Departed Apes Terms and Conditions
Last updated as of 7 December 2022
These terms and conditions (“Terms & Conditions”) constitute an Agreement (the “Agreement”) between you and the Company and govern your use of departedapes.io website (this “Website”), including your purchase of any Departed Apes NFTs. This Website is only an interface allowing participants to purchase digital collectibles. You are entirely responsible for the safety and management of their own private Ethereum wallets and validating all transactions and contracts generated by this Website before approval.
This Website and its connected services are provided “as is” and “as available” without warranty of any kind. By using this Website or attempting to purchase a Departed Apes NFT, you agree that you have read, understood and accepted all of the Terms & Conditions stipulated herein.
1. Definitions
In these Terms:
“Art” means any art, designs, drawings, traits, layers, and other design elements that may be associated with any specific Departed Apes NFT that you own.
“Company”, “us”, “we” or “our” refers to Grid6 Studios Limited.
“Commercial Use” has the meaning ascribed to it in Clause 5.2.
“Departed Apes NFT” means a non-fungible token that you Own and was originally minted on this Website.
“Departed Apes Trademarks” means any and all logos, trademarks, service marks, and trade dress associated with Departed Apes, departedapes.io and the Departed Apes NFTs, including any names of Departed Apes-related characters or products or service developed by us.
“NFT” means any blockchain-tracked non-fungible token, including those complying with the ERC-721A, ERC-721, ERC-1155, or other non-fungible token standard.
“NFT Trading Platform” means a secure marketplace where NFTs are sold, transferred, and recorded on the applicable blockchain and such transactions can be proven by the applicable blockchain.
“Own” or “Ownership” means, with respect to a Departed Apes NFT, a Departed Apes NFT that you have purchased through the Website or otherwise rightfully acquired from a legitimate source, where proof of purchase was recorded on the applicable blockchain and ownership of the Departed Apes NFT can be proven.
“Physical Products” means physical products offered by the Company for sale or for no consideration from time to time.
“you”, “your” or “Owner” means someone who has rightful and legal Ownership of a Departed Apes NFT.
2. General Provision
The Company reserves the right to change or modify these Terms & Conditions and any other terms contained in this Agreement in its discretion at any time. The Company will effect such changes by updating the terms on its Website. Any and all modifications or changes to these Terms & Conditions will become effective upon publication on the Website or release to you. The continued use of the Website by you shall be deemed as acceptance of the modified agreement and rules. You are advised to frequently review these Terms & Conditions to ensure your understanding of the terms and conditions that apply to your access to and use of this Website.
3. Departed Apes Trademarks
Unless otherwise stated, the Company and/or its affiliates own the intellectual property rights published on this Website, including all text, data, graphics, photographs, images, audio, video, trademarks, service marks, trade names and other information, visual or other digital material, software (including source and object codes) and all other content or any description available on the Website or available via a link from Website to a page created by the Company on another website (collectively, the "Content"). The Content is the sole property of the Company and/or its affiliates or third-party service providers.
You acknowledge and agree that the Company and/or its affiliates own all legal rights, title, interest in the Art associated with any Departed Apes NFTs, and all intellectual property rights, including but not limited to, trademark and copyright rights, therein. Any rights provided to you upon purchase or ownership of a Departed Apes NFT are limited to those expressly stated herein. The Company reserves all rights and ownership to the Departed Apes NFTs and Art not specifically granted to you in this Agreement.
Without our written permission, you shall not use any Departed Apes Trademarks for any Commercial Use, including to register any domain names or social media accounts using any Departed Apes Trademarks. This includes any Departed Apes Trademarks that may be displayed or contained in any Departed Apes NFT Art for your Departed Apes NFT. You may not remove, delete or obscure any trademark notice, copyright notice or other intellectual property notice in any Departed Apes NFT or Departed Apes NFT Art.
4. Fees and Payments
Any payments of financial transactions that you conduct or engage in through the Website are final. You acknowledge and understand that the Website cannot and will not reverse any payments or transactions. All purchases of Departed Apes NFTs, as well as any associated charges, are non-refundable.
You shall be responsible for all applicable taxes including any sales or compensating use tax or equivalent tax wherever such tax may arise.
You accept and acknowledge that the Company and its affiliates will not be responsible for any communication failures, disruptions, distortions, delays, or any other errors that may arise when you attempt to purchase any Departed Apes NFTs.
