Terms and Conditions
LSLTTT Holdings LLC (doing business as “Pudgy Penguins”) celebrates representation, inclusivity and equal opportunities for all, through its community, Web3 initiatives and collections of non-fungible tokens (“NFT”) based on the Ethereum blockchain to which are attached visual assets representing unique, waddling and diverse penguins (“Pudgy Penguins NFT”).
These terms and conditions (“Terms”) rule the relationship between Pudgy Penguins and any person (“User”, “You”) accessing and/or using Pudgy Penguins’ website (www.pudgypenguins.com, also referred to herein as “Pudgy Penguins Website”).
Please read these Terms carefully before using the Pudgy Penguins Website.
1 CONDITIONS OF USE OF THE PUDGY PENGUINS WEBSITE
THE PUDGY PENGUINS WEBSITE IS INTENDED TO USERS WHO ARE AT LEAST EIGHTEEN (18) YEARS OLD. THUS, BY USING THE PUDGY PENGUINS WEBSITE, YOU CONFIRM THAT YOU ARE AT LEAST EIGHTEEN (18) YEARS OLD AND YOU ARE DEEMED TO HAVE READ AND ACCEPTED THESE TERMS EXHAUSTIVELY AND UNCONDITIONALLY.
IF THE USER IS UNDER EIGHTEEN (18) YEARS OLD, THE USER UNDERTAKES TO OBTAIN THE PRIOR AND EXPRESS CONSENT OF HIS/HER PARENT OR LEGAL GUARDIAN TO USE THE PUDGY PENGUINS WEBSITE AND TO REVIEW THE TERMS WITH THEM. THE PARENT OR LEGAL GUARDIAN OF A USER UNDER EIGHTEEN (18) YEARS OLD UNDERTAKES TO ABIDE BY THESE TERMS AND ACKNOWLEDGES TO BE RESPONSIBLE FOR THE ACTIVITIES OF THE USER ON THE PUDGY PENGUINS WEBSITE.
IN CASE OF YOUR DISAGREEMENT, IN WHOLE OR IN PART, WITH THESE TERMS, YOU MUST IMMEDIATELY CEASE ANY AND ALL USE OF THE PUDGY PENGUINS WEBSITE.
2 AMENDMENT TO THE TERMS
The Terms may be updated from time to time as Pudgy Penguins may deem necessary or useful.
In the event you do not agree to the Terms, including as may be amended, you shall cease any and all utilization of the Pudgy Penguins Website and related Services.
3 ACCESS TO THE PUDGY PENGUINS WEBSITE
You are personally responsible for setting up the IT and telecommunications resources required to access the Pudgy Penguins Website and use the Services. You shall bear the cost of telecommunications when accessing the Internet to use the Pudgy Penguins Website.
Pudgy Penguins reserves the right to, without notice nor compensation, temporarily or permanently, close the Pudgy Penguins Website or access to one or more Services in order to perform maintenance operations. Pudgy Penguins may carry out any changes and improvements to the Pudgy Penguins Website and Services that it deems necessary.
4.1 General Services
The Pudgy Penguins Website gives you access to functionalities, features and services related to Pudgy Penguins NFT collections and community (the “Services”).
Access to some Services may only be available to the holder of a Pudgy Penguin NFT and require proof of ownership by connecting a supported blockchain-based digital wallet to the Pudgy Penguins Website (“Digital Wallet”).
Digital Wallets are third-party products and services that are not affiliated, in any way whatsoever, with Pudgy Penguins nor in its custody or control. Access and use of Digital Wallets are at the User’s own risk and discretion and subject to their own applicable terms.
You are solely responsible for your Digital Wallet security, including associated passwords, seed words, and keys. Pudgy Penguins shall not, in any event whatsoever, be held responsible for any risk associated with your access and/or use of a Digital Wallet. In the event you lose or can no longer access your Digital Wallet, Pudgy Penguins cannot retrieve your Pudgy Penguins NFT from your Digital Wallet.
4.2 NFT Primary Sale Services on the Pudgy Penguins Website
The Pudgy Penguins Website may, in its sole discretion, give you access to primary sales of Pudgy Penguins NFTs through one or several of the following access rights: free mint for holders of a Pudgy Penguin NFT, allow list and/or public sale.
You will be required to connect your Digital Wallet to the Pudgy Penguins Website in order to, depending on the rights you have been granted on the primary sale, (i) where applicable, confirm your current ownership of a Pudgy Penguins NFT, and/or (ii) where applicable, transfer to Pudgy Penguins the applicable purchase price, and (iii) receive an NFT.
