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Terms of Use

Last Revised: October ___, 2025

The website located at https://www.vibes.game is published, owned, and operated by Orange Cap Games, Inc. (“Company”) or its Affiliates and related entities. These Terms of Use (these “Terms”) govern the user’s (“User”) access to and use of the website whether accessed via computer, mobile device or otherwise (individually and collectively, the “Website”).

ACCEPTANCE OF AGREEMENT

These Terms set forth the legally binding terms and conditions that govern all use of the Website and all content, services, and products offered by Company or its Affiliates, including, but not limited to, the Vibes videogame and promotional content accessible through and/or available for download on the Website, as well as any associated forums and websites, related mobile applications and web applications, and any successor website (collectively, the “Services”). The Services are owned and operated by Company or its Affiliates. The Services are offered subject to User’s acceptance without modification of these Terms, Company’s Privacy Policy, and all other applicable terms, rules, policies, and procedures that Company may publish from time to time with respect to the use of the Services (collectively, this “Agreement”).

Please read these Terms carefully before accessing or using the Services. By browsing the Website, and/or accessing or using any part of the Services, User agrees to become bound by the terms and conditions of this Agreement on behalf of User or the entity that User represents. If User does not agree to all the terms and conditions of this Agreement, then User may not access the Website or use any Services. The Services are available only to individuals who are at least 18 years old.

PLEASE BE AWARE THAT THESE TERMS OF SERVICE REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO USER IN THE EVENT OF A DISPUTE. PLEASE REFER TO SECTION 11.5 FOR MORE INFORMATION.

AMENDMENTS

Company reserves the right to amend these Terms and Company’s Privacy Policy described in Section 5 below, at any time, with or without notice to User, as determined by Company in its sole discretion. User should check these Terms and Company’s Privacy Policy regularly for updates. By continuing to use the Website or the Services after such notice is provided, User accepts and agrees to such amendments. If User does not agree to any amendment to any of these agreements, User must stop using the Website and the Services. If User has any questions about the terms and conditions in this Agreement, User may contact Company at [________________].

DEFINITIONS

  • Capitalized terms not otherwise defined in these Terms will have the following meanings:

“Account” means a unique account that a User creates in order to access and engage with the Services, whether email-based or via a third-party repository.

“Account Information” means the information User provides to Company to register for the Services, including as applicable, email addresses or social media account information, as well as the username and password that allows User to access the Services, as such information may change from time to time.

“Affiliate” means, with respect to a party, any person, firm, corporation, partnership (including, without limitation, general partnerships, limited partnerships, and limited liability partnerships), limited liability company, or other entity that now or in the future, directly controls, is controlled with or by or is under common control with such party.

“Applicable Law” means all laws, statutes, rules, regulations, ordinances, and other pronouncements having the effect of law of any Governmental Authority, including the State of Delaware.

“Blockchain” generally means a peer-to-peer distributed and public immutable ledger that maintains a record of all transactions occurring on such ledger, through a growing list of records (blocks) that are securely linked together via cryptographic hashes. Each block contains a cryptographic hash of the previous block, a timestamp, and transaction data.

“Business Day” means a day other than a Saturday, Sunday, or other day on which commercial banks in the State of Delaware are authorized or required to close.

“Governmental Authority” means any court, tribunal, arbitrator, authority, agency, commission, official, or other instrumentality of the United States or any state, county, city, or other political subdivision or similar governing entity.

“Third-Party Account Information” means information about accounts User maintains at third-party websites, including, as applicable, User’s payment service accounts and social media accounts as provided to Company by User.

USE OF THE SERVICES; CONTENT; USER CONDUCT

Purpose of the Services. The Website is currently provided for the purpose of providing Users access to download the Vibes game and to provide updates about the Vibes project. The Services are for informational and entertainment purposes only. Company does not warrant the accuracy, completeness, or usefulness of this information at any particular time for any particular purpose. Any reliance User places on such information is strictly at User’s own risk. Company disclaims all liability and responsibility arising from any reliance placed on such content by User, or by anyone who may be informed of any of its contents.

