By using the Services, you represent and warrant that you are of legal age to enter into a binding contract.
The Services are not intended for distribution or use in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. We operate the Services in the United States. Anyone using or accessing the Services from other locations does so on their own initiative and is responsible for compliance with United States and local laws regarding online conduct and acceptable content, if and to the extent such laws are applicable.
If you do not meet all of these requirements, you must not access or use the Services.
2. Scope of Services
2.1 Use of Website and Electronic Messaging
2.2 Membership and Promotions
HelloVacay offers various subscription services for discounted travel to members. Monthly, annual, and lifetime subscriptions are available to members. Company may change, alter, or cancel the available subscription offerings at its sole discretion as described further below. Once a membership is purchased, such membership will automatically renew for the same monthly or annual term unless cancelled as described below. The exception is lifetime memberships which, once purchased, remain active in perpetuity with no further billing obligations.
HelloVacay may, from time to time, offer free trials or additional promotional opportunities to existing members or potential new members. Members or website guests who have shared personal information with company may receive information relative to such promotions.
2.3 Billing and Cancellation
2.3.1. Billing Cycle
Your membership fee and any other charges you may incur in connection with the purchase of your membership, such as taxes and possible transaction fees, will be charged to your Payment Method on the payment date indicated on your “Account” page. The length of your billing cycle will depend on the type of subscription that you choose when you purchased your membership. Membership fee obligations are satisfied upon payment. In some cases, your payment date may change, for example if your Payment Method has not successfully settled if and when you changed your subscription plan. You may visit our website or contact us with questions.
2.3.2. Payment Methods
To purchase a membership, you must provide one or more Payment Methods. You authorize us to charge any Payment Method associated to your account in case your primary Payment Method is declined or no longer available to us for processing your subscription fee. You remain responsible for any uncollected amounts. If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and you do not cancel your account, we may suspend your membership until we have successfully charged a valid Payment Method. For some Payment Methods, the issuer may charge you certain fees relating to the processing of your Payment Method. Check with your Payment Method provider if you have questions.
2.3.3. Updating your Payment Methods
You can update your Payment Methods via your “Account” page. We may also update your Payment Methods using information provided by the payment service providers. Following any update, you authorize us to continue to charge the new or updated Payment Method(s).
You can cancel your membership at any time, and you will continue to have access to your membership benefits through the end of your billing period. To cancel, go to your account page on our website and follow the instructions. If you cancel your membership, your account will automatically close at the end of your current billing period.
2.3.5. Changes to Membership Subscription Plans and Prices
2.3.6. No Refunds
Membership payments are nonrefundable and there are no refunds or credits for partially used membership periods. Following any cancellation, however, you will continue to have access to the service through the end of your current billing period. At any time, we may provide a refund, discount, or other consideration to some or all of our members (“credits”). The amount and form of such credits, and the decision to provide them, are at our sole discretion. The provision of credits in one instance does not entitle you to credits in the future for similar instances, nor does it obligate us to provide credits in the future, under any circumstance.
4. Accessing the Services and Account Security
We reserve the right to withdraw or amend the Services in our sole discretion without notice. We will not be liable if for any reason all, or any part, of the Services is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Services, or all of the Services.
5. Intellectual Property Rights
The Services and their entire contents, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by the Company, its licensors or other providers of such material and are protected by copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.
You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the material on the Services without our permission.
The Company name and logo and all related names, logos, product and service names, designs and slogans are trademarks of the Company or its
affiliates or licensors. You must not use such marks without the prior written permission of the Company.
6. Prohibited Uses
- In any way that violates any applicable law.
- For the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise.
- To transmit, or procure the sending of, any advertising or promotional material including any “junk mail”, “chain letter” or “spam” or any other similar solicitation.
- To impersonate or attempt to impersonate the Company, a Company employee, another user or any other person or entity (including, without limitation, by using e-mail addresses or screen names associated with any of the foregoing).
- To engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the Services, or which, as determined by us, may harm the Company or users of the Services, or expose them to liability.
Additionally, you agree not to:
- Use the Services in any manner that could disable, overburden, damage, or impair the Services or interfere with any other party's use of the Services.
- Use any robot, spider or other automatic device, process or means to access the Services for any purpose, including monitoring or copying any of the material on the Services.
- Use any manual process to monitor or copy any of the material on the Services or for any other unauthorized purpose without our prior written consent.
- Use any device, software or routine that interferes with the proper working of the Services.
- Introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful.
- Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Services, the server on which the Services are stored, or any server, computer or database connected to the Services.
- Attack the Services via a denial-of-service attack or a distributed denial-of-service attack.
- Otherwise attempt to interfere with the proper working of the Services.
7. Reliance on Information Posted
The information presented on or through the Services is made available solely for general information purposes. We do not warrant the accuracy, completeness or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Services or by anyone who may be informed of any of its contents.
