COLLECTIBLE SALE - TERMS AND CONDITIONS

Last updated: 28 March 2024

1.     Introduction

These terms and conditions and the correlated disclaimers and disclosures (collectively the “Terms”), constitute a legally binding agreement between Plushie Bears Ltd. and each purchaser of Collectibles. For the purpose of these Terms, a “Collectible” means a Beam network (mainnet) based ERC-1155 token referred known as ‘The Foundation – Toybox’.

IMPORTANT: Please read these Terms carefully, as they govern your rights and obligations, our disclaimers and limitations of legal liability and risks in connection with the sale and purchase of Collectibles.

By purchasing a Collectible you confirm that you have read and understood, and accepted to be bound by, these Terms. This includes your acceptance to a refund waiver, a class action waiver and to resolve any disputes regarding the Collectibles pursuant to confidential and binding arbitration. Do not purchase a Collectible if you do not agree to these Terms.

The following terminology applies to these Terms: "User", "you" and "your" refers to you, the person participating in the sale and purchase of Collectibles. "Ourselves", "we", "our" and "us", refers to Plushie Bears Ltd. and "Parties" refers to both you and ourselves.

2.     About the purchase of Collectibles

During the applicable sales period of 48 hours (which may be shortened or extended in our discretion), Collectibles may be minted via a smart contract on Beam. Each Collectible will include one cosmetic, out of a total of 30 different cosmetics which are all displayed on the sales site. Each cosmetic carries its own rarity, where the rarity odds are as follows:

·       60% (6/10) chance for obtaining a cosmetic with a common trait.

·       25% (1/4) chance for obtaining a cosmetic with an uncommon trait.

·       10% (1/10) chance for obtaining a cosmetic with a rare trait.

·       4% (4/100) chance for obtaining a cosmetic with a very rare trait.

·       1% (1/100) chance for obtaining a cosmetic with an ultra-rare trait.

The various categories of cosmetics (from common to ultra-rare) are all displayed on the sales site, and you should carefully review the cosmetics available and understand the chances of obtaining a particular cosmetic.

There is no pre-configured maximum total supply of the Collectibles, as it will be possible to mint Collectibles until the 48-hour sale period (subject to adjustment) has lapsed. After the end of the sale period, there will be no further possibility to mint Collectibles.

The Collectibles may be used in connection with the game known as Forgotten Playland, subject to compliance with the applicable terms of the game developer. It is important to note that the developer of the game Forgotten Playland, Vermilion Studios Limited, is distinct from us as sellers of the Collectibles, and that they are owners of the intellectual property associated with the Collectibles.

To participate in the sale of the Collectibles through the site, a user will need to use a third-party non-custodial wallet software that allows the user to interact with public smart contracts and blockchains. We do not operate, maintain, or provide any wallets or wallet services. We will at no time have any custody or control of any Collectibles, smart contracts or blockchains that any user is interacting with, and we do not conduct, execute, or effectuate any transactions of Collectibles on anyone’s behalf.

Our interface is distinct and separate from any smart contracts (including protocols) that may be accessed through it and is merely one of multiple means of accessing such smart contracts.

3.     Conditions for participation in the sale of Collectibles

As a condition to participating in the sale of Collectibles, you confirm, represent, and warrant the following at all relevant times:

·       If you are entering into these Terms as an individual, that you are of legal age in the jurisdiction in which you reside (in any event over the age of 18) and that you have the legal capacity to enter into these Terms and be bound by them.

 

·       If you are entering into these Terms as an entity, that the user is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized and that you have all requisite power to accept these Terms on that entity’s behalf.

 

·       You have all requisite capacity, power and authority to accept and carry out and perform your obligations under these Terms, and you agreeing to these Terms and participating in the purchase of Collectibles does not constitute and would not reasonably be expected to result in a breach or violation of any law applicable to you.

 

·       You are knowledgeable and experienced in using and evaluating blockchain tokens.

 

·       You have conducted your own independent research and evaluation of the Collectibles.

 

·       You are not a person who is (a) subject to national or international sanctions or located or ordinarily resident in any country or region that is the subject of comprehensive country-wide or region-wide sanctions, embargo or equivalent by the US, UK, EU, the United Nations or the government of a user home country, or (b) listed by the US, UK, EU, the United Nations or otherwise designated on any list of prohibited or restricted parties or persons.

 

·       The funds that you use to purchase Collectibles, are not connected to any unlawful activities.

 

·       You do not, and will not, use a VPN or any other privacy or anonymization tools to circumvent, or attempt to circumvent, any restrictions that apply to the sales site (general use of VPN for other purposes shall however be permitted).