Company Content

The contents of the Services, including the Website, are intended for User’s personal, noncommercial use. All information and materials published or available through the Services (including, but not limited to downloadable software, text, logos, graphics, photographs, images, illustrations, designs, audio clips, video clips, systems, methods, “look and feel,” metadata, data, or compilations, collectively known as the “Content”) are protected by copyright, and are owned or controlled by Company or the party credited as the provider of the Content. Company also owns copyright in the selection, coordination, compilation, and enhancement of such Content (“Arrangement”). User shall abide by all additional copyright notices, information, or restrictions contained in any Content accessed through the Services.

The Services and Content are protected by copyrights, trademarks, patents, trade secrets, database rights, sui generis rights and other intellectual or proprietary rights therein pursuant to U.S. and international laws. User may not copy, modify, publish, upload, post, transmit, participate in the transfer or sale of, reproduce, imitate, create new works from, reverse compile or reverse engineer, distribute, perform, display (including framing and inline linking), communicate to the public or in any way exploit, any of the Content (or its Arrangement) or the Services in whole or in part, without the prior written consent of Company, and, as the case may be, the applicable owner of such Content. User’s use of the Services does not grant User ownership of or any other rights with respect to any Content, code, data, or other materials that User may access on or through the Services. Company reserves all rights in and to Content not expressly granted to Users in the Terms.

User Generated Content. Any submission User makes (or otherwise allows any third-party to make) to the Services, including, but not limited to in-game messages, forum messages (including messages in a Discord channel), text, video, audio, photographs, links, computer code and applications, media, information, images, files, hyperlinks, software, or other material (collectively, “User Generated Content”) may be edited, removed, modified, published, transmitted, and displayed by Company and User waives any rights User may have in having the material altered or changed in a manner not agreeable to User. User understands and agrees that User will be solely responsible for such User Generated Content, including any harm, damages, losses, liabilities, or injuries resulting directly or indirectly therefrom. By making User Generated Content available on or through the Services, User represents and warrants as follows:

User consents to its display and publication on the Website and in the Services and for related online and offline promotional uses;

the downloading, copying, transmission, display, and use of such User Generated Content does not infringe the rights of any third-party, including, without limitation, any copyright, patent, trademark, or trade secret rights or rights of privacy or publicity;

User has all rights, authorizations, and permissions from any person or entity necessary to make such User Generated Content available through the Services, including compliance with any applicable third-party licenses related to such User Generated Content;

such User Generated Content is not spam, and does not contain unethical or unwanted commercial content designed to drive traffic to third-party sites, boost the search engine rankings of third-party sites, further unlawful acts (including, without limitation, phishing), or mislead recipients as to the source of the material (such as spoofing);

such User Generated Content does not contain and will not cause to be installed any virus, bug, Trojan horse, worm, spyware, ransomware, malware, or other harmful or destructive files, code, or content that directly or indirectly permits unauthorized access to or disrupts, disables, erases, or otherwise harms or impedes the functionality of the Website, the Services, or any Company computer or system;

such User Generated Content is not libelous, slanderous, defamatory, obscene, pornographic, abusive, or otherwise illegal material, does not contain threats, and does not incite or attempt to incite violence against any person or entity;

User has, in the case of User Generated Content that includes computer code, accurately categorized and/or described the type, nature, uses, and effects of the User Generated Content, whether requested to do so by Company or otherwise; and

such User Generated Content will not be advertised via unsolicited promotional methods, including, without limitation, electronic messages such as spam links on newsgroups, email lists, other blogs and websites, and Users who provide User Generated Content have not and will not impersonate anyone else, including Company or a Company employee, or otherwise misrepresent User’s identity, affiliation or status.

User Generated Content License. User grants Company a perpetual, nonexclusive, world-wide, irrevocable, royalty-free, sub-licensable license to User Generated Content, which includes without limitation the right for Company, or any third-party it designates, to use, copy, transmit, excerpt, publish, distribute, publicly display, publicly perform, communicate to the public, create derivative works of, host, index, cache, tag, encode, modify and adapt (including without limitation the right to adapt to streaming, downloading, broadcast, mobile, digital, thumbnail, scanning or other technologies) in any form or media now known or hereinafter developed, any User Generated Content posted by User on or to the Services or any other website owned by Company, including any User Generated Content posted on or to the Services through a third-party.

