Last Revised on December 18, 2021
Welcome to NFT Golf Shop, NFTGolfShop.com (the “Website”), and the related mobile applications (the “App”) operated on behalf of LYNQZ, LLC (“Company”, “we” or “us” or “our”). These Terms and Conditions (“Terms”) constitute a legally binding agreement between Company and each registered or unregistered end user (each, a “User,” “you” or “your”) of the NFT Platform located at the Website or such other URL as may be designated by Company from time to time, as well as any mobile apps or other related services or applications thereto (collectively, the “NFT Platform”). The NFT Platform and any content, tools, features and functionality offered on or through our Website and the App, including making available Company NFTs (as defined below) for purchase or sale, are collectively referred to as the “Services.”
Please carefully review these Terms. These Terms govern your access to and use of the Services. By accessing and using the Services (including by creating an Account or by purchasing or bidding on any items), you are deemed to have read, accepted, executed and agreed to be bound by these Terms. We may change or amend the Terms at any time at our sole and absolute discretion. Any changes to the Terms will be in effect as of the “LAST REVISED” date referred to at the top of this page. You acknowledge and agree that the form and nature of the Services, and any part of it, may change from time to time without prior notice to you, and that we may add new or remove existing features and change any part of the Services. 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 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 11 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 11.
IF ANY PROVISION OF THESE TERMS OR ANY FUTURE CHANGES ARE UNACCEPTABLE TO YOU, DO NOT USE OR CONTINUE TO USE THE SERVICES AND DO NOT CREATE AN ACCOUNT. YOUR CONTINUED USE OF THE SERVICES FOLLOWING THE POSTING OF ANY NOTICE OF ANY CHANGE TO THESE TERMS OF SERVICE SHALL CONSTITUTE YOUR ACCEPTANCE AND AGREEMENT TO SUCH CHANGE.
1. WHO MAY USE THE SERVICES
You must be 13 years of age or older and reside in the United States or any of its territories or Canada to use the Services. Additional aspects of the Services may have further age restrictions that will be presented to you in connection with those Services. Minors under the age of majority in their jurisdiction but that are at least 13 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. Children under the age of 13 are not permitted to use the Services. By using the Services, you represent and warrant that you meet these requirements.
2. CERTAIN DEFINITIONS
In addition to the terms used and defined throughout these Terms, the following capitalized terms will have the following meanings:
2.1 “Company NFT” means an NFT (as defined below) that is sold or otherwise transacted directly by or on behalf of Company, and that may be associated with certain Content (as defined below) made available by Company.
2.2 “Content” means content, materials, art, design, and drawings (in any form or media, including, without limitation, video or photographs).
2.3 “Name NFT” means a Company NFT that includes utility that enables the user to reserve a specific user name on the Services, such as LYNQZ.
2.4 “NFT” means a non-fungible token implemented on a blockchain using smart contracts, such as, for illustration but not limitation, a non-fungible token conforming to the ERC-721 standard on the Ethereum blockchain network. The NFT is separate and distinct from the Content or any other Third Party IP with which it may be linked or associated. An NFT is not a medium of exchange and is not convertible virtual currency.
2.5 “Third Party IP” means any third party copyrights, trade secrets, trademarks, know-how, patent rights or any other intellectual property rights recognized in any country or jurisdiction in the world.
3. USER ACCOUNTS AND WALLETS
3.1 Account Creation and Maintenance
To use certain areas of the Services, you may need to create an account (“Account”) on the Company Website, App or a third party service. For any Account created on the NFT Platform, you agree to provide us with accurate, complete and updated information for your Account. By creating an account, you represent and warrant that you have not been identified as a Specially Designated National or placed on any sanctions list by the U.S. Treasury Department’s Office of Foreign Assets Control, the U.S. Commerce Department, or the U.S. Department of State; and you will not use our Website to conduct any illegal or illicit activity. You can access, edit and update your Account via the account settings page of your profile. You are solely responsible for any activity on your Account and for maintaining the confidentiality and security of your password. We are not liable for any acts or omissions by you in connection with your Account, and we are not liable for any loss as a result of your account being compromised. You must immediately notify us at [email protected] if you know or have any reason to suspect that your Account or password have been stolen, misappropriated or otherwise compromised, or in case of any actual or suspected unauthorized use of your Account.
