- 1.1.2. The Agreement, together with any documents they expressly incorporate by reference, govern your access to and use of the website, available at https://www.vicinft.com, as well as any other media form, media channel, mobile website or mobile application related, linked, or otherwise connected thereto (collectively, the “Site”) and the Marketplace Offerings (as defined below in Section 1.1.3).
- 1.1.3. The Site provides an online marketplace for goods, products, and/or services, including but not limited to:
- tools and services that use blockchain applications, digital assets, smart contracts, digital wallets, and other software, websites, applications, APIs, webtools, third-party tools, forums, ventures, features, or functionalities provided in connection with our minting, purchasing, selling, curating, or transferring of digital assets, including non-fungible tokens (“NFTs”);
- blockchain-based utility tokens, specifically ViciCoin (the “Utility Token”), that product owners may use to enable specific features of the services, including augmenting NFTs; and
- utilizing and offering other third-party services and blockchain applications, including but not limited to NFT Watch, Slingshot, Catapult, NFT AuthZ (collectively, with the NFTs and Utility Tokens, the “Marketplace Offerings”).
1.2. Minimum Requirements for Use
- 1.2.1. You expressly represent and warrant that you have the right, authority, and capacity to enter into this Agreement on behalf of yourself and any third-party individual or organization for which you are acting as an authorized agent.
- If you use the Site and/or the Marketplace Offerings on behalf of a company, decentralized autonomous organization (“DAO”), or any other type of entity or unincorporated association or organization, then “you” includes you and that entity, and you represent and warrant that: (i) you are an authorized representative of the entity with the authority to bind the entity to these Terms, (ii) you are authorized by the entity to initiate transactions and interact with the Site and the Marketplace Offerings from Digital Wallet (as defined in Section 2.2.1) on behalf of the entity; and (iii) you agree to these Terms on the entity’s behalf. If you utilize “bots,” “spiders,” “smart contracts,” or other technical instruments or agents to use our Site and/or Marketplace Offerings, then “you” includes you and that technical instrument or agent. Further, you bear all responsibility and liability stemming from the use of such technical instruments.
- The Site is intended for users who are at least 18 years old. Persons under the age of 18 are not permitted to use the Site and/or use the Marketplace Offerings in any capacity.
- 1.3.2. The information provided on the Site and/or the Marketplace Offerings is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Site and/or the Marketplace Offerings from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.
- 1.3.3. In addition to other responsibilities and obligations provided in these Terms, you are solely responsible for evaluating and discharging any applicable legal obligations and requirements that may apply to your voluntary use of the Site and/or the Marketplace Offerings. Without limitation, you are solely responsible for determining what, if any, taxes apply to your transactions and to withhold, collect, report, and remit the correct amounts of taxes to the appropriate tax authorities. The Company is not responsible for determining, withholding, collecting, reporting, or remitting the taxes that apply to your use of the Site, the Marketplace Offerings, or any digital assets, including NFTs or the Utility Tokens. Nothing in these Terms should be construed as legal advice, tax advice, investment advice, or a legal opinion.
- 1.3.6. The following restrictions apply to your use of the Site and/or the Marketplace Offerings:
- You shall not engage in any act that the Company deems to be in conflict with the spirit or intent of the Site and/or the Marketplace Offerings, including but not limited to circumventing or manipulating these Terms;
- You may not use the Site and/or the Marketplace Offerings in connection with any violation of any applicable law or regulation, or do anything that promotes the violation of any applicable law or regulation;
- You shall not use the Site and/or the Marketplace Offerings to engage in any illegal conduct;
- You shall not reproduce, distribute or publicly display any content you access through the Site and/or the Marketplace Offerings unless such content is clearly marked as “public” and you have been given the right to view such content, or except as expressly provided herein; and
- You shall not do anything with any content you access through the Site and/or the Marketplace Offerings that has been marked with restrictions or other instructions that is counter to such restrictions or other instructions.
- 1.3.7. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS, THEN YOU ARE EXPRESSLY PROHIBITED FROM USING THE SITE AND/OR THE MARKETPLACE OFFERINGS AND YOU MUST DISCONTINUE USE IMMEDIATELY.
ACCESSING THE SITE AND MARKETPLACE OFFERINGS
2.1. Account Creation
- 2.1.1. You must register with the Site in order to access the Marketplace Offerings.
- You agree to submit accurate identification and contact information when registering for an account. You must provide us with an email address (“Contact Email”) that we may use to send you legal notices, information about Marketplace Offerings or to seek your consent for certain actions. You agree to regularly check Contact Email and are responsible for all information and requests provided or made via Contact Email. You acknowledge that Company may deliver legal notices or other information to Contact Email and you consent to receiving such legal notices or other information via Contact Email.
- You are responsible for maintaining the confidentiality of your login and password information and we are not responsible for any unauthorized access to your account.
- 2.1.2. We reserve the right to remove, reclaim, or change a username you select if we determine, in our sole discretion, that such username is inappropriate, obscene, or otherwise objectionable.
2.2. Digital Wallet Use and Access
- 2.2.1. To enjoy the full functionality of the Site and the Marketplace Offerings, you may have to connect your third-party Ethereum-compatible digital wallet (the “Digital Wallet”) on a supported bridge extension that is supported by the Site and/or the Marketplace Offerings.
- 2.2.2. By connecting Digital Wallet to the Site, you expressly represent that you are the lawful and rightful owner of Digital Wallet. You may be required to authenticate ownership of Digital Wallet before you can perform transactions through the Site and/or access the Marketplace Offerings by cryptographically verifying, through a third-party bridge extension, your possession of Digital Wallet’s associated passphrase.
- 2.2.3. Digital Wallet transactions are broadcasted to the Ethereum blockchain through the applicable third-party bridge extension, which facilitates transactions on your behalf.
- 2.2.4. By using Digital Wallet in connection with the Site and/or the Marketplace Offerings, you agree that you are using that Digital Wallet lawfully and under the terms and conditions of the applicable third party-wallet provider.
- 2.2.5. Digital Wallet and all assets held therein are your personal property, and not the property of the Company. The Company has no responsibility or technical ability to manage, modify, secure, or perform transactions on behalf of Digital Wallet.
- 2.2.6. You are solely and exclusively responsible for the security and management of Digital Wallet(s). For your safety and the safety of other users of the Site and the Marketplace Offerings, you agree to maintain reasonable security measures over Digital Wallet, make best efforts to avoid potential scams which may compromise the security of Digital Wallet or others’ digital wallet(s), and to preserve the utmost secrecy of Digital Wallet’s private key, passphrase, seedphrase, your account details, passwords, and any other information that you use to access the Digital Wallet. The Company accepts no responsibility for, and disclaims all liability to you, in connection with the security of or your use of Digital Wallet and disclaims any responsibility or obligation to assist or remedy you in the event of a breach of Digital Wallet’s security. You are solely responsible for Digital Wallet. We are not liable for any acts or omissions by you in connection with Digital Wallet being compromised. Further, you agree that you may be liable to the Company, other users, or other third parties for harm or losses arising from acts or omissions by you related to the security of Digital Wallet.
- 2.2.7. The Company does not ever have possession, custody, or control of Digital Wallet(s) or other assets held in Digital Wallet(s), does not have possession of any NFTs and/or Utility Tokens once you become the owner of any such NFTs and/or Utility Tokens pursuant to Section 2.4.5, and does not stand as an intermediary, processor, escrow agent, or direct beneficiary of any transactions conducted by you involving other users of the Site and/or the Marketplace Offerings. The Company is not a party to any agreement or transactions involving you and other users or assets. Your technical, legal, property, and economic interests, relationships, or rights as between you and other users of the Site and/or the Marketplace Offerings are facilitated exclusively by the non-custodial smart contracts comprising the Blockchain Protocol (as defined below in Section 2.3.1), or your own voluntary actions, which the Company does not control. The Company is not a wallet provider, exchange, broker, financial institution, money services business, trust, or creditor.