 

·       You will not conduct any activity that implies infringement or violation of any intellectual property rights owned by us or another third party, including infringement of copyrights and trademarks.

 

·       Your purchase of the Collectibles complies with all applicable laws, rules and regulations and does not contribute to or facilitate any illegal activity.

 

4.     Prohibited activities

Each user must not, directly or indirectly, in connection with a purchase of Collectibles:

·       Breach any representation of the user set forth in section 3.

 

·       Rely on any information from us as a basis for or a source of advice concerning any financial decision making or transactions.

 

·       Violate, breach, or fail to comply with any applicable provision of these Terms.

 

·       Interfere with security-related features of the sale, including by disabling or circumventing features that prevent or limit use or copying of any content, or reverse engineering.

 

·       Engage or attempt to engage in or assist any hack of or attack (including “sybil attack”, “DoS attack” or “griefing attack”) or data gathering or extraction methods in connection with the sales process.

 

·       Commit any violation of applicable laws, rules, or regulations, including any regulations relating to market manipulation.

 

·       Engage in any act, practice or course of business that operates to circumvent any sanctions targeting the user or the country or territory where the user is located.

The foregoing matters are referred to herein as “Prohibited Uses”.

We reserve the right to terminate or limit any user’s access to sale of Collectibles at any time, with or without notice, if we believe that you have violated these Terms. Such terminations and limitations may be based on any factor or combination of factors, including suspicion that a user has engaged or intends to be engaged in any Prohibited Uses.

5.      Privacy Policy

Your information by use of the sales site is collected in accordance with the Privacy Policy.

6.      Intellectual property rights and ownership

Vermilion Studios Limited own the intellectual property rights for all the artwork and other copyright associated with the Collectibles. Your rights to utilize the intellectual property rights associated with the Collectibles will be governed by a separate licensing agreement that you will have to agree to if you wish to purchase the Collectibles. For the avoidance of doubt, we do not own any rights to any of the smart contracts (including protocols) or blockchains accessible through the sales process.

7.      Primary sale, fees and no refund

Any minting of Collectibles will be subject to a cost of USD 19.99 per Collectible and blockchain gas fees incurred in connection with the minting of Collectibles. Any payments and transactions that a user engages in will be processed by self-executing smart contracts. By purchasing the Collectible, the purchaser will become the owner of the Collectible. Any intellectual property rights associated with the Collectible will be governed by a separate license agreement or as otherwise may be agreed with the copyright holder, ref. section 6 above.

All purchases of Collectibles are final. In accordance with applicable law, you acknowledge that no withdrawal, return or refund rights apply.

8.     Resale, royalties and fees

Collectibles purchased may be purchased, sold, and traded on third-party marketplaces or exchange sites (such transactions, (“Secondary Transactions”). Secondary Transactions will be subject to the terms and conditions of such sites. We are not a party to any Secondary Transaction. We make no guarantee about the availability or functionality of any such sites and your use of such sites are at your own risk. We have no liability to you or to any third party for any claims or damages that may arise as a result of your Secondary Transactions or use of such external sites.

Any subsequent sales of the Collectibles on the secondary market may be subject to royalty fees collected by owner of the artwork and copyright associated with the Collectibles.

9.      Disclaimers, risks and limitations of liability

Before interacting with the Collectibles mint smart contract (the “Smart Contract”), please carefully review the below disclaimers, risks and limitations of liability.

9.1    No representations or warranties

The Collectibles and minting smart contract are being provided on an “AS IS” and “AS AVAILABLE” basis. To the fullest extent permitted by law, we are not making, and hereby disclaim, any and all information, statements, omissions, representations and warranties, express or implied, written or oral, equitable, legal or statutory, in connection with the Collectibles and the other matters contemplated by these Terms, including any representations or warranties of title, non-infringement, merchantability, usage, security, uptime, reliability, suitability or fitness for any particular purpose, workmanship or technical quality of any code or software used in or relating to the Collectibles.

9.2    Limited liability in contract or tort

We shall not be liable to any person, whether in contract, tort (including pursuant to any cause of action alleging negligence), warranty or otherwise, for any economic or other damages to any user or other person, including any special, incidental, consequential, indirect, punitive or exemplary damages (including but not limited to lost data, lost profits or savings, loss of business or other economic loss) arising out of or related to the sale of Collectibles or these Terms, regardless of the nature of the cause.

Nothing herein will however:

 

9.3    No professional advice or liability

All information provided by or on behalf of us is for informational purposes only and should not be construed as financial, accounting or legal advice. Users should not take or refrain from taking any action in reliance on any information contained in these Terms or provided by or on behalf of us.

