Posted: 04/27/2023
These Terms of Use contain an arbitration provision and class action waiver. Please review the Arbitration section for details.
These Habytat’s Terms of Use (the “Terms”) are a legal agreement between Smarterverse Inc. (“Smarterverse,” “Company,” “we,” “our,” “us”) and you, the user, governing your access to and use of: (a) all content and functionalities available on the Habytat by SmarterVerse mobile application (the “App”), the Habytat.io website (the “Site”) and related services to which these terms are applied (collectively with the App and Site, the 'Services').
THIS IS A LEGALLY BINDING CONTRACT. BY ACCESSING OR USING THE SERVICES OR BY INDICATING YOUR ACCEPTANCE OF THESE TERMS, YOU ACKNOWLEDGE AND REPRESENT THAT YOU HAVE READ THESE TERMS, UNDERSTAND THEM, AND AGREE TO BE BOUND BY THEM. YOU ALSO REPRESENT AND WARRANT THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS CONTRACT AND ARE NOT PROHIBITED BY LAW FROM ACCESSING OR USING THE SERVICES. YOU DO NOT HAVE TO ENTER INTO THESE TERMS, BUT IF YOU DO NOT, YOU WILL NOT BE PERMITTED TO, AND YOU MAY NOT, USE THE SERVICES.
For clarity, “NFTs” are non-fungible tokens, ownership of which are registered on a blockchain. NFTs are associated with digital objects (which may include images and/or other digital works) (“Digital Object(s)”). Except as expressly set forth herein and in the Owner Agreement (defined below), the purchase or acquisition of an NFT does not grant the acquirer ownership, or any other rights, to the Digital Object(s). Any license to use the Digital Object is set forth in the Owner Agreement.
NFT Owner Agreement. As stated above, the purchase or acquisition of an NFT is subject to the “Owner Agreement.” By purchasing or otherwise acquiring an NFT (e.g., through player rewards or otherwise) you are agreeing to the terms and conditions set forth in the Owner Agreement. As detailed in the Owner Agreement, while an acquirer may own the token corresponding to an NFT they shall have only a limited license to the Digital Object(s), subject to the terms and conditions set forth therein.
Using NFTs. Specific information about NFTs may be provided in the App. NFT Owners may be able to upgrade, transfer or otherwise use their NFT(s) though use of the Services. You understand and agree that taking certain actions with respect to your NFT may cause a transfer of ownership of your NFT, an alteration or degradation to your NFT, or may cause your NFT to cease to exist. To learn more about the specifics of the gameplay, and how certain choices you make with your NFT(s) may affect the availability or your ownership of the NFT(s), please see the details set forth in the App.
Special Terms for NFTs representing virtual land grants. To the extent you acquire or purchase an NFT that represents land within Habytat, you understand and agree that Company may change the location of such land within Habytat in its sole discretion. The conditions under which the location of the land may will be set forth on the Site or in the App, and such conditions are also subject to change in Company’s sole discretion.
Other Rewards. You may be able to earn other incentives or rewards through the gameplay, including, for example, gifts (collectively, “Rewards”). These are “account bound” rewards, meaning that they remain with your Account and are generally not transferrable. That is, you cannot sell or trade individual Rewards. However, you may be able to redeem Rewards as explained in the App. Once redeemed, Rewards will be deleted from your Account. Subject to your compliance with these terms, you are granted a limited, non-transferable (except as specifically set out in this section), revocable license to use Rewards only for your personal entertainment, in connection with the Services. Your license to use Rewards automatically terminates when these Terms or your Account terminates for any reason. To learn more about the specifics of gameplay, and how you may redeem Rewards, please see the details set forth in the App.
NFT Sales: The App does not currently include an NFT marketplace, but you may be able to sell your NFT(s) on a third-party NFT marketplace (each, an “NFT Marketplace”) subject to the applicable NFT Marketplace’s terms and conditions. You understand and agree that the NFT Marketplace is a Third Party Platform (as such term is defined below) and Company is not responsible or liable to you for any transactions on such platform. Any sale(s) of the NFT(s) will be subject to a five percent (5%) “Resale Royalty.” The smart contract associated with the NFT is programmed to collect and automatically pay to us the Resale Royalty from the gross proceeds of any sale amount.