2.3. The Blockchain Protocol
- 2.3.1. In order to fully support the Site and/or the Marketplace Offerings, the Company may utilize a set of interrelated, non-custodial smart contracts and on-chain registries deployed to the Ethereum blockchain that store information and perform limited functions related to the curation, minting, buying, and selling of digital assets, including NFTs and the Utility Tokens (the “Blockchain Protocol”).
- 2.3.2. Certain smart contracts may be considered “custodial” by virtual of the user having complete custody and ownership of their deployed smart contracts, but there are no smart contracts within the Blockchain Protocol that enable or require the Company to take custody of your assets without your express, on-chain permission.
- 2.3.3. The Company reserves the absolute right to facilitate access to smart contracts outside of the Blockchain Protocol and the Company assumes no duty to facilitate access to, maintain, or otherwise make available for you to use any particular Blockchain Protocol smart contracts.
- 2.3.4. You understand and agree that you are able to make full technical use of the Blockchain Protocol. You acknowledge and agree that you have the opportunity to review, audit, ask questions about, and approve, whether through the Site, the Marketplace Offerings, or through your third party wallet provider, the Blockchain Protocol and every blockchain transaction or message executed by Digital Wallet before executing any transaction. You hereby affirm that you will not approve of any transaction that is inconsistent with your intent.
- 2.3.5. Transactions initiated through the Site and/or involving the Marketplace Offerings that invoke the Blockchain Protocol may be publicly broadcasted by your third-party digital wallet provider and processed, validated, managed, and confirmed entirely the through public Ethereum blockchain.
- 2.3.6. You understand that the digital wallet that you use to in connection with the Site and/or the Marketplace Offerings, including obtaining or purchasing NFTs or Utility Tokens, interact with the Blockchain Protocol, and all transaction details associated with such digital wallet activity may become public information.
- 2.3.7. The Ethereum blockchain requires the payment of a transaction fee (a “Gas Fee”) for transactions executed by the Blockchain Protocol. The value of the Gas Fee changes, often unpredictably, and is entirely outside of the Company’s control. You acknowledge that under no circumstances will a contract, agreement, offer, sale, bid, or other transaction involving the Blockchain Protocol be invalidated, revocable, reversible, or otherwise unenforceable on the basis that the Gas Fee for the given transaction was unknown, too high, or otherwise unacceptable.
- 2.3.8.You agree and understand that all fees, commissions, assets, Marketplace Offerings, including NFTs and Utility Tokens, transferred by or received by you are processed and settled exclusively by the Blockchain Protocol – not the Company. By invoking or interacting with the Blockchain Protocol, you agree and irrevocably consent to the automated processing and settlement of fees, commissions, royalties, NFT transfers, Utility Token transfers, and other transactions or functionalities enabled by the Blockchain Protocols.
- 2.3.9.You expressly delegate to the smart contracts that you interact with through the Site and/or Marketplace Offerings the fullest necessary legal and technical authority to process, settle, and execute all functions and transactions initiated by you or Digital Wallet. You hereby consent to and agree to be irreversibly bound by the outcome of any transaction, smart contract operation or function, or blockchain state change initiated by or caused Digital Wallet.
- 2.3.10.The Company does not control the Ethereum blockchain or any other public blockchain. The Company has no ability to reverse any transactions previously settled by the Ethereum blockchain.
- 2.3.11.The Site and the Marketplace Offerings enable you to voluntarily interact with experimental technologies, including blockchain, distributed ledgers, NFTs, fungible tokens, cryptocurrencies, stablecoins, the Blockchain Protocol, consensus algorithms, voting systems and distributed, decentralized or peer-to-peer networks or systems. You acknowledge and agree that such technologies are novel, experimental, and speculative, and that therefore there is significant uncertainty regarding the operation, effects, and risks thereof, including uncertainty regarding the application of existing law to activities related to digital assets, cryptocurrencies, blockchains, or NFTs. The Company may not be able to anticipate, control or influence the occurrence or outcome of “forks,” and does not assume any risk, liability, or obligation in connection therewith. Without limiting the generality of the foregoing, the Company does not assume any responsibility to notify you of pending, threatened, or completed forks. The Company will determine its response(s) to such forks in its sole and absolute discretion, without any duty or obligation or liability to you for such response (or lack of such response). You assume full responsibility to independently remain apprised of and informed about possible forks, and to manage your own interests in connection therewith. To the maximum extent permitted by applicable law, the Company disclaims any and all liability related to the foregoing experimental technologies. Notwithstanding the foregoing, the Company reserves the right to execute smart contract transactions as a collector, curator, creator, or otherwise as an ordinary network participant.
- 2.3.12.The Site and Marketplace Offerings depend on public peer-to-peer networks and consensus machines, such as the Blockchain Protocol, that may not be under the direct or indirect control influence of the Company and are subject to many risks, uncertainties, and unknown security vulnerabilities. The Site, Marketplace Offerings, or your digital assets, including any NFTs or Utility Tokens, may be the target of third-party attacks, including but not limited to phishing, Sybil attacks, bruteforcing, inactive listing exploits, impersonations, or the use of viruses (“Third-Party Attacks”). The Company will not be responsible or liable, directly or indirectly, for any actual or alleged loss or damage sustained by you in connection with Third-Party Attacks. Blockchain technologies and digital assets are subject to many legal and regulatory uncertainties that could adversely impact the Site and the Marketplace Offerings, which could impede or limit your ability to continue the use and enjoyment of the Site and the Marketplace Offerings or related assets and technologies. Users acknowledge and agree that the Blockchain Control may be subject to bugs, malfunctions, errors, vulnerabilities, or changes to the protocol rules of the Ethereum blockchain (i.e., “forks”), which can adversely affect the smart contracts and may expose you to a risk of total loss, forfeiture of your digital assets, including any currency, Utility Tokens, or NFTs, or lost opportunities to use, buy, and/or sell any NFTs, Utility Tokens, or other Marketplace Offerings. The Company does not guarantee, and is not responsible for, your ability to exercise your rights with respect to digital assets held in Digital Wallet or with respect to your use or enjoyment of the Site and/or the Marketplace Offerings.
2.4. Marketplace Offerings – Sale of NFTs and Utility Tokens
- 2.4.1. The Site comprises a peer-to-peer marketplace that enables you to buy, make offers on, and/or transfer NFTs and/or Utility Tokens created by the Company in collaboration with third-parties.
- 2.4.2. The Company is not a party to any agreement or transactions between you, and makes no representations or warranties about, the content, services, goods or promises made by third-parties or other users of the Site, Marketplace Offerings, or the Blockchain Protocol.
- 2.4.3. The Company reserves the right to determine pricing for the Marketplace Offerings, including NFTs and Utility Tokens. The Company will make reasonable efforts to keep pricing information published on the Site up to date. We encourage you to check our website periodically for current pricing information. The Company, at its sole discretion, may make promotional offers with different features and different pricing to any of the Company’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
- 2.4.4. Payment Terms.
- Marketplace transactions involving Digital Wallet and/or NFT(s) and/or Utility Tokens may be subject to commissions, fees, royalties and other charges including (collectively, the “Fees”), but not limited to:
a. Any fees that are listed on the Site and/or the Marketplace Offerings; and
b. Gas Fees, as defined in Section 2.3.7, paid through Digital Wallet as consideration for validating your transactions. The value of the Gas Fee changes, often unpredictably, and is entirely outside of the control of the Company.
- Before you pay any Fees, you agree that you have had an opportunity to review and accept the Fees that you will be charged, either through the Site or through your third-party digital wallet provider.
- All Fees are non-refundable, subject to the Company’s sole and exclusive discretion. The Company assumes no obligation or duty to provide notice in advance of changes to Fees.
- The Company may accept multiple methods of payment including, but not limited to, credit cards, debit cards, and/or cryptocurrencies, subject to its sole discretion. You agree to provide current, complete, and accurate purchase and account information for all purchases of the Marketplace Offerings made via the Site. You further agree to promptly update account and payment information, including email address, payment method, and payment card expiration date, so that we can complete your transactions and contact you as needed. Sales tax will be added to the price of purchases as deemed required by us. We may change prices at any time. All payments shall be in U.S. dollars.
