Microsoft Word - POLICY.ToS.20221128.FINAL.docx


TERMS OF SERVICE




PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE USING OUR SERVICES. These Terms of

Service (“Terms”) govern your access and use of the Services (as defined below) provided or made available by or on behalf of Kongregate Inc. (and together with our parent company, subsidiaries and affiliates, when applicable) (“Kongregate,” “we” or “us”).


You are using our “Services” if you are using, accessing, downloading, playing and/or purchasing games (“Games”) or in-game purchases by way of:

By using our Services, including the Games, you agree, and accept, these Terms of Service, which form a legally binding agreement between you and Kongregate and you also agree to be bound by our Privacy Policy, our Cookie Policy, as well as, if applicable, the additional terms in the Annexes, that are all incorporated by referenced into these Terms. So please read these Terms carefully. If you do not agree to comply with these Terms, then do not use our Services.


  1. CHANGES TO THE TERMS AND SEVERABILITY.

    We may modify, change, add or remove portions of the Terms at any time and in our sole discretion. If we do so, we will let you know either by posting the modified Terms or through other communications. Please make sure you review the modified Terms because if you continue to use the Services, including the Games, after we have posted modified Terms, you are indicating to us that you agree to be bound by the modified Terms. If you do not agree to the modified Terms, then you may not use the Services, including the Games, anymore. With the rapidly changing landscape in our Services, we may change or discontinue any or all of the Services, including the Games, at any time and without notice, at our sole discretion.

    You may contact us at support@kongregate.com if you have specific questions regarding the changes.

    If any portion of these Terms is deemed to be illegal or unenforceable, the remainder of the Terms shall be unaffected and shall continue to be fully valid, binding, and enforceable.


  2. WHO CAN USE OUR SERVICES.

    Our Services are designed for and directed at people 18 years of age or older.

    In order to use our Services and become a User, you affirm that you can enter into a binding contract with Kongregate and that: (A) you have reached the age of majority where you are located, (B) you have not reached the age of majority where you are located and hence are deemed a Child (as defined below), but one of your parents or guardian agreed to these Terms on your behalf and takes full responsibility for your compliance with them, or (C) for use of Services related to blockchain, you (i) have access to a digital wallet (whether it is a non-custodial wallet or one that Kongregate may provision for you (“Wallet”)) and

    (ii) (a) do not appear on the U.S. Department of the Treasury’s Specifically Designated Nationals list, (b) do not reside in a country that is banned or sanctioned by the United States Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), (c) do not reside in a country that is sanctioned by the United Nations Security Council (“UNSC”), (d) do not appear on the Consolidated List or reside in a country that is sanctioned by the Australian Government Department of Foreign Affairs and Trade (“DFAT”).

    Children should not attempt to create an account or send any information to us without a parent or guardian’s consent. “Child” or “Children” means anyone under the age of 13 (or under 16 in certain European countries). Creating an account with false information, including an inaccurate age, is a violation of these Terms. We will not knowingly collect personal information from Children as further provided in our Privacy Policy.



  3. ACCOUNT INFORMATION AND SECURITY.

    In order to use our Services, we may ask that you create an Account and select a password and/or provide us with certain personal information, which may include your email, username, IP address and certain other information. You become a user (“User”) by completing the registration of an account which automatically includes acceptance of these Terms to access our Services (“Account”). Accounts are not transferable under any circumstance. The Account information you provide will be used in accordance with our Privacy Policy. You agree to provide Kongregate with accurate, complete and up-to-date information, including your email address. Kongregate has the right to restrict, suspend, or terminate your Account and refuse any and all current or future access to our Services if we reasonably believe that such information is untrue, inaccurate, not current or incomplete.

    To participate in certain of our Service, you may be required to link your digital wallet(s) on supported bridge extensions to your Account, which allows you to purchase, store, and engage in transactions using cryptocurrency.

    While Kongregate takes multiple steps to protect against possible breaches of our Services and the personal data we maintain, no website or Internet transmission is completely secure. Therefore, Kongregate cannot, and does not guarantee, that unauthorized access, hacking, data loss or other breaches will never occur. You are solely responsible for maintaining the security of your Account and your digital wallet(s). You should not share or allow others to access your Account or wallet(s). You agree to accept responsibility for all activities that occur in connection with your Account, including your wallet, and you understand that you may be held liable for losses incurred by us or any other use of the Services caused by someone else using your Account. If you become aware of loss, theft, fraud or unauthorized use of your Account, please contact us at support@kongregate.com immediately in order to enable us to take mitigating measures.

    You are solely responsible for creating a strong password and maintaining adequate security and control of any and all private keys, IDs, passwords, hints, personal identification numbers (PINs), API keys or any other codes that you use to access the Services, your digital wallets, or any Digital Assets. Any loss or

    compromise of the foregoing information or your personal information may result in unauthorized access to your account by third parties and the loss or theft of any Digital Assets stored in your digital wallets, including your linked bank account(s) and credit card(s). Kongregate and the Service Providers assume and have no responsibility for any losses that you may sustain or actions that may occur due to compromise of your private keys or login credentials. We may use third party services to authenticate wallets.


  4. OUR OWNERSHIP OF CONTENT; LIMITED LICENSE TO USE OUR SERVICES.

    Our Services are comprised of works and intellectual property owned by Kongregate and/or its licensors, including, without limitation, games (“Games”), artwork, graphics, images, screen shots, text, music, digitally downloadable content or files (“DLC”), non-fungible tokens (“NFTs”), digital goods, trademarks, logos, product and character names, slogans, and the compilation of the foregoing (“Content”). The Content is protected in the U.S. and internationally under trademark, copyright, trade dress, patent, and other applicable laws, rules and regulations.

    Upon creation of an Account under these Terms, we grant you a limited, personal, non-transferable and non-assignable license to use our Services and the Content therein. The Content in our Services are for gaming services and for your enjoyment and entertainment. Any other use, including modification, reproduction, uploading, posting, transmission, or distribution in any form or by any means without Kongregate’s prior written permission, is strictly prohibited.

    You agree not to display or use any Content or third party content located on the Platform in any publications, in public performances, for any commercial purpose, in connection with products or services that are not those of Kongregate, in any other manner that is likely to cause confusion among consumers, that disparages or discredits Kongregate and/or its licensors, that dilutes the strength of Kongregate’s or its licensor’s property, or that otherwise infringes Kongregate’s or its licensor’s intellectual property rights. You further agree to in no other way misuse any Content that appears in our Services.

    You are not granted any other right, title or interest in our Services or any Content except as expressly provided herein. All other rights are reserved.