The App offers certain digital merchandise for sale for use in connection with the Services.
Pricing: Prices for merchandise will be shown in the App, and are exclusive of taxes. Prices are subject to change at any time, for any reason, and in our sole and exclusive discretion.
Inaccuracy Disclaimer: From time to time, there may be information in the App that contains typographical errors, inaccuracies, or omissions that may relate to product descriptions, pricing, and availability. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update information at any time without prior notice (including after you have submitted your order). If you do not wish to continue with your order after pricing or other information has been corrected, please contact us right away and we will work with you.
No Refunds: ALL TRANSACTIONS ARE IRREVERSIBLE, FINAL AND THERE ARE NO REFUNDS. Please carefully review your order prior to submitting.
Some of our Services have additional terms and conditions (“Additional Terms”). Where Additional Terms apply to a Service, we will make them available for you to read through prior to your use of that Service. By using that Service, you agree to the Additional Terms. You may be required to accept the terms to use that Service.
You may use the App and Service for your personal use only. You are responsible for your use of the App and Services, and for any use of the Services made using your Account or wallet. Our goal is to create a positive, useful, legal and safe user experience. To promote this goal, we prohibit certain kinds of conduct that may be harmful to other users or to us. When you use the Services, you may not:
The Site and some of our Services allow you to upload, submit, store, send, or receive content and data (“User Content”). User Content includes, without limitation, any art, media or other creative works, including the Works. You retain ownership of any intellectual property rights that you hold in that User Content.
When you provide User Content to the Services, you give us permission under all of the rights in any copyright associated with the User Content to reproduce and use your User Content for all activities and purposes related to operating the Site and Services as they exist now and in the future. This license is for the limited purpose of operating, promoting, and improving the Site and Services, and to develop new Services. Our license to your User Content is non-exclusive, meaning you may use the User Content for your own purposes or let others use your User Content for their purposes. This license is fully-paid and royalty free, meaning we do not owe you anything for the right to use of your User Content. You agree we may exercise our rights under this license anywhere in the world and in any media. The license is perpetual, meaning that our rights under this license continue even after you stop using the Site and Services.
You promise that:
We may refuse to accept or transmit User Content for any reason. We may remove from the Services or disable access to any User Content for any reason.
We respond to notices of alleged copyright infringement and terminate Accounts of repeat infringers according to the process set out in the U.S. Digital Millennium Copyright Act. If you believe that your work has been copied in a way that constitutes copyright infringement, please forward the following information to the Copyright Agent named below:
Copyright Agent:
Gianfranco Lopane
info@smarterverse.com
For clarity, only copyright infringement notices should go to our Copyright Agent. You acknowledge that if you fail to comply with all of the requirements of this Section your notice may not be valid.
If you believe the content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use such content, you may submit a counter-notice to the address listed above containing the following information:
After we receive your counter-notification, we will forward it to the party who submitted the original claim of copyright infringement. Please note that when we forward the counter-notification, it includes your personal information. By submitting a counter-notification, you consent to having your information revealed in this way. We will not forward the counter-notification to any party other than the original claimant.
After we send out the counter-notification, the claimant must then notify us within 10 days that he or she has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the content that was removed or disabled. If we receive such notification, we will be unable to restore the material. If we do not receive such notification, we may reinstate the material.
Your privacy is very important to us. Our Privacy Policy explains how we collect, use, protect, and when we share personal information and other data with others. You are responsible for maintaining the confidentiality of your Account information, including your private key. You are responsible for all activities that occur under your Account and you agree to notify us immediately of any unauthorized access or use of your Account. We are not responsible or liable for any damage or loss related to any unauthorized access or use of your Account.
The App and Services may contain links to other websites and online resources solely for convenience. A link to a third party’s website does not mean that we endorse it or that we are affiliated with it. We are not responsible or liable for any damage or loss related to the use of any third-party website. You should always read the terms and conditions and privacy policy of a third-party website before using it.