9.4    Risks relating to Collectibles

Collectibles may be highly volatile and may be subject to significant price fluctuations. Fluctuations in the price of the cryptocurrency that the Collectibles are typically denominated in can also have a material adverse effect on Collectible prices.

9.5    Certain uses and risks of blockchain technology

The ability of the website https://forgottenplayland.com and any sub-URL (the “Site”) to connect with third-party wallet applications or devices is not an endorsement or recommendation to do so by or on behalf of the operators of the Site, and you must assume all responsibility for selecting and evaluating and incurring the risks of any bugs, defects, malfunctions or interruptions of any third-party wallet applications or devices you directly or indirectly use in connection with the Site.

The Smart Contract is – as other smart contracts on the Beam network – a software system that is accessible directly through Beam node providers or indirectly through compatible Beam wallet applications (such as the web browser plugin Metamask) which interacts with such a node. Interacting with the Smart Contract does not require use of the Site, but the Site may provide a convenient and user-friendly method of reading and displaying data from the Smart Contract and generating standard transaction messages compatible with the Smart Contract. The Site does not interact with the Smart Contract and does not conduct any transaction on your behalf. Because the Site does not provide Beam wallet software or Beam nodes, such software constitutes an essential third party or user dependency without which transactions cannot be exercised. There is no guarantee of the continued operation, maintenance, availability, or security of any of the foregoing or APIs, middleware and servers of third parties.

You are solely responsible for protecting the data integrity and confidentiality of your private keys and passwords to any wallet applications or devices used in connection with the Site. You cannot expect anyone to be able to restore or issue any refund in respect of property lost or frozen due to loss of private keys or otherwise. If you are not able to spend or use tokens due to loss or theft of the corresponding private key or otherwise, you will be unable to enjoy the benefits of such tokens.

The Smart Contract has been audited by the smart contract auditors Pashov. However, hackers, individuals, other malicious groups or organizations may attempt and succeed to interfere with any wallet application, the Beam network or the Smart Contract in a variety of ways, such as through malware attacks, denial of service attacks, consensus-based attacks, sybil attacks, griefing, smurfing and spoofing, which may lead to a loss of your assets. Transactions on the Beam network are irreversible. Any tokens you utilize in connection with the minting of Collectibles are subject to potential risk of permanent disablement, impairment, loss or forfeiture in the event of any exploits, bugs or malfunctions of the Smart Contract or Beam itself, and no remedy will be available from any person due to any such damages you may suffer in connection with your participation in the minting of the Collectibles.

9.6    Regulatory Uncertainty

Blockchain technologies, Collectibles and cryptocurrencies are subject to legal and regulatory uncertainties, and their regulatory status remains unclear or unsettled in many jurisdictions. It is therefore difficult to predict how or whether governments or regulatory agencies may implement changes to law or apply existing regulation with respect to such technology and its applications, including with respect to the Collectibles.

The Collectibles could be adversely impacted by one or more regulatory or legal inquiries, actions, suits, investigations, claims, fines or judgments, which could impede or limit the ability of the user to continue the use and enjoyment of the Collectibles. We must comply with applicable law, which may require us to, upon request by government agencies take certain actions or provide information.

9.7    Fork Handling

Blockchains may be subject to “forks”. Forks occur when some or all persons running the software clients for a particular blockchain system adopt a new client or a new version of an existing client that (a) changes the protocol rules in backwards-compatible or backwards-incompatible manner that affects which transactions can be added into later blocks, how later blocks are added to the blockchain, or other matters relating to the future operation of the protocol, or (b) reorganizes or changes past blocks to alter the history of the blockchain. Some forks are “contentious” and thus may result in two or more persistent alternative versions of the protocol or blockchain, either of which may be viewed as or claimed to be the legitimate or genuine continuation of the original. We may not be able to anticipate, control or influence the occurrence or outcome of forks, and do not assume any risk, liability or obligation in such connection. We do not assume any responsibility to notify any user of pending, threatened or completed forks. Each user assumes full responsibility to independently remain informed about possible forks, and to manage its own interests and risks in that connection.

9.8    Tax risks

The tax consequences of minting the Collectibles or otherwise selling or purchasing the Collectibles may vary by jurisdiction and may be adverse to you. You accept the potential tax consequences in your jurisdiction of residence. You assume all risks with respect to undertaking due diligence and investigation into such tax consequences, and nothing on the Site shall be construed to provide any tax, financial or legal advice.

9.9    Officers, directors, etc.

All provisions of these Terms which disclaim or limit our obligations or liabilities shall also apply equally to our officers, directors, members, employees, independent contractors, agents and affiliates.