5. Ownership
Personal Use. Subject to your continued compliance with these Terms & Conditions, the Company shall grant you a non-exclusive, worldwide, royalty-free license to use, copy and display the Art of your Departed Apes NFT, along with any extensions that you choose to create or use, solely for the following purposes: (i) for your own personal, non-commercial use; (ii) as part of a marketplace that permits the purchase and sale of your Departed Apes NFT, provided that the marketplace cryptographically verifies each Departed Apes NFT owner’s rights to display the Art to ensure that only the actual owner can display the Art; or (iii) as part of a third party website or application that permits the inclusion, involvement, or participation of your Departed Apes NFT, provided that the website/application cryptographically verifies each Departed Apes NFT owner’s rights to display the Art to ensure that only the actual owner can display the Art, and provided that the Art is no longer visible once the owner of the Departed Apes leaves the website/application.
Commercial Use. Subject to your continued compliance with these Terms & Conditions, the Company shall grant you a non-exclusive, unlimited, worldwide license to use, copy, and display the Art of your Departed Apes NFT for the purpose of creating derivative works based upon the Art (“Commercial Use”), as long as you do not use the Departed Apes Trademarks on, or to promote, such new works. Examples of such Commercial Use would e.g. be the use of the Art to produce and sell merchandise products that portrays the Departed Apes NFT’s underlying Art in its entirety. For the sake of clarity, nothing in this Clause 5.2 will be deemed to restrict you from (i) owning or operating a marketplace that permits the use and sale of Departed Apes NFT generally, provided that the marketplace cryptographically verifies each Departed Apes NFT owner’s rights to display the Art to ensure that only the actual owner can display the Art; (ii) owning or operating a third party website or application that permits the inclusion, involvement, or participation of Departed Apes NFT generally, provided that the third party website or application cryptographically verifies each Departed Apes NFT owner’s rights to display the Art for their Departed Apes NFT to ensure that only the actual owner can display the Art, and provided that the Art is no longer visible once the owner of the Departed Apes NFT leaves the website/application; or (iii) earning revenue from any of the foregoing.
The Company may from time to time collaborate with third parties to create Departed Apes NFTs which include artwork, images, works of authorship, logos, trademarks, service marks, or trade dress owned by a third party (“Third Party Content”). The license in Clause 5.2 above does not extend to any Departed Apes NFT or Art that contains Third Party Content, and you may not use, copy, reproduce, display, create derivative works of, or create new NFTs based on such Third Party Content, or any portion thereof, for any Commercial Use, unless we or the relevant third parties expressly provide our consent in writing or by public announcement.
You understand and agree that these rights are licensed solely to the rightful and legal Owner of the Departed Apes NFT. Your licensed rights to the Departed Apes NFT will terminate upon the rightful and legal sale or transfer of your Departed Apes NFT in accordance with Clauses 8 and 9 of this Agreement and the new Owner, upon their acceptance of the Terms & Conditions of this Agreement, shall receive these licensed rights.
6. Restrictions to Use
You understand and agree that any physical merchandise that you produce must incorporate every element and trait of your Departed Apes NFT in full. The individual layers and traits of the Departed Apes NFTs are not owned by you and are the sole property of the Company and/or its affiliates. Such commercialization rights are limited to the Departed Apes NFTs that you own.
You further understand and agree that this license does not permit the ability to create any digital merchandise. The creation and minting of any new NFTs which are derivatives of your Departed Apes NFTs are expressly prohibited.
You understand and acknowledge that you may not, nor permit any third party to do or attempt to do the foregoing without the express prior written consent from the Company; (i) modify the Art in your Departed Apes NFT in any way, including, without limitation, the shapes, designs, drawings, attributes, color schemes, or design elements of the Departed Apes NFT; (ii) produce any merchandise in connection with your Departed Apes NFT that depicts lewd behavior, illegality, hatred, intolerance, cruelty, vulgarity, pornographic or other “adult-only” material, discrimination, or otherwise harmful material to the Art and Departed Apes’ Brand; (iii) or attempt to trademark, copyright, or otherwise attempt to acquire additional intellectual property rights in your Departed Apes NFT.
7. Physical Products
The Company may offer Physical Products for sale or for no consideration and you understand that the terms and conditions of such releases will at all times be at the discretion of the Company. By participating in such releases, you agree to any applicable terms and conditions thereto.
The Company makes no representations or warranties whatsoever with respect to the Physical Products. Unless otherwise expressly stated by the Company, you will not be permitted to return for a refund or exchange any Physical Products that you purchase.
