

8. User Content 

YOU HEREBY RELEASE US AND UNDERTAKE TO FULLY INDEMNIFY US FOR ANY AND ALL LIABILITIES WHICH MAY BE IMPOSED ON US IN CONNECTION WITH ANY USER CONTENT YOU HAVE MADE AVAILABLE THROUGH THE SERVICES WHICH INFRINGES ANY THIRD-PARTY RIGHT OR ANY OTHER APPLICABLE LAW.

We do not claim ownership of any user content. However, by sending and/or creating user content and/or using the Services you automatically grant us a non-exclusive, royalty-free, perpetual license of all worldwide rights to use, edit, modify, include, incorporate, adapt, record and reproduce, publish and make commercial use with such user content, including, without limitation, all trademarks associated therewith, in any manner whatsoever, in or out of context, in all languages, in all media now known or hereafter created for the purposes set forth in the Services and these terms, including for the avoidance of doubt commercial, non-commercial and/or promotional use by us associating such user content with your user information, user name and/or profile picture. We may retain any raw material that you submit or make available through third parties, and make internal or external use of such material including for testing purposes. You may request that we delete and make no further use of such material by contacting us at: data@blueplan.et 

We may or may not regulate user content and provide no representations or guarantees regarding the accuracy, quality, or integrity of any user content posted via the Services. By using the Services, you acknowledge and accept that you may be exposed to materials you find offensive or objectionable. You agree that we will not under any circumstances be responsible or liable for any user content, including, but not limited to, errors in any user content or any loss or damage incurred by use of the user content or for any failure to or delay in removing user content. 

We reserve the right (but shall at no time be obligated) to, in our sole discretion, remove, block, edit, move, disable or permanently delete user content from the Services with or without notice for any reason whatsoever. You hereby agree that, to the maximum extent permitted by applicable law, we shall at no time be responsible or held liable for the removal, modification or blocking of material or user content that may be considered offensive and shall at no time be obligated to effect such removal other than under applicable law. 

If you believe that your intellectual property rights have been infringed, please notify us promptly. For us to respond, you must provide the following information:

• a physical or electronic signature of the copyright owner or of a person authorized to act on behalf of the copyright owner; 
• a clear identification of the copyrighted work that is claimed to be infringing;
• identification of the online material that is claimed to be infringing, including, if possible, a URL representing a link to the material on the Website;
• information sufficient to permit us to contact the complainant, such as email address, physical address, and/or telephone number;
• a statement that the complainant has a good-faith belief that the relevant material is being used in a way that is not authorized by the copyright owner, its agent, or under the law; and
• a statement, made under penalty of perjury, that the above information is accurate, and the complainant is the copyright owner or is authorized to act on behalf of the copyright owner.

9. INTELLECTUAL PROPERTY ON THE WEBSITE AND SERVICES

9.1. The Smurfs Society’s rights

You acknowledge and agree that we own and shall continue to own, exclusively all legal right, title and interest in and to the Website and its content (including, but not limited to, software, designs, graphics, texts, information, pictures, video, sound, music, and other files, their selection and arrangement, trademarks, tradenames, service marks, branding features, business names, logos, slogans), and all intellectual property rights therein. 

The content of the Website is protected by applicable copyright, trade, patent, and trademark laws, international conventions, and other laws protecting intellectual property and related proprietary rights. Except as explicitly allowed under the limited license described in the next paragraphs below, you shall not, nor shall you cause or assist any other party to modify, decompile, disassemble, reverse engineer, otherwise attempt to reconstruct or discover any underlying subject matter or any portion of thereof by any means whatsoever, copy, create derivative works from, rent, sub-license, distribute, republish, scrape, download, display, transmit, post, lease or sell in any form or by any means, in whole or in part, use for any purpose other than for using the Website pursuant to these Terms or otherwise exploit any of the above without our explicit, prior written consent. 

The Smurfs Society and/or our affiliates retains all rights in the Services materials (including, but not limited to, applications, software, designs, graphics, texts, information, pictures, video, sound, music, and other files, and their selection and arrangement) (collectively, “Service Materials”). The entire contents of the Services are protected by applicable copyright, trade dress, patent, and trademark laws, international conventions, and other laws protecting intellectual property and related proprietary rights. You shall not, nor shall you cause any other party to modify, decompile, disassemble, reverse engineer, copy, transfer, create derivative works from, rent, sub-license, distribute, reproduce framed, republish, scrape, download, display, transmit, post, lease or sell in any form or by any means, in whole or in part, use for any purpose other than for using the Services pursuant to these Terms or otherwise exploit any of the Service Materials without our explicit, prior written consent. 