- You agree to pay all charges at the prices then in effect for your purchases and any applicable shipping fees, and you authorize us to charge your chosen payment provider for any such amounts upon placing your order. We reserve the right to correct any errors or mistakes in pricing, even if we have already requested or received payment.
- We reserve the right to refuse any order placed through the Site and/or the Marketplace Offerings. We may, in our sole discretion, limit or cancel quantities purchased per person, per household, or per order. These restrictions may include orders placed by or under the same customer account, the same payment method, and/or orders that use the same billing or shipping address. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers, or distributors.
- 2.4.5. Ownership of NFTs and Utility Tokens.
- Subject to any additional restrictions set forth by the Company, including but not limited to the use restrictions set forth herein, you are the owner of any NFTs and Utility Tokens, only if:
a. Digital Wallet lawfully obtained the NFTs and/or Utility Tokens;
b. Digital Wallet has actual possession, custody, and control of the NFTs and/or Utility Tokens; and
c. the Ethereum blockchain identifies your digital wallet as the owner of the NFTs and/or Utility Tokens.
- If you own a NFT and/or Utility Token, then you own the cryptographic token as your personal property, but you do not have any right, title, or interest in any underlying Intellectual Property, as defined in Section 5.1.1, or other content referenced by the NFTs and/or Utility Tokens (collectively, the “Digital Asset Content”) other than the limited license rights granted to you as provided herein. For the avoidance of doubt, the Company and any applicable third-parties reserve all exclusive rights to their respective Digital Asset Content, which includes at least the Company and such third parties’ copyright and trademark rights in the media content and metadata information referenced by the NFTs and/or Utility Tokens.
- 2.4.6. Limited License of NFTs and Utility Tokens.
- So long as you remain the current, lawful owner of a NFT and/or Utility Token, you have a non-exclusive, limited, fully paid up, perpetual, irrevocable (excepted as provided herein), and non-commercial license (the “License”) to:
a. display, distribute, reproduce, and copy the Digital Asset Content solely for the personal, non-commercial purposes; and
b. to display the Digital Asset Content, and to perform the Digital Asset Content in the case of audiovisual works, privately or publicly:
i. for the limited purpose of promoting or sharing your ownership of the associated NFT and/or Utility Token;
ii. for non-commercial cultural and educational purposes, so long as attribution is provided to the Company or the applicable third-parties;
iii. within virtual environments, including simultaneous display within a reasonable number of virtual environments; and
iv. as your profile picture on social media applications.
- For the avoidance of doubt, in order to use the Digital Asset Content for any commercial purpose or purpose outside of the scope of the License, you must first:
a. obtain consent from the Company; and
b. secure additional permissions as necessary and may be required in connection with such use.
- The Company (and other Intellectual Property owners of the Digital Asset Content, if any) are under no obligation to grant or negotiate or offer any additional licenses.
- Lawful ownership, title, possession, and control of a NFT and/or Utility Token, as governed by the records of ownership maintained by the Ethereum blockchain (or other record of ownership designated by the Company), is a necessary and sufficient condition precedent to owning the limited License to the associated Digital Asset Content provided by these Terms.
- Any subsequent transfer, dispossession, burning, or another relinquishment of a NFTs and/or Utility Token, whether voluntary or involuntary, will immediately terminate all of the former owner’s rights and interests in the License.
- The License is not assignable.
- The owner may not sublicense any of its rights or interests under the License, except that the owner may make a limited sublicense of its personal display rights in the associated Digital Asset Content to the lawful operators of third-party services, the user interfaces of software applications, digital asset marketplaces, virtual museums or virtual galleries, or physical museums or physical galleries (but only if such museums or galleries actually possess or hold in escrow the digital asset representing a display sublicense) (“Sublicensees”), in each case, for the limited purposes of displaying the Digital Asset Content to the public for educational, non-commercial or cultural purposes without any compensation being paid to the owners or Sublicensees.
- 2.4.7. Third-Party Terms.
- Third-parties (“Utility Benefit Providers”) may promise, impose, or require additional terms, services, obligations, and restrictions that accompany the purchase or ownership of any NFTs and/or Utility Tokens, made available on the Site and/or through the Marketplace Offerings (“Third Party Terms”), but only to the extent consistent with this Agreement, compliant with applicable laws, and communicated appropriately to all buyers.
- Certain Marketplace Offerings may provide or purport to provide benefits, rights, or other goods and/or services in addition to NFTs and/or Utility Tokens (“Utility Benefits”). All Utility Benefits are provided by Utility Benefit Providers and are not provided by Company. Company makes no representations or warranties regarding your rights to obtain Utility Benefits, the value of Utility Benefits or the specific Utility Benefits being provided.
- Third Party Terms and Utility Benefits are solely between you and any Utility Benefit Providers . The Company is not a party to any such Third Party Terms and/or Utility Benefits, makes no representations or endorsements related to the Third Party Terms and/or Utility Benefits, and assumes no responsibilities or obligations with respect to Third Party Terms and/or Utility Benefits.
- You and any such third-party are entirely responsible for communicating, promulgating, agreeing to, and enforcing Third Party Terms and/or Utility Benefits. You are responsible for fulfilling any promises you communicate and are personally liable for all contractual obligations, duties, disputes, breaches of warranty or title claims, misrepresentation claims, or violations of law associated any promises you make to other users in connection with your use of the Site and/or Marketplace Offerings.
- Buyers of NFTs and/or Utility Tokens associated with any promises, Third-Party Terms, and/or Utility Benefits assume the risk that they will never receive any communicated or promised services, goods, or benefits.
- 2.4.8. You approve and authorize the Blockchain Protocol smart contracts to perform limited functions effectuating ownership rights, legal contractual relationships, and limited contractual agreements between you, other users, third-parties, and the Company. By performing transactions invoking the Blockchain Protocol through the Site and/or the Marketplace Offerings (including but not limited to, buying, placing bids, making offers, transferring, minting and any other type of transaction involving Digital Wallet), you represent that you have sufficient knowledge and authority to perform such transactions and agree to be completely and irrevocably bound by the transaction outcome or any other outcome conceivably possible by the technical operation of the Blockchain Protocol.
- 2.4.9. You agree that you will not sell, transfer, or trade any NFTs and/or Utility Tokens, except as authorized or requested by the Company, through or outside of the Site.
- The Blockchain Protocol does not generally process, collect, or distribute any fees, commissions, or royalties for:
a. any transactions initiated not involving the Site and/or Marketplace Offerings;
b. any transactions initiated outside of the Site;
c. private transactions involving manual settlement between buyers and sellers; or
d. transactions that do not involve the Blockchain Protocol (collectively, “Off Market Transactions”).
- You irrevocably release, acquit, and forever discharge the Company and its subsidiaries, affiliates, officers, and successors of any liability from any Off-Market Transaction or otherwise by operation or omission of the Blockchain Protocol.
- The Company reserves the right to restrict your access to the Site and/or Marketplace Offerings, or invoke any other termination rights in these Terms, on the condition that you compensate the Company or any third parties, the amount that would have been received from Off-Market Transactions had they been performed through the Site by operation of the Blockchain Protocol
- 2.4.10. We make every effort to display as accurately as possible the colors, features, specifications, and details of the Marketplace Offerings, including any NFTs and/or Utility Tokens, available on the Site. However, we do not guarantee that the colors, features, specifications, and details of the Marketplace Offerings will be accurate, complete, reliable, current, or free of other errors, and your electronic display may not accurately reflect the actual colors and details of the products. All Marketplace Offerings are subject to availability, and we cannot guarantee that Marketplace Offerings will be in stock. Certain Marketplace Offerings may be available exclusively online through the Site and have limited quantities.