    IF YOU HAVE BEEN FOUND IN VIOLATION OF THESE TERMS, WE RESERVE THE RIGHT, TO LIMIT, SUSPEND, MODIFY OR TERMINATE ACCOUNTS OR ACCESS TO SERVICES OR ANY PORTION THEREOF. IF THIS HAPPENS, KONGREGATE IS NOT REQUIRED TO COMPENSATE YOU FOR ANY LOSSES OR RESULTS. IN ADDITION, YOU MAY BE FOUND TO BE IN VIOLATION OF CRIMINAL AND CIVIL LAWS, INCLUDING KONGREGATE’S INTELLECTUAL PROPERTY RIGHTS.


  5. POSTING RULES FOR USER GENERATED CONTENT.

    On certain areas of our Platform, through your Account or otherwise, you may be able to chat with other users, and submit texts, files, images, photos, videos, sounds, musical works, works of authorship, text postings (including through the posting of online games) and other materials and content (“User Generated Content” or “UGC”). Your posting of UGC is subject to these Terms and the following posting rules (“Posting Rules”):

    1. You agree that your UGC is:

      1. Accurate;

      2. Not confidential;

      3. Not in violation of law;

      4. Not in violation of contractual restrictions or third party rights, and that you have permission to use content from any other party whose personal or other information or intellectual property is contained in the UGC;

      5. Not abusive, harmful, libelous, profane, obscene or otherwise objectionable or in conflict with the Code of Conduct;

      6. Not for commercial purposes or business solicitations; and

      7. Free of viruses, corrupting files, interference, cheat software, worms or other malicious code.

    2. Responsibility of Postings. You understand and acknowledge that UGC is solely your responsibility, and that Kongregate is not responsible for the information, data, text or other materials that may appear in UGC. Opinions expressed in UGC do not necessarily reflect the opinions of Kongregate. UGC is not necessarily reviewed by Kongregate prior to posting and Kongregate makes no warranties, express or implied, as to the UGC or to the accuracy and reliability of the UGC.

    3. No Monitoring/Violation Notices. You acknowledge that Kongregate does not by default monitor any materials posted, transmitted, or communicated to or within the Platform. Notwithstanding the foregoing, you further agree that Kongregate and its designees will have the right (but not the obligation) in their sole discretion to refuse, edit, move, or remove any UGC that is available via the Platform. If you believe that something on the Platform violates these Posting Rules or otherwise violates these Terms, please contact support@kongregate.com.

      YOU UNDERSTAND AND AGREE THAT KONGREGATE MAY TERMINATE YOUR ACCOUNT AND DELETE ALL UGC ASSOCIATED WITH YOUR ACCOUNT AT ANY TIME, AND WITHOUT NOTICE, IF KONGREGATE DEEMS THAT YOU MATERIALLY BREACH THESE POSTING RULES, THESE TERMS OR APPLICABLE LAW. KONGREGATE ASSUMES NO LIABILITY FOR ANY INFORMATION REMOVED FROM OUR PLATFORM AND IN CASE OF YOUR BREACH RESERVES THE RIGHT TO PERMANENTLY RESTRICT ACCESS TO SERVICES OR TERMINATE AN ACCOUNT.


  6. YOUR OWNERSHIP OF UGC; UGC LICENSE.

    After posting your UGC to the Platform, you continue to retain all ownership rights in such UGC, and you continue to have the right to use your UGC in any way you choose, subject to these Terms and the license described herein (“UGC License”).

    1. Scope of License. By displaying, publishing, or otherwise posting any UGC on or through the Platform, you hereby grant to Kongregate a limited, non-exclusive, transferrable, sub-licensable, worldwide, fully-paid, royalty-free license to use, modify, publicly perform, publicly display, reproduce, and distribute such UGC for the purpose of displaying the same on the Platform. This license will terminate at the time your UGC is removed either by you or Kongregate from the Platform.

    2. Representations. You represent and warrant that: (i) you solely own the UGC displayed, published or posted by you on the Platform or otherwise have the right to grant the license set forth herein, and (ii) the displaying, publishing or posting of your UGC does not violate infringe on the rights of any third party, including any copyright, trademark, patent, trade secret or other

      intellectual property right, or the privacy rights, publicity rights, contract rights or any other rights of any person. You agree to pay for all royalties, fees, and any other monies owing any person by reason of any UGC displayed, published or posted by you to the Platform. Except for your UGC, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any UGC appearing on this Platform.

      Notwithstanding the foregoing, we have the right (but not the obligation) to review and remove any UGC which is unlawful, tortious, defamatory, obscene, invasive of privacy or another person, threatening, harassing, abusive, hateful, racist, pornographic or otherwise inappropriate or illegal. If you find that any such content has been posted on our Platform, please let us know by contacting support@kongregate.com.



  7. CODE OF CONDUCT. While using our Services, you agree to follow the “Code of Conduct” and acknowledge that non-compliance with such Code of Conduct shall be considered a material breach of the Terms, which could lead to the suspension, cancellation and/or termination of your Account and access to our Services. You agree to comply with the following Code of Conduct:

    1. Follow the laws. You agree to use our Services and Platform in a non-commercial manner that does not violate any applicable laws or regulations or is prohibited by these Terms;

    2. Do not infringe on others’ works. You agree not to take any action or upload, post, transmit, promote, or distribute any Content that infringes or violates any third party rights, including rights of intellectual property as well as of privacy and publicity;

    3. Be nice to one another! You agree not to do, write or say anything which is or may be considered to be harmful, bullying, harassing (including, but limited to any objectionable or exclusionary behavior against Users who have purchased Digital Assets), stalking, threatening, abusive, spamming, littering, invasive of personal privacy or publicity rights, defamatory, libelous, vulgar, sexually explicit, deceptive, tortuous, hateful or offensive regarding someone’s race, religion, ethnicity, gender, sexual orientation or other identity factor, encourages conduct that would violate a law or is, in a reasonable person’s view, objectionable and/or deemed to be inappropriate to a user or any Kongregate staff member;

    4. Be nice to children. You agree not to engage in, take any action associated with, or participate in any type of child solicitation, grooming behavior, pedophilia, ephebophilia or predatory behavior in any form;

    5. Pick your username and avatar wisely. Your Account is YOUR account (and no one else’s), and you agree not to transfer or resell or otherwise convey your Account, your password or access to your Account to any third party. Your username can be set up to be visible by others, so please act sensibly so as not to disclose your or another person’s personal data. You are entirely responsible for maintaining the confidentiality of your password and access to your Account.

    6. Don’t cheat! You agree not to use features of the Services for anything other than their intended purposes, which also means you will not create, use, distribute, transmit, promote, take advantage of, or participate in cheats, exploits, automation software, robots, bots, mods, hacks, spiders, spyware, cheats, scripts, trainers, extraction tools or other software that interacts with or affects our Services in any way.