The foregoing shall not apply to your own user content that you post through the Services in accordance with these Terms. All other uses of copyrighted or trade mark material, including any derivative use, require explicit, prior written consent from us. Any reproduction or redistribution of materials not in accordance with these Terms is explicitly prohibited and may result in the termination of your Account as well as severe civil and criminal penalties. Without derogating from the generality of the forgoing, the use of automated systems or software to extract data from this website or application for commercial purposes (scrapping), is strictly prohibited.

We and/or our licensors and affiliates own all right, title, and interest, including copyrights and other intellectual property rights, in and to all the Service Materials. You hereby acknowledge that you do not acquire any ownership rights by using the Services or by accessing any of the Service Materials, or rights to any derivative works thereof.

9.2. User license

Subject to your agreement and compliance with these Terms, we grant you a personal, non-exclusive, non-transferable, non-sub-licensable, revocable, limited scope license to use the Website and Services. Use of the Services shall be solely for your own, private purposes and for no other purpose whatsoever. You may not make use of the services as an agent or benefit from managing or uploading any contents on behalf of any other users. You hereby acknowledge that your license to use the services is limited by these Terms, and, if you violate or if, at any point, you do not agree to any of these Terms, your license to use the Services shall immediately terminate, and you shall immediately refrain from using the Services. If the Services or any part thereof is determined to be illegal under the laws of the country in which you are situated, you shall not be granted any license to use the Services and must refrain from using the services.

You are not required to provide us with any feedback or suggestions regarding the Services or any Service Materials. However, should you provide us with comments or suggestions for the modification, correction, improvement or enhancement of the Services and/or any Service Materials, then, subject to the terms and conditions of these Terms, you hereby grant us a non-exclusive, irrevocable, worldwide, royalty-free license, including the right to sublicense, to use and disclose such comments and suggestions in any manner we choose and to display, perform, copy, have copied, make, have made, use, sell, offer to sell, and otherwise dispose of our and our sublicensees’ products and content embodying such comments or suggestions in any manner and via any media we choose, but without reference to the source of such comments or suggestions.

10. Your Representations and Warranties

Without derogating from anything in these Terms, you hereby represent and warrant to us that the following statements and information are accurate and complete at all applicable times. In the event such statement or information becomes untrue as to you, you shall immediately cease accessing and using the Services.

1. Sanctions. You are not, and are not acting on behalf of any other person who is, identified on any list of prohibited parties under any law or by any nation or government, state or other political subdivision thereof, any entity exercising legislative, judicial or administrative functions of or pertaining to government such as the lists maintained by the United Nations Security Council, the U.S. government (including the U.S. Treasury Department’s Specially Designated Nationals list and Foreign Sanctions Evaders list), the European Union (EU) or its member states, and the government of your home country. Your are not, and not acting on behalf of any other person who is, subject to economic or financial sanctions or trade embargoes administered or enforced by any country or government, including, but not limited to, those administered by the Swiss Secretariat of Economic Affairs (SECO). You are not, and not acting on behalf of any other person who is, located, ordinarily resident, organized, established, or domiciled in any country or jurisdiction against which the U.S. maintains economic sanctions or an arms embargo. The Assets or other funds you use to access and use the Services or acquire Assets are not derived from, and do not otherwise represent the proceeds of, any activities done in violation or contravention of any law.
2. You are not a Restricted Person as per Appendix B.
3. You are not a minor in the jurisdiction in which you reside;
4. You will not access the Website or smart contracts through automated and non-human means, whether through a bot, script or otherwise. Except as expressly mentioned herein;
5. Your use of the Website or smart contracts will not violate any applicable law or regulation. If you provide any information that is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Site, the App, and the smart contracts (or any portion thereof)
6. No Ownership or Interest. You understand and agree that your purchase, sale, holding, receipt and/or use of NFTs does not: 

• represent or constitute a loan or a contribution of capital to, or other investment in The Smurfs Society or any business or venture;
• provide you with any ownership interest, equity, security, or right to or interest in the assets, rights, properties, revenues or profits of, or voting rights whatsoever in The Smurfs Society or any other business or venture; and 
• create, imply or entitle you to the benefits of any fiduciary or other agency relationship between The Smurfs Society or any of its directors, officers, employees, agents or affiliates, on the one hand, and you, on the other hand. You are not entering into these Terms or buying, selling, holding, receiving or using Assets for the purpose of making an investment with respect to The Smurfs Society or its securities, but solely wish to use the Services for its intended purposes. We will not accept or take custody over any of your NFTs, cryptocurrencies or other assets, and we have no responsibility or control over the foregoing.