User’s Conduct. User will not threaten or verbally abuse other users, use defamatory language, or deliberately disrupt discussions with repetitive messages, meaningless messages or “spam.” User will be respectful, and will not use language that abuses or discriminates on the basis of race, religion, nationality, gender, sexual preference, age, region, disability, etc. Abusive, disruptive, and disrespectful behavior of any kind is grounds for immediate and permanent suspension of access to all or any part of the Services.

User Account. In order to access certain features of the Services, User must register for an Account and provide certain information about User. User agrees to provide accurate Account Information and Third-Party Account Information. User further agrees to promptly update User’s Account Information or Third-Party Account Information whenever the information provided to Company is no longer accurate. If Company suspects, in its sole discretion, that User has failed to maintain current and accurate Account Information or Third-Party Account Information, Company may suspend or terminate User’s access to the Services. User is responsible for maintaining the confidentiality of User’s Account login information and all activities that occur under User’s Account. User agrees to immediately notify Company of any unauthorized use, or suspected unauthorized use of User’s Account or any other breach of security. Company cannot and will not be liable for any loss or damage arising from User’s failure to comply with the above requirements.

Aggregate Data. Company shall have the right to collect and analyze data and other information relating to provision and use of various aspects of the Website or the Services. Company will be free to (i) use the data to improve and enhance the Services and for other development, diagnostic, and corrective purposes in connection to the Website and the Services and (ii) disclose data solely in aggregate or other de-identified form in connection with its business.

Prohibitions and Restrictions. User shall not: (i) use the Services in any manner that could damage, disable, overburden, or impair the Website or the Services or interfere with any other party’s use and enjoyment of the same; (ii) attempt to gain unauthorized access to any website, platform, account, computer systems, or networks associated with Company or the Services; (iii) obtain or attempt to obtain any materials or information pertaining to the Services by any means not intentionally made available or provided by Company; (iv) use any robot, spider, or other automatic device, process or means to access the Services for any purpose, including monitoring or copying any of the material on the Website; (v) introduce any viruses, Trojan horses, worms, logic bombs, or other material which is malicious or technologically harmful; (vi) send unsolicited messages or use the Services to send unsolicited messages such as spam or engage in phishing; (vii) use the Website or the Services for the primary purpose as a remote storage service or to provide downloadable content only; (viii) perform any benchmark tests or analyses related to the Website or Services without express written permission of Company; (ix) attack the Website or the Services via a denial-of-service attack or a distributed denial-of-service attack; or (x) access the Services in order to build a similar or competitive website, product, or service.

Modification. Company reserves the right, at any time, to modify, suspend, or discontinue the Services (in whole or in part) with or without notice to User. User agrees that Company will not be liable to User or to any third-party for any modification, suspension, or discontinuation of the Services or any part thereof.

Release of Violations by Other Users. User irrevocably releases, acquits, and forever discharges Company and its subsidiaries, Affiliates, officers, and successors for and against any and all past or future causes of action, suits, or controversies arising out of another user’s violation of these Terms.

PRIVACY

By using the Website or the Services, User agrees to, and is bound by, the terms of Company’s Privacy Policy, which is incorporated by reference into this Agreement as if it were set forth herein in its entirety. The Privacy Policy describes how Company collects, uses, and discloses information provided by User.

INTELLECTUAL PROPERTY

  • Company makes available through the Website content that is subject to intellectual property rights. Company and its licensors, or the third parties who otherwise own the intellectual property rights, exclusively own all right, title, and interest in and to the Website, including all associated intellectual property rights. User acknowledges that the Website is protected by copyright, trademark, and other laws of the United States and foreign countries. User agrees not to remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Website.