Applicable purchase price of a Pudgy Penguins NFT are set forth on the Pudgy Penguins Website and are binding at the time of purchase. Additional fees (including gas fees) may be required at the time of purchase to complete the sale. Pudgy Penguins does not monitor nor benefit from these fees.
Pudgy Penguins will directly transfer the Pudgy Penguins NFT you acquired to the supported Digital Wallet you connected to the Pudgy Penguins Website, depending the case and where applicable, upon confirmation of ownership of a Pudgy Penguins NFT or upon receipt of the corresponding purchase price.
All sales completed on the Pudgy Penguins Website are final. Pursuant to applicable law, you acknowledge that no withdrawal, return and/or refund rights apply.
4.3 NFT secondary sale on third-party platform
User may resell and/or purchase Pudgy Penguins NFT on third-party platforms as part of secondary sales.
Platforms dedicated to secondary sales are third-party services that are not affiliated with Pudgy Penguins and which access and use are at user’s own risk and discretion and subject to their own applicable terms.
Pudgy Penguins may benefit from a percentage of the resale price of your Pudgy Penguins NFT, as set forth on the Pudgy Penguins Website and subject to the third-party platform’s policy on which the resale is completed.
You undertake to only resell and/or purchase Pudgy Penguins NFT on third-party platforms that (i) cryptographically verify each NFT owner’s rights to display and list a Pudgy Penguins NFT for sale, to ensure that only the actual owner of this NFT can proceed with its resale, and (ii) provide for a percentage of the resale price to be automatically granted to Pudgy Penguins upon resale.
By reselling and/or purchasing a Pudgy Penguins NFT on an authorized third-party platform, you agree to abide by these Terms.
5 UNDERTAKINGS OF THE PARTIES
5.1 Users Undertakings
Users shall not, directly or indirectly, without being expressly authorized by these Terms and/or the Digital Ownership Assignment, or by prior written consent of Pudgy Penguins, in any way whatsoever:
- (I) copy, modify, communicate, transmit or create any derivative work, use, commercialize or reproduce all or part of the Pudgy Penguins Website and/or Pudgy Penguins Property, and related intellectual property rights of Pudgy Penguins, or register or attempt to register any trademark or copyright or otherwise acquire additional intellectual property rights in or to any Pudgy Penguins Property; use the Pudgy Penguins Website or any Pudgy Penguins Property to create, endorse, support, promote or condone any content, material or speech that is, or may be deemed to be by Pudgy Penguins at its sole discretion, defamatory, obscene, pornographic, indecent, abusive, offensive, harassing, violent, hateful, racist, discriminatory, inflammatory or otherwise objectionable or inappropriate; and, in general, access, download, upload, share, communicate any content and/or use the Pudgy Penguins Website or Pudgy Penguins Property in a way that may infringe the rights, including intellectual property rights, of Pudgy Penguins or third parties, damage the reputation, rights and interests of Pudgy Penguins, or falsely suggest an affiliation with or endorsement by Pudgy Penguins.
- (II) decompile, disassemble the Pudgy Penguins Website, reverse engineer or attempt to discover or reconstruct the source code, the ideas on which it is based, the algorithms, the file formats or the programming or interoperability interfaces of the Pudgy Penguins Website except to the extent permitted by law, in any manner whatsoever. In the event the User wishes to obtain the information necessary to implement the interoperability of Pudgy Penguins the Website with other software developed or independently acquired by the User, for use in accordance with the destination of the Pudgy Penguins Website, the User undertakes, before relying on a third party, to first consult Pudgy Penguins which may provide the necessary information for the implementation of such interoperability. The User acknowledge that, where appropriate, the exact cost incurred internally by Pudgy Penguins for providing this information will be invoiced by Pudgy Penguins to the User;
- (III) proceed alone, or with help of a third-party service provider, to correct of any errors in and/or alter any content of the Pudgy Penguins Website in order to make it conform to her/his own purposes (Pudgy Penguins alone reserves for itself the exercise of this right in accordance with exceptions provided by law); or integrate or combine the Pudgy Penguins Website with other software or documents or create composite or derivative works with help of all or parts of the Pudgy Penguins Website;
and, in general, violate any law or regulation, or make any use of the Pudgy Penguins Website, Services or Pudgy Penguins Property that may be deemed contrary to public order or unfair.