- 2.4.11. We reserve the right to limit the quantities of the Marketplace Offerings offered or available on the Site. All descriptions or pricing of the Marketplace Offerings are subject to change at any time without notice, at our sole discretion. We reserve the right to discontinue any Marketplace Offerings at any time for any reason. We do not warrant that the quality of any of the Marketplace Offerings purchased by you will meet your expectations or that any errors in the Site will be corrected.
- 2.4.12. Information provided by the Company through the Site and/or the Marketplace Offerings may be deleted from the Site and/or the Marketplace Offerings after a set time period and you may not be able to view such information after deletion.
- 2.4.13. You understand that the Site and/or the Marketplace Offerings undergo frequent changes. The Company may require that you accept updates to the Site and/or the Marketplace Offerings in order to continue using the Site and/or the Marketplace Offerings. You acknowledge and agree that the Company may update the Site and/or the Marketplace Offerings without notifying you.
LIMITATIONS AND PROHIBITIONS
3.1. General Effects of Violations. Any use of the Site and/or the Marketplace Offerings in violation of these Terms is strictly prohibited, can result in the immediate revocation of your limited License granted by Section 2.4.6, and may subject you to liability for violations of law.
3.2. Activity Prohibitions. You agree that you will not, under any circumstances do or assist in any of the following activities:
- 3.2.1. modify or cause to be modified any files or content that are used to maintain the Site and/or the Marketplace Offerings, without the express prior written consent of the Company;
- 3.2.2. disrupt, overburden, or aid or assist in the disruption or overburdening of (1) any computer or server used to offer or support the Service (each, a “Server”) or (2) the use or enjoyment of the Site and/or the Marketplace Offerings by any other person;
- 3.2.3. institute, assist or become involved in any type of attack, including without limitation distribution of a virus, denial of Site and/or Marketplace Offerings attacks upon the Site and/or Marketplace Offerings, or other attempts to disrupt the Site and/or Marketplace Offerings or any other person’s use or enjoyment of the Site and/or Marketplace Offerings;
- 3.2.4. gain, or attempt to gain, unauthorized access to the Marketplace Offerings and/or the Site and/or the Servers or networks used to support the Site and/or the Marketplace Offerings (including, but not limited to, circumventing or modifying, or encouraging or assisting any other person to circumvent or modify, any security, technology, device or software that is part of the Site and/or the Marketplace Offerings);
- 3.2.5. harass, abuse, harm, bully, intimidate or advocate, threaten or incite harassment, bullying, intimidation, abuse or harm of another person or group of persons, including the Company employees or customer representatives;
- 3.2.6. interfere or attempt to interfere with the proper functioning of the Site and/or the Marketplace Offerings or connect to or use the Site and/or the Marketplace Services in any way not expressly permitted by these Terms;
- 3.2.7. intercept, examine or otherwise observe any proprietary communications protocol used by a Server, the Marketplace Offerings and/or the Site, whether through the use of a network analyzer, packet sniffer or other device;
- 3.2.8. make any automated use of the Site and/or the Marketplace Offerings or take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure, as we determine in our sole discretion;
- 3.2.9. bypass any robot exclusion headers or other measures we take to restrict access to the Marketplace Offerings and/or Site or use any software, technology or device to send content or messages, scrape, spider or crawl the Marketplace Offerings and/or Site, or harvest or manipulate data from, through, or relating to the Marketplace Offerings and/or Site;
- 3.2.10. use, facilitate, create or maintain any unauthorized connection to the Marketplace Offerings and/or Site, including without limitation (1) any connection to any unauthorized server that emulates, or attempts to emulate, any part of the Marketplace Offerings and/or the Site or (2) any connection using programs, tools or software not expressly approved in writing by the Company;
- 3.2.11. engage in any behavior, whether on or off of the Site and/or the Marketplace Offerings, with the intent to artificially devalue, inflate, or otherwise deceptively influence, misrepresent, or cause to be misrepresented the actual or apparent price or value of the Company’s NFTs and/or Utility Tokens;
- 3.2.12. engage in any deceptive conduct that may prevent competitive or fair bidding, artificially inflate or deflate the price of a NFT and/or Utility Token, simulate demand for a NFT and/or Utility Token, or any other anti-competitive, deceptive, or unfair behavior such as, but not limited to, “wash trading,” “rug pulling,” “front running,” “puffing,” “chill bidding,” “shill bidding,” “sham bidding,” or “sock puppet bidding;
- 3.2.13. utilize the Site and/or the Marketplace Offerings, including purchasing a NFT and/or Utility Token, or engaging in any other type of behavior for the purpose of concealing economic activity, laundering money, tax evasion, financing terrorism, concealing or transferring proceeds or assets relating to criminal activity, treating a NFT and/or Utility Token as a substitute for value or currency, or obtaining a NFT and/or Utility Token for any reason other than to obtain the NFT and/or Utility Token;
- 3.2.14. knowingly sell or transfer any NFT and/or Utility Token, or use any such NFT and/or Utility Token in a manner, that does or may infringe any copyright, trademark, patent, trade secret, or other intellectual property right of a third party, or sell or transfer any such NFT and/or Utility Token that you know is subject to a dispute or investigation;
- 3.2.15. use the Site and/or the Marketplace Offerings to create, mint, promote, sell, or buy NFTs and/or Utility Tokens or other items that give you or third-parties rights to participate in an initial coin offering (“ICO”) or any securities offering, or that are redeemable for securities, commodities, or other financial instruments;
- 3.2.16. market or promote any Marketplace Offerings, including NFTs and/or Utility Tokens, as investment products, securities, assets intended solely for resale, or otherwise in any manner that would suggest that any such Marketplace Offerings will appreciate in value; and
- 3.2.17. upload or transmit (or attempt to upload or to transmit), without Company’s express written permission, any material that acts as a passive or active information collection or transmission mechanism, including, without limitation clear graphics interchange formats (“gifs”), 1x1 pixels, web bugs, cookies or other similar devices (sometimes referred to as “spyware,” “passive collection mechanisms” or “pcms”).
3.3. Suspension and Termination:
- 3.3.1. WITHOUT LIMITING ANY OTHER REMEDIES, WE MAY, WITH OR WITHOUT NOTICE TO YOU, LIMIT, SUSPEND, TERMINATE, MODIFY YOUR ACCESS TO THE SITE AND/OR THE MARKETPLACE OFFERINGS OR PORTIONS THEREOF IF, IN OUR SOLE DISCRETION, YOU FAIL TO COMPLY WITH ANY OF THESE TERMS, YOUR RIGHTS TO USE THE SITE AND/OR THE MARKETPLACE OFFERINGS ARE EXPIRED OR BECOME TERMINATED OR YOUR USE OF THE SITE AND/OR THE MARKETPLACE OFFERINGS IS RELATED TO ACTUAL OR SUSPECTED ILLEGAL ACTIVITY OR IMPROPER USE OF THE SITE AND/OR THE MARKETPLACE OFFERINGS. THE COMPANY SHALL BE UNDER NO OBLIGATION TO COMPENSATE YOU FOR ANY LOSSES OR ADVERSE RESULTS THAT ARE DUE TO THE SUSPENSION, TERMINATION, MODIFICATION OF YOUR ACCESS TO THE SITE AND/OR THE MARKETPLACE OFFERINGS. IF WE TERMINATE OR SUSPEND YOUR ACCOUNT FOR ANY REASON, YOU ARE PROHIBITED FROM REGISTERING AND CREATING A NEW ACCOUNT UNDER YOUR NAME, A FAKE OR BORROWED NAME, OR THE NAME OF ANY THIRD PARTY, EVEN IF YOU MAY BE ACTING ON BEHALF OF THE THIRD PARTY. IN ADDITION TO TERMINATING OR SUSPENDING YOUR ACCOUNT, WE RESERVE THE RIGHT TO TAKE APPROPRIATE LEGAL ACTION, INCLUDING WITHOUT LIMITATION PURSUING CIVIL, CRIMINAL, AND INJUNCTIVE REDRESS.