7. Non-Reliance. You are knowledgeable, experienced and sophisticated in using and evaluating block-chain and related technologies and assets, including NFTs and smart contracts. You have conducted your own thorough independent investigation and analysis of the Website, Services and the other matters contemplated by these Terms, and have not relied upon any information, statement, omission, representation or warranty, express or implied, written or oral, made by or on behalf of us in connection therewith, except as expressly set forth by us in these Terms.

We reserve the right to choose which markets and jurisdictions to conduct our business and may restrict or refuse, at its sole discretion, the provision of The Smurfs Society Services in certain countries or regions.

11. Account Termination

Without derogating from anything in these Terms, we may refuse access to the Services, or any part thereof, or may terminate your Account without notice or subject to providing a notice as may be required by law, for any reason, including, but not limited to, a suspected violation of these Terms, illegal or improper use of your Account, or illegal or improper use of the Services, user content, products, or our intellectual property, as determined by us at our sole discretion. Without derogating from any other provision in these Terms, we may also terminate your Account at all times and for no reason, by providing you a notice of at least 14 days prior to the date on which such termination will take effect. You may lose contents available through the Services, as a result of the Account termination, without responsibility or liability on behalf of The Smurfs Society for any damage that may result from the foregoing. If you have more than one Account, we may terminate all your Accounts.

You acknowledge that, subject to any specific notices requirements under applicable law, we are not required to provide you notice before suspending or terminating your Account. In the event that we terminate your Account, you may not participate nor make use of the Services again without our express consent, if any. The Smurfs Society reserves the right to refuse to keep Accounts for, and provide access to the Services or other services to, any individual. If you believe that any action has been taken against your Account in error, please contact us.

You may request us to suspend or terminate your Account, at any time, by notifying us. Suspension at your request will be immediate upon your notice, and for a period of up to 14 days which we may extend in our sole discretion; and termination at your request will take effect following 5 business days as of your notice.

12. Disclaimer of Warranty; Limitation of Liability; Indemnification

You agree that your use of our Services shall be at your sole risk. To the fullest extent permitted by law, The Smurfs Society, its officers, directors, employees, and agents disclaim all warranties, explicit or implied, in connection with the Services and your use thereof including implied warranties of merchantability, title, fitness for a particular purpose or non-infringement, usefulness, authority, accuracy, completeness, and timeliness. We make no warranties or representations about the accuracy or completeness of the content of the Website and Services, including without derogating, the NFTs, NFT Characteristics, the Smurfs and/or user content. The NFTs and Smurfs are provided on an “AS IS” and “AS AVAILABLE” basis. You acknowledge and agree that use of the Services and NFTs are at your own risk.

1. NO CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS, WE SHALL NOT BE LIABLE TO ANY PERSON, WHETHER IN CONTRACT, TORT (INCLUDING PURSUANT TO ANY CAUSE OF ACTION ALLEGING NEGLIGENCE), WARRANTY OR OTHERWISE, FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOST DATA, LOST PROFITS OR SAVINGS, LOSS OF BUSINESS OR OTHER ECONOMIC LOSS) ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER OR NOT WE HAVE BEEN ADVISED OR KNEW OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE NATURE OF THE CAUSE OF ACTION OR THEORY ASSERTED. ACCESS TO, AND USE OF, THE SERVICES ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA RESULTING THEREFROM.
2. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF THE SMURFS SOCIETY ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS, THE ACCESS TO AND USE OF THE SERVICES, CONTENT, ASSETS, EXCEED THE GREATER OF (A) CHF 100 OR (B) THE SERVICE FEES ACTUALLY RECEIVED BY US THEREFROM.
3. No Responsibility for NFTs. We have no responsibility for the NFTs and Smurfs used or traded using the Website and Services. We do not investigate and cannot guarantee or warrant the authenticity, originality, uniqueness, marketability, legality or value of any NFT traded using the Website or Services.
4. No Professional Advice or Liability. All information provided by or on behalf of us is for informational purposes only and should not be construed as professional, accounting or legal advice. You should not take or refrain from taking any action in reliance on any information contained in these Terms or provided by or on behalf of us. Before you make any financial, legal, or other decisions involving the Services and/or NFTs, you should seek independent professional advice from persons licensed and qualified in the area for which such advice would be appropriate.
5. Third-Party Offerings and Content. We do not endorse or assume any responsibility for any activities of or resources, products, services, content or promotions owned, controlled, operated or sponsored by third parties. If you access any such resources, products, services or content or participate in any such promotions, you do so solely at your own risk. You hereby expressly waive and release us from all liability arising from your use of any such resources, products, services or content or participation in any such promotions. We shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such resources, products, services, content or promotions from third parties.
6. Legal Limitations on Disclaimers. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of certain liabilities and damages. Accordingly, some of the disclaimers and limitations set forth in these Terms may not apply in full to you. The disclaimers and limitations of liability provided in these Terms shall apply to the fullest extent permitted by applicable law.
7. Indemnification. You shall defend, indemnify, compensate, reimburse and hold harmless The Smurfs Society (and each of its officers, directors, members, employees, agents and affiliates) from any claim, demand, action, damage, loss, cost or expense, including without limitation reasonable attorneys’ fees, arising out or relating to (a) your use of, or conduct in connection with, the Services; (b) your violation of these Terms or any other applicable policy or contract of The Smurfs Society; and/or (c) your violation of any rights of any other person or entity.
   