    7. Don’t manipulate the marketplace. You agree not to manipulate a Marketplace or related Services, which means you will not engage in wash trading, front running, pump and dump

      trading, ramping, cornering, or other deceptive or manipulative trading activities, including but not limited to: (i) trading an NFT at successively lower or higher prices for the purpose of creating or inducing a false, misleading or artificial appearance of activity in such NFT; (ii) unduly or improperly influencing the market price for such NFT or establishing a price which does not reflect the true state of the market in such NFT; (iii) executing or causing the execution of any transaction in an NFT which involves no material change in the beneficial ownership thereof; and (iv) participating in, facilitating, assisting or knowingly transacting with any pool, syndicate or joint account organized for the purpose of unfairly or deceptively influencing the market price of an NFT.

    8. Don’t hack or harm Kongregate’s Platform or Services. You agree not to upload, transmit, promote, distribute or participate in any activities that involve hacking, cracking, harming, phishing, griefing, tunneling, code injecting, infecting with a Trojan horse, virus, worm, spyware, cancelbots, malware, malicious code or other computer program, modifying, damaging, disrupting, interrupting or interfering with our Platform or Service, including, any proprietary information or personal data.

    9. Don’t pretend to be someone you’re not. You agree not to impersonate someone else, imply or state that you are endorsed by Kongregate, or misrepresent the source, identity, or content of information sent, posted, transmitted or made available the Services, our Platform or a Third Party Platform (such as claiming a created work as your own that is not actually yours).

    10. Be a team player. You agree that you will not assist, permit or encourage any party in engaging in any of the restricted activities described above in the Code of Conduct. Should you become aware of anyone violating the Code of Conduct, please click “Report Abuse” or contact support@kongregate.com.

      YOU AGREE TO COMPLY WITH THIS CODE OF CONDUCT AND ALL TERMS. TO BE CLEAR, YOU FURTHER ACKNOWLEDGE THAT KONGREGATE HAS THE RIGHT TO DELETE, SUSPEND, TERMINATE OR CLOSE YOUR ACCOUNT, WITH OR WITHOUT PRIOR NOTIFICATION TO YOU, FOR ANY VIOLATION OF THE TERMS, INCLUDING ANY CODE OF CONDUCT, AND THAT KONGREGATE WILL HAVE NO LIABILITY TO YOU FOR ANY TIME SPENT BY YOU, ANY KREDS, ANY VIRTUAL ITEMS PURCHASED AND/OR SUBMISSIONS ASSOCIATED WITH YOUR ACCOUNT, OR FOR ANY OTHER REASON WHATSOEVER.


  8. BILLING AND PAYMENT.

    1. Billing. Billing and payment methods and services are provided by one or more third party billing service providers (collectively, the “Billing Company”) and not by Kongregate. By purchasing Virtual Items (as defined below), you agree to be bound by the terms and conditions imposed by the Billing Company, including its privacy policy, in addition to these Terms. We reserve the right to change the Billing Company at any time.

    2. Payment. You must have a valid credit card or other valid payment method accepted by the Billing Company (collectively, “Payment Method”) and have reached the age of majority in the jurisdiction in which you reside in order to purchase Virtual Items and to establish a payment account, which may not be transferred to or used by any third party. You represent and warrant to Kongregate that (i) you are authorized to use the billing Payment Method for the Virtual Items (including, without limitation, all accounts, credit cards, direct bank transfers, checks and other payment mechanisms associated therewith) for the purposes of purchasing Virtual Items as described herein; (ii) the Payment Method is valid; (iii) all information and data you submit in

      connection with the purchase of a Virtual Item and any Payment Method is complete, true, accurate and up-to-date; (iv) Kongregate and the Billing Company are authorized to and may charge such Payment Method; (v) you have reached the age of majority in the jurisdiction in which you reside; and (vi) you are able to form a legally binding contract under applicable law. If payment cannot be charged to your Payment Method or your payment or charge is returned for any reason, including without limitation chargeback, Kongregate and the Billing Company reserve the right to either suspend or terminate your access to the payment account and/or your ability to purchase Virtual Items without notice.

      As the Account holder, you are responsible for all charges incurred, including applicable taxes, and all purchases made by you or anyone that uses your Account, including family and friends.

      Kongregate reserves the right to terminate or suspend your Account in case of delinquent or unpaid fees. In case of deletion of an Account, any delinquent or unpaid fees must be settled before Kongregate will allow you to register again. Kongregate reserves the right to collect fees, surcharges or costs incurred prior to the cancellation of your Account or termination of your access to our Services. Kongregate would not enter into this “Billing and Payment” portion of the Terms with you but for the representation that you have reached the age of majority under the laws of where you reside.


  9. DIGITAL ASSETS. “Digital Assets” encompass all virtual goods, including cryptocurrency, Tokens and Virtual Items. “Virtual Items” include Kongregate credits (“Kreds”), Kongregate Plus, in-app purchases, Games, DLC, and any other virtual in game items or services offered through any non- blockchain Platform. “Tokens” include both fungible utility tokens (including Kreds) and non-fungible tokens (“NFTs”), which are only available on those parts of our Services relating to the blockchain. All payments for Digital Assets are final, non-refundable and non-returnable, except as required by applicable law. You may not transfer, assign, sell, gift, exchange, trade, convert, lease, sublease, rent, or distribute Virtual Items except as expressly permitted by us or in these Terms. Your use of the Services related to these Digital Assets are subject to Annex A, which are incorporated into the Terms. Any disposition or attempted disposition of Digital Assets in violation of these Terms will be void.

    1. Virtual Items. All Virtual Items are subject to the following terms and conditions:

      1. Effective upon your earning or purchase of a Virtual Item, subject to these terms, Kongregate grants you a limited, non-exclusive, non-transferable, revocable license to publicly display on the Platform and use the Virtual Item as authorized by Kongregate through our Services or under these Terms, provided that you comply with these license conditions.

      2. Virtual Items have no inherent, intrinsic or monetary value, are non-refundable and cannot be used to purchase or use products or services other than use in connection with the Services offered.

      3. Except as express stated in these Terms, Virtual Items are not redeemable or exchangeable outside of the Services, including, but not limited to, fiat currency, monetary value, or convertible into virtual currency from us or any other third party, except as provided herein or otherwise required by law.

      4. Except as expressly stated in these Terms, you may not distribute or otherwise transfer any Virtual Item to any third party. You may not distribute Kreds to yourself or to third parties (including members of your immediate family, even if they are a game developer). Any

        attempt to distribute, sell or otherwise transfer any Virtual Item except as expressly authorized under these Terms will result in our right to immediately terminate your Account for cause. Further, Virtual Items may be used in the course of game play.

      5. Except as expressly stated in these Terms, you have no property, proprietary or ownership interest in, or other right or license to, the Platform or any Virtual Item, all of which remain the exclusive property of Kongregate or its licensors.