DIGITAL MILLENNIUM COPYRIGHT ACT COMPLIANCE

Notification. Company takes claims of copyright infringement seriously. Company will respond to notices of alleged copyright infringement that comply with Applicable Law. If User believes any materials accessible on or from the Website or the Services infringes User’s copyright, User may request removal of those materials (or access to them) from the Website by submitting written notification to Company’s copyright agent (designated below). In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), the written notice (the “DMCA Notice”) must include substantially the following:

a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Website or the Services are covered by a single notification, a representative list of such works from the Services;

identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Company to locate the material;

information reasonably sufficient to permit Company to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;

a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;

a statement that the information in the notification is accurate; and

under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. If User fails to comply with all of the requirements of Section 512(c)(3) of the DMCA, User’s DMCA Notice may not be effective. Upon removing any allegedly infringing material, Company will notify the alleged infringer of such takedown.

  • Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.

Counter Notification. If User elects to send Company’s copyright agent a counter notice, to be effective it must be a written communication that includes the following (please consult User’s legal counsel or See 17 U.S.C. Section 512(g)(3) to confirm these requirements):

a physical or electronic signature;

identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;

a statement under penalty of perjury that the User has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;

adequate information by which Company can contact User, including User’s name, address, and telephone number; and

a statement that the User consents to the jurisdiction of a federal district court for the judicial district in which the address is located, or if the User’s address is outside of the United States, for any judicial district in which Company may be found, and that the User will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

  • The DMCA allows Company to restore the removed content if the party filing the original DMCA Notice does not file a court action against User within ten (10) business days of receiving the copy of User’s counter notice. Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability. A summary of the DMCA can be obtained from the U.S. Copyright Office.
  • Company’s designated copyright agent or authorized official to receive notifications and counter-notifications of claimed infringement is:
  • Orange Cap Games, Inc.
  • Attn: Legal

588 Broadway, Suite 210

New York, NY 10013

  • Email: [_______________]

INDEMNIFICATION

User agrees to release, indemnify, and hold harmless Company and its Affiliates, and their respective officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way related to: (a) User’s access to, use of, or inability to use the Website or the Services; (b) User’s breach of this Agreement; (c) User’s violation of any rights of a third-party; (d) User’s violation of any Applicable Law; (e) User’s failure to provide and maintain true, accurate, current and complete Account Information and Third-Party Account Information; and (f) any and all financial losses User may suffer, or cause others to suffer whether or not such losses were made due to information learned through the Services.

DISCLAIMERS; THIRD-PARTY SITES AND APPLICATIONS; GEMS; BLOCKCHAIN AND CRYPOCURRENCY RISKS; LIMITATION OF LIABILITY

Third-party Sites. The Website may contain links to websites controlled or operated by persons and companies other than Company (“Linked Sites”), including, but not limited to, X (formerly Twitter), Telegram, Discord, Stripe, and any websites referencing Blockchain projects, marketplaces, and trading platforms. Company is providing these links to User only as a convenience, and the inclusion of any link does not imply endorsement by Company of the site or any content thereon, or any association with its operators. Company has no control over such services, and is not responsible for the availability of such Linked Sites, or for any viruses, malware, or other harms resulting from User’s use of a Linked Site. Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any content, goods or services available on or through such services.

Third-party Applications. User acknowledges that User’s access and use of any third-party applications or software on Company’s Website and Content (the “Third-Party Applications”), is at User’s discretion and risk, and Company has no liability to User arising from User’s use of the Third-Party Applications. Company hereby disclaims any representation, warranty, or guaranty regarding the Third-Party Applications, whether expressed, implied or statutory, including, without limitation, the implied warranties of merchantability or fitness for a particular purpose, and any representation, warranty, or guaranty regarding the availability, quality, reliability, features, appropriateness, accuracy, completeness, or legality of the Third-Party Applications, and User agrees to indemnify and hold Company harmless for any direct, indirect, punitive, incidental, special, or consequential damages, or any damages whatsoever including, without limitation, damages for loss of use, arising out of or in any way connected with the use or performance of the Third-Party Applications. Company is not responsible for any personally identifiable information shared with any Third-Party Applications.

Gems. As an Account holder, you may participate in Vibes games offered within the Services, including purchasing Gems through Linked Sites. Gems can only be used in connection with the Services offered by Company; they have no cash value. Company grants you a limited license to acquire and use Gems as described on the Website. No matter how acquired, Gems are non-transferable outside the Website, do not accrue interest, are not insured by the Federal Deposit Insurance Corporation, and are not redeemable or refundable for any sum of money, monetary value or anything of value, from Company, at any time. User’s Gems’ balance does not have an equivalent value in fiat currency or as a digital asset, and does not act as a substitute for fiat currency or as a digital asset.

Blockchain and Cryptocurrency Risks

User Acknowledges the Risk of Cryptocurrency and Smart Contracts. User represents and warrants that it understands and is willing to accept the risks associated with cryptographic systems such as smart contracts and public blockchains (including, but not limited to, the Abstract Blockchain and the Solana Blockchain).

Company is Not Responsible for Technical Errors on Any Blockchain. Company is not responsible for losses arising from the use of blockchains or any other features of any blockchain network or wallet that Company or User may interface with, including, but not limited to, late report by developers or representatives (or no report at all) of any issues with a blockchain network or any associated layer 2 blockchains that Company or User may interface with, including forks, technical node issues, or any other issues resulting in loss of funds.

User Acknowledges the Risks of the Services. User acknowledges that the Services are subject to flaws and that User is solely responsible for evaluating any information provided by the Website or through User’s use of the Services. This warning and others provided in this Agreement by Company in no way evidence or represent an ongoing duty to alert User to all of the potential risks of utilizing or accessing the Services. The Services may experience sophisticated cyber-attacks, cryptocurrency based economic exploits, unexpected surges in activity, or other operational or technical difficulties that may cause interruptions or delays to the Services. User agrees to accept the risk of the Services failure resulting from unanticipated or heightened technical difficulties, including those resulting from sophisticated attacks, and User agrees that it will not hold Company accountable for any related losses. Company will not bear any liability, whatsoever, for any damage or interruptions caused by any viruses that may affect User’s computer or other equipment, or any phishing, spoofing or other attack.

Company Does Not Make Any Representations Regarding the Value of Cryptocurrency or Other Digital Assets. The prices of Blockchain assets are extremely volatile. Fluctuations in the price of other digital assets could materially and adversely affect the value of cryptocurrency, which may also be subject to significant price volatility. A lack of use or public interest in the creation and development of distributed ecosystems could negatively impact the development, potential utility, or value of cryptocurrency. For all of the foregoing reasons, as well as for reasons that may not presently be known to Company, Company makes absolutely no representations or warranties of any kind regarding the value of cryptocurrency or other digital assets.

User Acknowledges Financial Risk of Digital Assets. The risk of loss associated with the use of digital assets can be substantial. User should, therefore, carefully consider whether creating, buying, selling, or otherwise using digital assets is suitable for User in light of its circumstances and financial resources. By accessing the Services, User represents that it has been, is and will be solely responsible for making its own independent appraisal and investigations into the risks of a given transaction and the underlying digital assets. User represents that it has sufficient knowledge, market sophistication, professional advice, and experience to make its own evaluation of the merits and risks of any transaction conducted via any digital asset. Under no circumstances will the operation of all or any portion of the Services be deemed to create a relationship that includes the provision or tendering of investment advice.

Company is Not Responsible for Losses Due to Jurisdictional Blocks. User acknowledges that Company has no control over jurisdictional blocks which may prevent User from utilizing the Website. Under no circumstances will Company be liable for User’s inability to access the Website due to a jurisdictional block.

Release. To the fullest extent permitted by law, User hereby releases and forever discharges Company (and Company’s Affiliates, officers, employees, agents, successors, and assigns) from, and hereby waives and relinquishes, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to the Services (including any interactions with, or act or omission of, Company’s partners or any other third-party or any Third-Party Applications or Linked Sites). IF USER IS A CALIFORNIA RESIDENT, USER HEREBY WAIVES CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

No Warranties. THE WEBSITE AND THE SERVICES, INCLUDING, WITHOUT LIMITATION, ALL CONTENT THEREON, ARE PROVIDED “AS IS” AND “WHERE IS” AND WITHOUT ANY WARRANTIES OF ANY KIND. COMPANY AND ANY THIRD-PARTY LICENSORS WITH CONTENT MADE AVAILABLE TO USER THROUGH THE SERVICES EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. NOTWITHSTANDING ANY PROVISION CONTAINED HEREIN TO THE CONTRARY, COMPANY AND ITS THIRD-PARTY LICENSORS MAKE NO REPRESENTATION, WARRANTY OR COVENANT CONCERNING THE ACCURACY, QUALITY, SUITABILITY, COMPLETENESS, SEQUENCE, TIMELINESS, SECURITY OR AVAILABILITY OF THE SERVICES OR ANY CONTENT PROVIDED TO USER, INCLUDING CONTENT ACCESSIBLE VIA THE WEBSITE. USER ACKNOWLEDGES THAT COMPANY AND ITS THIRD-PARTY LICENSORS ARE NOT LIABLE FOR THE DEFAMATORY, OBSCENE OR UNLAWFUL CONDUCT OF OTHER THIRD-PARTIES OR USERS OF THE SERVICES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH USER. NEITHER COMPANY NOR ANY OF ITS THIRD-PARTY LICENSORS REPRESENT, WARRANT OR COVENANT THAT THE WEBSITE WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE. COMPANY FURTHER MAKES NO WARRANTY THAT THE WEBSITE WILL BE FREE OF VIRUSES, WORMS, OR TROJAN HORSES OR THAT IT WILL FUNCTION OR OPERATE IN CONJUNCTION WITH ANY OTHER PRODUCT OR SOFTWARE. USER EXPRESSLY AGREES THAT USE OF THE WEBSITE IS AT USER’S SOLE RISK AND THAT COMPANY, ITS AFFILIATES, AND THEIR THIRD-PARTY LICENSORS SHALL NOT BE RESPONSIBLE FOR ANY TERMINATION, INTERRUPTION OF SERVICES, DELAYS, ERRORS, FAILURES OF PERFORMANCE, DEFECTS, LINE FAILURES, OR OMISSIONS ASSOCIATED WITH THE WEBSITE OR USER’S USE THEREOF. USER’S SOLE REMEDY AGAINST COMPANY FOR DISSATISFACTION WITH SERVICES IS TO CEASE USER’S USE OF THE SAME. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO USER. USER MAY HAVE OTHER RIGHTS, WHICH VARY BY JURISDICTION. WHEN THE IMPLIED WARRANTIES ARE NOT ALLOWED TO BE EXCLUDED IN THEIR ENTIRETY, USER AGREES THAT IT WILL BE LIMITED TO THE GREATEST EXTENT AND SHORTEST DURATION PERMITTED BY LAW.

Limitations of Liability

To the maximum extent permitted by law, in no event will Company or its affiliates be liable to User or any third-party for any lost profits, lost data, costs of procurement of substitute products, or any indirect, consequential, exemplary, incidental, special or punitive damages arising from or relating to these terms or User’s use of, or inability to use, the Services or the data, Content or information accessed via the Website or any hyperlinked website, or any disruption or delay in the performance of the Website or the Services, even if Company has been advised of the possibility of such damages. Access to, and use of the Services is at User’s own discretion and risk, and User will be solely responsible for any damage to User’s device or computer system, or loss of data resulting therefrom.

To the maximum extent permitted by law, notwithstanding anything to the contrary contained herein, Company’s liability to User for any damages arising from or related to the Services or this Agreement (for any cause whatsoever, including, but not limited to, damages arising from User’s failure to provide Company with accurate information) and regardless of the form of the action, will at all times be limited to the greater of one hundred US dollars ($100 USD) or the total amount User has remitted to Company, if any, for use and access to the Services in the twelve (12) month period prior to a cause of action, whichever is greater. The existence of more than one claim will not enlarge this limit. User agrees that Company will have no liability of any kind arising from or relating to this Agreement. The foregoing limitation of liability is intended to apply to the fullest extent permitted by Applicable Law, without regard to whether other provisions of these Terms have been breached or have been proven ineffective. Some states do not allow the exclusion or limitation of liability of consequential or incidental damages, so the above exclusions may not apply to all Users; in such states liability is limited to the fullest extent permitted by law.

Claims Must Be Brought Within One Year. User agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the Website or the Services, or User’s use and access the same, must be filed within one (1) year after such claim or cause of action arose or be forever barred.

TERM AND TERMINATION

Subject to this Section 10, this Agreement will remain in full force and effect while User uses the Services (the “Term”). Company may suspend or terminate User’s right to use all or any part of the Services at any time for any reason in Company’s sole discretion, including for any use of the Services in violation of this Agreement. User may terminate this Agreement at any time by ending User’s use of the Services and notifying Company at [______________]. Upon termination of User’s rights under this Agreement, User’s right to access and use the Services will terminate immediately. Company will not have any liability whatsoever to User for any termination of User’s rights under this Agreement. All provisions of this Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.

GENERAL TERMS

General Terms. These Terms, together with the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between User and Company regarding User’s use of the Services. User may not assign or transfer these Terms or its rights under these Terms, in whole or in part, by operation of law or otherwise, without Company’s prior written consent. Company may assign these Terms at any time without notice or consent. The failure to require performance of any provision will not affect Company’s right to require performance at any other time after that, nor will a waiver by Company of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to”. If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.

Electronic Communications. By using the Website or the Services, User consents to receiving certain electronic communications from Company as further described in the Privacy Policy. Please read the Privacy Policy to learn more about our electronic communications practices. User agrees that any notices, agreements, disclosures, or other communications that Company sends to User electronically will satisfy any legal communication requirements, including that those communications be in writing. Any electronic communications will be deemed to have been received by User immediately after Company sends the same to User or posts the same to the Website, whether or not User has received the email or retrieved the communication from Company. An electronic communication by email is considered to be sent at the time that it is directed by Company’s email server to User’s email address. User agrees that these are reasonable procedures for sending and receiving electronic communications. If User wish to withdraw User’s consent to receive Communications electronically, User must unsubscribe from the Services, which User may do through the Website or by contacting [____________]. If User elects to unsubscribe from the Services, User must discontinue its use of the Services. There are no fees to unsubscribe. Any withdrawal of User’s consent to receive electronic Communications will be effective only after Company has a reasonable period of time to process User’s withdrawal, which period of time shall be no longer than fifteen (15) days, or such other time as is appropriate under the circumstances, as determined by Company in its sole discretion. Company reserves the right, in its sole discretion, to discontinue the provision of electronic communications, or to terminate or change the terms and conditions on which Company provides electronic communications. Company will provide User with notice of any such termination or change as required by Applicable Law.

Changes to these Terms of Use. Company may update or change these Terms from time to time in order to reflect changes in any offered services, changes in the law, or for other reasons as deemed necessary by Company. The effective date of any Terms will be reflected in the “Last Revised” entry at the top of these Terms. User’s continued use of the Website after any such change is communicated shall constitute User’s consent to such change(s).

Governing Law & Jurisdiction. These Terms are governed by the laws of the State of Delaware, U.S.A. User hereby irrevocably consents to the exclusive jurisdiction and venue of the courts in the State of Delaware, U.S.A., in all disputes arising out of or relating to the use of the Services not subject to the Arbitration Agreement set forth in Section 11.5.

Dispute Resolution

Arbitration Agreement Generally. Please read the following arbitration agreement (“Arbitration Agreement”) carefully. It limits the manner in which User may seek relief from Company, is part of User’s contract with Company, and contains provisions concerning MANDATORY BINDING ARBITRATION AND WAIVER OF THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

Exceptions. Nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to seek injunctive relief in a court of law in aid of arbitration or to file suit in a court of law to address an intellectual property infringement claim.

