Welcome to the Terms of Service (these "Terms") for the website, https://www.halliday.xyz (the "Website") and the related web or mobile applications (the "App") operated on behalf of Halliday International Inc., a Delaware Corporation ("Company", "we" or "us"). The Website and any related content, tools, features and functionality offered on or through our Website and the App are collectively referred to as the "Services".
These Terms govern your access to and use of the Services. Please read these Terms carefully, as they include important information about your legal rights. By accessing and/or using the Services, you are agreeing to these Terms. If you do not understand or agree to these Terms, please do not use the Services.
For purposes of these Terms, "you" and "your" means you as the user of the Services. If you use the Services on behalf of a company, organization or other entity then "you" includes you and that entity, and you represent and warrant that (a) you are an authorized representative of the entity with the authority to bind the entity to these Terms, and (b) you agree to these Terms on the entity's behalf.
Section 10 contains an arbitration clause and class action waiver. By agreeing to these Terms, you agree (a) to resolve all disputes with us related to the Services through binding individual arbitration, which means that you waive any right to have those disputes decided by a judge or jury, and (b) to waive your right to participate in class actions, class arbitrations, or representative actions in connection with your use of the Services. You have the right to opt-out of arbitration as explained in Section 10.
OVERVIEW OF SERVICES AND ELIGIBILITY TO USE THE SERVICES
NFT Financing. The Services provides users, among other things, with the opportunity to sell and purchase digital collectibles represented as a non-fungible token ("NFT") that are linked with certain digital media and art ("NFT Media"), and where the transactions regarding the transaction of such NFTs are recorded on a blockchain such as Ethereum. Company may enter into a loan agreement to finance your purchases of an NFT (each, a "Financed NFT"), the terms of which is provided at Financing Agreement (the "Loan Agreement"). If you enter into a Loan Agreement with respect to a Financed NFT, you acknowledge and agree that you retain title to such Financed NFT. However, under such Loan Agreement, you grant us a security interest in such Financed NFT and, until you pay to the Company all amounts due to the Company under the Loan Agreement and satisfy all other conditions and obligations therein, your Financed NFT will be held in your Profile (as defined below) and that the Profile has features and functionality that, among other things, restricts your ability to transfer the Financed NFT until your satisfaction of such conditions and obligations in the Loan Agreement. After you satisfy all your obligations in the Loan Agreement, you may transfer your Financed NFT from your Profile to your Wallet (as defined below). To the extent any provision of these Terms conflict with any provision of the Loan Agreement, then to the extent the conflict relates to a loan to purchase NFTs or NFT Media, the provisions of the Loan Agreement control.
NFT Checkout Service. Certain third party marketplaces or platforms ("Third Party Marketplaces") use Halliday’s technology as part of your checkout or purchase of an NFT ("NFT Checkout Service"). You may use the Services to engage in transactions with Halliday to purchase an NFT available on a Third Party Marketplace in exchange for fiat currency and/or cryptocurrency. You acknowledge and agree that the seller or creator of an NFT may have additional terms and conditions that govern your access or use of such NFT or the related NFT Media, which you acknowledge such seller or creator is responsible for providing to you. Under default copyright law, your ownership of an NFT does not automatically give you the right to publicly display, perform, distribute, sell, or otherwise reproduce the NFT Media associated with such NFT for any commercial purposes, unless the creator of such NFT has expressly granted the NFT holder that right.
No Promise of Authenticity. In certain cases, the Company may help to evaluate or provide you with information about a seller of an NFT or a particular NFT. However, such information is provided for informational purposes only. You bear full responsibility for verifying the authenticity, legitimacy, identity of any artwork or other content or data associated with NFTs and other offerings you purchase on the Services. Company makes no guarantees or promises about the identity, legitimacy, or authenticity of NFTs or other offering on the platform.
Listing or Selling NFTs. By listing, or selling NFTs through the Service, you hereby represent and warrant that you own all necessary rights (including all necessary intellectual property rights) to use, display, reproduce, distribute and perform the NFT Media linked or associated with such NFT, or you are legally authorized by the intellectual property owner to do any of the foregoing. You further represent and warrant that you will not provide, display or sell any NFT that includes or otherwise incorporates into the NFT's underlying smart contract any virus, bug, malicious code or other code which could be used to commit fraud or otherwise cause harm.
The Services may enable you to create a digital wallet ("Halliday Wallet"). The Halliday Wallet may be created for you as part of your use of certain applications or platforms of third parties ("Third Party Apps"). Through the Halliday Wallet, you may be able to (i) store and view balances of NFTs and other digital assets compatible with the Halliday Wallet, (ii) link to Third Party Apps, (iii) view addresses and information that are part of digital asset networks and broadcast transactions and (iv) access and use certain other functionality as may be added to the Halliday Wallet from time to time.