We do not provide, nor have custody or control over, any third party platforms you are interacting with, including without limitation, wallets, blockchains, NFT marketplaces, communication channels or other third party platforms or services (collectively, “Third Party Platforms”). You are solely responsible for any transaction you conduct using a Third Party Platform, and we are not responsible or liable for any action or inaction by the third party nor any damage or loss related your use of any Third Party Platform. You should always read the terms and conditions and privacy policy of a Third Party Platform before using it. Please note that Third Party Platforms, including without limitation, blockchains, may charge fees associated with their respective services (e.g., gas fees).
YOU USE THE APP AND SERVICES AT YOUR OWN RISK. THE APP AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR COMPANY AND ITS OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, CONSULTANTS, SUPPLIERS, AND LICENSORS (“AFFILIATES”) DISCLAIM ALL WARRANTIES, CONDITIONS, AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING THOSE RELATED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT AND THOSE ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
IN PARTICULAR, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR COMPANY AND ITS AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY OR COMPLETENESS OF CONTENT AVAILABLE ON OR THROUGH THE SERVICES, OR THE CONTENT OF ANY WEBSITES OR ONLINE SERVICES LINKED TO OR INTEGRATED WITH THE SERVICES. OUR COMPANY AND ITS AFFILIATES WILL HAVE NO LIABILITY FOR ANY: (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (b) PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICES; (c) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS OR OF ANY PERSONAL INFORMATION OR USER DATA; (d) ANY INTERRUPTION OF TRANSMISSION TO OR FROM THE SERVICES; (e) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED ON OR THROUGH THE SERVICES BY ANY THIRD PARTY; OR (f) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED OR SHARED THROUGH THE SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY MAKES NO WARRANTY THAT THE APP AND SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. FURTHER, COMPANY MAKES NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY INFORMATION OR CONTENT ON THE SERVICES.
YOU UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY MATERIAL OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE ARISING FROM DOING SO. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE.
THE NFTS ARE INTANGIBLE DIGITAL ASSETS. THEY EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE APPLICABLE BLOCKCHAIN NETWORK. ANY TRANSACTION THAT MIGHT OCCUR IN ANY UNIQUE DIGITAL ASSET OCCURS ON THE DECENTRALIZED LEDGER WITHIN SUCH BLOCKCHAIN NETWORK, WHICH COMPANY DOES NOT CONTROL. YOU UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WILL NOT BE RESPONSIBLE FOR ANY COMMUNICATION FAILURES, DISRUPTIONS, ERRORS, DISTORTIONS OR DELAYS YOU MAY EXPERIENCE WHEN EFFECTING NFT TRANSACTIONS, TO THE EXTENT CAUSED BY OR RELATED TO THIRD-PARTY TECHNOLOGY, PLATFORMS, SERVICES OR OTHER FUNCTIONALITY, INCLUDING WITHOUT LIMITATION ANY WALLETS, SMART CONTRACTS, BLOCKCHAINS OR FILE STORAGE SYSTEMS.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING FOR LOSS OF PROFITS, REVENUE, OR DATA) OR FOR THE COST OF OBTAINING SUBSTITUTE PRODUCTS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, HOWEVER CAUSED, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT WE’VE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR TOTAL CUMULATIVE LIABILITY TO YOU OR ANY THIRD PARTY UNDER THESE TERMS, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED ONE HUNDRED DOLLARS ($100).
You understand and agree that we have set our fees and entered into these Terms with you in reliance upon the limitations of liability set forth in these Terms, which allocate risk between us and form the basis of a bargain between the parties.
Except as set forth below, you and we agree that we will resolve any disputes between us (including any disputes between you and a third-party agent of ours) through binding and final arbitration instead of through court proceedings. You and we hereby waive any right to a jury trial of any Claim (defined below). All controversies, claims, counterclaims, or other disputes between you and us or you and a third-party agent of ours (each a “Claim”) shall be submitted for binding arbitration in accordance with the Rules of the American Arbitration Association (“AAA Rules”). The arbitration will be heard and determined by a single arbitrator. The arbitrator's decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. You and we agree that the arbitration proceedings will be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration, by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies, or as specifically permitted by state law. The Federal Arbitration Act and federal arbitration law apply to this agreement. However, the Arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of these Terms including, but not limited to, a claim that all or any part of these Terms is void or voidable.