5.2 Undertakings of Pudgy Penguins
Pudgy Penguins endeavors use reasonable efforts to (i) act honestly, fairly and professionally, (ii) communicate with the holders of Pudgy Penguins NFT in a fair and clear manner, (iii) prevent, identify, manage and disclose any conflicts of interest that may arise, (iv) maintain all of its systems and security access protocols to appropriate standards of applicable laws and regulations, and, in general (v) act in the best interests of the holders of Pudgy Penguins NFT and treat them equally, unless provided otherwise on the Pudgy Penguins Website or any other notice by Pudgy Penguins.
6.1 Pudgy Penguins Website security
Pudgy Penguins shall make its best efforts to deploy the necessary resources to ensure Users’ access to and effective operation of the Pudgy Penguins Website twenty-four hours a day and seven days a week. However, given the limitations related to the Internet, Pudgy Penguins cannot guarantee that access and operation of the Pudgy Penguins Website will not be interrupted, such as in event of force majeure, malfunction of the Users’ equipment, malfunctions of the Users’ Internet networks and/or maintenance operations designed to improve the Pudgy Penguins Website.
The User hereby represents, warrants, and agrees that, when accessing and/or using the Pudgy Penguins Website and Services, the User shall refrain from any act and/or omission which could, in any way whatsoever (i) jeopardize the security of the Pudgy Penguins Website; (ii) attempt, in any manner, to obtain passwords or other security information from any other User; (iii) violate the security of any computer network, or cracks any passwords or security encryption codes; (iv) run any processes that interfere with the proper working of the Pudgy Penguins Website and Services; (v) disturb, hinder and/or prevent the proper functioning of the Pudgy Penguins Website and Services (such as, but not limited to, downloading viruses or malicious code whatsoever or by performing hacking activities of any nature or that otherwise interfere with the proper functioning of the Pudgy Penguins Website and Services).
6.2 Malicious third parties
Please be aware that malicious third parties may offer for sale NFT counterfeited Pudgy Penguins Property and/or falsely act as affiliated to or endorsed by Pudgy Penguins. In case of doubt, please contact Pudgy Penguins in accordance with Article 12 below.
Your interactions with these third parties are at your own risks and discretion. Pudgy Penguins is not responsible, in any way whatsoever, for any act or omission of said malicious third parties, nor any adverse consequence resulting from your interactions with them.
Pudgy Penguins offers Services related to crypto-assets (NFT) that are unique and not fungible with other crypto-assets. Each Pudgy Penguins NFT is unique and exclusive to its owner.
Pudgy Penguins is not a provider of digital asset services including, but not limited to, services regarding initial coin offering; custody of digital assets on behalf of third parties or access to digital assets for the purpose of holding, storing and transferring digital assets; the purchase and sale of digital assets in legal tender; the exchange of digital assets for other digital assets; the operation of a digital asset trading platform; or any services related to third party order reception and transmission, third party portfolio management, advice, underwriting, guaranteed placement and unguaranteed placement.
Pudgy Penguins does not provide asset intermediation services including, but not limited to, services related to the offer, to clients or potential clients, to acquire rights on one or more assets on the basis of the possibility of a direct or indirect financial return or similar economic effect.
In this regard, the User hereby represents, warrants, and agrees that any use of the Pudgy Penguins Website and Services, including any purchase of a Pudgy Penguins NFT, is made for its sole personal collection, use and enjoyment. User shall refrain from any act and/or omission which could, in any way whatsoever, be interpreted as or suggest that (i) the User is accessing or using the Pudgy Penguins Website and/or Services, including purchasing a Pudgy Penguins NFT, for speculative or investment purposes, for use as a substitute for currency or other medium of exchange, or for resale or redistribution, or that (ii) accessing or using the Pudgy Penguins Website and/or Services, including purchasing a Pudgy Penguins NFT, may constitute an opportunity to gain economic benefit or profit, or an investment, equity, or other ownership or profit-sharing interest in Pudgy Penguins or its affiliates or business partners of any kind. In this regard, Pudgy Penguins makes no warranties whatsoever with regard to any future value or resale price of a Pudgy Penguins NFT.
You are the sole responsible for your compliance with applicable laws and regulations, including tax obligations in relation with NFT and cryptocurrencies. Please be aware that changes in applicable laws and regulations may impact the Services and your rights and obligations regarding your Pudgy Penguins NFT.
8 WARRANTY AND LIABILITY
It is expressly agreed that Pudgy Penguins obligations under these Terms are obligations of means. TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, THE USER EXPRESSLY ACKNOWLEDGES THAT THE PUDGY PENGUINS WEBSITE, SERVICES, INCLUDING PUDGY PENGUINS NFT, ARE PROVIDED BY PUDGY PENGUINS “AS IS”. OTHER THAN AS PROVIDED IN THESE TERMS AND TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, PUDGY PENGUINS MAKES NO OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, AND HEREBY DISCLAIMS ALL IMPLIED WARRANTIES.