- 3.3.2. WITHOUT LIMITING ANY OTHER REMEDIES, WE MAY LIMIT, SUSPEND OR TERMINATE ACCESS TO THE SITE AND/OR THE MARKETPLACE OFFERINGS OR PORTIONS THEREOF AND TAKE TECHNICAL AND LEGAL STEPS TO PREVENT USERS FROM ACCESSING THE SITE AND/OR THE MARKETPLACE OFFERING IF WE BELIEVE THAT SUCH USERS ARE CREATING RISK OR POSSIBLE LEGAL LIABILITIES, INFRINGING THE COMPANY’S INTELLECTUAL PROPERTY RIGHTS OR THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES OR ACTING INCONSISTENTLY WITH THE LETTER OR SPIRIT OF OUR TERMS OR POLICIES.
- 3.3.3. The Company reserves the right to stop enabling use of the Site and/or the Marketplace Services or part of the Site and/or the Marketplace Services at any time if the Company believes that the continued use of the Site and/or the Marketplace Services or part of the Site and/or the Marketplace Services will or may cause harm to Company or you or may result in any violation of applicable law by either Company or you. If the Company elects to stop enabling or supporting the Site and/or the Marketplace Services or part of the Site and/or the Marketplace Services, the License and other rights granted hereunder to you to use the Site and/or the Marketplace Services or a part thereof will automatically terminate.
Third party advertising and notices
4.2. Third Party Notices. We may be required to provide you with certain notices and content in connection with your use of the Site and/or the Marketplace Offerings. You agree that we may provide you with such notices and content by either emailing you such notices to the email address that we have on file for you or by providing you with a link to a website where such notices and content will be posted.
4.3. Links to Third Party Sites and Dealings with Advertisers. The Company may provide links on the Site and/or the Marketplace Offerings to third party applications or vendors who may invite you to participate in a promotional offer in return for receiving a benefit. Any charges or obligations you incur in your dealings with these third parties are your responsibility. The Company makes no representation or warranty regarding any content, goods, or applications provided by any third party even if linked from our Site and/or the Marketplace Offerings, and we will not be liable for any claim relating to any third party content, goods, or applications. The linked sites are not under the control of the Company and may collect data or solicit personal information from you. The Company is not responsible for their content, business practices or privacy policies, or for the collection, use or disclosure of any information those sites may collect. Further, the inclusion of any link does not imply endorsement by the Company of these linked sites.
INTELLECTUAL PROPERTY RIGHTS
5.1.1. Unless otherwise indicated, the Site and the Marketplace Offerings, including NFTs, Utility Tokens, and any Digital Asset Content, are our proprietary property and all related components and contents (including without limitation, source code, computer code, template content, pre-populated content, concepts, artworks, animations, sounds, musical compositions, audio-visual effects and text, databases, functionality, software, website designs, audio, video, text, photographs, and graphics, trademarks, service marks, and logos contained therein), are owned or controlled by us or licensed to us, and all of which is protected by United States and international patent, copyright, trademark, trade secret, and other intellectual property laws (collectively, the “Intellectual Property”).
5.1.2. For the avoidance of doubt, all intellectual property rights in and to the Digital Asset Content, not expressly granted herein, including at least copyrights, trademarks, and rights of publicity are expressly reserved by the Company and/or any third parties, as applicable. Without limitation, except as expressly provided in herein you may not, nor solicit or cause any third party to, attempt or do any of the foregoing without the Company’s prior consent in each case:
- modify, distort, mutilate, create derivative works, or perform any modification to the Digital Asset Content;
- use the Digital Asset Content to advertise, market, or sell any product or service;
- use the Digital Asset Content in connection with images, videos, or other forms of media that depict hatred, intolerance, violence, cruelty, or anything else that could reasonably be found to constitute hate speech or otherwise infringe upon the rights of others;
- sell, distribute for commercial gain, or otherwise commercialize merchandise that includes, contains, or consists of the Digital Asset Content;
- attempt to trademark, copyright, or otherwise attempt to acquire, register, or claim rights in or to the Digital Asset Content;
- attempt to mint, tokenize, or create additional cryptographic token(s) representing, referencing, or associated with the same digital asset in any manner that creates confusion as to the source, authorship, or authenticity of the original Digital Asset Content;
- falsify, misrepresent, or conceal the authorship of the Digital Asset Content;
- otherwise utilize the Digital Asset Content for your or any third party’s commercial benefit;
- use the Digital Asset Content without an attribution to the Company and/or any third parties who created such Digital Asset Content, as applicable; or
- use the Digital Asset Content in violation of any additional restrictions imposed by this Agreement.
5.1.3. Except as expressly provided in these Terms:
- Any Intellectual Property is provided on the Site “AS IS”; and
- no part of the Site, the Marketplace Offerings, or the Intellectual Property may be copied, reproduced, aggregated, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, sold, licensed, or otherwise exploited for any commercial purpose whatsoever, without our express prior written permission.
5.1.4. We reserve all rights not expressly granted to you in and to the Site, the Marketplace Offerings, and the Intellectual Property.
6.1. Respect of Third Party Rights. The Company respects the intellectual property rights of others, takes the protection of intellectual property rights very seriously, and asks users of the Site and/or the Marketplace Offerings to do the same. Infringing activity will not be tolerated on or through the Site and/or the Marketplace Offerings.
6.2. DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. § 512, as amended). If you have an intellectual property rights-related complaint about any material on the Site and/or the Marketplace Offerings, you may contact our designated agent (“Designated Agent”) at the following address:
- COPYRIGHT AGENT FOR COMPANY
55 Main Street
Tiburon, CA 94920
Phone: (+1) 415-226-9998
6.3. Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a written Notification of Claimed Infringement to the Designated Agent identified above containing the following information (the “Notification of Claimed Infringement”):
- 6.3.1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
- 6.3.2. a description of the copyrighted work or other intellectual property right that you claim has been infringed;
- 6.3.3. a description of the material that you claim is infringing and where it is located on the Site and/or Marketplace Offering, including a URL representing a link to the material on the Site;
- 6.3.4. your address, telephone number, and email address
- 6.3.5. a statement by you that you have a good faith belief that the use of the materials on the Site and/or the Marketplace Offerings of which you are complaining is not authorized by the copyright or other intellectual property right owner, its agent, or the law;
- 6.3.6. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or other intellectual property right owner or authorized to act on the copyright or intellectual property owner’s behalf.
6.4. Sharing of Notification of Claimed Infringement: Your Notification of Claimed Infringement may be shared by the Company with the user alleged to have infringed a right you own or control as well as with the operators of publicly available databases that track notifications of claimed infringement, and you consent to the Company making such disclosures. You should consult with your own lawyer or see 17 U.S.C. § 512 to confirm your obligations to provide a valid Notice of Claimed Infringement.
6.5. Repeat Infringers. The Company’s policy is to: (a) remove or disable access to material that the Company believes in good faith, upon notice from an intellectual property rights owner or authorized agent, is infringing the intellectual property rights of a third party by being made available through the Site and/or the Marketplace offerings; and (b) in appropriate circumstances, to terminate the accounts of and block access to the Site and/or the Marketplace Offerings by any user who repeatedly or egregiously infringes other people’s copyright or other intellectual property rights. The Company will terminate the accounts of users that are determined by the Company to be repeat infringers. The Company reserves the right, however, to suspend or terminate accounts of users in our sole discretion.
6.6. Counter Notification. If you receive a notification from the Company that material made available by you on or through the Site and/or the Marketplace Offerings has been the subject of a Notification of Claimed Infringement, then you will have the right to provide the Company with what is called a “Counter Notification” (the “Counter Notification”). To be effective, a Counter Notification must be in writing, provided to the Designated Agent through one of the methods identified in Section 6.2, and include substantially the following information:
- 6.6.1. your physical or electronic signature;
- 6.6.2. 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;
- 6.6.3. a statement under penalty of perjury that you have 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; and
- 6.6.4. your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if you are residing outside of the United States, then for any judicial district in which the Company may be found, and that you will accept service of process from the person who provided notification under Section 6.2 above or an agent of that person.