3.2 One Account Per User
Each individual user may only have one NFT Platform Account. Company reserves the right, in its sole discretion, to determine whether you have or control more than one Account. Company further reserves the right to suspend or terminate any Account that it deems to be in excess of the one Account permitted per individual user. During any period of suspension of an Account, you will not be able to perform any actions on the Services through that Account.
3.3 Third-Party Wallet Extensions
For conducting cryptocurrency transactions we may use third-party electronic wallet extensions such as (but not limited to) MetaMask; your interactions with MetaMask and/or any third-party electronic wallet extensions are governed by the applicable terms and privacy policies of each third-party service provider.
4. NFT PURCHASES AND PAYMENT
4.1 Ownership of a Company NFT
When you purchase a Company NFT, you own the NFT but you do not own any intellectual property rights in the Content except for the license grants expressly set forth herein in Section 5 (“License to Content”).
4.2 Payment for Purchases
The Services allow you to purchase and otherwise transact in Company NFTs. You acknowledge and agree that all information you provide with regards to a purchase of Company NFTs, including, without limitation, credit card or other payment information as the Services 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 Company NFTs, including, without limitation, any credit card you provide when completing a transaction. When you purchase a Company NFT, you (a) agree to pay the price for such Company NFT as set forth in the applicable Service, any charges necessary to the fulfillment of the Company NFTs, including any required gas fees, and all applicable taxes (which may include, without limitation, 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 Company NFTs to charge your credit card or other payment method for the Full Purchase Amount. You acknowledge that with respect to Company NFTs, Company may impose a fee on any secondary sales of such Company NFT after its initial purchase including future royalties, and regardless whether such secondary sale occurs on the NFT Platform or on some other platform. Unless otherwise noted, all currency references are in U.S. Dollars. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable. Orders 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 if the payment method cannot be verified, is invalid or is otherwise not acceptable.
4.3 Recordkeeping of Purchased Company NFTs
Any Company NFT that you acquire on the NFT Platform will be assigned to the Company’s Wallet associated with your Account, as provided in Section 3.3 of these Terms, and will be recorded on the applicable blockchain. Company NFTs purchased through a Third Party Platform will be assigned to a separate wallet, which may include a custodial wallet, as described in the respective Third Party Platform’s terms of service, as provided in Section 9.2. Company has no obligation or liability to you for keeping, storing, or helping you recover any Company NFT that you purchase hereunder.
4.4 Limited Editions and Unique NFTs
The Company will generally advise how many individual Company NFTs it is offering in an edition. In certain instances, a purchase of a Company NFT may come with a commitment by the Company that the Company NFT will be “one of a kind” or a similar designation (“Unique NFT”). In such an instance, Company commits that it will not sell any other NFT featuring the same Content or attached privileges as associated with such Unique NFT. Company will also provide you such documentation as determined by Company that attests that Company has not sold or distributed or otherwise made available any other NFT that is associated with the same Content or associated utility as associated with your Unique NFT. For clarity, Company does not represent, warrant or guarantee that others have not created or downloaded their own copies of such Content (including via unauthorized ripping or downloading of such Content), or that others will not attempt to sell their own NFTs featuring such Content. Company has no obligation or liability to take down such other NFTs featuring such Content. Further, the foregoing does not restrict the Company from selling other Content associated with the same event, individual or property as featured in any Unique NFT, as long as such other Content or associated utility are different from the Content or associated utility of the Unique NFT (e.g., different image, art, camera angle, background music, privileges, etc.).
4.5 Signed NFTs
The Company may, from time to time, offer certain Company NFTs that are associated with Content that includes a signature or other personalization as part of the Third Party IP (a “Signed NFT”). The Company represents and warrants that such Signed NFTs are authentic and genuine signatures from the individual purporting to sign, which signature is input and rendered digitally. The Company’s basis for this representation will include at least a representation given to the Company from the individual signing, made at the time of signature, that the individual is the person they are purporting to be, and that the signature input is their genuine signature. The Company’s basis for the representation may also include additional evidence of authenticity.