There are two versions of the Halliday Wallet: a non-custodial wallet ("Halliday Non-Custodial Wallet") and a hosted wallet ("Halliday Hosted Wallet"). For the Halliday Non-Custodial Wallet, you acknowledge and agree (i) the private keys necessary to decrypt or gain access to such wallet are held by you and not held by the Company; (ii) that Halliday does not store nor has the ability to help you access or recover your private keys; and (iii) you are solely responsible for maintaining the confidentiality of your private keys and are responsible for any transaction signed with your private key. For the Halliday Hosted Wallet, (x) the private keys necessary to decrypt or gain access to such wallet are maintained as a shared function between you and the Company; (y) the Company has no ability to access the private keys without your participation and has no obligation to provide these private keys to you; and (z) the Company reserves the right to terminate its support for the Halliday Hosted Wallet at any time with or without notice and, in such circumstances, you will be responsible for timely transferring your digital assets to another Wallet prior to the Company terminating its support for the Halliday Hosted Wallet and we will not be liable or responsible for the loss of any digital assets if you fail to timely transfer such assets.
The Halliday Wallets may include functionality that allows you to let other users that you designate access or use your NFT. To the extent you use such functionality, you hereby grant Halliday the right to use and access such NFT for purposes of letting such other user access or use such NFT.
Halliday Wallets are intended solely for use with certain blockchains and digital assets. You should not attempt to use your Halliday Wallet to store, send, request, or receive any assets other than those that we support. You acknowledge and agree that we are not responsible or liable to you for any loss incurred by you for your use or attempted use of a Halliday Wallet with any non-supported blockchain or non- supported digital asset. We are not responsible for any losses due to your errors, including relating to an incorrectly constructed transaction resulting in the transfer of a digital asset or export of your private keys to the wrong wallet. Transfers, transactions and other interactions between the Halliday Wallet and Third Party Wallet (as defined below) may be facilitated by one or more smart contracts that Halliday does not control. You acknowledge the risk of smart contracts and agree to be bound by the outcome of any smart contract operation that you initiate or that we initiate at your direction. We accept no liability or responsibility for any such transfer, including for any loss, data corruption, or other negative impact that may occur to your digital assets or wallets when attempting to transfer assets between wallets.
Third Party On-Ramp. The Services may facilitate a user's access to a third party's service to convert fiat currency to cryptocurrency ("Third Party On-Ramp Services"). You agree that your use of any such Third Party On-Ramp Services is governed by the terms and conditions of the applicable provider of such Third party On-Ramp Services. For example, for any Third Party On-Ramp Services provided by Moonpay, those terms and conditions are available at https://www.moonpay.com/legal/terms_of_use. Third Party On-Ramp Services are not provided or controlled by us. You acknowledge and agree that we make no representations with respect to your use of any Third Party On-Ramp Services, and your use thereof is entirely at your own risk.
Trial Services. The Company has provided certain of its technology to third parties who offer marketplaces, applications or other platforms for NFTs (each such third party, a "Developer") so that end users can use or try out an NFT in a game or other application or platform (the "Trial Services"). If you are a user using the Trial Services to use or try out an NFT, you acknowledge and agree that your rights with respect to such NFT ("Trial NFT") and your use of the Trial NFT is governed by the terms of service or other end user agreement of the Developer ("Developer Terms"). Except for providing you access to the Trial NFT via your Profile during the trial period, the Company cannot and does not grant you any rights, including ownership rights or other intellectual property rights, with respect to the Trial NFT. You acknowledge and agree the Company is not responsible or liable to you for your inability to access or use the Trial NFT while using the Trial Services, including if such inability is due to (i) the applicable Developer’s game, application or platform in which the Trial NFT is used, (ii) the applicable Developer suspending, terminating, or otherwise restricting your ability to use the Trial Services, or (iii) theft or loss of the Trial NFT. You further acknowledge or agree that the Company may suspend, terminate or otherwise restrict your ability to access and use the Trial NFT for any reason, including for your suspected or actual breach of these Terms or the Developer Terms. The Company is not responsible for any losses you may suffer during your use of the Trial Services due to any issues with the applicable blockchain, including forks, technical node issues or any other issues.
Fees. The Company may charge or pass through fees for some or part of the Services we make available to you, including transaction or processing fees, blockchain gas or similar network fees ("Fees"). We will disclose the amount of Fees we will charge or pass through to you for the applicable Service at the time you access, use or otherwise transact with the Services. Although we will attempt to provide accurate Fee information, any such information reflects our estimate of fees, which may vary from the fees actually paid to use the Services and interact with the applicable blockchain with which the Services are compatible. Additionally, your Wallet provider may impose a fee to transact on the Services. We are not responsible for any fees charged by a third party.
Eligibility. You must be at least 18 years of age or older and not be a Prohibited Person to use the Services. Children under the age of 18 are not permitted to use the Services. Minors under the age of majority in their jurisdiction but that are at least 18 years of age are only permitted to use the Services if the minor's parent or guardian accepts these Terms on the minor's behalf prior to use of the Services. A "Prohibited Person" is any person or entity that is (a) listed on any U.S. Government list of prohibited or restricted parties, including the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List, (b) located or organized in any U.S. embargoed countries or any country that has been designated by the U.S. Government as a “terrorist supporting”, or (c) owned or controlled by such persons or entities listed in (a)-(b). By using the Services, you represent and warrant that you meet these requirements and will not be using the Services for any illegal activity or to engage in the prohibited activities in Section 5.3.