      6. The Virtual Items are protected in the U.S. and internationally under trademark, copyright and/or other rights protected by intellectual property laws. Your use of any Virtual Item outside the scope of the Services constitutes infringement of such intellectual property rights.

      7. Software that may be available in connection with our Services (the “Software”) is further subject to United States export controls. No Software may be downloaded from the Platform or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.

    2. Tokens. Tokens are Digital Assets that may only be used on the blockchain portion of our Services. Through our Services, you may make transactions for fungible tokens as well as non-fungible tokens (NFTs).

      1. Your purchase of an NFT through the Kongregate’s Services results in a license grant to you for the right to control such NFT but does not include the grant of any intellectual property in such NFT. All intellectual property rights of any NFT received through the Services remain the sole property of the original creator of such NFT, unless otherwise specified.

      2. Transactions involving the exchange of NFTs may only occur through an Approved Marketplace, as described below. If you choose to transfer or sell your Digital Assets outside of an Approved Marketplace, you do so at your own risk.

      3. Additional Transaction Fees. Transactions on an Approved Marketplace may be subject to other costs and fees. Purchasers of Tokens may be subject to gas fees in addition to the cost of the Token. Sellers may be subject to network protocol fees, platform fees and/or royalties to the creator of an NFT.

      4. An “Approved Marketplace” is any NFT marketplace that permits the transfer of NFTs in a manner that fully enables the smart contract (“Smart Contract”) contained within such NFTs (such transfer on an Approved Marketplace, a “Secondary Sale”).

      5. Any Secondary Sale or other transfer will be subject to these Terms and any applicable additional terms, including without limitation the Smart Contract, terms Kongregate may provide in connection with the transfer of NFTs, and the Approved Marketplace’s terms. For clarity, the recipient of any NFT in a Secondary Sale or other transfer will be subject to these Terms.

      6. If at any time you dispose of or transfer an NFT for any reason, will have no further rights in or to the NFT or any intellectual property rights associated with such NFTs).

    3. Blockchain Platform. Kongregate and the Services rely upon a platform to enable all blockchain and Token functionality. You agree that, if the Company’s relationship with or access to the platform terminates for any reason, the platform provider has no responsibility for any losses or liabilities that may occur, directly or indirectly, as a result of such termination (including impacts on the valuation or liquidity of your NFTs).

      While Kongregate offers a marketplace for NFTs, it does not buy, sell or take custody or possession of any NFTs on a users’ transactions, nor does Kongregate act as an agent or custodian on behalf of any user of the Services. Instead, each NFT that is listed for sale will be deposited into a blockchain-based smart contract to ensure that the purported seller owns such NFT. Each such NFT is released automatically upon consummation of its sale through the relevant blockchain network. If you elect to mint, buy, or sell any NFTs, any transactions that you engage in will be conducted solely through the relevant blockchain network governing such NFT. You will be required to make or receive payments exclusively through the cryptocurrency wallet you have connected to Kongregate’s blockchain platform. We will have no insight into or control over these payments or transactions, nor do we have the ability to reverse any transactions. Accordingly, 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 Service. There may be royalties associated with the secondary sale of any NFT. You acknowledge and agree that the payment of any such royalty shall, in certain circumstances, be programmed to be self-executing via a blockchain network’s nonfungible token standard and Kongregate does not have any control or ability to direct such funds or the obligation to collect such fees.

    4. Valuation of NFTs and Assumption of Risk. The prices and value of NFTs are volatile and subjective. NFTs and similar assets have no inherent or intrinsic value. The Kongregate and the platform provider do not and cannot guarantee that any NFTs purchased or acquired by you will retain their original value or have any particular value. You agree to assume all risk associated with the use and value of the NFTs. You also acknowledge and agree that we may engage in actions that may impact the perceived value or acquired price of NFTs at any time, except as prohibited by applicable law.


    5. Taxes. It is your sole responsibility to determine whether, and to what extent, any taxes apply to the Digital Assets and any transactions you conduct through the Services, and to withhold, collect, report and remit the correct amounts of taxes to the appropriate tax authorities.


  10. THIRD PARTY SITES AND SERVICES.

    Our Services may feature advertisements from third party companies and/or link to third party sites or content. Such third party sites are not maintained by or related to Kongregate and such a link does not mean we endorse or approve of such linked site or information on that site. Please review our Privacy Policy which explains what information we share with advertisers.

    Any separate charges or obligations you incur in your dealings with these third parties are your responsibility. Kongregate is not liable for any claim relating to any content, goods or services of third parties.


  11. INDEMNIFICATION.

    You agree to indemnify, defend and hold Kongregate, its parents, subsidiaries, officers, employees, and contractors harmless from and against any and all third party claims, damages and expenses (including reasonable attorneys’ fees) arising from or in connection with (A) your use of our Services; (B) your UGC;

    (C) your conduct or interactions with other users of our Services; or (D) your breach or violation of these Terms, including the Code of Conduct or any applicable laws or regulations or any breach or violation thereof by your dependents or someone using your username or Account.

    We will promptly notify you of any such claim and will at your request provide you (at your expense) with reasonable assistance in defending the claim. You will allow us to participate in the defense and will not settle any such claim without our prior written consent. We reserve the right, at our own expense, to assume the exclusive defense of any matter otherwise subject to indemnification by you. In that event, you will have no further obligation to defend us in that matter.


  12. WARRANTY DISCLAIMER.

    USE OF OUR SERVICES IS AT YOUR SOLE RISK. TO THE EXTENT POSSIBLE, KONGREGATE AND ITS AFFILIATES AND SERVICE PROVIDERS EXPRESSLY DISCLAIM (A) ANY WARRANTY FOR THE PLATFORM, THE CONTENT AND SERVICES, AND (B) ANY COMMON LAW DUTIES WITH REGARD TO THE PLATFORM, THE CONTENT AND SERVICES, INCLUDING DUTIES OF LACK OF NEGLIGENCE AND LACK OF WORKMANLIKE EFFORT. THE PLATFORM, THE CONTENT AND SERVICES, AND ANY INFORMATION AVAILABLE IN CONNECTION THEREWITH, ARE PROVIDED ON AN “AS IS, AS AVAILABLE” BASIS, “WITH ALL FAULTS,” AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. ANY WARRANTY AGAINST INFRINGEMENT THAT MAY BE PROVIDED IN SECTION 2- 312 OF THE UNITED STATES UNIFORM COMMERCIAL CODE AND/OR IN ANY OTHER COMPARABLE STATE STATUTE IS EXPRESSLY DISCLAIMED. ALSO, THERE IS NO WARRANTY OF TITLE, NON-INTERFERENCE WITH YOUR ENJOYMENT, OR AUTHORITY IN CONNECTION WITH KONGREGATE, THE CONTENT AND SERVICES, OR INFORMATION AVAILABLE IN CONNECTION THEREWITH.