- 6.6.5. A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
6.7. Reposting of Material Subject to a Counter Notification. If you submit a Counter Notification to the Company in response to a Notification of Claimed Infringement, then the Company will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that the Company will replace the removed material or cease disabling access to it in 10 business days, and the Company will replace the removed material and cease disabling access to it not less than then (10), nor more than fourteen (14), business days following receipt of the Counter Notification, unless the Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the user from engaging in infringing activity relating to the material on the Company’s system or network.
6.8. False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides at 17 U.S.C. § 512(f) that: “[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [the Company] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.” The Company reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
USER REPRESENTATIONS AND WARRANTS
7.1. Representations and Warrants: By using the Site or the Marketplace Offerings, you represent and warrant that:
- 7.1.1. any account information you submit will be true, accurate, current, and complete, and you will maintain the accuracy of such information and promptly update such account information as necessary;
- 7.1.2. you will comply with any applicable laws and regulations concerning your use of the Site and/or the Marketplace Offerings;
- 7.1.4. you are not a minor in the jurisdiction in which you reside;
- 7.1.5. you will not access the Site or the Marketplace Offerings through automated or non-human means, whether through a bot, script or otherwise;
- 7.1.6. your use of the Site and/or the Marketplace Offerings does not constitute and would not reasonably be expected to result in (with or without notice, lapse of time, or both) a breach, default, contravention, or violation of any law or regulation applicable to you, or any contract or agreement to which you are a party or by which you are bound;
- 7.1.7. your purchase, sale, holding, receipt and use of the Marketplace Offerings, including any NFTs and Utility Tokens, and the Site does not:
- 7.1.7. your purchase, sale, holding, receipt and use of the Marketplace Offerings, including any NFTs and Utility Tokens, and the Site does not:
- represent or constitute a loan or a contribution of capital in exchange for an ownership interest, equity, security, or right to or interest in the assets, rights, properties, revenues or profits of, or voting rights to, or other investment in the Company or any business or venture;
- provide you with any ownership interest, equity, security, or right to or interest in the assets, rights, properties, revenues or profits of, or voting rights whatsoever in, the Company or any other business or venture;
- create or imply or entitle you to the benefits of any fiduciary or other agency relationship between the Company or any of its directors, officers, employees, agents or affiliates, on the on hand, and you, on the other hand; and
- enter you into these Terms for the purpose of making an investment with respect to Company or its securities, but solely wish to use the Site and/or the Marketplace Offerings for their intended purposes.
- 7.1.8. You are knowledgeable, experienced, and sophisticated in using and evaluating blockchain and related technologies and assets, including NFTs, digital wallets, smart contracts and cryptocurrency tokens;
- 7.1.9. You have conducted your own thorough independent investigation and analysis of the Site and the Marketplace Offerings, including any NFTs or the Utility Token, and the other matters contemplated by these Terms, and have not relied on any information, statement, omission, representation, or warranty, express or implied, written or oral, made by or on behalf of the Company in connection therewith, except as expressly set forth by the Company in these Terms;
- 7.1.10. You are solely responsible for assessing all Taxes owed, if any, for your use of the Site and/or the Marketplace Offerings, including, but not limited to, tax liabilities associated with any sales of your NFTs and/or Utility Tokens. As used herein, “Taxes” means the taxes, duties, levies, tariffs, and other governmental charges that you may be required to collect and remit to governmental agencies, and other similar municipal, state, federal, national or other withholding and personal or corporate income taxes.
7.2. The Company May Deny Access to or Use of the Site and/or Marketplace Services. The Company reserves the right to terminate your access to and use of the Site and/or the Marketplace Services, in whole or in part, at any time, with or without notice, at the Company’s discretion for any or no reason. The Company reserves the right at all times to disclose any information as it deems necessary to satisfy any applicable law, regulation, legal process, or governmental request, or to edit, refuse to post or to remove any information or materials (including the Site and/or the Marketplace Offerings), in whole or in part, in the Company’s sole discretion.
YOUR CONTENT AND CONSENT TO MONITORING
8.1. Posted Content. “Posted Content” means any communications, videos, images, sounds, and all the material, text, drawings, writings, data, and information that you upload, post, publish or transmit through the Site and/or the Marketplace Offerings. We may take actions based upon Posted Content, including instructions provided within Posted Content, but we may also take actions to verify with you that such instructions were truly your intent or to clarify such instructions. You acknowledge that we may reach out to you at any time regarding any Posted Content before we take action and that you will not assume that any actions were taken by us based upon any Posted Content unless you receive confirmation that such actions are being taken by us.
8.2. Template Content. We may provide you with templates, pre-populated communications, or other content through the Site and/or the Marketplace Offerings (“Template Content”) that you may use or modify as part of using our Application to produce Posted Content. You acknowledge that your use of any Template Content does not relieve you of any responsibilities or obligations under this Agreement and that your rights in Posted Content are by license only and limited to the rights to reproduce and modify such Template Content in order to create your own Posted Content.
8.3. Review Guidelines. We may provide you areas on the Site to leave reviews or ratings (a “Review”). For the avoidance of doubt, a Review constitutes Posted Content.
- 8.3.1. When posting a Review, you must comply with the following criteria:
- you should have firsthand experience with the person/entity being reviewed;
- your Review should not contain offensive profanity, or abusive, racist, offensive, or hate language;
- your Review should not contain discriminatory references based on religion, race, gender, national origin, age, marital status, sexual orientation, or disability;
- your Review should not contain references to illegal activity;
- you should not be affiliated with competitors if posting negative Review;
- you should not make any conclusions as to the legality of conduct;
- you may not post any false or misleading statements; and
- you may not organize a campaign encouraging others to post Reviews, whether positive or negative.
- 8.3.2. We may accept, reject, or remove Reviews in our sole discretion. We have absolutely no obligation to screen Reviews or to delete Reviews, even if anyone considers such Reviews objectionable or inaccurate. Reviews are not endorsed by us, and do not necessarily represent our opinions or the views of any of our affiliates or partners. We do not assume liability for any Review or for any claims, liabilities, or losses resulting from any Review.
8.4. Submissions Guidelines. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information regarding the Site or the Marketplace Offerings provided by you to us (the “Submissions”) are non-confidential, shall become our sole property, and constitute Posted Content.
- 8.4.1. We shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any lawful purpose, commercial or otherwise, without acknowledgment or compensation to you.
- 8.4.2. You hereby waive all moral rights to any such Submissions, and you hereby warrant that any such Submissions are original with you or that you have the right to submit such Submissions.
- 8.4.3. You agree there shall be no recourse against us for any alleged or actual infringement or misappropriation of any proprietary right in your Submissions.
8.5. Obligations Regarding Content. By transmitting or submitting any Posted Content while using the Application, you affirm, represent and warrant that such transmission or submission:
- 8.5.1. is accurate and not confidential;
- 8.5.2. not in violation of any applicable law, contractual restrictions or other third party rights, and that you have permission from any third party whose personal information or intellectual property is comprised in the Posted Content;
- 8.5.3. along with the exercise of the rights by the Company granted in Section 8.6 will not result in any infringement of the intellectual property rights of any third party or violate or misappropriate any rights of publicity or privacy for any third party;
- 8.5.4. are not unsolicited or unauthorized advertising, promotional materials, pyramid schemes, chain letters, spam, mass mailings, or other forms of solicitation;
- 8.5.5. are not obscene, lewd, lascivious, filthy, violent, harassing, libelous, slanderous, or otherwise objectionable (as determined by the Company);
- 8.5.6. do not ridicule, mock, disparage, intimidate, or abuse anyone;
- 8.5.7. are not used to harass or threaten any other person and to promote violence against a specific person or class of people;
- 8.5.8. do not violate any applicable law concerning child pornography, or otherwise intended to protect the health or well-being of minors;
- 8.5.9. do not include any offensive comments that are connected to race, national origin, gender, sexual preference, or physical handicap;
- 8.5.11. is free of viruses, adware, spyware, worms or other malicious code; and
- 8.5.12. that you have all rights necessary to transmit Posted Content to the Company and to grant the rights in Posted Content granted to the Company under these Terms.