If you demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of the administrative costs and arbitrator's fees required for the arbitration as the arbitrator deems necessary to prevent the cost of the arbitration from being prohibitive. In the final award, the arbitrator may apportion the costs of arbitration and the compensation of the arbitrator among the parties in such amounts as the arbitrator deems appropriate.
Notwithstanding any other provision of this agreement, this arbitration agreement does not preclude either party from seeking action by federal, state, or local government agencies. You and we also have the right to bring qualifying claims in small claims court. In addition, you and we retain the right to apply to any court of competent jurisdiction for equitable or provisional relief, including pre-arbitral attachments or preliminary injunctions, and any such request shall not be deemed incompatible with these Terms, nor a waiver of the right to have disputes submitted to arbitration as provided in these Terms.
Neither you nor we may act as a class representative or private attorney general, nor participate as a member of a class of claimants, with respect to any Claim. Claims may not be arbitrated on a class or representative basis. The arbitrator can decide only your and/or our individual Claims. The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated. The arbitrator may award in the arbitration the same damages or other relief available under applicable law, including injunctive and declaratory relief, as if the action were brought in court on an individual basis. Notwithstanding anything to the contrary in the foregoing or herein, the arbitrator may not issue a “public injunction” and any such “public injunction” may be awarded only by a federal or state court. If either party seeks a “public injunction,” all other claims and prayers for relief must be adjudicated in arbitration first and any prayer or claim for a “public injunction” in federal or state court stayed until the arbitration is completed, after which the federal or state court can adjudicate the party’s claim or prayer for “public injunctive relief.” In doing so, the federal or state court is bound under principles of claim or issue preclusion by the decision of the arbitrator.
If any provision of this Section is found to be invalid or unenforceable, then that specific provision shall be of no force and effect and shall be severed, but the remainder of this Section shall continue in full force and effect. No waiver of any provision of this Section of the Terms will be effective or enforceable unless recorded in a writing signed by the party waiving such a right or requirement. Such a waiver shall not waive or affect any other portion of these Terms. This Section of the Terms will survive the termination of your relationship with us.
THIS SECTION LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM, THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN AAA RULES, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. OTHER RIGHTS THAT YOU OR WE WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION.
Under no circumstances will we be held liable for any delay or failure in performance due in whole or in part to any acts of nature or other causes beyond our reasonable control.
These Terms will be governed by and construed in accordance with the laws of the State of New Jersey without giving effect to any conflict of laws rules or provisions.
Without altering the arbitration requirement set forth above, in the event any action of whatever nature relating to these Terms, the App, or Services must be filed in a court, we mutually agree that such action may only be filed in the state or federal courts located in New Jersey. You consent and submit to the personal jurisdiction of such courts for the purposes of any such action and agree not to challenge the personal jurisdiction or convenience of the forum.
If any provision of these Terms is found to be unlawful or unenforceable, then that provision will be deemed severable from these Terms and will not affect the enforceability of any other provisions.
The failure by us to enforce any right or provision of these Terms will not prevent us from enforcing such right or provision in the future.
We may assign our rights and obligations under these Terms, including in connection with a merger, acquisition, sale of assets or equity, or by operation of law.
We do not display our own advertisements within the app, and we do not share user data with external entities.
From time to time, we may change these Terms. If we change these Terms, we will give you notice by posting the revised Terms in the App. Those changes will go into effect on the Revision Date shown in the revised Terms. By continuing to use the Services, you are agreeing to the revised Terms. You may be required to indicate accept of the changed Terms to continue use of the Services.
PLEASE PRINT A COPY OF THESE TERMS FOR YOU RECORDS AND PLEASE CHECK THE APP FREQUENTLY FOR ANY CHANGES TO THESE TERMS.