    KONGREGATE AND ITS AFFILIATES AND SERVICE PROVIDERS MAKE NO PROMISES OR GUARANTEES OF CONTINUOUS, ERROR-FREE, VIRUS-FREE OR SECURE OPERATION AND ACCESS TO SERVICES AND/OR YOUR ACCOUNT OR ANY INFORMATION AVAILABLE IN CONNECTION THEREWITH.

    SUCH DISCLAIMER IS SUBJECT TO ANY MANDATORILY APPLICABLE PRINCIPLES OF CONSUMER PROTECTION OR OTHER LAW IN YOUR JURISDICTION OF RESIDENCE WHEN NECESSARY.

    DIGITAL ASSET DISCLAIMERS. DIGITAL ASSETS ARE INTANGIBLE VIRTUAL ASSETS THAT EXIST BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE BLOCKCHAIN (INCLUDING BUT NOT LIMITED TO PRIVATE SIDECHAINS, L-1, L-2 & GAMECHAINS). THE COMPANY AND THE OTHER SERVICE PROVIDERS MAKE NO PROMISES OR GUARANTEES WITH RESPECT TO ANY BLOCKCHAIN (INCLUDING BUT NOT LIMITED TO PRIVATE SIDECHAINS, L-1 & GAMECHAINS) OR SMART CONTRACTS. YOU AGREE THAT THE KONGREGATE, AND THE OTHER SERVICE PROVIDERS ARE NOT RESPONSIBLE FOR AND WILL HAVE NO LIABILITY FOR ANY ISSUES OR LOSSES RELATED TO ANY BLOCKCHAIN (INCLUDING BUT NOT LIMITED TO PRIVATE SIDECHAINS, L-1 & GAMECHAINS), ANY DIGITAL WALLETS, OR SMART CONTRACTS. THE STRUCTURE, FUNCTIONALITY, DEVELOPMENT AND MAINTENANCE OF THE BLOCKCHAIN USED TO SUPPORT THE SERVICE IS AT THE SOLE DISCRETION OF THE BLOCKCHAIN SERVICE PROVIDER AND BY AGREEING TO THESE TERMS OF USE YOU ACKNOWLEDGE THAT THE BLOCKCHAIN SERVICE PROVIDER HAS NO LIABILITY OR RESPONSIBILITY WITH RESPECT TO THE SAME.


  13. LIMITATIONS OF LIABILITY; WAIVER

    YOU AGREE THAT IN NO EVENT SHALL KONGREGATE, ITS LICENSORS, AND ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR ANY OTHER DAMAGES, INCLUDING LOSS OF PROFITS, GOODWILL OR DATA, ARISING OUT OF OR IN CONNECTION WITH THE USE OF, OR INABILITY TO USE, THE SERVICES, EVEN IN THE EVENT OF KONGREGATE’S OR ITS AFFILIATES’ FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR BREACH

    OF KONGREGATE’S WARRANTY AND EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS AND LIABILITY EXCLUSIONS APPLY EVEN IF ANY REMEDY FAILS TO PROVIDE ADEQUATE RECOMPENSE.

    TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, THE TOTAL LIABILITY OF KONGREGATE, ITS LICENSORS, AND ITS AFFILIATES COLLECTIVELY, SHALL NOT EXCEED USD$100.00.


    IF YOU HAVE NOT PAID KONGREGATE, ITS LICENSORS, AND ITS AFFILIATES ANY AMOUNT IN THE ONE YEAR IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH KONGREGATE, ITS LICENSORS, AND/OR ITS AFFILIATES IS TO STOP USING THE SERVICES AND TO CANCEL YOUR ACCOUNT.


    BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, EACH OF KONGREGATE, ITS LICENSORS, AND ITS AFFILIATES’ LIABILITY SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW. SOME LAWS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY, SO THESE LIMITS MAY NOT APPLY TO YOU.


  14. TERMINATION OR DELETION OF YOUR ACCOUNT. These Terms commence on the date you first use our Services and will continue in effect until otherwise terminated in accordance with these Terms.

    1. Termination by You.

      If you are unsatisfied with our Services, you may stop using our Services at any time and terminate your Account at any time. You may also request that we delete your Account. Please refer to our Privacy Policy for “Your Rights and Options.” Your deletion of an Account, or your cessation of use of any Service or request that access to the Platform be terminated will not entitle you to any refund, including of any fees. In addition, you are responsible for any charges incurred before your termination. UNLESS APPLICABLE LAW REQUIRES OTHERWISE, WE ARE NOT REQUIRED TO PROVIDE REFUNDS, BENEFITS OR OTHER COMPENSATION IF YOU REQUEST DELETION OF YOUR ACCOUNT.


    2. Termination by Kongregate.

      Kongregate may, at any time, terminate your Account or suspend, withdraw, restrict or remove all or any part of our Services at any time and in its sole discretion which could be, but is not limited to, in the event that Kongregate ceases providing such Services to similarly situated Users generally for business, legal or operational reasons. UNLESS APPLICABLE LAW REQUIRES OTHERWISE, WE ARE NOT REQUIRED TO PROVIDE REFUNDS, BENEFITS OR OTHER COMPENSATION IF YOU REQUEST DELETION OF YOUR ACCOUNT.


      If Kongregate opts to terminate Accounts of a violator of these Terms, Kongregate may also terminate other Accounts that share the same characteristics, such as the same email address, IP address, mailing address or credit card number. Kongregate reserves the right to use any means necessary and permitted under applicable law to identify and terminate such Accounts. You may not allow individuals whose Accounts have been terminated for violations of the Terms to use your Account.

      UNLESS APPLICABLE LAW REQUIRES OTHERWISE, IN THE EVENT THAT YOUR ACCOUNT IS TERMINATED OR CANCELLED BY KONGREGATE IN ACCORDANCE WITH THESE TERMS OR FOR IMPROPER OR ILLEGAL ACTIVITY THAT VIOLATES THE TERMS, NO REFUNDS OR REIMBURSEMENTS OF PURCHASES, INCLUDING OF ANY FEES OR OF ANY UNUSED FUNDS IN YOUR KREDS, WILL BE GRANTED.

    3. Survival of Terms. Sections 4, 6 – 8, 10 – 12,9, 11 – 14, and 17 will survive any expiration or termination of these Terms.


  15. COPYRIGHT NOTICES/COMPLAINTS. We respect the intellectual property of others and ask that you do the same. If you are a copyright owner or an agent thereof and believe that any content in our Services infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”), or legislation in the EU, and similar or equivalent other local laws that may apply. Please provide the necessary information on our Proprietary Rights Complaint Process page and follow the instructions.



  16. NOTICE FOR CALIFORNIA USERS. Under California Civil Code Section 1789.3, California websites users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California, 95814, or by telephone at (916) 445- 1254 or (800) 952-5210.