Pudgy Penguins makes no warranties whatsoever, regarding the Pudgy Penguins Website, the Services, and any transaction involving, in whole or in part, Pudgy Penguins NFT and/or cryptocurrencies, including, but not limited to, with regard to any risk associated with Pudgy Penguins NFT, such as, risk of failure to transfer the NFT to the User due to an error, such as forgotten passwords, mistyped addresses or incorrectly constructed transactions, mining attacks, cybersecurity attacks, blockchain malfunctions or other technical errors, telecommunications failure, unfavorable regulatory determinations or actions in one or more jurisdictions (including with respect to NFTs and/or cryptocurrencies), taxation of NFTs or cryptocurrencies, personal information disclosure, uninsured losses, unanticipated risks, volatility risks, server failure or data loss, corrupted or otherwise inaccessible digital wallets, unauthorized access, inability to access, transfer or display the NFT, risks arising from third-party providers, including third-party providers that may mint and/or store the NFT, and any damages arising from any unauthorized third-party activities, including without limitation the introduction of viruses or other malicious code, phishing attacks, sybil attacks, fifty-one percent (51%) attacks, brute forcing changes to the protocol rules of the blockchain (i.e., “forks”), or other means of attack that may affect, in any way, the NFT.
Pudgy Penguins does not warrant that the User’s access and use of the Pudgy Penguins Website and the Services will be uninterrupted, timely and free from errors, malfunctions, viruses and malicious codes of any kind whatsoever. No information provided on the Pudgy Penguins Website is ever guaranteed in any way whatsoever.
The User expressly acknowledges and accepts that electronic communications may not be free from interferences with third parties. Pudgy Penguins shall in no event be liable for any damages, losses, costs, expenses and loss of profit, of whatever nature and kind, resulting from or arising out of such interference with third parties through the Internet network.
The User shall indemnify, defend and hold Pudgy Penguins, and its member, directors, officers, employees, and agents (collectively, "The Pudgy Penguins Claimants") harmless from and against any and all claims, liabilities, judgments, awards, losses, damages, costs and expenses (including, but not limited to, reasonable attorneys' fees), arising out from (i) any breach by the User, or any of its respective employees or agents if any, of this Terms or of any warranty, representation, covenant or obligation contained herein; (ii) any infringement or alleged infringement on the part of The Pudgy Penguins Claimants in connection with any and all use of the Pudgy Penguins Website, Services and/or Pudgy Penguins NFT by the User.
8.3 Limitation of liability
TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PUDGY PENGUINS BE LIABLE FOR ANY INDIRECT DAMAGES CAUSED TO A USER IN RELATION TO ACCESS AND/OR USE OF THE PUDGY PENGUINS WEBSITE AND/OR THE SERVICES.
9.1 Breach of Terms
If the User’s utilization of the Pudgy Penguins Website is deemed in breach of the Terms, Pudgy Penguins reserves the right to limit, suspend or terminate, temporarily or permanently, as of right, without any indemnification, compensation or refund whatsoever being owed and without any prejudice to any legal action that Pudgy Penguins may be entitled to, the User’s access to the Pudgy Penguins Website and/or the Services available to the User. Pudgy Penguins shall inform the User of its decision to suspend or limit the User’s rights and may, at its discretion, decide to restore the User’s rights.
9.2 Third party content
The Pudgy Penguins Website may display hypertext links redirecting the User to third party websites and/or applications. Pudgy Penguins shall not be held liable, in any way whatsoever, in respect of any hypertext links to third parties that may be accessible on the Pudgy Penguins Website. In this respect, please note that Pudgy Penguins neither has any control over the content published by such third parties nor monitors such content. As a result, Pudgy Penguins shall in no event be held liable in respect of any content published by third parties whatsoever. The User is hereby invited to duly read the terms and conditions governing third-party websites and applications that the User may access by clicking on hypertext links displayed on the Pudgy Penguins Website and related website pages.
In the event that any content posted on the Pudgy Penguins Website does not comply with these Terms and/or infringes applicable legal and regulatory provisions, in particular because it constitutes manifestly unlawful content (e.g., defamatory, denigrating or infringing on the User's intellectual property rights), any User may report such infringement by contacting Pudgy Penguins in accordance with Article 12.