The Company shall have no liability to you for any failure to deliver or for any delay in doing so for any damage or defect to the goods which is caused by any act or circumstance beyond its reasonable control including, without limitation, strikes and other industrial disputes, breakdown of systems or network access, flood, fire, explosion or accident.
8. Transfer
You have the limited right to transfer or sell your Departed Apes NFTs on an NFT Trading Platform, provided that the transferee or purchaser understands and accepts the terms of this Agreement and the terms of the NFT Trading Platform and that prior to the transfer, you have not breached this Agreement or the terms of the NFT Trading Platform.
The Company is not responsible for any transactions between you and a third party, including using any NFT Trading Platform to transfer your Departed Apes NFTs. The Company shall have no responsibilities or liability with respect to any transfer you enact on any of these NFT Trading Platforms.
9. Termination
The licensed rights granted to you in Clause 5 of this Agreement shall automatically terminate if you perform any of the following actions: (i) you sell, trade, donate, or otherwise transfer your Licensed NFT in any manner; (ii) you breach any terms of this Agreement; or (iii) you engage in or initiate any legal actions against the Company and/or any of their affiliates, and each of their respective officers, directors, members, affiliates, agents, or employees.
Upon termination of your licensed rights, you must immediately cease and desist all activities and rights granted to you from Clause 5. This includes ceasing all activities involving the Departed Apes NFT for your own personal use or Commercial use. All provisions which by their nature should survive the termination of this Agreement shall continue in full force and effect subsequent to and notwithstanding any termination of this Agreement by the Company or you.
10. Risk Assumption
The Company makes no representations or warranties of any kind, express or implied, as to the Website, Departed Apes NFTs or the Physical Products being offered to you. You understand and agree that the Departed Apes NFTs are made solely for entertainment purposes only. You agree and understand that that: (i) the market and prices for a blockchain asset are extremely volatile and subjective and collectible blockchain assets, such as the Departed Apes NFTs, have no inherent or intrinsic value, and fluctuations in the price of such blockchain assets could materially and adversely affect the price and value of your Departed Apes NFTs; (ii) there are risks involved with using internet-based currency and asset, including, but not limited to, risk of hardware, software, internet connection failure, risk of malicious software, and risk that unauthorized parties may gain access to your personal information including such information and assets contained in your digital wallet or elsewhere; (iii) internet-based currency and assets are not currently regulated by any regulatory regimes, and new regulations or policies that may materially affect the value of any Departed Apes NFTs; (iv) there is an inherent risk that you may lose access due to loss of private keys, custodial error, or even purchaser error; (v) there are risks related to taxation; and (vi) the Company does not make any guarantees or representations about the availability of the Departed Apes NFTs or the art or that they will host the Departed Apes NFTs or the Art in any specific location for any specific period of time.
Ownership of a Departed Apes NFT confers ownership of digital artwork only. Accordingly, no information on this Website (or any other documents mentioned therein) is or may be considered to be advice or an invitation to enter into an agreement for any investment purpose. Further, nothing on this Website qualifies or is intended to be an offering of securities in any jurisdiction nor does it constitute an offer or an invitation to purchase shares, securities or other financial products. Due to the artistic nature of the project, none of the Departed Apes NFTs has been registered with or approved by any regulator in any jurisdiction. It remains your sole responsibility to assure that the purchase of any Departed Apes NFT and the associated art is in compliance with laws and regulations in your jurisdiction.
You agree that you have received sufficient information to make an informed decision regarding the decision to purchase or otherwise obtain the Departed Apes NFTs and that you understand and agree that you are solely responsible for determining the value, nature, and appropriateness of the above risks for yourself.
You assume all responsibility for any adverse effects of disruptions or other issues impacting Ethereum or the Ethereum platform.
11. Disclaimers
ALL DEPARTED APES NFTS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. THE COMPANY AND/OR ITS AFFILIATES HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE, OUR AFFILIATES, AND LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (I) YOUR ACCESS TO OR USE OF THE WEBSITE WILL MEET YOUR REQUIREMENTS, (II) YOUR ACCESS TO OR USE OF THE WEBSITE WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, (III) USAGE DATA PROVIDED THROUGH THE WEBSITE WILL BE ACCURATE, (III) THE WEBSITE OR ANY CONTENT, SERVICES, OR FEATURES MADE AVAILABLE ON OR THROUGH THE WEBSITE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (IV) THAT ANY DATA THAT YOU DISCLOSE WHEN YOU USE THE WEBSITE WILL BE SECURE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN CONTRACTS WITH CONSUMERS, SO SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET, AND AGREE THAT WE HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY BREACH OF SECURITY UNLESS IT IS DUE TO OUR WILLFULL MISCONDUCT.
WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSSES YOU INCUR AS THE RESULT OF YOUR USE OF THE ETHEREUM NETWORK NOR DO WE HAVE NO CONTROL OVER AND MAKE NO GUARANTEES REGARDING ANY SMART CONTRACTS.
12. Limitation of Liability
YOU UNDERSTAND AND AGREE THAT WE WILL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES WHICH YOU MAY INCUR, HOWSOEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF PROFITS (WHETHER INCURRED DIRECTLY OR INDIRECTLY), LOSS OF GOODWILL OR BUSINESS REPUTATION, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR ANY OTHER INTANGIBLE LOSS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
YOU AGREE THAT OUR TOTAL, AGGREGATE LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS & CONDITIONS OR YOUR ACCESS TO OR USE OF (OR YOUR INABILITY TO ACCESS OR USE) ANY PORTION OF THE WEBSITE, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, IS LIMITED TO THE GREATER OF (I) THE AMOUNTS YOU ACTUALLY PAID US UNDER THESE TERMS & CONDITIONS IN THE 12 MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE, OR (II) USD$500.
YOU ACKNOWLEDGE AND AGREE THAT WE HAVE MADE THE WEBSITE AVAILABLE TO YOU AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN. WE WOULD NOT BE ABLE TO PROVIDE THE SITE TO YOU WITHOUT THESE LIMITATIONS.
13. Unauthorized Conduct
When accessing or using our Website, you are solely responsible for your actions, and you agree to abide by the following rules of conduct:
(a) You agree not to copy, distribute or disclose any part of the Website in any medium, including without limitation by any automated or non-automated “scraping”;
(b) You agree not to attempt to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the servers running the Website;
(c) You agree not to use any robot, spider, crawler, scraper or other automated means or interface not provided by us to access the Website or to extract or export data collected through the Website;
(d) You agree not to take any action that imposes, or may impose at our sole discretion, an unreasonable or disproportionately large load on our infrastructure; You agree that you will not hold the Company, any of its affiliates, or its third-party providers responsible for your use of the Website;
(e) You agree not to violate any requirements, procedures, policies, or regulations of networks connected to the Company;
(f) You agree not to interfere with or disrupt the Website;
(g) You agree not to post anything contrary to our public image, goodwill, or reputation;
(h) You agree to not violate any applicable laws and regulations while using the Website; and
(i) You agree not to use the Website in any way that is: misleading, unlawful, defamatory,
obscene, invasive, threatening, harmful, or harassing.
If you are discovered to be undertaking any of the aforementioned actions your privileges to use our Website may, at our discretion, be terminated or suspended. The Company reserves the right to suspend or terminate your access at any time without notice or explanation.
14. Personal Data
The Company may, from time to time, be required to collect personal data from you, including but not limited to, identification information such as name, email address, and shipping address and cryptocurrency wallet information.
You acknowledge and agree that we may share personal information with third-party service providers who aid us in meeting our operational needs, including but not limited to, third-party payment processing services, hosting services, cloud services, and other information technology services. We may also share personal information as required to comply with applicable laws and regulations.
The Company shall use commercially reasonable efforts to employ technical, organizational and physical safeguards designed to protect the personal information we collect and safeguard your data. The Company shall not sell any personal information to any third parties.
Notwithstanding the foregoing, you understand that no security measures are failsafe and the Company cannot guarantee the security of your personal information. The Company shall not be held liable for any damages incurred as a consequence of such security risks or for any related acts of omission on our part.
15. Indemnification
You agree to defend, indemnify and hold harmless the Company, its officers, directors, employees, affiliates, third-parties, and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from:
(a) your misuse of the Website;
(b) your violation of applicable laws, rules and regulations in connection with your access to or
use of the Website;
(c) your breach of any terms of this Agreement; or
(d) arising out of any claim that you have breached any provision of these Terms & Conditions.
This defense and indemnification obligation will survive this Agreement. You also agree that you have a duty to defend us against such claims and we may require you to pay for an attorney(s) of our choice in such cases. You agree that this indemnity extends to requiring you to pay for our reasonable attorneys’ fees, court costs, and disbursements. In the event of a claim such as one described in this paragraph, we may elect to settle with the party/parties making the claim and you shall be liable for the damages as though we had proceeded with a trial.