  17. GOVERNING LAW, DISPUTE RESOLUTION AND CLASS ACTION WAIVER.

    1. Attempt at Informal Resolution. In the event of a dispute relating to the interpretation, the performance or the validity of the Terms, we hope to resolve quickly and reach an amicable solution with you before any legal action. You can file your complaint at support@kongregate.com, and we will make reasonable and good faith efforts to respond to such claims within 14 days. If you live in the EU, we have to inform you that you may submit your legal claims to the online dispute resolution platform operated and provide by the European Commission which can be accessed at https://ec.europa.eu/consumers/odr/main/index.cfm?event=main.home2.show&lng=EN to reach an out of court settlement or initiate a lawsuit. We are not obliged to participate in such dispute resolution.

    2. For non-EU residents, the following provisions shall apply.

      Arbitration for Less than $10,000. For any claim (excluding claims for injunctive or other equitable relief) under these Terms where the total amount of the award sought is less than

      $10,000 USD, the party requesting relief may elect to resolve the dispute through binding non- appearance-based arbitration. The party electing such arbitration will initiate the arbitration through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, as selected by the party initiating the arbitration; (ii) the arbitration will not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the

      parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

      For Users within the U.S. and Canada; Waiver of Jury Trial. You agree that these Terms shall be deemed to have been made and executed in the State of California, U.S.A., and any dispute arising hereunder shall be resolved in accordance with the law of California excluding the law of conflicts and the Convention on Contracts for the International Sale of Goods. You agree that any claim asserted in any legal proceeding by you against Kongregate shall be commenced and maintained exclusively in any state or federal court located in San Diego County, California, having subject matter jurisdiction with respect to the dispute between the parties and you hereby consent to the exclusive jurisdiction of such courts. In any dispute arising under these Terms, the prevailing party will be entitled to attorneys’ fees and expenses. YOU HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THESE TERMS OR THE TRANSACTIONS CONTEMPLATED HEREBY.

      For Users Outside of the U.S. and Canada. You agree that these Terms and any dispute or claim in connection with these Terms will be governed by the laws of Sweden and shall be irrevocably settled by arbitration in accordance with the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce (the “Rules”) in force on the date when the notice of arbitration is submitted in accordance with these Rules. Each party waives, to the fullest extent permitted by applicable law, any objection to such choice of exclusive governing law and jurisdiction and any claim that any such action or proceedings brought in such court has been brought in an inconvenient forum. Unless otherwise mutually agreed between the parties in writing, the arbitration shall be conducted with a panel of three arbitrators, selected in accordance with the Rules. The seat of arbitration shall be in Stockholm, Sweden. Each party shall bear its own costs of arbitration. The language to be used in the arbitral proceedings shall be English. The arbitrators shall be fluent in the English language and have experience in commercial contract and intellectual property laws. Nothing contained herein shall be deemed to give the arbitrator any authority, power, or right to alter, change, amend, modify, add to, or subtract from any of the provisions of these Terms. Arbitral award is final and will be binding on both parties. This choice of governing law, jurisdiction and venue is subject to any mandatorily applicable principles of consumer protection or other law in your jurisdiction of residence which would not otherwise be available.

      CLASS ACTION WAIVER. This provision only applies to Users in the U.S. and Canada. YOU AGREE THAT WE CAN ONLY BRING A CLAIM AGAINST EACH OTHER ON AN INDIVIDUAL BASIS AND YOU AGREE NOT TO BRING OR PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR COLLECTIVE ARBITRATION. YOU AGREE THAT THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT OF THAT PARTY’S INDIVIDUAL CLAIM AND NOT OTHER KONGREGATE USERS AND CANNOT BE USED TO DECIDE OTHER DISPUTES WITH OTHER USERS. If a court decides that this provision on “CLASS ACTION WAIVER” is illegal or unenforceable, you agree that it shall be severable from the Terms and any claim or dispute would be resolved in court. You have the right to opt out and not be bound by the class action waiver by sending us written notice of your decision to opt out through support@kongregate.com or by physical mail as stated in “Our Contact Information.” The notice must be sent within thirty (30) days of your first use of the Services or availability of this opt-out, whichever is later; otherwise, you shall be bound by this class action waiver.

      JURISDICTION FOR LEGAL DISPUTES NOT SUBJECT TO ARBITRATION. If the agreement to

      arbitrate is determined to be invalid or unenforceable or for any disputes that do not qualify for arbitration, the dispute shall be subject to the exclusive jurisdiction of the Federal and State courts located in San Diego, California. You hereby consent and submit to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action.


  18. FORCE MAJEURE. Neither you nor we will be liable for any failure to perform any obligation under these Terms or to provide access to Services if that failure is caused by the happening of any unforeseen event or a disruptive event beyond your or our reasonable control, including without limitation, war, terrorism, riots, embargoes, Internet outages, network infrastructure failures, natural disasters, fire, flood, pandemic, epidemic or an act of God.


  19. MISCELLANEOUS TERMS.

    1. Entire Agreement. These Terms constitute the entire agreement between you and Kongregate regarding the use of our Services and your Account and supersede all prior understandings.

    2. Assignment. We can assign, subcontract, transfer or merge these Terms or your Account to a third party or an affiliate of Kongregate if necessary for the support of our Services, as part of any reorganization, change of control, or for any other business reasons. If this happens, we will notify you. You may not assign or transfer your rights or obligations under these Terms to anyone without first obtaining our written consent. Any attempt to assign without our consent is void.

    3. No Beneficiaries. These Terms govern the relationship between you and us and do not create any rights for anyone else. Notwithstanding the foregoing, in the event of a valid assignment or transfer, these Terms shall be binding on and inure to the benefit of the relevant party’s representatives, successors, and permitted assigns.

    4. No Right to Obligate the Other. These Terms do not create a partnership, joint venture or similar relationship between the parties, and neither party will have the power to obligate the other party in any manner whatsoever.

    5. Our Contact Information. You can contact us and provide written notices to us at support@kongregate.com or at: ATTENTION: LEGAL, Kongregate Inc., 10680 Treena Street, Suite 155, San Diego, CA 92131.


Last updated: December 5, 2022

ANNEX A – ADDITIONAL TERMS FOR TOKENS


By using our Services related to Tokens, you also agree to be bound by these additional terms in Annex A, which are incorporated by referenced into the Terms. If you do not agree to comply with these additional terms and the Terms, then do not use our Services.

All payments for Tokens are final, non-refundable and non-returnable, except as required by applicable law.

Your use of Tokens is subject to the following additional terms and conditions:

NFTs may be purchased from, and sold by, Kongregate. NFTs may also be purchased from, and sold, by third parties. For those NFTs transaction from or with third parties, the third parties may have various rights and offer various terms to their end users. Kongregate never takes custody of, or has possession of, such NFTs sold by third parties. Such third party NFT transactions occur directly between you and the third party and other terms, not included herein, may apply.