8.7. Content Screening
- 8.7.1. Consent to Monitoring. By entering into these Terms, you hereby provide your irrevocable consent to our monitoring and recording of your use of the Site and/or the Marketplace Offerings. You acknowledge and agree that you have no expectation of privacy concerning the transmission of any information, including without limitation chat, text or voice communications.
- 8.7.2. Options Regarding Content. The Company may reject, refuse to post or delete any content you submit for use or processing by or through the Site and/or the Marketplace Offerings for any or no reason, including, but not limited to for the reason, in the sole judgment of the Company, that such content or the posting of any particular content violates these Terms or may violate applicable law.
9.1. General. If a dispute arises between you and Company, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and the Company agree that we will resolve any dispute, claim, or controversy at law or equity that arises out of this Agreement or our Site and/or the Marketplace (a “Claim”) in accordance with one of the subsections below or as we and you otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution by contacting our customer support team. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation. Other than those matters listed in Section 9.6, you and the Company agree to seek resolution of the dispute only through arbitration of that dispute in accordance with the terms of this Section 9, and not litigate any dispute in court. Arbitration means that the dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.
9.2. Informal Negotiations. To expedite resolution and control the cost of a Claim brought by either you or us (individually, a “Disputing Party” and collectively, the “Disputing Parties”), the Disputing Parties agree to first attempt to negotiate any Claim informally for at least thirty (30) days before initiating arbitration. Such informal negotiations commence upon written notice from one Disputing Party to the other Disputing Party. This Section 9.2 shall not apply to (i) Claims expressly provided for below in Section 9.6, (ii) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use, and (iii) any claim for injunctive relief.
9.3. Initiation of Arbitration Proceeding; Selection of Arbitrator. If you or the Company are unable to resolve a Claim through informal negotiations as set forth in Section 9.2, you elect to resolve your dispute through arbitration, the Claims (except those Claims expressly provided for below in Section 9.6) will be finally and exclusively resolved through binding arbitration. The Disputing Party initiating the arbitration proceeding must initiate it with the American Arbitration Association (“AAA”). The terms of this Section 9.3 will govern in the event they conflict with the arbitration rules identified below.
9.4. Arbitration Procedures. Because the Site and/or Marketplace Offerings provided to you by the Company concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, applicable federal or state law may also apply to the substance of any disputes. For claims of less than $75,000, the AAA’s Consumer Arbitration Rules shall apply; for claims over $75,000, the AAA’s Commercial Arbitration Rules and relevant fee schedules for non-class action proceedings shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. Further, if your claims do not exceed $75,000 and you provided notice to, and negotiated in good faith with, the Company as described above, and if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorneys’ fees and costs as determined by the arbitrator, in addition to any rights to recover the same under controlling state or federal law afforded to the Company or you. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be binding and final, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
9.5. Location of Arbitration. You or the Company may initiate arbitration in either Marin County, CA, or the county in which you reside. If you initiate arbitration in the county of your residence, the Company may transfer the arbitration to Marin County, CA, provided that the Company agrees to pay any additional fees or costs you incur as a result of the change in location, as determined by the arbitrator.
9.6. EXCLUSION FROM ARBITRATION. YOU AND THE COMPANY AGREE THAT ANY CLAIM FILED BY YOU OR BY THE COMPANY IN SMALL CLAIMS COURT OR BY COMPANY RELATED TO PROTECTION OF COMPANY’S OR ANY COMPANY LICENSOR’S INTELLECTUAL PROPERTY ARE NOT SUBJECT TO THE ARBITRATION TERMS CONTAINED IN THIS SECTION 9.
9.7. RIGHT TO OPT OUT OF BINDING ARBITRATION AND CLASS ACTION WAIVER WITHIN 30 DAYS. IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER IN THIS SECTION 9, YOU MUST NOTIFY COMPANY IN WRITING WITHIN THIRTY (30) DAYS OF THE DATE THAT YOU FIRST ACCEPT THIS AGREEMENT. YOUR WRITTEN NOTIFICATION MUST BE MAILED TO COMPANY TERMS ADMINISTRATOR, AND MUST INCLUDE: (1) YOUR NAME, (2) YOUR ADDRESS, AND (4) A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH COMPANY THROUGH ARBITRATION.
9.8. CLASS ACTION WAIVER. ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS BOTH YOU AND THE COMPANY SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION.
9.9. California Users and Residents. If any complaint with us is not satisfactorily resolved, you can contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, California 95834 or by telephone at (800) 952-5210 or (916) 445-1254.
9.10. Severability. If any clause within this Section 9 (other than the Class Action Waiver clause of Section 9.6) is found to be illegal or unenforceable, that clause will be severed from this Section 9 and the remainder of this Section 9 will be given full force and effect. If the Class Action Waiver (Section 9.6) clause is found to be illegal or unenforceable, this entire Section 9, except for this Section 9.10, will be unenforceable and the dispute will be decided by a court and IN THAT INSTANCE, YOU AND COMPANY EACH WAIVE AND AGREE TO WAIVE ANY RIGHT TO TRIAL BY JURY, TO THE EXTENT ALLOWED BY LAW.
DISCLAIMER; LIMITATIONS; WAIVERS ON LIABILITY; INDEMNIFICATION.
10.1. Disclaimer of Warranties
- 10.1.1. SITE AND MARKETPLACE OFFERINGS PROVIDED “AS IS”. YOU EXPRESSLY AGREE THAT USE OF THE SITE AND/OR THE MARKETPLACE OFFERINGS IS AT YOUR SOLE RISK AND IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EXCEPT ONLY TO THE EXTENT PROHIBITED UNDER APPLICABLE LAW WITH ANY LEGALLY REQUIRED WARRANTY PERIOD THE SHORTER OF THIRTY (30) CALENDAR DAYS FROM FIRST USE OR THE MINIMUM PERIOD REQUIRED). NO GUARANTEES ARE MADE REGARDING WHO MAY VIEW ANY CONTENT YOU POST OR HOW OTHERS WILL EVALUATE YOU OR ANY CONTENT YOU POST.
- 10.1.2. NO WARRANTY OF ERROR-FREE OPERATION. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ITS AFFILIATES OR SUBSIDIARIES, OR ANY OF THEIR DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, THIRD-PARTY CONTENT PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS (COLLECTIVELY, “COMPANY PARTIES”) WARRANT THAT ACCESS TO THE SITE AND/OR THE MARKETPLACE OFFERINGS WILL BE UNINTERRUPTED OR ERROR-FREE.
- 10.1.3. NO WARRANTY REGARDING ACCESS TO ACCOUNTS AND CONTENT. THE COMPANY DOES NOT GUARANTEE THAT ANY INDIVIDUAL WILL ALWAYS BE PREVENTED FROM VIEWING INFORMATION OR CONTENT THAT THE SITE AND/OR THE MARKETPLACE OFFERINGS INTENDED TO NOT BE AVAILABLE TO SUCH INDIVIDUAL. THE COMPANY DOES NOT WARRANT THAT ALL CONTENT OR INFORMATION POSTED ON THE SITE AND/OR THE MARKETPLACE OFFERINGS WILL REMAIN AVAILABLE AT ALL TIMES OR WILL NEVER BE DELETED, CORRUPTED OR OTHERWISE UNAVAILABLE. THE COMPANY DOES NOT WARRANT THAT THE SITE AND/OR THE MARKETPLACE OFFERINGS WILL BE KEPT FROM ANY PARTICULAR INDIVIDUAL WHO EITHER HACKS OR ENGAGES IN UNAUTHORIZED ACCESS TO SUCH CONTENT OR INFORMATION OR IS MISTAKENLY GRANTED ACCESS BY THE COMPANY OR THROUGH THE SITE AND/OR THE MARKETPLACE OFFERINGS.