16. Governing Law and Dispute Resolution
This Agreement shall be governed by the laws of Hong Kong as to all matters including validity, construction, effect, performance and remedies without giving effect to the principles of choice of law thereof.
In the event of any dispute, controversy, or claim arising out of or relating to the Agreement or the construction, interpretation, performance, breach, termination, enforceability or validity thereof, or intend to commence or initiate any legal proceedings or arbitration against the Company relating to the defaults of the Company and/or its affiliates, you shall first contact us, no later than sixty (60) days from the date of its discovery of the dispute, controversy or claim, by giving a default notice outlining the nature and basis of the claim or dispute and the specific relief sought to us at [email protected] and we will attempt to resolve the same dispute internally as soon as possible. You agree to negotiate in good faith to resolve the dispute (which discussions shall remain confidential and be subject to applicable rules protecting settlement discussions from use as evidence in any legal proceeding). In the event the dispute cannot be resolved satisfactorily within thirty (30) Business Days of receipt of the default notice, the Parties shall resolve the dispute by referring to the procedure set forth at Clause 16.3. The mechanism contained in this Clause 16.2 shall be a prerequisite to commencement of an arbitration proceeding (or any other legal proceeding). During the arbitration, the amount of any settlement offer made by the Company shall not be disclosed to the arbitrator.
You and the Company agree that any dispute which cannot otherwise be resolved as provided in Clause 16.2 above shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (“HKIAC”) under the UNCITRAL Arbitration Rules in force when the Notice of Arbitration is submitted, as modified by the HKIAC Procedures for the Administration of International Arbitration. The law of this arbitration clause shall be Hong Kong law. The place of arbitration shall be Hong Kong. Unless the parties agree otherwise, there shall be only one arbitrator appointed in accordance with the HKIAC Rules. Any arbitration will be conducted in the English language.
Any arbitration against the Company must be commenced by filing a request for arbitration within one (1) year (inclusive of the internal dispute resolution procedure set forth in Clause 16.2 after the date you first know or reasonably should know of the act, omission or default giving rise to the claim. There shall be no right to any remedy for any claim not asserted within that time period. If applicable law prohibits a one-year limitation period for asserting claims, any claim must be asserted within the shortest time period permitted by applicable law.
You agree that any claims relating to this Agreement or to your relationship with the Company (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and whether the claims arise during or after the termination of these Terms & Conditions) shall be brought against the other party in an arbitration on an individual basis only and not as a plaintiff or class member in a purported class or representative action. You further agree to waive any right for such claims to be brought, heard, or arbitrated as a class, collective, representative, or private attorney general action, to the extent permissible by applicable law. Combining or consolidating individual arbitrations into a single arbitration is not permitted without the consent of all parties, including the Company.
Even if we delay in enforcing the rights of this Agreement, it should not constitute a waiver of our rights and we can still enforce the same in the future for as long as permitted under the applicable law. If we do not immediately request or insisted that you do or cease to do anything that may be required or prohibited under this Agreement, or if we delay in taking steps against you in respect of your breaching any terms of this Agreement, that shall not constitute a waiver of your obligations under this Agreement and shall not prevent us taking steps against you in the future.
17. Severability
If any portion of this Agreement are adjudged or otherwise found to be invalid or unenforceable by a competent court or arbitral tribunal for any reason or to any extent, the remainder of this Agreement will remain valid and enforceable and the invalid or unenforceable portion will be given effect to the greatest extent permitted by law.
18. Entire Agreement
This Agreement constitutes the entire agreement between the parties regarding use of this Website and will supersede all prior written or oral agreements between the parties. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms herein.
19. Assignment
You may not assign or transfer any right to use or any of your rights or obligations under these Terms & Conditions without prior written consent from the Company, including any right or obligation related to the enforcement of laws or the change of control. The Company may assign or transfer any or all of its rights or obligations under these Terms, in whole or in part, without notice or obtaining your consent or approval.
20. Survival
You agree and understand that all provisions of these Terms & Conditions shall survive the termination or expiration of such Terms & Conditions.
21. No Joint Venture
This Agreement shall not constitute a joint venture, partnership, employment, or agency relationship between the parties.
22. Age
All users who access the Website or purchase any Departed Licensed NFT must be 18 years of age or older.