4.6 Name NFTs
As part of the Services, Company may allow you to associate a word with your User Account as a Name NFT, and have that Name NFT assigned as the name of your Account for display to other users of the Services. You will only be permitted to assign that name to your Account for as long as the Name NFT is associated with your Company Wallet. You are not permitted to associate a word as a Name NFT that violates the rights of any other person or entity. We reserve the right to disassociate or otherwise invalidate a Name NFT, and reassign the word or words used, in our sole discretion without any further obligation or liability to you, including because we deem the underlying word to be in breach of these Terms, to infringe the intellectual property rights of others, to contain fraudulent, deceptive, threatening, defamatory, obscene, hateful, or otherwise objectionable content, or because it is otherwise detrimental to the Services or the Company.
4.7 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 NFT Platform, or any other payment or transactions that you conduct via the NFT Platform. Except as may be provided in connection with the sale of a specific Company NFT, we do not provide refunds for any purchases that you might make on or through the NFT Platform – whether for Company NFTs or anything else.
4.8 No Personal Information for Individuals Under 13
In furtherance of our policy of not collecting personal information from persons under the age of 13, Users are not allowed to give the Company the personal information of any persons under the age of 13 for delivery or any other reason.
4.9 Purchases Made for Consumptive Use
You acknowledge and affirm that you are purchasing Company NFTs, whether through the NFT Platform or through a Third Party Platform (defined below), for purposes of acquiring digital collectibles and not for any investment or speculative purposes. Any economic benefit that may be derived from appreciation in the value of the Company NFT is incidental to obtaining it for its collectible purpose.
5. LICENSE TO CONTENT
5.1 Scope of License
If you purchase a Company NFT, then subject to your compliance with these NFT Terms, Company hereby grants you a worldwide, non-exclusive, non-transferable, royalty-free license to use, copy, and display the Content for such purchased Company NFT, solely for the following purposes: (a) for your own personal, non-commercial use; (b) as part of a marketplace that permits the purchase and sale of your Company NFTs, provided that the marketplace cryptographically verifies each Company NFT’s owner’s rights to display the Content for their Company 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 Company NFT, provided that the website/application cryptographically verifies each Company NFT’s owner’s rights to display the Content for their Company NFT to ensure that only the actual owner can display the Content, and provided that the Content is no longer visible once the owner of the Company NFT leaves the website/application. This license only lasts as long as you are the valid owner and holder of the Company NFT associated with the licensed Content. If you sell or transfer the Company NFT to another person, this license will transfer to such other owner or holder of the Company NFT, and you will no longer have the benefits of such license unless specifically noted as an exception by the Company. All rights not expressly granted are reserved.
5.2 Limitations on License
You agree that you may not, nor permit any third party to do or attempt to do any of the following without our (or, as applicable, our licensors’) express prior written consent in each case: (a) modify the Content for your Company NFT in any way, including, without limitation, the shapes, designs, drawings, attributes, or color schemes; (b) use the Content for your Company NFT to advertise, market, or sell any third party product or service; (c) use the Content for your Company 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 constitute hate speech or otherwise infringe upon the rights of others; (d) sell, distribute for commercial gain (including, without limitation, giving away in the hopes of eventual commercial gain), or otherwise commercialize merchandise that includes, contains, or consists of the Content for your Company NFT; (e) attempt to trademark, copyright, or otherwise acquire additional intellectual property rights in or to the Content for your Company NFT; or (f) otherwise utilize the Content for your Company NFT for your or any third party’s commercial benefit.
5.3 Inclusion of Third Party IP
If the Content associated with your Company NFT contains Third Party IP (e.g., licensed intellectual property from any rights holder, such as event rights or publicity rights), you understand and agree as follows: (a) you will not have the right to use such Third Party IP in any way except as incorporated in the Content for your Company NFT, and subject to the license and restrictions contained herein; (b) 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, 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 herein.
7. RIGHTS WE GRANT YOU
7.1 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 (e.g., an iOS App), 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, provided that your license in any Content in connection with any Company NFTs is solely as set forth in the license grant of Section 5.1. 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 Service or other actions that Company, in its sole discretion, may elect to take.
7.2 Restrictions On Your Use of the Services
You may not do any of the following in connection with your use of the Services (as determined in our sole discretion), unless applicable laws or regulations prohibit these restrictions or you have our written permission to do so:
(a) 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;
(b) duplicate, decompile, reverse engineer, disassemble or decode the Services(including any underlying idea or algorithm), or attempt to do any of the same;
(c) use, reproduce or remove any copyright, trademark, service mark, trade name, slogan, logo, image, or other proprietary notation displayed on or through the Services;
(d) use cheats, automation software (bots), hacks, modifications (mods) or any other unauthorized third-party software designed to establish Accounts, perform any transaction on the Services, or modify or make use of the Services in any way;
(e) exploit the Services for any commercial purpose, including without limitation
communicating or facilitating any commercial advertisement or solicitation;
(f) 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;
(g) attempt to gain unauthorized access to, interfere with, damage or disrupt the Services, accounts registered to other users, or the computer systems or networks connected to the Services;
(h) circumvent, remove, alter, deactivate, degrade or thwart any technological measure or content protections of the Services;
(i) 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;
(j) introduce any viruses, trojan horses, worms, logic bombs or other materials that are malicious or technologically harmful into our systems;
(k) use the Services for illegal, harassing, unethical, or disruptive purposes, or otherwise use the Services in a manner that is fraudulent, deceptive, threatening, defamatory, obscene, hateful, or otherwise objectionable;
(l) violate any applicable law or regulation in connection with your access to or use of the Services; or
(m) access or use the Services in any way not expressly permitted by these Terms.
7.3 Use of the App and Mobile Web
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 and Mobile Web. We do not guarantee that the App and Mobile Web can be accessed and used on any particular device or with any particular service plan. We do not guarantee that the App and Mobile Web is or will be available in, or that orders for Company NFTs can be placed from, any particular geographic location. As part of the Services, 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 and Mobile Web (“Push Messages”). You acknowledge that, when you use the App and Mobile Web, 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 (if provided-for) 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 and Mobile Web, 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 and Mobile Web on your mobile device, including for your receipt of push messages from the Company.
7.4 Beta Features
From time to time, we may, in our sole discretion, include certain test or beta features in the Services (“Beta Features”). Your use of any Beta Feature is voluntary. You agree that once you use a Beta Feature, 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 Feature back to the prior non-beta version. The Beta Features are provided on an “as is” basis and may contain errors 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 Feature is at your sole risk.
8. OWNERSHIP AND CONTENT
8.1 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 copyright, trademark and other 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.
8.2 Ownership of Trademarks
The Company’s name, LYNQZ, LLC – DBA NFT Golf Shop, the “NFT Golf Shop Logo” and all related names, logos, product and service names, designs and slogans are trademarks of the Company or its affiliates or licensors. Other names, logos, product and service names, designs and slogans that appear on the Services are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us.
8.3 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.
8.4 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 (“Your Content”). We do not claim any ownership of Your Content. However, in order to operate the Service, we must obtain from you certain license rights in Your Content so that actions we take in operating the Service are not considered legal violations. Accordingly, by using the Service and uploading Your Content, you grant us a license to access, use, host, cache, store, reproduce, transmit, display, publish, distribute, and modify (for technical purposes, e.g., making sure content is viewable on smartphones as well as computers and other devices) Your Content but solely as required to be able to operate and provide the Services. You agree that these rights and licenses are royalty free, transferable, sub-licensable, worldwide and irrevocable (for so long as your Content is stored with us), 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.
8.5 Notice of Infringement – DMCA Policy
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 or other intellectual property 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:
(a) identification of the copyrighted work or other intellectual property that is claimed to be infringed;
(b) identification of the allegedly infringing material that is requested to be removed, including a description of where it is located on the Service;
(c) information for our copyright agent to contact you, such as an address, telephone number and e-mail address;
(d) a statement that you have a good faith belief that the identified, allegedly infringing use is not authorized by the copyright (or other applicable intellectual property) owners, its agent or the law;
(e) a statement that the information above is accurate, and under penalty of perjury, that you are the copyright (or other applicable intellectual property) owner or the authorized person to act on behalf of the copyright (or other applicable intellectual property) owner; and
(f) the physical or electronic signature of a person authorized to act on behalf of the owner of the copyright (or other applicable intellectual property) or of an exclusive right that is allegedly infringed.
Notices of copyright (or other applicable intellectual property) infringement claims should be sent by mail to: LYNQZ, LLC., Attn: COPYRIGHT AGENT, 2764 Pleasant Road #10502, Fort Mill, SC 29708-7299; or by e-mail to [email protected] It is our policy, in appropriate circumstances and at our discretion, to disable or terminate the accounts of users who repeatedly infringe copyrights or other intellectual property rights of others.
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 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.
9. THIRD PARTY SERVICES AND MATERIALS
9.1 Use of Third Party Materials in the Services
The Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party websites. 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 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, Third Party Materials or third-party websites, or for any other materials, products, or services of third parties. Third Party Materials and links to other websites are provided solely as a convenience to you.
9.2 Purchases on Third Party Platforms
10. DISCLAIMERS, LIMITATIONS OF LIABILITY, INDEMNIFICATION, AND ASSUMPTION OF RISKS
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, officers, directors, employees, agents, representatives, partners and licensors (the “the Company Entities”) and all operators of Third Party Platforms DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. 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) any harm to your computer system, loss of data, or other harm that results from your access to or use of the Services; (c) the operation or compatibility with any other application or any particular system or device; and (d) whether the Services will meet your requirements or be available on an uninterrupted, secure or error-free basis; and (e) the deletion of, or the failure to store or transmit, Your Content and other communications maintained by the Services. 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.
10.2 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 DIRECT, 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 DOLLARS ($100.00), OR THE AMOUNT YOU PAID THE COMPANY ENTITIES, IF ANY, IN THE PAST SIX (6) MONTHS FOR THE SERVICES (OR COMPANY NFTS 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.
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.
10.4 Assumption of Risks
You acknowledge and agree that 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 Company NFTs due to loss of a PIN, two-factor authentication devices, or log-in information, 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, and volatility risks. The prices of collectible blockchain assets are extremely volatile and subjective and collectible blockchain assets have no inherent or intrinsic value. Each Company NFT has no inherent or intrinsic value. You acknowledge that you have obtained sufficient information to make an informed decision to purchase an NFT, including carefully reviewing the code of the smart contract and the NFT and fully understand and accept the functions of the same. 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 Platform, and therefore the potential utility or value of your Company NFTs. Upgrades to any blockchain network or hard forks in such networks, or a change in how transactions are confirmed on such blockchain networks may have unintended, adverse effects on all blockchains, including any that are related to your Company NFTs. Any purchase or sale you make, accept or facilitate outside of the NFT Platform of an NFT will be entirely at your risk. Except as may otherwise be provided in these Terms, we do not control or endorse purchases or sales of NFTs outside of the NFT Platform. You are solely responsible to pay any and all sales, use, value-added and other taxes, duties, and assessments (except taxes on our net income) now or hereafter claimed or imposed by any governmental authority associated with your use of the Services. Except for income taxes levied on us, you: (a) will be solely responsible for reporting any tax obligations when, if ever, such obligations arise as a result of your use of the Services or in relation to a Company NFT; (b) will pay or reimburse Company for all national, federal, state, local or other taxes and assessments of any jurisdiction, including value added taxes and other taxes as may be required, and amounts levied in lieu thereof based on charges set, services performed or payments made hereunder, as are now or hereafter may be imposed under the authority of any national, state, local or any other taxing jurisdiction; and (c) will not be entitled to deduct the amount of any such taxes, duties or assessments from payments (including Gas Fees) made to us pursuant to these Terms. We expressly deny and disclaim any liability to you and 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 the NFT Platform.
10.5 Force Majeure
We will not be liable or responsible to you, nor be deemed to have defaulted under or breached these NFT Terms, for any failure or delay in fulfilling or performing any of our obligations under these NFT Terms or in operating the NFT Platform, when and to the extent such failure or delay is caused by or results from any events beyond Company’s ability to control, including acts of God; flood, fire, earthquake, epidemics, pandemics, tsunami, explosion, war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, government order, law, or action, embargoes or blockades, strikes, labor stoppages or slowdowns or other industrial disturbances, shortage of adequate or suitable Internet connectivity, telecommunication breakdown or shortage of adequate power or electricity, and other similar events beyond our control.
11. ARBITRATION AND CLASS ACTION WAIVER
11.1 Informal Process First
You agree that in the event of any dispute between you and the Company Entities, you will first contact the Company 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.
11.2 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, Company NFTs 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, using the English language, 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). 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 videoconference, 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. This arbitration agreement shall survive the termination of your relationship with Company.
11.3 Waiver of Class Actions and Class Arbitrations
You and Company agree that each party may bring Claims against the other party only in an individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding, including without limitation federal or state class actions, or class arbitrations. Accordingly, under the arbitration procedures outlined in this section, an arbitrator shall not combine or consolidate more than one party’s claims without the written consent of all affected parties to an arbitration proceeding. Without limiting the generality of the foregoing, you and Company agree that no dispute shall proceed by way of class arbitration without the written consent of all affected parties.
11.4 Costs of Arbitration
Payment for any and all reasonable JAMS filing, administrative and arbitrator fees will be in accordance with the JAMS Rules. If the value of your claim does not exceed $10,000, the Company will pay for the reasonable filing, administrative and arbitrator fees associated with the arbitration, unless the arbitrator finds that either the substance of your claim or the relief sought was frivolous or brought for an improper purpose, except that if you have initiated the arbitration claim, you will still be required to pay the lesser of $250 or the maximum amount permitted under the JAMS Rules for arbitration claims initiated by you. You are still responsible for all additional costs that you incur in the arbitration, including without limitation, fees for attorneys or expert witnesses.
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 opt-out to [email protected] or to the U.S. mailing 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 registering to use the Services or agreeing to these Terms (or if this Section 11, pertaining to arbitration, is materially 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 these arbitration provisions, the Company also will not be bound by them.
Notwithstanding anything in these Terms to the contrary, you may instead assert your Claim in “small claims” court, but only if your Claim qualifies, your Claim remains only in such court, and your Claim remains on an individual, non-representative and non-class basis. Further, you and the Company will have the right to bring an action in a court of proper jurisdiction for injunctive or other equitable or conservatory relief, or if the Claim relates to intellectual property infringement or misappropriation.
12. ADDITIONAL PROVISIONS
12.1 SMS Messaging and Phone Calls
12.2 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 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.
12.3 Termination of License and your Account
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 Account or Third Party Site Access (including disabling, invalidating or otherwise rendering inoperable your Company Wallet) and/or the Services (or any part of the foregoing) with or without notice, for any or no reason. If the Company deletes your Account for any suspected breach of these Terms by you, you are prohibited from re-registering for the Services under a different name, email, or phone number. In the event of Account deletion for any reason, the Company may, but is not obligated to, delete any of Your Content. 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 this Agreement by the Company or you. Termination will not limit any of the Company’s other rights or remedies at law or in equity.
12.4 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.
12.5 U.S Government Restricted Rights
The Services and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items, and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
12.6 Export Laws
You agree that you will not export or re-export, directly or indirectly, the Services, the Company NFTs and/or other information or materials provided by the Company hereunder, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. In particular, but without limitation, the Services may not be exported or re-exported (a) into any U.S. embargoed countries or any country that has been designated by the U.S. Government as a “terrorist supporting” country, or (b) to anyone 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 Persons List or Entity List. By using the Services, you represent and warrant that you are not located in any such country or on any such list. You are responsible for and hereby agree to comply at your sole expense with all applicable United States export laws and regulations.
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 any part of the Services, and the licenses granted hereunder may be assigned or transferred 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 South Carolina, 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 11, or if arbitration does not apply, then the state and federal courts located in the County of Columbia, South Carolina. 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.
12.9 How to Contact Us
You may contact us regarding the Services or these Terms at: 2764 Pleasant Road #10502, Fort Mill, SC 29708-7299, by phone at (803) 746-4501 or by e-mail at [email protected]
END OF AGREEMENT