Updates; Monitoring. We may make any improvement, modifications or updates to the Services, including but not limited to changes and updates to the underlying software, infrastructure, security protocols, technical configurations or service features (the "Updates") from time to time. Your continued access and use of the Services are subject to such Updates and you shall accept any patches, system upgrades, bug fixes, feature modifications, or other maintenance work that arise out of such Updates. We are not liable for any failure by you to accept and use such Updates in the manner specified or required by us. Although the Company is not obligated to monitor access to or participation in the Services, it has the right to do so for the purpose of operating the Services, to ensure compliance with the Terms and to comply with applicable law or other legal requirements.
USER PROFILES AND WALLETS
Creating your Profile. To use certain part of the Services, you may need to create a profile ("Profile") and/or connect your Halliday Wallet or a third-party electronic wallets ("Third Party Wallet" and together with the Halliday Wallet, "Wallets") to your Profile. You are solely responsible for any activity on your Wallet or Profile. We are not liable for any acts or omissions by you in connection with your Wallet or Profile. Your Wallet address may only be linked with one Profile.
Profile Information. You agree to provide us with accurate, complete and updated information for your Profile. The Company may require you to provide additional information and documents regarding your use of the Services, including at the request of any competent authority or in case of application of any applicable law or regulation, including laws related to anti-money laundering, or for counteracting financing of terrorism. Company may also require you to provide additional information and documents in cases where it has reasons to believe that:
Your Profile or your Wallet is being used for illegal money laundering or for any other illegal activity;
You have concealed or reported false identification information and other details; or
Transactions effected via your use of the Services were made in breach of these Terms or any other agreement you may have with us.
PURCHASES VIA THE SERVICES AND AUTHENTICITY
Purchases of Offerings. The Services may permit you to purchase and sell NFTs and certain other products or services through the Services, including through Third Party Marketplaces as part of the NFT Checkout Services ("Offerings"). All purchases of Offerings via the Services are non-refundable unless specified by the applicable seller of the Offering. You acknowledge and agree that all payment information you provide with regards to Fees or a purchase of Offerings is accurate, current and complete. When you purchase Offerings, you agree to pay the price for such Offerings as set forth in the applicable listing for the Offering, and all processing fees, network fees (including gas fees) and handling charges and all applicable taxes in connection with your purchase (the "Full Purchase Amount"); provided, however, you may finance, a portion or under certain circumstances, the Full Purchase Amount by entering into a separate Loan Agreement, subject to our approval. Repayment of any loan used to finance the purchase of the Offering is governed by such additional Loan Agreement. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable. You may pay for your purchase via the cryptocurrencies accepted by the Services or via traditional payment methods such as credit cards and debit cards. In certain cases, your transaction may not be successful due to an error with the blockchain or the Wallet. We accept no responsibility or liability to you for any such failed transactions, or any transaction or gas fees that may be incurred by you in connection with such failed transactions.
Promotional Codes. We may offer certain promotional codes, referral codes, discount codes, coupon codes or similar offers ("Promotional Codes") that may be redeemed for discounts on future Offerings, or other features or benefits related to the Services, subject to any additional terms that the Company establishes. You agree that Promotional Codes: (a) must be used in a lawful manner; (b) must be used for the intended audience and purpose; (c) may not be duplicated, sold or transferred in any manner, or made available by you to the general public (whether posted to a public forum, coupon collecting service, or otherwise), unless expressly permitted by the Company; (d) may be disabled or have additional conditions applied to them by the Company at any time for any reason without liability to the Company; (e) may only be used pursuant to the specific terms that the Company establishes for such Promotional Code; (f) are not valid for cash or other credits or points; and (g) may expire prior to your use.
Right to Use Services. We hereby permit you to use the Services for your personal non-commercial use only, provided that you comply with these Terms in connection with all such use. If any software, content or other materials owned or controlled by us are distributed to you as part of your use of the Services, we hereby grant you, a personal, non-assignable, non-sublicensable, non-transferrable, and non-exclusive right and license to download, execute and display such software, content and materials provided to you as part of the Services (and right to download a single copy of the App onto your applicable equipment or device), in each case for the sole purpose of enabling you to use the Services as permitted by these Terms. Such license is in addition and subject to the terms of any open source license we may make available for use of any of our software that we make available on an open source basis. Your access and use of the Services may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of the Services or other actions that Company, in its sole discretion, may elect to take.
Rights Acquired via a Purchase of NFTs. Unless otherwise specified by the seller of an NFT in writing, the baseline rule under most applicable intellectual property laws is that your purchase of an NFT does not automatically give you the right to publicly display, perform, distribute, sell or otherwise reproduce the NFT or its related NFT Media for any commercial purpose. Any commercial exploitation of the NFT or its related NFT Media could subject you to claims of copyright infringement. If you sell an NFT, you agree that you will not have any claims against Company for any breach of these Terms by a purchaser, including if they make commercial use of the related NFT Media in breach of these Terms. Upon entering into a Repurchase Agreement or Loan Agreement related to an NFT, you have the right to access the NFT and use it for in-game experience. However, your use of the NFT will be revoked if you fail to comply with the terms of the Loan Agreement.
Restrictions on Your Use of the Services. You may not do any of the following in connection with your use of the Services, unless applicable laws or regulations prohibit these restrictions or you have our express permission to do so, such as pursuant to the terms of any open source license we may make available for use of any of our software that we make available on an open source basis:
download, modify, copy, distribute, transmit, display, perform, reproduce, duplicate, publish, license, create derivative works from, or offer for sale any information contained on, or obtained from or through, the Services, except for temporary files that are automatically cached by your web browser for display purposes, or as otherwise expressly permitted in these Terms;
duplicate, decompile, reverse engineer, disassemble or decode the Services (including any underlying idea or algorithm), or attempt to do any of the same;
use, reproduce or remove any copyright, trademark, service mark, trade name, slogan, logo, image, or other proprietary notation displayed on or through the Services;
use cheats, automation software (bots), hacks, modifications (mods) or any other unauthorized third-party software designed to modify the Services or facilitated automated transactions on the Services;
access or use the Services in any manner that could disable, overburden, damage, disrupt or impair the Services or interfere with any other party's access to or use of the Services or use any device, software or routine that causes the same;
attempt to gain unauthorized access to, interfere with, damage or disrupt the Services, profiles registered to other users, or the computer systems or networks connected to the Services;
circumvent, remove, alter, deactivate, degrade or thwart any technological measure or content protections of the Services;
use any robot, spider, crawlers or other automatic device, process, software or queries that intercepts, "mines," scrapes or otherwise accesses the Services to monitor, extract, copy or collect information or data from or through the Services, or engage in any manual process to do the same;
introduce any viruses, trojan horses, worms, logic bombs or other materials that are malicious or technologically harmful into our systems;
use the Services for illegal, harassing, unethical, or disruptive purposes;
violate any applicable law or regulation in connection with your access to or use of the Services; or
access or use the Services in any way not expressly permitted by these Terms.
Use of the App. You are responsible for providing the mobile device, wireless service plan, software, Internet connections and/or other equipment or services that you need to download, install and use the App. We do not guarantee that the App can be accessed and used on any particular device or with any particular service plan. We do not guarantee that the App or will be available in, or that orders for Offerings can be placed from, any particular geographic location. As part of the Services and to update you regarding the status of deliveries, you may receive push notifications, local client notifications, text messages, picture messages, alerts, emails or other types of messages directly sent to you in connection with the App ("Push Messages"). You acknowledge that, when you use the App, your wireless service provider may charge you fees for data, text messaging and/or other wireless access, including in connection with Push Messages. You have control over the Push Messages settings, and can opt in or out of these Push Messages through the Services or through your mobile device's operating system (with the possible exception of infrequent, important service announcements and administrative messages). Please check with your wireless service provider to determine what fees apply to your access to and use of the App, including your receipt of Push Messages from the Company. You are solely responsible for any fee, cost or expense that you incur to download, install and/or use the App on your mobile device, including for your receipt of push messages from the Company.
Beta Offerings. From time to time, we may, in our sole discretion, include certain test or beta features or products in the Services ("Beta Offerings") as we may designate from time to time. Your use of any Beta Offering is completely voluntary. The Beta Offerings are provided on an "as is" basis and may contain errors, defects, bugs, or inaccuracies that could cause failures, corruption or loss of data and information from any connected device. You acknowledge and agree that all use of any Beta Offering is at your sole risk. You agree that once you use a Beta Offering, your content or data may be affected such that you may be unable to revert back to a prior non-beta version of the same or similar feature. Additionally, if such reversion is possible, you may not be able to return or restore data created within the Beta Offering back to the prior non-beta version. If we provide you any Beta Offerings on a closed beta or confidential basis, we will notify you of such as part of your use of the Beta Offerings. For any such confidential Beta Offerings, you agree to not disclose, divulge, display, or otherwise make available any of the Beta Offerings without our prior written consent.
Ownership of the Services. The Services, including their "look and feel" (e.g., text, graphics, images, logos), proprietary content, information and other materials, are protected under intellectual property laws. You agree that the Company and/or its licensors own all right, title and interest in and to the Services (including any and all intellectual property rights therein) and you agree not to take any action(s) inconsistent with such ownership interests. We and our licensors reserve all rights in connection with the Services and its content (other than Your Content), including, without limitation, the exclusive right to create derivative works. We do not own or claim any ownership interest in any NFTs or NFT Media listed for sale by other users of the Services or by third parties who partnered with us (as applicable), except as may be specified in Section 5.2 of these Terms and the Loan Agreement (as applicable).
Ownership of Trademarks. Names, logos, product and service names, designs and slogans that appear on the Services that are not related to Company are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us.
Ownership of Feedback. We welcome feedback, comments and suggestions for improvements to the Services ("Feedback"). You acknowledge and expressly agree that any contribution of Feedback does not and will not give or grant you any right, title or interest in the Services or in any such Feedback. All Feedback becomes the sole and exclusive property of the Company, and the Company may use and disclose Feedback in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to the Company any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that you may have in and to any and all Feedback.
Your Content License Grant. In connection with your use of the Services, you may be able to post, upload, or submit content to be made available through the Services, including NFT Media that is tied to NFTs you wish to sell on the Services as a seller, and any content associated with your NFTs ("Your Content"). You retain all rights to Your Content you post, upload, submit, or otherwise made available through the Services, except for rights expressly granted herein. In order to operate the Services, we must obtain from you certain license rights in Your Content so that actions we take in operating the Services are not considered legal violations. Accordingly, by using the Services and uploading Your Content or otherwise made Your Content available, you grant us a license to access, use, host, cache, store, copy, reproduce, transmit, display, publish, distribute, adapt and modify (for technical purposes, e.g., making sure content is viewable on smartphones as well as computers and other devices) Your Content in any and all media or distribution methods (now known or later developed) but solely as required to be able to operate and provide the Services. You agree that this license includes the right for us to provide, promote, and improve the Services and to make Your Content available to other companies, organizations or individuals for the distribution, promotion or publication of Your Content on other media and services. You agree that these rights and licenses are royalty free, transferable, sub-licensable, worldwide and irrevocable (for so long as you make Your Content available via the Services), and include a right for us to make Your Content available to, and pass these rights along to, others with whom we have contractual relationships related to the provision of the Services, solely for the purpose of providing such Services, and to otherwise permit access to or disclose Your Content to third parties if we determine such access is necessary to comply with our legal obligations. As part of the foregoing license grant you agree that the other users of the Services shall have the right to comment on and/or tag Your Content and/or to use, publish, display, modify or include a copy of Your Content as part of their own use of the Services; except that the foregoing shall not apply to any of Your Content that you post privately for non-public display on the Services. By posting or submitting Your Content through the Services, you represent and warrant that you have, or have obtained, all rights, licenses, consents, permissions, power and/or authority necessary to grant the rights granted herein for Your Content. You agree that Your Content will not contain material subject to copyright or other proprietary rights, unless you have the necessary permission or are otherwise legally entitled to post the material and to grant us the license described above.
Removal of Your Content. We have the right, but not the obligation, to remove or refuse to post any of Your Content, including delisting any NFTs from being displayed on the Services, (a) for any or no reason in our sole discretion; and (b) take any action with respect to Your Content that we deem necessary or appropriate in our sole discretion, including if we believe that Your Content violates these Terms, infringes any intellectual property right of any person or entity, threatens the personal safety of users of the Services or the public, or could create liability for Company or its users.
Notice of Infringement - DMCA Policy. Company may, but is not obligated to, monitor the NFTs, NFT Media and Your Content uploaded to the Services for any infringement of a third party's intellectual property rights. However, Company cannot undertake to review all such content before it is posted on the Service, and cannot ensure prompt removal of objectionable content after it has been posted. Accordingly, Company assumes no liability for any action regarding transmissions, communications, or content provided by any user or third party. If you believe that any text, graphics, photos, audio, videos or other materials or works uploaded, downloaded or appearing on the Services have been copied in a way that constitutes copyright infringement, you may submit a notification to our copyright agent in accordance with 17 USC 512(c) of the Digital Millennium Copyright Act (the "DMCA"), by providing the following information in writing:
identification of the copyrighted work that is claimed to be infringed;
identification of the allegedly infringing material that is requested to be removed, including a description of where it is located on the Service;
information for our copyright agent to contact you, such as an address, telephone number and e-mail address;
a statement that you have a good faith belief that the identified, allegedly infringing use is not authorized by the copyright owners, its agent or the law;
a statement that the information above is accurate, and under penalty of perjury, that you are the copyright owner or the authorized person to act on behalf of the copyright owner; and
the physical or electronic signature of a person authorized to act on behalf of the owner of the copyright or of an exclusive right that is allegedly infringed.
Notices of copyright infringement claims should be sent by mail to: Halliday, Attn: Halliday International Inc., P.O. Box 712, San Francisco, CA 94104-0712; or by e-mail to [email protected]
. It is our policy, in appropriate circumstances and at our discretion, to disable the use of Services via the Profiles or third-party Wallets connected to the Profiles of users who repeatedly infringe copyrights or intellectual property rights of others.
We will use commercially reasonable efforts to attempt to delist or otherwise prevent such infringing content from being viewable on the Services. However, you acknowledge and agree that due to the decentralized nature of the blockchain and that web3 online services, we cannot guarantee that other users will not be able to repost or replicate such content for continued display on the Services.
A user of the Services who has uploaded or posted materials identified as infringing as described above may supply a counter-notification pursuant to sections 512(g)(2) and (3) of the DMCA. When we receive a counter-notification, we may reinstate the posts or material in question, in our sole discretion. To file a counter-notification with us, you must provide a written communication (by fax or regular mail or by email) that sets forth all of the items required by sections 512(g)(2) and (3) of the DMCA. Please note that you will be liable for damages if you materially misrepresent that content or an activity is not infringing the copyrights of others.
THIRD PARTY SERVICES AND MATERIALS
Use of Third Party Materials in the Services. Certain Services may display, include or make available services, Third Party Apps, content, data, information, applications or materials from third parties ("Third Party Materials") or provide links to certain third party websites. You agree that your access and use of such Third Party Services and Materials is governed by the terms and conditions of such Third Party Services and Materials. By using the Services, you acknowledge and agree that the Company is not responsible for examining or evaluating the content, accuracy, completeness, availability, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Services and Materials or websites. We do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any Third Party Services and Materials or third-party websites, or for any other materials, products, or services of third parties. You irrevocably waive any claim against us with respect to such Third Party Services and Materials. We are not liable for any damage or loss caused or alleged to be caused by or in connection with your access or use of any such Third Party Services and Materials, or your reliance on the privacy practices, data security processes or other policies of such Third Party Services and Materials. Third Party Services and Materials and links to other websites are provided solely as a convenience to you.
DISCLAIMERS, LIMITATIONS OF LIABILITY AND INDEMNIFICATION
Your access to and use of the Services are at your own risk. You understand and agree that the Services are provided to you on an "AS IS" and "AS AVAILABLE" basis. Without limiting the foregoing, to the maximum extent permitted under applicable law, the Company, its parents, affiliates, related companies, officers, directors, employees, agents, representatives, partners and licensors (the "Company Entities") DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES RELATING TO TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, USAGE, QUALITY, PERFORMANCE, SUITABILITY OR FITNESS OF THE SERVICES FOR ANY PARTICULAR PURPOSE, NON- INFRINGEMENT OR AS TO THE ACCURACY, QUALITY, SEQUENCE, RELIABILITY, WORKMANSHIP OR TECHNICAL CODING THEREOF, OR THE ABSENCE OF ANY DEFECTS THEREIN. The Company Entities make no warranty or representation and disclaim all responsibility and liability for: (a) the completeness, accuracy, availability, timeliness, security or reliability of the Services; (b) the authenticity, legitimacy, accuracy, or safety of any NFTs or NFT Media, (c) any harm to your computer system, loss of data, or other harm that results from your access to or use of the Services; (d) the operation or compatibility with any other application or any particular system or device, including any wallets; (e) whether the Services will meet your requirements or be available on an uninterrupted, secure or error-free basis; (f) the deletion of, or the failure to store or transmit, Your Content and other communications maintained by the Services; and (g) the Services will protect your assets from theft, hacking, cyber attack or other form of loss or devaluation caused by third-party conduct. No advice or information, whether oral or written, obtained from the Company Entities or through the Services, will create any warranty or representation not expressly made herein.
THE LAWS OF CERTAIN JURISDICTIONS, INCLUDING THE STATE OF NEW JERSEY, DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES AS SET FORTH IN SECTION 8.2 BELOW. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
Limitations of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, YOU AGREE THAT IN NO EVENT WILL THE COMPANY ENTITIES BE LIABLE (A) FOR DAMAGES OF ANY KIND, INCLUDING INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICES), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THESE TERMS OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE SERVICES OR THESE TERMS AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF THE COMPANY ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (B) FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE DELIVERY, USE OR PERFORMANCE OF THE SERVICES. SOME JURISDICTIONS (SUCH AS THE STATE OF NEW JERSEY) DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU. THE COMPANY ENTITIES' TOTAL LIABILITY TO YOU FOR ANY DAMAGES FINALLY AWARDED SHALL NOT EXCEED THE AMOUNT OF ONE HUNDRED U.S. DOLLARS ($100.00), OR THE AMOUNT YOU PAID THE COMPANY ENTITIES, IF ANY, IN THE PAST SIX (6) MONTHS FOR THE SERVICES (OR OFFERINGS PURCHASED ON THE SERVICES) GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Indemnification. By entering into these Terms and accessing or using the Services, you agree that you shall defend, indemnify and hold the Company Entities harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) incurred by the Company Entities arising out of or in connection with: (a) your violation or breach of any term of these Terms or any applicable law or regulation; (b) your violation of any rights of any third party; (c) your misuse of the Services; (d) Your Content, or (e) your negligence or willful misconduct.
You accept and acknowledge:
The prices of NFTs and other digital items are extremely volatile and subjective and collectible blockchain assets have no inherent or intrinsic value. NFTs have no inherent or intrinsic value. Fluctuations in the price of digital items could materially and adversely affect the NFTs and digital items, which may also be subject to significant price volatility. Any economic benefit that may be derived from appreciation in the value of NFTs is incidental to obtaining it for its collectible purpose.
There are risks associated with purchasing and holding NFTs and using blockchain technology. These including, but are not limited to, risk of losing access to NFTs due to loss of private key(s), custodial error or purchaser error, risk of mining or blockchain attacks, risk of hacking and security weaknesses, risk of unfavorable regulatory intervention in one or more jurisdictions, risks related to token taxation, risk of personal information disclosure, risk of uninsured losses, unanticipated risks, risks of delayed or stalled transactions, and volatility risks.
Cryptocurrencies and other similar digital assets are neither (i) deposits of or guaranteed by a bank nor (ii) insured by the FDIC or by any other governmental organization.
There are risks associated with using an Internet based currency, including but not limited to, the risk of hardware, software and Internet connections, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to your Wallet. You accept and acknowledge that Company will not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience when using any blockchain network, however caused.
There are inherent risks associated with using or interacting with public blockchains and blockchain technology. The Company does not own or control the underlying blockchain protocols which govern the operation of NFTs, and assumes no responsibility for the operation of the underlying protocols and does not guarantee the functionality or security of the blockchain network functionalities. There is no guarantee that such technology will be unavailable or subject to errors, hacking or other security risks. To the extent permitted by law, we will not be liable or responsible to you for any failure in the intended function of any applicable blockchain, smart contracts, or any bugs, viruses, exploits, logic gaps, or malicious code which may be incorporated into any such smart contracts, or which could be used to commit fraud or otherwise cause harm. Underlying blockchain protocols may also be subject to sudden changes in operating rules, including forks, and it is your responsibility to make yourself aware of upcoming operating changes.
Smart contracts execute automatically when certain conditions are met. We do not have the ability to reverse a transaction that is recorded on a public blockchain. You are responsible for ensuring that any details entered you enter in connection with a transaction using any smart contracts are accurate and complete. We not responsible for any losses due to your errors, including an incorrectly constructed transaction. Further, since smart contracts typically cannot be stopped or reversed, vulnerabilities in their programming and design or other vulnerabilities that may arise due to hacking or other security incidents can have adverse effects to digital assets, including but not limited to significant volatility and risk of loss.
To the extent permitted by applicable law, you shall bear all risk of loss of your Financed NFT. The Company will have no liability for any loss or theft of your Financed NFT. You are solely responsible for maintaining insurance policies for your Financed NFT. You acknowledge that the Company engages a service provider to store the Financed NFTs, and that such service provider may be subject to an incident, breach or other event that results in the loss or inability to access your Financed NFT, and you agree that the Company is not responsible for such loss.
The regulatory regime governing blockchain technologies, cryptocurrencies, tokens, and other crypto-based items is uncertain, and new regulations or policies may materially adversely affect the development of the Services and therefore the potential utility or value of your NFTs and other digital items. Upgrades to any blockchain network or hard forks in such networks, or a change in how transactions are confirmed on such blockchain networks, or the gas or other transaction validation fees charged through such blockchain network, may have unintended, adverse effects on all blockchains, including any that are related to your NFTs.
ARBITRATION AND CLASS ACTION WAIVER
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
Informal Process First. You and the Company agree that in the event of any dispute between you and the Company Entities, either party will first contact the other party and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation, any court action after first allowing the receiving party 30 days in which to respond. Both you and the Company agree that this dispute resolution procedure is a condition precedent which must be satisfied before initiating any arbitration against the other party.
Arbitration Agreement. After the informal dispute resolution process, any remaining dispute, controversy, or claim (collectively, "Claim") relating in any way to your use of the Company’s services and/or products, including the Services, will be resolved by arbitration, including threshold questions of arbitrability of the Claim, except as permitted herein. You and the Company agree that any Claim will be settled by final and binding arbitration, administered by JAMS under its Comprehensive Arbitration Rules and Procedures and the JAMS Consumer Minimum Standards (together, the "JAMS Rules") then in effect (those rules are deemed to be incorporated by reference into this section, and as of the date of these Terms). Because your contract with the Company, these Terms, and this Arbitration Agreement concern interstate commerce, the Federal Arbitration Act ("FAA") governs the arbitrability of all disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or conditions precedent to suit. Arbitration will be handled by a sole arbitrator in accordance with the JAMS Rules. Judgment on the arbitration award may be entered in any court that has jurisdiction. You have a right to have the arbitration conducted via telephone, or as an in-person hearing in your hometown area (if you live in the United States) or another location that is reasonably convenient to you. Any arbitration will be conducted in the English language. For users located within the United States, the seat of the arbitration shall be New York, New York. For users located outside of the United States, parties shall further agree upon the seat of arbitration. Any arbitration under these Terms will take place on an individual basis – class arbitrations and class actions are not permitted. You understand that by agreeing to these Terms, you and the Company are each waiving the right to trial by jury or to participate in a class action or class arbitration.
Waiver of Class Actions and Class Arbitrations. To the fullest extent permitted by applicable law, you and the Company each agree that any proceeding to resolve any dispute, claim, or controversy will be brought and conducted ONLY IN THE RESPECTIVE PARTY’S INDIVIDUAL CAPACITY AND NOT AS PART OF ANY CLASS (OR PURPORTED CLASS), CONSOLIDATED, MULTIPLE-PLAINTIFF, OR REPRESENTATIVE ACTION OR PROCEEDING (“CLASS ACTION”). You and the Company AGREE TO WAIVE THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS ACTION. You and the Company EXPRESSLY WAIVE ANY ABILITY TO MAINTAIN A CLASS ACTION IN ANY FORUM. If the dispute is subject to arbitration, THE ARBITRATOR WILL NOT HAVE THE AUTHORITY TO COMBINE OR AGGREGATE CLAIMS, CONDUCT A CLASS ACTION, OR MAKE AN AWARD TO ANY PERSON OR ENTITY NOT A PARTY TO THE ARBITRATION. Further, you and the Company agree that the ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS FOR MORE THAN ONE PERSON’S CLAIMS, AND IT MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CLASS ACTION. For the avoidance of doubt, however, you can seek public injunctive relief to the extent authorized by law and consistent with the Exceptions clause above.
IF THIS CLASS ACTION WAIVER IS LIMITED, VOIDED, OR FOUND UNENFORCEABLE, THEN, UNLESS THE PARTIES MUTUALLY AGREE OTHERWISE, THE PARTIES’ AGREEMENT TO ARBITRATE SHALL BE NULL AND VOID WITH RESPECT TO SUCH PROCEEDING SO LONG AS THE PROCEEDING IS PERMITTED TO PROCEED AS A CLASS ACTION. If a court decides that the limitations of this paragraph are deemed invalid or unenforceable, any putative class, private attorney general, or consolidated or representative action must be brought in a court of proper jurisdiction and not in arbitration.
Costs of Arbitration. Payment of all filing, administration, and arbitrator costs and expenses will be governed by the JAMS Rules, except that if you demonstrate that any such costs and expenses owed by you under those rules would be prohibitively more expensive than a court proceeding, the Company will pay the amount of any such costs and expenses that the arbitrator determines are necessary to prevent the arbitration from being prohibitively more expensive than a court proceeding (subject to possible reimbursement as set forth below).
Fees and costs may be awarded as provided pursuant to applicable law. If the arbitrator finds that either the substance of your claim or the relief sought in the demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the JAMS rules. In that case, you agree to reimburse the Company for all monies previously disbursed by it that are otherwise your obligation to pay under the applicable rules. If you prevail in the arbitration and are awarded an amount that is less than the last written settlement amount offered by the Company before the arbitrator was appointed, the Company will pay you the amount it offered in settlement. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
Opt-Out. You have the right to opt-out and not be bound by the arbitration and waiver of class provisions set forth in these Terms by sending written notice of your decision to the e-mail address listed in the “How to Contact Us” section of these Terms. The notice must be sent to the Company within thirty (30) days of your first registering to use the Services or agreeing to these Terms (or if this Section 10 is amended hereafter, within 30 days of such amendment being effective), otherwise you shall be bound to arbitrate disputes in accordance with these Terms, and the notice must specify your name and mailing address. If you opt out of only the arbitration provisions, and not also the class action waiver, the class action waiver still applies. You may not opt out of only the class action waiver and not also the arbitration provisions. If you opt-out of these arbitration provisions, the Company also will not be bound by them.
Exceptions. Notwithstanding anything in these Terms to the contrary, you and the Company agree that the following types of disputes will be resolved in a court of proper jurisdiction: (a) disputes or claims within the jurisdiction of a “small claims” court consistent with the jurisdictional and dollar limits that may apply, as long as it is brought and maintained as an individual dispute and not as a class, representative, or consolidated action or proceeding, (b) disputes or claims where the sole form of relief sought is injunctive relief (including public injunctive relief), or (c) intellectual property disputes.
Updating These Terms. We may modify these Terms from time to time in which case we will update the "Last Revised" date at the top of these Terms. If we make changes that are material, we will use reasonable efforts to attempt to notify you, such as by e-mail and/or by placing a prominent notice on the first page of the Website. However, it is your sole responsibility to review these Terms from time to time to view any such changes. The updated Terms will be effective as of the time of posting, or such later date as may be specified in the updated Terms. Your continued access or use of the Services after the modifications have become effective will be deemed your acceptance of the modified Terms.
Termination of License and Your Profile. If you breach any of the provisions of these Terms, all licenses granted by the Company will terminate automatically. Additionally, the Company may suspend, disable, or delete your Profile and/or the Services (or any part of the foregoing) with or without notice, for any or no reason. If the Company deletes your Profile for any suspected breach of these Terms by you, you are prohibited from creating a new Profile for the Services by connecting to a different Wallet. In the event of Profile deletion for any reason, the Company may, but is not obligated to, delete any of Your Content, including any listings you may have submitted for NFTs. The Company shall not be responsible for the failure to delete or deletion of Your Content. All sections which by their nature should survive the termination of these Terms shall continue in full force and effect subsequent to and notwithstanding any termination of these Terms by the Company or you. Termination will not limit any of the Company's other rights or remedies at law or in equity.
Injunctive Relief. You agree that a breach of these Terms will cause irreparable injury to the Company for which monetary damages would not be an adequate remedy and the Company shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.
California Residents. If you are a California resident, in accordance with Cal. Civ. Code § 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.
Miscellaneous. If any provision of these Terms shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions. These Terms and the licenses granted hereunder may be assigned by the Company but may not be assigned by you without the prior express written consent of the Company. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for reference only and shall not be read to have any legal effect. The Services are operated by us in the United States. Those who choose to access the Services from locations outside the United States do so at their own initiative and are responsible for compliance with applicable local laws. These Terms are governed by the laws of the State of California, without regard to conflict of laws rules, and the proper venue for any disputes arising out of or relating to any of the same will be the arbitration venue set forth in Section 10, or if arbitration does not apply, then the state and federal courts located in the State of California. You and the Company agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or construction of these Terms.
How to Contact Us. You may contact us regarding the Services or these Terms by e-mail at [email protected].