When you purchase NFTs through a Kongregate Platform, you (and any subsequent owner of any NFTs which were purchased in the first instance from Kongregate) agree to the following additional terms and conditions (collectively, the “NFT Terms”):

  1. Wallets. To participate in certain of our Service, you may be required to link your digital wallet(s) on supported bridge extensions to your Account, which allows you to purchase, store, and engage in transactions using cryptocurrency. Before placing an NFT for sale or putting in an offer to purchase Tokens from another user, we will ask you to download a supported electronic wallet extension and connect and unlock your digital wallets with that extension. Once you submit an order to sell or purchase a Token, your order is passed on to the applicable extension, which completes the transaction on your behalf.

  2. Conditions for Pre-Sales/Sales of NFTs.

    1. Kongregate may conduct sales or pre-sales of NFTs from time to time, either as a stand-alone Virtual Item or with bundles.

    2. When you place an order for purchase or pre-purchase of an NFT, ALL SUCH NFT ORDERS ARE NON-CANCELLABLE FOR ANY REASON AND NON-REFUNDABLE.

    3. When you place an order for purchase or pre-purchase of an NFT, you must make payment of the full purchase price of such NFT via any nominated digital or other currency or other payment method at the time of purchase or pre-purchase, as applicable.

    4. In the event that any payment is reversed or becomes invalid, including via either a double spend attack or a recall or refund request by a payment processor, you agree to immediately return to us any NFTs which are the subject of a sale where the full purchase price of an NFT is no longer been retained by us.

    5. You may be required to have an Account to purchase or pre-purchase an NFT.

    6. You may also be required to nominate, provide or connect a digital wallet for delivery of the NFT at the time of the order.

    7. We will use commercially reasonable efforts to deliver any pre-purchased NFTs to your nominated digital wallet by the indicated delivery date. However, you acknowledge that such delivery date may change for any reason, including our sole discretion.

  3. No Transfer of Content associated with NFTs. Except as expressly stated in these NFT Terms, nothing in these Terms is intended to give you ownership of any Content. As between you and Kongregate, any and all ownership of the Content within the NFTs remains with Kongregate.

  4. Title and Risk of NFTs. Upon delivery of the NFT to you, all title and risk of the purchased NFT transfers to you.

  5. Scope of License for NFTs.

    1. Grant of License. Subject to your continued compliance with these NFT Terms, we grant you a limited, non-exclusive, transferable, worldwide, royalty-free license to use, copy and/or publicly display the Content associated with the NFT(s) you have purchased.

    2. Restrictions. The Content in our Services are for gaming services and for your non-commercial enjoyment and entertainment. Any other use, including modification, reproduction, uploading, posting, transmission, or distribution in any form or by any means without Kongregate’s prior written permission, is strictly prohibited. As such, you agree that you shall not, nor permit any third party to, without our prior written consent: (a) modify any Content associated with the NFT you purchased; or (b) use such NFT in connection with products or services that are not those of Kongregate, in any other manner that is likely to cause confusion among consumers, that disparages or discredits Kongregate and/or its licensors, that dilutes the strength of Kongregate’s or its licensor’s property, or that otherwise infringes Kongregate’s or its licensor’s intellectual property rights.

    3. Reservation of Rights. Except as expressly provided herein with respect to the NFTs, you are not granted any other right, title or interest in our Services or any Content. All other rights are reserved.

    4. Termination of License. Your license to the Content associated with the NFT terminates immediately if you use the NFT: (i) for any unlawful or illegal purpose; (ii) in violation of any of the NFT Terms; or (iii) by transferring to a subsequent owner but do not ensure that such subsequent owner is notified and has agreed to be bound by these NFT Terms.

  6. Representations and Warranties for NFTs.

    1. Kongregate’s Warranties. Kongregate represents and warrants that:

      1. We own, or are authorized to use under license, the Content in the NFTs, and such Content does not violate or infringe on the rights of any third party, including any copyright, trademark, patent, trade secret or other intellectual property right, or the privacy rights, publicity rights, contract rights or any other rights of any person;

      2. We have the right and authority to sell the NFTs offered for sale through the Kongregate Platform;

      3. We will use commercially reasonable efforts to provide you notice before we discontinue or alter the rights or features of any NFTs you purchased through our Platform;

      4. We have the full power and authority to execute, enter into and perform our obligations as contemplated under these NFT Terms and no approval or consent is necessary in connection with the execution and performance of such obligations;

      5. These Terms, including the NFT Terms, are a legal, valid and binding obligation of such party enforceable against us in accordance with these Terms; and

      6. We did not act in a way or omit any information that would materially interfere with or prohibit the performance of our obligations hereunder.

    2. Purchaser’s Warranties. You represent and warrant that in acquiring an NFT (from us or a third party) that the following are true and accurate statements (each, a “Purchaser’s Warranty,” and collectively, the “Purchaser’s Warranties”):

      1. You are sufficiently experienced and educated to make decisions regarding the procurement or purchase of NFTs from us, including sufficient experience in dealing with and storing NFTs using a digital wallet;

      2. You have all necessary experience, resources, certificates, licenses, permits and/or approvals to procure or purchase of NFTs applicable in your jurisdiction, and that any transactions under these NFT Terms or in your use of our Services will be legal under the applicable laws of your jurisdiction;

      3. You are not involved in any capacity in, and to your knowledge are not aware of any pending or threatened, dispute, claim, legal action, proceeding, suit, litigation, prosecution, investigation, enquiry, mediation or arbitration concerning NFTs;

      4. You are the lawful owner of any digital wallet nominated for delivery of NFTs, and each digital wallet is owned and operated solely for your benefit, and no person has any right, title or interest in you nominated digital wallet;

      5. Any digital wallet address you provide to us has been generated in accordance with best practice security measures, and no other party, other than you or your authorized representative, has used, or has access to, the seed phrases, private keys or analogous passwords required to effect transfers from your digital wallet;

      6. No digital currency transferred to us has been derived from any illegal or unlawful activity;

      7. Upon request, you will identify and substantiate the source of funds involved in transactions to acquire NFTs;

      8. You have had the opportunity to obtain independent legal advice in connection with the Terms, including these NFT Terms;

      9. All the information you have provided to us is true and accurate as of the time it is given;

      10. You have the full power and authority to execute, enter into and perform your obligations as contemplated under these NFT Terms and no approval or consent is necessary in connection with the execution and performance of such obligations;

      11. These Terms, including the NFT Terms, are a legal, valid and binding obligation of such party enforceable against you in accordance with these Terms; and

      12. You did not act in a way or omit any information that would materially interfere with or prohibit the performance of your obligations hereunder.