10.2. Disclaimers of Blockchain Technology and Digital Assets.
- 10.2.1. DISCLAIMER REGARDING USE OF BLOCKCHAIN TECHNOLOGY. THE COMPANY UTILIZES EXPERIMENTAL CRYPTOGRAPHIC AND BLOCKCHAIN TECHNOLOGIES, INCLUDING TOKENS, CRYPTOCURRENCIES, NFTS, SMART CONTRACTS, CONSENSUS ALGORITHMS, VOTING SYSTEMS AND DISTRIBUTED, DECENTRALIZED OR PEER-TO-PEER NETWORKS OR SYSTEMS IN PROVIDING THE SITE AND/OR THE MARKETPLACE OFFERINGS. YOU ACKNOWLEDGE AND AGREE THAT SUCH TECHNOLOGIES ARE NOVEL, EXPERIMENTAL, AND SPECULATIVE, AND THAT THEREFORE THERE IS SIGNIFICANT UNCERTAINTY REGARDING THE OPERATION AND EFFECTS AND RISKS THEREOF AND THE APPLICATION OF EXISTING LAW THERETO. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY DISCLAIMS ANY AND ALL LIABILITY RELATED TO THE FOREGOING.
- 10.2.2. DISCLAIMER REGARDING CERTAIN RISKS OF BLOCKCHAIN TECHNOLOGY. THE TECHNOLOGY UTILIZED IN DELIVERING THE SITE AND/OR THE MARKETPLACE OFFERINGS DEPENDS ON PUBLIC PEER-TO-PEER NETWORKS SUCH AS THE BLOCKCHAIN PROTOCOL THAT ARE NOT UNDER THE CONTROL OR INFLUENCE OF THE COMPANY AND ARE SUBJECT TO MANY RISKS AND UNCERTAINTIES. THE COMPANY MAY HAVE LIMITED OR NO ABILITY TO CHANGE THESE TECHNOLOGIES, OTHER THAN CEASING TO SUPPORT CERTAIN SMART CONTRACTS AND ADDING SUPPORT FOR NEW SMART CONTRACTS. YOU ARE SOLELY RESPONSIBLE FOR THE SAFEKEEPING OF THE PRIVATE KEY ASSOCIATED WITH DIGITAL WALLET USED TO PARTICIPATE IN THE SITE AND/OR THE MARKETPLACE OFFERINGS. THE COMPANY WILL NOT BE ABLE TO RESTORE OR ISSUE ANY REFUNDS DUE TO LOST PRIVATE KEYS. IF YOU ARE NOT ABLE TO USE THE SITE AND/OR THE MARKETPLACE OFFERINGS DUE TO LOSS OR THEFT OF A PRIVATE KEY OR OTHERWISE, THE COMPANY DOES NOT GUARANTEE AND IS NOT RESPONSIBLE FOR YOUR ABILITY TO EXERCISE THEIR RIGHTS WITH RESPECT THE SITE, THE MARKETPLACE OFFERINGS, OR ANY OTHER APPLICABLE DIGITAL ASSETS.
- 10.2.3. DISCLAIMER REGARDING REGULATORY UNCERTAINITY. BLOCKCHAIN TECHNOLOGIES AND DIGITAL ASSETS ARE SUBJECT TO MANY LEGAL AND REGULATORY UNCERTAINTIES, AND THE SITE, THE MARKETPLACE OFFERINGS, AND OTHER DIGITAL ASSETS COULD BE ADVERSELY IMPACTED BY ONE OR MORE REGULATORY OR LEGAL INQUIRIES, ACTIONS, SUITS, INVESTIGATIONS, CLAIMS, FINES OR JUDGMENTS, WHICH COULD IMPEDE OR LIMIT YOUR ABILITY TO CONTINUE THE USE AND ENJOYMENT OF SUCH ASSETS AND TECHNOLOGIES.
- 10.2.4. DISCLAIMER REGARDING SMART CONTRACT TECHNOLOGY. DIGITAL ASSETS, INCLUDING NFTS, UTILITY TOKENS, AND OTHER DIGITAL ASSETS RELEVANT TO THE SITE AND/OR THE MARKETPLACE OFFERINGS, DEPEND ON SMART CONTRACTS. ONCE DEPLOYED, THE CODE OF SMART CONTRACTS CANNOT BE MODIFIED. IN THE EVENT THAT APPLICABLE SMART CONTRACTS ARE ADVERSELY AFFECTED BY MALFUNCTIONS, BUGS, DEFECTS, MALFUNCTIONS, HACKING, THEFT, ATTACKS, NEGLIGENT CODING OR DESIGN CHOICES, OR CHANGES TO THE PROTOCOL RULES, YOU MAY BE EXPOSED TO A RISK OF TOTAL LOSS AND FORFEITURE OF THE MARKETPLACE OFFERINGS, INCLUDING ANY NFTS AND UTILITY TOKENS, AND OTHER RELEVANT DIGITAL ASSETS.
10.3. Limitations; Waivers of Liability.
- 10.3.1. DISCLAIMER OF INDIRECT DAMAGES. YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY ANY APPLICABLE LAW, THE DISCLAIMERS OF LIABILITY CONTAINED HEREIN APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE SITE AND/OR THE MARKETPLACE OFFERINGS UNDER ANY CAUSE OR ACTION WHATSOEVER OF ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND THAT THE COMPANY PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SITE AND/OR THE MARKETPLACE OFFERINGS.
- 10.3.2. NOT RESPONSIBLE FOR THIRD PARTY CONDUCT. YOU FURTHER SPECIFICALLY ACKNOWLEDGE THAT THE COMPANY PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE COMPANY PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER USERS OF THE SITE AND/OR THE MARKETPLACE OFFERINGS, AND OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF THE SITE AND/OR THE MARKETPLACE OFFERINGS AND EXTERNAL SITES AND OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
- 10.3.3. DISCLAIMER MAY NOT BE APPLICABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THE SECTION MAY NOT APPLY TO YOU
10.4. Indemnification. You agree to defend, indemnify, save, and hold the Company Parties harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Site, the Marketplace Offerings, any violation by you of these Terms or any breach of the representations, warranties and covenants made by you herein. The Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Company and you agree to cooperate with Company’s defense of these claims. The Company will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it. You agree that the provisions in this paragraph will survive any termination of the Site and/or the Marketplace Offerings.
- 11.1.4. Corrections. There may be information on the Site that contains typographical errors, inaccuracies, or omissions that may relate to the Site and/or the Marketplace Offerings, including descriptions, pricing, availability, and various other information. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update the information on the Site and/or the Marketplace Offerings, at any time.
11.3. Assignment. The Company may assign any of its rights or delegate any of its obligations under these Terms, in whole or in part, to any person or entity at any time without your consent. You may not assign or delegate any rights or obligations under the Terms without the prior written consent of Company; any purported assignment or delegation in violation of this Section 11.3 is void.
11.4. Supplemental Policies. The Company may publish additional policies related to the Site and/or the Marketplace Offerings. You acknowledge that we may email such additional policies to you at the Contact Email you have provided us for use in conjunction with the Site and/or the Marketplace Offerings and that you will regularly check Contact Email. Your use, if any, of the Site and/or the Marketplace Offerings is subject to such specific policies and these Terms.
55 Main Street
Tiburon, CA 94920
Phone: (+1) 415-226-9998
11.8. Equitable Remedies. You acknowledge that the rights granted and obligations made under these Terms to Company are of a unique and irreplaceable nature, the loss of which shall irreparably harm Company and which cannot be replaced by monetary damages alone, so that Company shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation of the Site and/or the Marketplace Offerings, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Site and/or the Marketplace Offerings or any content or other material used or displayed through the Site and/or the Marketplace Offerings.
11.9. Force Majeure. The Company shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of the Company, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond the Company’s control, such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, shortages of transportation facilities, fuel, energy, labor or materials.
11.11. Form of Agreement.
- 11.11.2. Consent to Electronic Communications. Visiting the Site, sending us emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and on the Site, satisfy any legal requirement that such communication be in writing. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE SITE. You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.