13. Certain Uses and Risks of Blockchain Technology.

You confirm having read and understood the risks mentioned at Appendix A, which represent a non-exhaustive list.

14. General

1. Governing Law; Jurisdiction. By using or visiting our Website and Services, you agree that only the laws of Switzerland, without regard to principles of conflict of laws and regardless of your location, will govern these Terms and any dispute of any sort that might arise between you and The Smurfs Society. Any claim or dispute between you and The Smurfs Society that arises in whole or in part from your use of the Website and Services shall be decided solely and exclusively by a court of competent jurisdiction located in Geneva, Switzerland, to the express exclusion of any other courts, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non convenient with respect to venue and jurisdiction in the courts of Geneva, Switzerland. 
2. Severability, Waiver. Unless as otherwise stated in these Terms, should any provision of these Terms be held invalid or unenforceable for any reason or to any extent, such invalidity or enforceability shall not in any manner affect or render invalid or unenforceable the remaining provisions of these Terms, and the application of that provision shall be enforced to the extent permitted by law. Any failure by us or any third-party beneficiary to enforce these Terms or any provision thereof shall not waive our or the applicable third-party beneficiary’s right to do so.
3. Taxes. We are not responsible for determining the withholding, sales, use, value added, transfer or other taxes, together with any interest and penalties imposed with respect thereto (“Taxes”), that apply to your use of our Services. You agree that you are solely responsible for determining what, if any, Taxes apply to your use of the Services, in particular the purchase of a NFT, and to withhold, collect, report and remit the correct amounts of Taxes to the appropriate taxing authorities. Unless otherwise indicated on an applicable invoice, any amounts due in respect of a NFT transaction are exclusive of sale, use, value added or similar Taxes which shall be your responsibility.
4. Privacy. You acknowledge and agree to the collection, use, and disclosure of your personal information in accordance with our Privacy Policy, which is incorporated into these Terms by reference.

EXHIBIT A

Certain Risks Relating to the Use of the Website and NFTs 

(the “services”)

By using the Website and Services, you expressly acknowledge, understand and assume the following risks as well as all other risks associated with the Services (including those not included below):

Risks Associated with the blockchain protocol

Because the Services are based on a blockchain protocol, any malfunction, breakdown or abandonment of the blockchain protocol may have a material adverse effect on the Services. Moreover, advances in cryptography, or technical advances such as the development of quantum computing, could present risks to the Services by rendering ineffective the cryptographic consensus mechanism that underpins the blockchain protocol. Upgrades to the blockchain Website, a hard fork in the blockchain Website or a change in how transactions are confirmed on the blockchain Website may have unintended adverse effects.

Risk of Mining Attacks

As with other decentralized cryptographic tokens based on a blockchain protocol, the services are susceptible to attacks by miners in the course of validating the Services transactions on the blockchain, including, but not limited, to double-spend attacks, majority mining power attacks, and selfish-mining attacks. Any successful attacks present a risk to the Services, including, but not limited to, accurate execution and recording of transactions or divulgation of documents.

Blockchain Risk

On the blockchain, timing of block production is determined by consensus mechanisms and protocols so block production can occur at random times. For example, ETH that is contributed to the Services smart contract in the final seconds of a distribution period may not get included for that period. You acknowledge and understand that the blockchain may not include your transaction at the time you expect, and that transactions may be delayed. The blockchain is prone to periodic congestion during which transactions can be delayed or lost. You acknowledge and understand that blockchain block producers may not include your transaction when you want or your transaction may not be included at all. The use of Blockchain technology may utilize experimental cryptographic technologies and blockchain technologies, including tokens, cryptocurrencies, stablecoins, “smart contracts,” consensus algorithms, voting systems and distributed, decentralized or peer-to-peer networks or systems in performing the Services. You acknowledge and agree that such technologies are novel, experimental, and speculative, and that therefore there is significant uncertainty regarding the operation and effects and risks thereof and the application of existing law thereto.