Pudgy Penguins may transfer all or part of its rights and obligations under these Terms to any entity, affiliate, subsidiary or third-party, including, but not limited to, in case of merger, division, partial asset transfer or full or partial business disposal. The User shall not transfer all or part of its obligations under these Terms, in any way whatsoever, without the express prior written agreement of Pudgy Penguins.
In the event any one or more of the provisions of these Terms are unenforceable, it shall be stricken from the applicable document, but the remainder of the Terms shall remain in force. The provisions declared unenforceable shall be replaced by the provisions that are closest in meaning and scope to the initial provisions.
9.5 Electronic communication
In accordance with applicable law, the User acknowledges and agrees that information exchanged between the User and Pudgy Penguins in electronic format (including via email) shall be deemed valid means of communication., notice and proof, equivalent to information in paper format.
10 APPLICABLE LAW
The validity of these Terms and any of its terms and provisions, as well as the rights and duties of the Parties hereunder, shall be governed, interpreted and enforced in accordance with the federal law of the United States and the law of the State of Delaware.
In the event of a dispute arising between the parties regarding the interpretation, execution or termination of these Terms, the parties shall endeavor to resolve such issue through amicable means. Notwithstanding anything to the contrary provided herein, the state or federal court of appropriate jurisdiction located in Kent County, Delaware shall be the venue for any formal disputes between User and Pudgy Penguins.
11 CONTACT INFORMATION
Please contact us by e-mail at [email protected] or by mail using the details provided below:
16192 Coastal Highway, Lewes, Delaware 19958 USA
12 DIGITAL MILLENNIUM COPYRIGHT ACT
Notice. We respect the intellectual property rights of others and we ask you to do the same. If you are a copyright owner or an agent of a copyright owner and believe that any content on the Services infringes upon your copyrights (other than content that was previously uploaded by you to Pudgy Penguins and as to which the User-to-User Complaint Process applies as described below), you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by contacting our Copyright Agent at [email protected] or to the address provided in Article 12, attention DMCA Agent. If a copyright owner is under the age of 13, a DMCA notice must be submitted by a parent or other representative of the rightsholder, rather than directly by an under-13 user. You acknowledge that if you fail to comply with all of the requirements of this Section 5(A), your DMCA notice may not be valid. You must provide the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
- A description of the copyright-protected work or other intellectual property right that you claim has been infringed;
- A description of the material that you claim is infringing and where it is located;
- Your address, telephone number, and email address;
- A statement by you that you have a good faith belief that the use of those materials is not authorized by the copyright owner, its agent, or the law; and
- A statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Counter-Notice. Regarding any content that was removed or disabled, if you believe that your content is not infringing or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the material in your content, you may send a counter-notice to our Copyright Agent. Any counter-notice submitted on behalf of an under-13 User must be submitted by a parent or other adult representative. When our Copyright Agent receives a counter-notice, we may send a copy of the counter-notice to the original complaining party informing that party that we may, in 10 business days, replace the removed content or stop disabling it. Unless the copyright owner files an action seeking a court order against the provider of the content, the removed content may be replaced or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, in Pudgy Penguins’ sole discretion.
Repeat Infringer Policy. Pudgy Penguins’ intellectual property policy is to: (i) remove or disable access to material that Pudgy Penguins knows to be infringing the intellectual property rights of third parties or that has been identified in a valid DMCA notice submitted by an intellectual property rights owner or his or her agent; and (ii) in appropriate circumstances, to terminate the account of and block access to the Pudgy Penguins Website and Services by any User who repeatedly or egregiously infringes other people’s copyrights or other intellectual property rights.
Trademark Infringement Our policies prohibit a User from providing user-generated content that infringes trademarks. If a User provides content that infringes trademarks, the User’s content can be blocked or removed.
If you are a trademark owner that believes your trademark is being infringed, please note that we are not in a position to mediate disputes between users and the holders of trademark rights. That being said, we take your rights seriously. So, we will look into and try to resolve any allegations of trademark infringement. Therefore, if you feel that your trademark rights are being infringed, contact our Trademark Agent at [email protected] or at the address provided in Article 12, attention Trademark Agent. When you contact us, please provide the following information in writing:
- An electronic or physical signature of the person authorized to act on behalf of the owner of the trademark;
- A description of the trademark right that you claim has been infringed;
- A description of the material that you claim is infringing and where it is located;
- Your address, telephone number, and email address;
- A statement by you that you have a good faith belief that the use of those materials is not authorized by the trademark owner, its agent, or the law; and
- A statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the trademark owner or authorized to act on the copyright or intellectual property owner’s behalf.