9.10  Legal limitations on disclaimers

Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of certain liabilities and damages. Accordingly, some of the disclaimers and limitations set forth in these Terms may not apply in full to specific users. The disclaimers and limitations of liability provided in these terms shall apply to the fullest extent permitted by applicable law.

10.   Indemnification

Each user shall defend, indemnify, compensate, reimburse and hold harmless us and each of our officers, directors, members, employees, independent contractors, agents and affiliates from any claim, demand, action, damage, loss, cost or expense, including without limitation reasonable attorneys’ fees, arising out or relating to (a) user’s use of, or conduct in connection with, the purchase of Collectibles; (b) user’s violation of these Terms or any other applicable policy or contract; or (c) user’s violation of any rights of any other person or entity.

11.   Governing law and dispute resolution

 

11.1  Governing Law

These Terms shall be governed by and construed and interpreted in accordance with the laws of the British Virgin Islands. Although the sale of Collectibles may be available in other jurisdictions, the user hereby acknowledges and agrees that such availability shall not be deemed to give rise to general or specific personal jurisdiction over us in any forum outside of the Netherlands.

11.2  Settlement negotiations

If a user has a potential legal dispute, claim or cause of action against us, the user shall first (prior to initiating any litigation proceedings) contact us by sending an email to legal@plushiebears.com describing the nature of the potential dispute, claim or cause of action and providing all relevant documentation and evidence thereof. The parties shall use commercially reasonable efforts to negotiate a settlement of any such legal dispute, claim or cause of action within 60 days of the delivery of such email. Any such dispute, claim or cause of action that is not finally resolved by a binding, written settlement agreement within such 60 days shall be brought and resolved exclusively in accordance with section 11.3.

11.3  Agreement to binding and exclusive arbitration

Please read the following carefully, because it precludes you from submitting a lawsuit in court, participating in any class action or having a jury trial.

All claims, disputes and controversies directly or indirectly arising out of or in connection with or directly or indirectly relating to these Terms or any of the matters or transactions contemplated by these Terms (for the avoidance of doubt, including any claim seeking to invalidate, or alleging that, all or any part of these Terms is unenforceable, void or voidable) shall (unless settled pursuant to section 11.2 above) be resolved by confidential, binding arbitration to be seated in London and conducted in the English language by a single arbitrator pursuant to the UNICITRAL Arbitration Rules that are most recent at the time when the arbitration proceedings are commenced. The award or decision of the arbitrator shall be final and binding upon the parties and the parties expressly waive any right under the laws of any jurisdiction to appeal or otherwise challenge the award, ruling or decision of the arbitrator.

Except to the extent necessary to enforce their respective rights under these Terms or as otherwise required by applicable law, the parties undertake to maintain confidentiality as to the existence and events of the arbitration proceedings and as to all submissions, correspondence and evidence relating to the arbitration proceedings. This provision shall survive the termination of the arbitral proceedings.

11.4  Opt-out procedure

YOU CAN CHOOSE TO REJECT THIS AGREEMENT TO ARBITRATE ("OPT-OUT") BY MAILING US A WRITTEN OPT-OUT NOTICE ("OPT-OUT NOTICE"). THE OPT-OUT NOTICE MUST BE POSTMARKED NO LATER THAN 30 DAYS AFTER THE DATE YOU ACCEPT THE TERMS FOR THE FIRST TIME. YOU MUST MAIL THE OPT-OUT NOTICE TO LEGAL@PLUSHIEBEARS.COM.

If the agreement to arbitrate above is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt out of the agreement to arbitrate or as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute between ourselves will be resolved exclusively by the court of Amsterdam. You and we agree to submit to the personal jurisdiction of the courts located within the Netherlands for the purpose of litigating all such claims, disputes, or matters.

12.   Miscellaneous

 

12.1  Communication and notices

By agreeing to purchase Collectibles, you consent to receive all communications, notices and information that we provide in connection with these Terms electronically. You agree that we may provide such communications, notices and information to you by posting them on the website.  

12.2  Severability

The invalidity or unenforceability of any of these Terms will not affect the validity or enforceability of any other of these Terms, all of which will remain in full force and effect.

12.3  Amendments and modifications

These Terms may only be amended, modified, altered or supplemented by or with the written consent of both parties.

12.4  No implied waivers

No failure or delay on the part of us in the exercise of any power, right, privilege or remedy under these Terms shall operate as a waiver of such power, right, privilege or remedy, and no single or partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy.

12.5  Entire Agreement

These Terms constitute the entire agreement between the parties relating to the subject matter hereof and supersede all prior or contemporaneous agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof.