Revised June 29, 2023
TokyoHot.com is a website that provides users with the opportunity to purchase, collect, and showcase digital blockchain collectibles containing exclusive content from TokyoHot.com or its licensors (the “Site”). JSKY Services, Inc., a California Corporation (“JSKY”, “we”, or “us”) is making the Site available to you.
Before you use the Site you will need to agree to these Terms and Conditions and any terms incorporated herein by reference (collectively “Terms”).
PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE SITE. THESE TERMS GOVERN YOUR USE OF THE SITE, UNLESS WE HAVE EXECUTED A SEPARATE WRITTEN AGREEMENT WITH YOU FOR THAT PURPOSE. WE ARE ONLY WILLING TO MAKE THE SITE AVAILABLE TO YOU IF YOU ACCEPT ALL OF THESE TERMS. BY USING THE SITE OR ANY PART OF IT, OR BY CLICKING “I ACCEPT” BELOW OR INDICATING YOUR ACCEPTANCE IN AN ADJOINING BOX PROVIDED TO YOU DURING YOUR USE OF THE SITE, YOU ARE CONFIRMING THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY ALL OF THESE TERMS.
IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO ACCEPT THESE TERMS ON THAT ENTITY’S BEHALF, IN WHICH CASE “YOU” WILL MEAN THAT ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT ACCEPT ALL OF THESE TERMS, THEN WE ARE UNWILLING TO MAKE THE SITE AVAILABLE TO YOU. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT ACCESS OR USE THE SITE.
ANY PURCHASE OR SALE YOU MAKE, ACCEPT OR FACILITATE OUTSIDE OF THIS SITE OF AN NFT (AS DEFINED BELOW) WILL BE ENTIRELY AT YOUR RISK. WE DO NOT CONTROL OR ENDORSE PURCHASES OR SALES OF NFTS OUTSIDE OF THIS SITE. WE EXPRESSLY DENY ANY OBLIGATION TO INDEMNIFY YOU OR HOLD YOU HARMLESS FOR ANY LOSSES YOU MAY INCUR BY TRANSACTING, OR FACILITATING TRANSACTIONS, IN NFTS OUTSIDE OF THIS SITE.
Any changes to these Terms will be in effect as of the “Last Updated Date” referred to on this page. You should review these Terms before using the Site or purchasing any product or using any services that are available through this Site. Your continued use of this Site or any NFT after the “Last Updated Date” will constitute your acceptance of and agreement to such changes on the Terms.
By using this Site, you affirm that you are of legal age to enter into these Terms, and you accept and are bound by these Terms.
You may not use this Site if you: (i) do not agree to these Terms; (ii) are not over 18 years of age; or (iii) are prohibited from accessing or using this Site or any of this Site’s contents, products or services by applicable law.
1. USE OF THE SITE; ACCOUNT SET-UP AND SECURITY
(i) Account and Wallet Set-Up. You need to use a supported electronic wallet which will enable you to purchase and store collectibles that you collect or purchase via the Site. Each collectible is a Non-Fungible Token (an “NFT”) on the networks as we may make available for use for NFT listings from time to time.
(ii) Account Registration. You should provide accurate and complete registration information when you create an account for the Site. By creating an account, you agree to provide accurate, current and complete account information about yourself, and to maintain and promptly update your account information as necessary. We reserve the right reclaim usernames without liability to you. Purchased NFT (defined below) associated with your account for the Site allows you to log in the Site. You agree that the amount of the Content you can download from the Site under these Terms be based on and determined by the Purchased NFT you Own (defined below) at the time of downloading.
(iii) Account Security. You are responsible for the security of your account for the Site and for your electronic wallets. If you become aware of any unauthorized use of your password or of your account with us, or for any other customer support query, you agree to notify us immediately at contact page.
(iv) Account Transactions. You can use your electronic wallet to purchase, store, and engage in transactions using your credit card, or via one or more cryptocurrencies that we may elect to accept from time to time. Transactions that take place on the Site are managed and confirmed via the Blockchain Network. You understand that your Blockchain Network public address will be made publicly visible whenever you engage in a transaction on the Site.
2. PAYMENT, GAS FEES, AND TAXES
(i) Payment for Purchases. The Site allows you to purchase and otherwise transact in NFTs. You acknowledge and agree that all information you provide with regards to a purchase of any NFT, including, but not limited to, credit card or other payment information as the Site may accept through a third-party platform or system from time-to-time, is accurate, current and complete. You represent and warrant that you have the legal right to use the payment method you provide to a third-party platform or system that fulfills payments for NFTs, including, but not limited to, any credit card you provide when completing a transaction. When you purchase an NFT, you (a) agree to pay the price for such NFT as set forth in the applicable Service, any charges necessary to the fulfillment of the NFTs, and all applicable taxes (which may include, but not limited to, sales, use, value-added and other taxes, duties and assessments other than taxes on our net income) in connection with your purchase (the “Full Purchase Amount”), and (b) authorize us and/or a third-party platform or system that fulfills payments for NFTs to charge your credit card or other payment method for the Full Purchase Amount. You acknowledge that with respect to any NFT, we may impose a fee on any secondary sales of such NFT after its initial purchase, and regardless of whether such secondary sale occurs on the Site or on some other platform. Unless otherwise noted, all currency references are in U.S. Dollars or Ethereum. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable. Your order will not be processed until payment has been received in full, and any holds on your account by any payment processor are solely your responsibility. Your order may be suspended or cancelled for any reason, including, but not limited to, if the payment method cannot be verified, is invalid or is otherwise not acceptable.
(ii) Gas Fees. Transactions on blockchain networks may require the payment of a transaction fee or other relevant fees (each, a “Gas Fee”). The Gas Fees fund the network of computers that run the Blockchain Network. This means that you will need to pay a Gas Fee for each transaction that you instigate via the Site. Except as otherwise expressly set forth in these Terms, you will be solely responsible for paying any Gas Fee for any transaction that you instigate via the Site.
(iii) No Liability for Payments and Transactions. We have no liability to you or to any third party for any claims or damages that may arise as a result of any payments or transactions that you engage in via the Site, or any other payment or transactions that you conduct via the Site or otherwise. We do not provide refunds for any purchases that you might make on or through the Site – whether for NFTs sold by us, our partners, or anything else. ALL SALES ARE FINAL.
3. OWNERSHIP, LICENSE, AND OWNERSHIP RESTRICTIONS
YOUR OWNERSHIP OF ANY NFT WILL ONLY BE RECOGNIZED BY US IF YOU HAVE PURCHASED OR OTHERWISE RIGHTFULLY ACQUIRED SUCH NFTS FROM A LEGITIMATE SOURCE AND NOT THROUGH ANY OF THE PROHIBITED ACTIVITIES (AS DEFINED BELOW).
For the purposes of this Section 3, the following capitalized terms will have the following meanings:
“Content” means any art, design, drawings, or images of any kind (in any form or media, including, without limitation, video or photographs) that may be associated with a NFT that you Own.
“Own” means, with respect to a NFT, a token whose holder is entitled to be the beneficiary of a limited license granting the right to display, subject to the terms of this Terms, a digital good that you have purchased or otherwise lawfully acquired from us or from any other source which is displayed on our Site (and not through any of the Prohibited Activities), where proof of such purchase is recorded on the Blockchain Network.
“Purchased NFT” means a NFT that you Own. “Third Party IP” means any third-party patent rights (including, but not limited to, patent applications and disclosures), copyrights, trade secrets, trademarks, know-how or any other intellectual property rights recognized in any country or jurisdiction in the world.
(i) Ownership of NFT. When you purchase an NFT, you own the NFT but you do not own any Third Party IP incorporated in or associated with the NFT or the Content except for the license grants expressly set forth in Section 3(v) below. Ownership of any NFT is subject to the Terms. Ownership of the NFT is mediated entirely by the Blockchain Network. Except as otherwise permitted by these Terms in cases where we determine that the NFT has not been rightfully acquired from a legitimate source (including, but not limited to, through any of the Prohibited Activities), at no point will we seize, freeze, or otherwise modify the ownership of any NFT.
(ii) We Own the Site. You acknowledge and agree that we (or, as applicable, our licensors) owns all legal right, title and interest in and to all other elements of the Site, and all intellectual property rights therein (including, but not limited to, all Content, designs, systems, methods, information, computer code, software, services, “look and feel”, organization, compilation of the content, code, data, and all other elements of the Site (collectively, the “Site Materials”)). You acknowledge that the Site Materials are protected by copyright, trade dress, patent, and trademark laws, international conventions, other relevant intellectual property and proprietary rights, and applicable laws. All Site Materials are the copyrighted property of us or our licensors, and all trademarks, service marks, and trade names associated with the Site or otherwise contained in the Site Materials are proprietary to us or our licensors.
(iii) No User License or Ownership of Site Materials. Except as expressly set forth herein, your use of the Site does not grant you ownership of or any other rights with respect to any content, code, data, or other Site Materials that you may access on or through the Site. We reserve all rights in and to the Site Materials that are not expressly granted to you in these Terms.
(iv) Further User Ownership Acknowledgements. For the sake of clarity, you understand and agree: (a) that your purchase of an NFT, whether via the Site or otherwise, does not give you any rights or licenses in or to the Site Materials (including, but not limited to, Third Party IP, and our and third parties’ copyright in and to the associated Content) other than those expressly contained in these Terms; (b) that you do not have the right, except as otherwise set forth in these Terms, to reproduce, distribute, or otherwise commercialize any elements of the Site Materials (including, but not limited to, any Content) without our prior written consent in each case, which consent we may withhold in our sole and absolute discretion; and (c) that you will not apply for, register, or otherwise use or attempt to use any of our trademarks or service marks, or any confusingly similar marks, anywhere in the world without our prior written consent in each case, which consent we may withhold at our sole and absolute discretion.
(v) User License to Content. Subject to your continued compliance with these Terms, we grant you a worldwide, non-exclusive, non-transferable, royalty-free license to use, copy, and display the Content for your NFTs, solely for the following purposes and solely when you are the owner of such NFT: (a) for your own personal, non-commercial use; (b) as part of a marketplace that permits the purchase and sale of your NFT, provided that the marketplace cryptographically verifies each NFT owner’s rights to display the Content for their NFT to ensure that only the actual owner can display the Content; or (c) as part of a third party website or application that permits the inclusion, involvement, or participation of your NFT, provided that the website/application cryptographically verifies each NFT’s owner’s rights to display the Content for their NFT to ensure that only the actual owner of the NFT can display the Content, and provided that the Content is no longer visible once the owner of the NFT leaves the website/application.
(vi) Restrictions on Ownership. You agree that you may not, nor permit any third party to do or attempt to do any of the foregoing without our (or, as applicable, our licensors’) express prior written consent in each case: (a) modify the Content for your NFT in any way, including, but not limited to, the shapes, designs, drawings, attributes, or color schemes; (b) use the Content for your NFT to advertise, market, or sell any product or service; (c) use the Content for your Purchased NFT 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 be objectionable by a reasonable person; (d) use the Content for your NFT in movies, videos, or any other forms of media, except to the limited extent that such use is expressly permitted in these Terms or solely for your own personal, non-commercial use; (e) sell, distribute for commercial gain (including, but not limited to, giving away in the hopes of eventual commercial gain), or otherwise commercialize merchandise that includes, contains, or consists of the Content for your NFT; (f) attempt to trademark, copyright, or otherwise acquire additional intellectual property rights in or to the Content for your NFT; or (g) otherwise utilize the Content for your NFT for your or any third party’s commercial benefit.
(vii) Third Party IP. If the Content associated with your Purchased NFT contains Third Party IP (e.g., licensed intellectual property from a content creator), you understand and agree as follows: (a) that you will not have the right to use such Third Party IP in any way except as incorporated in the Content, and subject to the license and restrictions contained herein; (b) that, depending on the nature of the license granted from the owner of the Third Party IP, we may need to (and reserve every right to) pass through additional restrictions on your ability to use the Content; and (c) to the extent that we inform you of such additional restrictions in writing, you will be responsible for complying with all such restrictions from the date that you receive the notice, and that failure to do so will be deemed a breach of the license contained in this Section 3.
(viii) Mobile Software from Smartphone Application Store. The following terms and conditions apply to You only if you are using the Site through an app downloaded from the Apple App Store or any other application store(the “App”). To the extent the other terms and conditions of these Terms are less restrictive than, or otherwise conflict with, the terms and conditions of this paragraph, the more restrictive or conflicting terms and conditions in this paragraph apply, but solely with respect to your use of the App from the application store. You acknowledge and agree that these Terms are solely between you and the Company, not a company operating application store such as Apple, and that such company has no responsibility for the App or content thereof. Your use of the App must comply with the App Store’s applicable terms of use. You acknowledge that we are not responsible for addressing any claims of yours or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (a) product liability claims, (b) any claim that the App fails to conform to any applicable legal or regulatory requirement, and (c) claims arising under consumer protection or similar legislation..
(ix) Other Terms of License. The license granted in Section 3(v) above applies only to the extent that you continue to Own the applicable NFT. If at any time you sell, swap, donate, give away, transfer, or otherwise dispose of your NFT for any reason, the license granted in Section 3(v) will immediately expire with respect to that NFT without the requirement of notice, and you will have no further rights in or to the Content for that NFT. The restrictions in Sections 3(vii) and 3(viii) will survive the expiration or termination of these Terms.
(x) User Feedback. You may choose to submit comments, bug reports, ideas or other feedback about the Site, including but not limited to about how to improve the Site (collectively, “Feedback”). By submitting any Feedback, you agree that we are free to use such Feedback at our discretion and without additional compensation to you, and to disclose such Feedback to third parties (whether on a non-confidential basis, or otherwise). You hereby grant us a perpetual, irrevocable, nonexclusive, worldwide license under all rights necessary for us to incorporate and use your Feedback for any purpose.
4. CONDITIONS OF USE AND PROHIBITED ACTIVITIES
YOU AGREE THAT YOU ARE RESPONSIBLE FOR YOUR OWN CONDUCT WHILE ACCESSING OR USING THE SITE, AND FOR ANY CONSEQUENCES THEREOF. YOU AGREE TO USE THE SITE ONLY FOR PURPOSES THAT ARE LEGAL, PROPER AND IN ACCORDANCE WITH THESE TERMS AND ANY APPLICABLE LAWS OR REGULATIONS.
(i) User Warranties. Without limiting the foregoing, you represent and warrant that your use of the Site will not (and will not allow any third party to):
(a) in any manner:
(1) involve the sending, uploading, distributing or disseminating any unlawful, defamatory, harassing, abusive, fraudulent, obscene, or otherwise objectionable content;
(2) involve the distribution of any viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or any other items of a destructive or deceptive nature;
(3) involve the uploading, posting, transmitting or otherwise making available through the Site any content that infringes the intellectual proprietary rights of any party;
(4) involve using the Site to violate the legal rights (such as rights of privacy and publicity) of others;
(5) involve engaging in, promoting, or encouraging illegal activity including, but not limited to money laundering;
(6) involve interfering with other users’ enjoyment of the Site;
(7) involve exploiting the Site for any unauthorized commercial purpose;
(8) involve modifying, adapting, translating, or reverse engineering any portion of the Site;
(9) involve removing any copyright, trademark or other proprietary rights notices contained in or on the Site or any part of it;
(10) involve reformatting or framing any portion of the Site;
(11) involve displaying any content on the Site that contains any hate-related or violent content or contains any other material, products or services that violate or encourage conduct that would violate any criminal laws, any other applicable laws, or any third party rights;
(12) involve using any spider, site search/retrieval application, or other device to retrieve or index any portion of the Site or the content posted on the Site, or to collect information about its users for any unauthorized purpose;
(13) involve accessing or using the Site for the purpose of creating a product or service that is competitive with any of our products or services;
(14) involve abusing, harassing, or threatening another user of the Site or any of our authorized representatives, customer service personnel, chat board moderators, or volunteers (including, but not limited to, filing support tickets with false information, sending excessive emails or support tickets, obstructing our employees from doing their jobs, refusing to follow the instructions of our employees, or publicly disparaging us by implying favoritism by our employees or otherwise); or
(15) involve using any abusive, defamatory, ethnically or racially offensive, harassing, harmful, hateful, obscene, offensive, sexually explicit, threatening or vulgar language when communicating with another user of the Site or any of our authorized representatives, customer service personnel, chat board moderators, or volunteers
and/or
(b) in any manner:
(1) involve creating user accounts by automated means or under false or fraudulent pretenses;
(2) involve the impersonation of another person (via the use of an email address or otherwise);
(3) involve using, employing, operating, or creating a computer program to simulate the human behavior of a user (“Bots”);
(4) involve using, employing, or operating Bots or other similar forms of automation to engage in any activity or transaction on the Site (including, but not limited to, purchases any NFTs);
(5) involve acquiring NFTs through inappropriate or illegal means (including, but not limited to, among other things, using a stolen credit card, or a payment mechanism that you do not have the right to use, or purchasing a NFT and then attempting to charge the cost back to your payment method while still maintaining ownership or control of the NFT or selling, gifting or trading the NFT to someone else); or
(6) involve the purchasing, selling, or facilitating the purchase and sale of any user’s account(s) to other users or third parties for cash or cryptocurrency consideration outside of the Site; or
(7) otherwise involve or result in the wrongful seizure or receipt of any NFT or other digital assets (each of the above listed events in these section 4 being a “Prohibited Activity” and together the “Prohibited Activities”).
(ii) Effect of Your Breaches. If you engage in any of the Prohibited Activities, we may, at our sole and absolute discretion, without notice or liability to you, and without limiting any of our other rights or remedies at law or in equity, immediately suspend or terminate your user account and/or delete your NFT’s images and descriptions from the Site. If we delete your NFT’s images and descriptions from the Site, such deletion will not affect your ownership rights in any NFTs that you already Own, but you will not receive a refund of any amounts you paid for those NFTs.
NOTWITHSTANDING THE FOREGOING, HOWEVER, IF WE REASONABLY BELIEVE THAT YOU ARE ENGAGED IN ANY OF THE PROHIBITED ACTIVITIES, IN ADDITION TO OUR RIGHT TO IMMEDIATELY SUSPEND OR TERMINATE YOUR USER ACCOUNT AND/OR DELETE YOUR NFT’S IMAGES AND DESCRIPTIONS FROM THE SITE, WE ALSO RESERVE THE RIGHT, AT OUR SOLE AND ABSOLUTE DISCRETION, WITHOUT NOTICE OR LIABILITY TO YOU, TO TAKE ANY OR ALL OF THE FOLLOWING ACTIONS: (A) TO DEEM ANY TRANSACTION THAT TOOK PLACE VIA OR AS THE RESULT OF SUCH ACTIVITIES TO BE VOID AB INITIO; AND/OR (B) WHERE PRACTICABLE, TO IMMEDIATELY CONFISCATE ANY NFTS (INCLUDING THEIR UNDERLYING NFTS) THAT WERE PURCHASED OR ACQUIRED AS THE RESULT OF SUCH ACTIVITIES.
5. TERMINATION
(i) Your Termination. You may terminate these Terms at any time by canceling your account on the Site and discontinuing your access to and use of the Site. If you cancel your account, or otherwise terminate these Terms, you will not receive any refunds for any purchases that you might make on or through the Site.
(ii) Our Termination. You agree that we, in our sole discretion and for any or no reason, may terminate these Terms or service based on the Terms, and suspend and/or terminate your account(s) for the Site without the provision of prior notice. You agree that any suspension or termination of your access to the Site may be without prior notice, and that we will not be liable to you or to any third party for any such suspension or termination.
(iii)Other Remedies Available. If we terminate these Terms or suspend or terminate your access to or use of the Site due to your breach of these Terms or any suspected fraudulent, abusive, or illegal activity (including, but not limited to, if you engage in any of the Prohibited Activities), then termination of these Terms will be in addition to any other remedies we may have at law or in equity.
(iv) Referral to Governmental Authority. We have the right, without provision of prior notice, to take appropriate legal action, including, but not limited to, referral to law enforcement or regulatory authority, or notifying the harmed party of any illegal or unauthorized use of the Site. Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone using the Site.
(v) Effect of Termination. Upon any termination or expiration of these Terms, whether by you or us, you may no longer have access to information that you have posted on the Site or that is related to your account, and you acknowledge that we will have no obligation to maintain any such information in our databases or to forward any such information to you or to any third party. Sections 1 and 3 through 16 will survive the termination or expiration of these Terms for any reason.
YOU WAIVE AND HOLD US AND OUR PARENT, SUBSIDIARIES, AFFILIATES AND OUR AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, CONTRACTORS, LICENSORS, LICENSEES, SUPPLIERS, AND SUCCESSORS HARMLESS FROM ANY AND ALL CLAIMS RESULTING FROM ANY ACTION TAKEN BY US AND ANY OF THE FOREGOING PARTIES RELATING TO ANY INVESTIGATIONS BY EITHER US OR SUCH PARTIES OR BY LAW ENFORCEMENT AUTHORITIES.
6. DISCLAIMERS
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR ACCESS TO AND USE OF THE SITE IS AT YOUR SOLE RISK, AND THAT THE SITE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO SITELICABLE LAW, WE, OUR SUBSIDIARIES, AFFILIATES, AND LICENSORS MAKE NO EXPRESS WARRANTIES AND HEREBY DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE SITE AND ANY PART OF IT, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, CORRECTNESS, ACCURACY, OR RELIABILITY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE, OUR PARENT, SUBSIDIARIES, AFFILIATES, AND LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (I) YOUR ACCESS TO OR USE OF THE SITE WILL MEET YOUR REQUIREMENTS; (II) YOUR ACCESS TO OR USE OF THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR; (III) USAGE DATA PROVIDED THROUGH THE SITE WILL BE ACCURATE; (IV) THE SITE OR ANY CONTENT, SERVICES, OR FEATURES MADE AVAILABLE ON OR THROUGH THE SITE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (V) THAT ANY DATA THAT YOU DISCLOSE WHEN YOU USE THE SITE WILL BE SECURE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN CONTRACTS WITH CONSUMERS, SO SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET, AND AGREE THAT WE HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY BREACH OF SECURITY UNLESS IT IS DUE TO OUR WILLFUL DEFAULT.
WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSSES YOU INCUR AS THE RESULT OF YOUR USE OF THE BLOCKCHAIN NETWORK, OR YOUR ELECTRONIC WALLET, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (I) USER ERROR, SUCH AS FORGOTTEN PASSWORDS OR INCORRECTLY CONSTRUED SMART CONTRACTS OR OTHER TRANSACTIONS; (II) SERVER FAILURE OR DATA LOSS; (III) CORRUPTED WALLET FILES; OR (IV) UNAUTHORIZED ACCESS OR ACTIVITIES BY THIRD PARTIES, INCLUDING, BUT NOT LIMITED TO, THE USE OF VIRUSES, PHISHING, BRUTE-FORCING OR OTHER MEANS OF ATTACK AGAINST THE SITE, THE BLOCKCHAIN NETWORK, OR ANY ELECTRONIC WALLET.
NFTS ARE INTANGIBLE DIGITAL ASSETS THAT EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN A BLOCKCHAIN NETWORK. ALL SMART CONTRACTS ARE CONDUCTED AND OCCUR ON THE DECENTRALIZED LEDGER WITHIN THE BLOCKCHAIN NETWORK. WE HAVE NO CONTROL OVER AND MAKE NO GUARANTEES OR PROMISES WITH RESPECT TO SMART CONTRACTS.
WE ARE NOT RESPONSIBLE FOR LOSSES DUE TO BLOCKCHAINS OR ANY OTHER FEATURES OF THE BLOCKCHAIN NETWORK, OR ANY ELECTRONIC WALLET, OR ANY OTHER SOFTWARE USED IN CONJUNCTION WITH SUCH NETWORKS OR WALLETS, INCLUDING BUT NOT LIMITED TO LATE REPORT BY DEVELOPERS OR REPRESENTATIVES (OR NO REPORT AT ALL) OF ANY ISSUES WITH THE BLOCKCHAIN SUPPORTING THE BLOCKCHAIN NETWORK, INCLUDING FORKS, TECHNICAL NODE ISSUES, OR ANY OTHER ISSUES HAVING FUND LOSSES AS A RESULT.
7. LIMITATION OF LIABILITY
YOU UNDERSTAND AND AGREE THAT WE, OUR PARENT, SUBSIDIARIES, AFFILIATES AND LICENSORS WILL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES WHICH YOU MAY INCUR, HOWSOEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT, BUT NOT LIMITED TO, ANY LOSS OF PROFITS (WHETHER INCURRED DIRECTLY OR INDIRECTLY), LOSS OF GOODWILL OR BUSINESS REPUTATION, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, DIMINUTION OF VALUE OR ANY OTHER INTANGIBLE LOSS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
YOU AGREE THAT OUR TOTAL, AGGREGATE LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR ACCESS TO OR USE OF (OR YOUR INABILITY TO ACCESS OR USE) ANY PORTION OF THE SITE, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, IS LIMITED TO THE AMOUNTS YOU HAVE ACTUALLY AND LAWFULLY PAID US UNDER THESE TERMS IN THE TWO (2) MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE.
YOU ACKNOWLEDGE AND AGREE THAT WE HAVE MADE THE SITE AVAILABLE TO YOU AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE REPRESENTATIONS AND WARRANTIES, DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN, WHICH REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN US AND YOU AND FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN US AND YOU. WE WOULD NOT BE ABLE TO PROVIDE THE SITE TO YOU WITHOUT THESE LIMITATIONS.
8. ASSUMPTION OF RISK
(i) Value and Volatility. The prices of collectible blockchain assets are extremely volatile and subjective and collectible blockchain assets have no inherent or intrinsic value. Fluctuations in the price of other digital assets could materially and adversely affect the value of your NFTs, which may also be subject to significant price volatility. Each NFT has no inherent or intrinsic value. We cannot and do not guarantee that any NFT purchased will retain its original value, or any value at all, as the value of collectibles is inherently subjective and factors occurring outside of the Site ecosystem may materially impact the value and desirability of any particular NFT.
(ii) Tax Calculations. You are solely responsible for determining what, if any, taxes apply to your NFT-related transactions. We are not responsible for determining the taxes that apply to your transactions on the Site.
(iii) Use of Blockchain. The Site does not store, send, or receive NFTs. This is because NFTs exist only by virtue of the ownership record maintained on the Site’s supporting blockchain in the Blockchain network. Any transfer of NFTs occurs within the supporting blockchain in the Blockchain Network, and not on the Site.
(iv) Inherent Risks with Internet Currency. There are risks associated with using an Internet-based of crypto-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 information stored within your electronic wallet. You accept and acknowledge that we will not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience when using the Blockchain Network, however caused.
(v) Regulatory Uncertainty. The regulatory regime governing blockchain technologies, cryptocurrencies and tokens is uncertain, and new regulations or policies may materially adversely affect the development of the NFT, and therefore the potential utility or value of your NFTs.
(vi) Software Risks. Upgrades to the Blockchain Network, a hard fork in the Blockchain Network, or a change in how transactions are confirmed on the Blockchain Network may have unintended, adverse effects on all blockchains using the Blockchain Network’s NFT standard.
9. INDEMNIFICATION
You agree to hold harmless and indemnify us and our parent, subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners from and against any claim, liability, loss, damage (actual and consequential) of any kind or nature, suit, judgment, litigation cost and attorneys’ fees arising out of or in any way related to: (i) your breach of these Terms; (ii) your misuse of the Site; or (iii) your violation of applicable laws, rules or regulations in connection with your access to or use of the Site. You agree that we will have control of the defense or settlement of any such claims.
10. EXTERNAL SITES
The Site may include hyperlinks to other websites or resources (collectively, the “External Sites”), which are provided solely as a convenience to our users. We have no control over any External Sites. You acknowledge and agree that we are not responsible for the availability of any External Sites, and that we do not endorse any advertising, products or other materials on or made available from or through any External Sites. Furthermore, you acknowledge and agree that we are not liable for any loss or damage which may be incurred with respect to the availability or unavailability of the External Sites, or as a result of any reliance placed by you upon the completeness, accuracy or existence of any advertising, products or other materials on, or made available from, any External Sites.
11. FORCE MAJEURE
(i) Force Majeure Events. We will not be liable or responsible to the you, nor be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any of these Terms, when and to the extent such failure or delay is caused by or results from the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, epidemics, pandemics, including novel coronavirus pandemic (COVID-19), tsunami, explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this agreement; (f) strikes, labor stoppages or slowdowns or other industrial disturbances; (g) shortage of adequate or suitable Internet connectivity, telecommunication breakdown or shortage of adequate power or electricity; and (h) other similar events beyond our control.
(ii) Performance During Force Majeure Events. If we suffer a Force Majeure Event, we will use reasonable efforts to notify you of the Force Majeure Event. We will resume the performance of our obligations as soon as reasonably practicable after the removal of the cause. In the event that our failure or delay remains uncured for a period of forty-five (45) consecutive days following written notice given by us under this Section 11, we may thereafter terminate these Terms upon fifteen (15) days’ written notice.
12. CHANGES TO THE SITE
We are constantly innovating the Site to help provide the best possible experience. You acknowledge and agree that the form and nature of the Site, and any part of it, may change from time to time without prior notice to you, and that we may add new features and change any part of the Site at any time without notice.
13. CHILDREN
You affirm that you are over the age of 18. The Site is not intended for children under 18. If you are under the age of 18, you may not use the Site. We do not knowingly collect information from or direct any of our content specifically to children under the age of 18. If we learn or have reason to suspect that you are a user who is under the age of 18, we will close and delete your account. Other countries may have different minimum age limits, and if you are below the minimum age for providing consent for data collection in your country, you may not use the Site.
14. PRIVACY POLICY
Our Privacy Policy describes the ways we collect, use, store and disclose your personal information, and is hereby incorporated by this reference into these Terms. You agree to the collection, use, storage, and disclosure of your data in accordance with our Privacy Policy.
15. DISPUTE RESOLUTION; BINDING ARBITRATION
(i) Arbitration; Waiver of Class Action. If we cannot resolve a dispute between you and us informally, you and we agree that any dispute arising out of or relating to this Agreement, including, without limitation, federal and state statutory claims, common law claims, and those based in contract, tort, fraud, misrepresentation, or any other legal theory, shall be resolved through binding arbitration, on an individual basis (the “Arbitration Agreement”). Subject to applicable jurisdictional requirements, you may elect to pursue your claim in your local small claims court rather than through arbitration so long as your matter remains in small claims court and proceeds only on an individual (non-class and non-representative) basis. Arbitration shall be conducted in accordance with the American Arbitration Association’s rules for arbitration of consumer-related disputes (accessible at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf).
This Arbitration Agreement includes, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement. All such matters shall be decided by an arbitrator and not by a court or judge.
CLASS ACTION WAIVER: TO THE EXTENT PERMISSIBLE BY LAW, ALL CLAIMS MUST BE BROUGHT IN A PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE PROCEEDING (COLLECTIVELY “CLASS ACTION WAIVER”). THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS OR ENGAGE IN ANY CLASS ARBITRATION. YOU ACKNOWLEDGE THAT, BY AGREEING TO THESE TERMS, YOU AND OC ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION. The arbitration will be conducted by a single, neutral arbitrator and shall take place in the county or parish in which you reside, or another mutually agreeable location, in the English language. The arbitrator may award any relief that a court of competent jurisdiction could award and the arbitral decision may be enforced in any court. An arbitrator’s decision and judgment thereon will not have a precedential or collateral estoppel effect. At your request, hearings may be conducted in person or by telephone and the arbitrator may provide for submitting and determining motions on briefs, without oral hearings. To the extent permitted by law, the prevailing party in any action or proceeding to enforce this Agreement, any arbitration pursuant to this Agreement, or any small claims action shall be entitled to costs and attorneys’ fees. If the arbitrator or arbitration administrator would impose filing fees or other administrative costs on you, we will reimburse you, upon request, to the extent such fees or costs would exceed those that you would otherwise have to pay if you were proceeding instead in a court. We will also pay additional fees or costs if required to do so by the arbitration administrator’s rules or applicable law.
(iv) Our Equitable Remedies. Notwithstanding the foregoing, we may seek and obtain injunctive relief in any jurisdiction in any court of competent jurisdiction, and you agree that these Terms are specifically enforceable by us through injunctive relief and other equitable remedies without proof of monetary damages.
16. GENERAL
(i) Entire Agreement. These Terms and our Privacy Policy constitute the entire legal agreement between you and us and will be deemed to be the final and integrated agreement between you and us, and govern your access to and use of the Site, and completely replace any prior or contemporaneous agreements between you and us related to your access to or use of the Site, whether oral or written.
(ii) No Third-Party Beneficiaries. These Terms do not and are not intended to confer any rights or remedies upon any person or entity other than you.
(iii) Interpretation. The language in these Terms will be interpreted as to its fair meaning, and not strictly for or against any party.
(iv) Severability. Should any part of these Terms be held invalid, illegal, void or unenforceable, that portion will deemed severed from these Terms and will not affect the validity or enforceability of the remaining provisions of these Terms.
(v) No Waivers. Our failure or delay to exercise or enforce any right or provision of these Terms will not constitute or be deemed a waiver of future exercise or enforcement of such right or provision. The waiver of any right or provision of these Terms will be effective only if in writing and signed for and on behalf of us by a duly authorized representative.
(vi) Governing Law. All matters arising out of or relating to these Terms will be governed by and construed in accordance with the laws of the state of Nevada and the laws of the United States applicable therein without giving effect to any choice or conflict of law provision or rule (whether of the State of Nevada or any other jurisdiction).
(vii) Venue. Subject to Section 16 of these Terms, any legal action or proceeding arising under these Terms will be brought exclusively in the state and federal courts located in the State of California, and we and you irrevocably consent and attorn to the personal jurisdiction and venue there.
(viii) Notices. We may provide you with any notices (including, but not limited to, those regarding changes to these Terms) by email or postings on the Site. By providing us with your email address, you consent to our using the email address to send you any notices. Notices sent by email will be effective when we send the email, and notices we provide by posting will be effective upon posting. It is your responsibility to keep your email address current.
(ix) Assignment. You may not assign any of your rights or obligations under these Terms, whether by operation of law or otherwise, without our prior written consent. We may assign our rights and obligations under these Terms in our sole discretion to an affiliate, or in connection with an acquisition, sale or merger.