Applicability of Arbitration Agreement. In the interest of resolving disputes between Company and User in the most expedient and cost-effective manner, and except as set forth in 11.5(b), User and Company agree that every dispute arising in connection with these Terms that cannot be resolved informally, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, including any unresolved dispute, claim, interpretation, controversy, or issues of public policy arising out of or relating to the Website, these Terms, or the Services, and the determination of the scope or applicability of this Section 11.5, will be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to User and Company, and to any subsidiaries, Affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under this Agreement. This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.

Arbitration Rules. Arbitration will be conducted under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”), as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Company.

Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the specific relief requested. A Notice to Company should be sent by certified U.S. Mail or by Federal Express (signature required) to:

  • Orange Cap Games, Inc.
  • Attn: Legal

588 Broadway, Suite 210

New York, NY 10013

  • User must send a courtesy copy of a Notice to Company at [_______________]. Company may send User a Notice by electronic mail. After the Notice is received, User and Company may attempt to resolve the claim or dispute informally. If User and Company do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing.

Fees; Location. If User commences arbitration in accordance with these Terms, the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place in Denver, Colorado, or another location mutually agreed upon by the parties; provided, however, and notwithstanding the foregoing, the parties shall endeavor, where possible, to cause the arbitration proceeding to be conducted: (i) solely on the basis of documents submitted to the arbitrator; or (ii) through a non-appearance-based telephone hearing or videoconference. If the arbitrator finds that either the substance of User’s claim or the relief sought in User’s arbitration demand is frivolous or brought for an improper purpose, in the arbitrator’s reasonable discretion, then the payment of all arbitration fees will be governed by the AAA Rules. In that case, User agrees to reimburse Company for all monies previously disbursed by Company that are otherwise User’s obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. Notwithstanding anything herein to the contrary, each party will be responsible for their own attorneys’ fees associated with an arbitration under these Terms, and in no event may the arbitrator award any party their attorneys’ fees.

Enforcement. The Parties irrevocably submit to the exclusive jurisdiction of a state or United States federal court of competent jurisdiction with respect to this section to compel arbitration, to confirm an arbitration award or order, or to handle court functions permitted under the Federal Arbitration Act. The Parties irrevocably waive defense of an inconvenient forum to the maintenance of any such action or other proceeding. The Parties may seek recognition and enforcement of any state court judgment confirming an arbitration award or order in any United States state court or any court outside the United States or its territories having jurisdiction with respect to recognition or enforcement of such judgment.

Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between User and Company in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, USER AND COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.

Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS AGREEMENT, INCLUDING THE ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.

30-Day Right to Opt Out. User has the right to opt out of the provisions of this Arbitration Agreement by sending written notice of its decision to opt out within thirty (30) days after first becoming subject to this Arbitration Agreement. User’s notice must include its name and address, and an unequivocal statement that User desires to opt out of this Arbitration Agreement. If User opts out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to User. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that User may currently have, or may enter in the future, with Company. User must mail written notification by certified mail to.

  • Orange Cap Games, Inc.
  • Attn: Legal

588 Broadway, Suite 210

New York, NY 10013

Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.

Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.

Attorneys’ Fees and Costs. In the event a party files an action in a court of competent jurisdiction pursuant to 11.5(b), the party found to be the substantially losing party in any dispute shall be required to pay the reasonable attorneys’ fees and costs of any party determined to be the substantially prevailing party. In the context of this Agreement, reasonable attorneys’ fees and costs shall include but not be limited to legal fees and costs, the fees and costs of witnesses, accountants, experts, and other professionals, and any other forum costs incurred during, or in preparation for, a dispute. It is understood that certain time entries that may appear in the billing records of such party’s legal counsel may be redacted to protect attorney-client or work-product privilege, and this will not prevent recovery for the associated billings.

Third-Party Beneficiaries. This Agreement and the rights and obligations hereunder shall bind and inure to the benefit of the parties and their successors and permitted assigns. Nothing in this Agreement, expressed or implied, is intended to confer upon any person, other than the parties and their successors and permitted assigns, any of the rights hereunder.

No Support. Company is under no obligation to provide support for the Website or the Services. In instances where Company may offer support, the support will be subject to published policies.

  • Company Contact Information. Questions may be directed to Company at: [______________________]