    3. Continuing Warranties. You represent and warrant that in acquiring an NFT (from us or a third party):

      1. Each of the Purchaser’s Warranties is true and accurate, and not misleading or deceptive as of the date of the NFT transaction and, except as expressly stated, will be true, accurate and not misleading or deceptive each time an NFT is purchased or sold by you; and

      2. You must disclose to us anything that has or will constitute a material breach of a Purchaser’s Warranty or cause a Purchaser’s Warranty to be untrue or inaccurate, as soon as practicable after you become aware of it.

  7. Termination of NFTs. These NFT Terms and as such, the rights to the NFTs, may be terminated with immediate effect if: (A) any of the Purchaser’s Warranties is breached or (B) either party commits a material breach of its obligations and fails to remedy such breach (if capable of remedy) within thirty

    (30) days of receipt of notice from the non-defaulting party requiring it to do so. Termination of these NFT Terms does not affect the rights of the parties which have accrued or have arisen prior to such termination.

  8. Acknowledgements of Risk. You acknowledge and agree that in acquiring an NFT (from us or a third party) that you recognize that:

    1. We provide NFTs solely on a proprietary basis for use with our Services, and if we transact with you, we do so solely on a bilateral basis;

    2. Kongregate is not providing, and will not provide, any fiduciary, advisory, brokerage, exchange, custodial, legal or other similar services to you or any other person by offering or delivering NFTs pursuant to the orders;

    3. NFTs are not intended for speculative use, are not sold or represented to be financial products, and nothing we publish is, in any way, financial advice to you or any other persons;

    4. NFTs may experience extreme price volatility, including the risk of losing all value in the future;

    5. A significant degree of education, experience and sophistication is required to safely deal in and store NFTs of any kind using a digital wallet;

    6. You purchase NFTs entirely at your own risk, and you are solely responsible for any decision to enter into an NFT transaction, including evaluating risks beforehand and for compliance with all applicable requirements of any laws, rules, and regulations of governmental authorities in your Jurisdiction after the transaction;

    7. Your ownership of NFTs remains contingent upon you remaining in control of the seed phrases and private key associated with your digital wallet, and that we do not store any information in connection with your digital wallet beyond what is necessary for the transaction of NFTs; and

    8. Your access to NFTs in connection with our Services may be subject to additional terms and conditions including payment of subscriptions fees.

  9. DISCLAIMER RELATED TO NFTS. USE OF NFTS IS AT YOUR SOLE RISK. KONGREGATE AND ITS AFFILIATES AND SERVICE PROVIDERS MAKE NO PROMISES OR GUARANTEES RELATED TO NFTS, INCLUDING NO GUARANTEES FOR ANY PARTICULAR USE, PRICE, VALUE, FINANCIAL RETURN IN CONNECTION THEREWITH. FURTHERMORE, KONGREGATE AND ITS AFFILIATES WILL NOT BE LIABLE FOR THE PERFORMANCE, ERRORS OR OMISSIONS OF UNAFFILIATED, NATIONALLY OR REGIONALLY RECOGNISED THIRD PARTIES OR DECENTRALISED NETWORKS SUCH AS, BY WAY OF EXAMPLE AND NOT LIMITATION, BLOCKCHAIN NETWORKS (WHETHER PRIVATE OR PUBLIC) COURIER COMPANIES, NATIONAL POSTAL SERVICES AND OTHER DELIVERY, TELECOMMUNICATIONS AND OTHER COMPANIES NOT UNDER OUR REASONABLE CONTROL, AND THIRD PARTIES NOT UNDER OUR REASONABLE CONTROL PROVIDING SERVICES TO THE BLOCKCHAIN INDUSTRY GENERALLY, SUCH AS, BY WAY OF EXAMPLE AND NOT LIMITATION, COMPANIES AND OTHER ENTITIES PROVIDING PROCESSING AND PAYMENT OR TRANSACTION SERVICES (INCLUDING “LAYER 2” SERVICES), BANKING PARTNERS, CUSTODY SERVICES, MARKET MAKING SERVICES AND/OR THIRD PARTY PRICING SERVICES

AND DECENTRALISED BLOCKCHAIN NETWORKS SUCH AS, BY WAY OF EXAMPLE AND NOT LIMITATION, THE BLOCKCHAIN(S) UPON WHICH ANY NFT DEPENDS OR FORKS OF THOSE BLOCKCHAIN(S).

ANNEX B – ADDITIONAL TERMS FOR BITVERSE SERVICES


By using our Services related to BITVERSE Games, you also agree to be bound by these additional terms in Annex B, which are incorporated by referenced into the Terms. Your use of the Services related to BITVERSE Games are still governed by the Terms. If you do not agree to comply with these additional terms and the Terms, then do not use our Services.

All payments for Digital Assets are final, non-refundable and non-returnable, except as required by applicable law.

Your use of our Services related to BITVERSE Games is subject to the following additional terms and conditions:

  1. DEFINITIONS. The following definitions apply to these Services:

    1. “Binding Type” is a category on an item that denotes if the item will be specifically associated to a Hero or to the Player. Each and every item (with the exception of a Bitverse Hero) has a designated Binding Type of either being “Hero Bound” or “Player Bound.”

    2. “Bitverse Hero” is a Hero within the Game that is an NFT. As an NFT, it may be transferable, so a Bitverse Hero has no Binding Type. A Bitverse Hero may have Hero Bound items associated with it, in which case, such items remain linked to the Bitverse Hero. If a Player transfers a Bitverse Hero, all of the Hero Bound items associated with that Bitverse Hero will transfer, and the transferor will no longer have any rights to such Bitverse Hero or the associated Hero Bound items.

    3. “Equipped” references items associated to a Hero.

    4. “Hero Bound” means an item, once acquired, is associated with a specific Hero. As such, the item stays with that Hero, and is only accessible while that Hero is the current Hero. All acquired Hero Bound items associated with a specific Hero stays with such Hero even if the Player transfers ownership of such Hero. Hero Bound items may not be transferred to another Hero. Examples of Hero Bound assets may include weapons, mounts or pets.

    5. “Player Bound” means an item, once acquired, is associated with the Player’s account. As such, the item stays with the Player and is accessible at any time by any Hero in the Player’s account, as long as that Hero is the current Hero. All acquired Player Bound non-NFT items associated with a Player’s account stay with that Player and may not be transferred to another player’s account. The only type of Player Bound items that are transferable are NFT Items. Examples of Player Bound assets may include gold, gems, or Scroll of Item Find or NFT items.

    6. “Staked” means such Item is not transferable while an NFT is on the Approved Marketplace for a potential transaction. When a Bitverse Hero is staked, any and all Player Bound items associated with such Bitverse Hero will be un-equipped from the Bitverse Hero and returned to Player’s account.