Asset Prices. 

The fiat-denominated prices and value in public markets of assets such as NFTs have been historically subject to dramatic fluctuations and are highly volatile. As relatively new products and technologies, blockchain-based assets are not widely accepted as a means of payment for goods and services. A significant portion of demand for these assets is generated by speculators and investors seeking to profit from the short or long term holding of blockchain assets. The market value of any NFT may decline below the price for which you acquired such asset on our Website or with any third-party. You acknowledge and agree that the costs and speeds of transacting with cryptographic and blockchain-based systems are variable and may increase or decrease dramatically at any time, resulting in prolonged inability to access or use any NFTs or other digital assets associated with the services.

Source Code Risks

The source code underpinning the Services and the services smart contracts may contain flaws, bugs, defects or inconsistencies that could compromise the predictability, usability, functionality, stability and security of the Services. We will attempt to perform quality assurance and audit procedures to ensure the source code accurately reflects the Services intended operation, though there can be no guarantee that any errors are identified or the source code will be error-free. In addition, source code modifications or updates may lead to unexpected or unintended outcomes that may adversely affect the utility or functionality of the Services or any associated Services. Source code modifications that constitute upgrades may be required in connection with the development of the Services or associated services, and your failure to participate in any such upgrades may result in the loss of some or all Services.

Risk of Hacking and Security Weakness

The Services may be subject to expropriation and or/theft. Hackers or other malicious groups or organizations may attempt to interfere with the services’ smart contract, or the Services in a variety of ways, including, but not limited to, malware attacks, denial of Service attacks, consensus-based attacks, Sybil attacks, smurfing and spoofing. Furthermore, because the blockchain Website rests on open source software and the Services are based on open source software, there is the risk that smart contracts may contain intentional or unintentional bugs or weaknesses which may negatively affect the Services or result in the loss of Services, transactions or documents, the loss of your ability to access or control the Services. In the event of such a software bug or weakness, there may be no remedy and holders of the Services are not guaranteed any remedy, refund or compensation. 

Risk of Losing Access to the Services Due to Loss of Private Key(s)

Access to the services requires a private key, or a combination of private keys, for access. Accordingly, loss of requisite private key(s) associated with your digital wallet will result in loss of access to the Services and all documents and transactions related to the Services. Moreover, any third party that gains access to such private key(s), including by gaining access to login credentials of a hosted wallet service you use, may be able to misuse the Services. We are not responsible for any such losses. 

Risk of Reliance on Third Parties

We anticipate relying, in whole or partly, on third parties to adopt and implement our services and to continue to develop, supply, and otherwise support the Website. We may be unable to retain third parties with the requisite expertise, and those it does retain may not adequately perform their obligations towards us.

Legal Risks 

Federal, state and even international laws, regulations and/or rules applicable to technology industries, including but not limited to those regarding the blockchain technology may impact or constrain the design, implementation and operation of the Services.

Unanticipated Risks 

Blockchain technology is a new and untested technology. In addition to the risks included in this Exhibit A, there are other risks associated with your use of the Services, including those that we cannot anticipate. Such risks may further materialize as unanticipated variations or combinations of the risks discussed in this Exhibit A.

Exhibit B

Eligible Purchaser

Initially, all users are an “Eligible Purchaser” except the following:

• a user that (i) is subject of economic or financial sanctions or trade embargoes administered or enforced by any country or government, including, but not limited to, those administered by the Swiss Secretariat of Economic Affairs (SECO) or any equivalent foreign (i.e. non-Swiss authority), (ii) is located, organized or resident in Iran, North Korea, Syria, the Crimea Region or any other country or territory that is the subject of country-wide or territory-wide Sanctions, (iii) is listed in any Sanctions-related list of sanctioned persons, (iv) is a citizen or resident of, or located in, a geographic area that is subject to Swiss, EEA Member States or other sovereign country sanctions or embargoes, (vi) listed on the European Commission’s consolidated list of Restrictive measures in force, (vii) listed on the French Direction du Trésor summary table of restrictive measures by country, (viii) listed on the United States Department of Treasury’s OFAC, is directly or indirectly owned or controlled by any person or persons described in the foregoing clauses (i) through (viii) and/or (ix) is otherwise a party with which Company is prohibited from dealing with under applicable laws; and
• a user that is (i) a citizen or resident of a geographic area in which access to the Website and purchase of NFTs is prohibited by any applicable law, decree, regulation, treaty, or administrative act, (ii) a citizen or resident of, or located in, a geographic area that is subject to U.S. or other sovereign country sanctions or embargoes.