The Services may include content provided by third parties, including materials provided by other users, bloggers and third-party licensors, syndicators, aggregators and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by the Company, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of the Company. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
8. Changes to the Services
We may update the content contained on the Services from time to time, but its content is not necessarily complete or up-to-date. Any of the material contained on the Services may be out of date at any given time, and we are under no obligation to update such material.
9. Links from the Services
If the Services contain links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third party websites linked to the Services you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
10. Disclaimer of Warranties
WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SERVICESOR TO YOUR DOWNLOADING OF ANY MATERIAL OBTAINED OR POSTED THROUGH THE SERVICES, OR ON ANY WEBSITE LINKED TO THE SERVICES.
YOUR USE OF THE SERVICES, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICESIS AT YOUR OWN RISK. THE SERVICES, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE SERVICES, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE SERVICES OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SERVICES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
11. Limitation on Liability
IN NO EVENT WILL THE COMPANY, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SERVICES, ANY WEBSITES LINKED TO THE SERVICES, ANY CONTENT CONTAINED IN THE SERVICES OR SUCH OTHER WEBSITES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
13. Governing Law and Jurisdiction
14. Dispute Resolution, Arbitration and Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
a. Initial Dispute Resolution. Most disputes can be resolved without resort to arbitration. If you have any dispute with us arising from or related to the Services or these Terms, you agree that before taking any formal action, you will contact us at [email protected], provide a brief, written description of the dispute and your contact information. Except for intellectual property, you and Company agree to use reasonable efforts to settle any dispute, claim, question, or disagreement directly with each other, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
b. Binding Arbitration. If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims, (except as provided below) subject to these Terms set forth below. Specifically, all claims arising out of or relating to these Terms and/or your use of the Services shall be finally settled by binding arbitration administered by JAMS in accordance with the JAMS Streamlined Arbitration Procedure Rules for claims that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000 in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions. Arbitration shall be initiated and take place in Orange County, California, United States, and you and Company agree to submit to the personal jurisdiction of any federal court in Orange County, California in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
c. No Jury Trial. The parties understand that, absent this mandatory arbitration section, they would have the right to sue in court and have a jury trial, but by agreeing to this mandatory arbitration section, they give up those rights. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
d. Class Action Waiver. The parties further agree that the arbitration shall be conducted in the party’s respective individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
e. Exception: Litigation of Intellectual Property. Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights).
UNLESS PROHIBITED BY LAW, YOU MUST NOTIFY COMPANY WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A DISPUTE OR YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED ON SUCH EVENT, FACTS OR DISPUTE.
15. Waiver and Severability
16. Entire Agreement
HelloVacay Terms and Conditions for the Purchase of Non-Fungible Tokens (NFTs)
These Terms and Conditions constitute a legally binding agreement (“Agreement”) between you (“Purchaser” or “you” or “your”) and HelloVacay (“Company” or “our” or “we”) governing your purchase of NFTs (defined below) from Company. By making a purchase of an NFT from Company, Purchaser expressly agrees to be bound by the terms of this Agreement and any document or agreement incorporated herein by reference.
If you make a purchase of a Licensed NFT from Company, you expressly acknowledge that you understand this Agreement and accepts all of its terms. If you do not agree to be bound by the terms and conditions of this Agreement, you may not purchase a Licensed NFT from Company.
This Agreement is also subject to the HelloVacay Platform Terms and Conditions as-amended (“Platform Terms”), and by purchasing or continuing to own a Licensed NFT, you agree that you are bound by those Platform Terms. In the event of a conflict between the Platform Terms and the terms contained in this Agreement, the terms contained in this Agreement will prevail.
THIS AGREEMENT CONTAINS AN ARBITRATION CLAUSE AND CLASS ACTION WAIVER. BY AGREEING TO THIS AGREEMENT, YOU AGREE TO RESOLVE ALL DISPUTES THROUGH BINDING INDIVIDUAL ARBITRATION, WHICH MEANS THAT YOU WAIVE ANY RIGHT TO HAVE THE DISPUTE DECIDED BY A JUDGE OR JURY, AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN COLLECTIVE ACTION, WHETHER THAT BE A CLASS ACTION, CLASS ARBITRATION, OR REPRESENTATIVE ACTION.
1. Changes to this Agreement. Company may make changes to this Agreement from time to time, and Company will make the updated Agreement available on this website and update the “last updated” date at the beginning of the Agreement accordingly. Please check this page periodically for changes. Any changes to this Agreement will apply on the date that they are made and Purchaser’s continued access to or use of the Licensed NFT and the Art after this Agreement has been updated will constitute Purchaser’s binding acceptance of the updates.
“Art” means any art, graphics, images, designs, logos, taglines, and drawings that may be associated with or contained in a Licensed NFT in which Purchaser acquires Licensed Rights (defined below).
“Equivalent” means the value, in US Dollars, of the market value of the relevant amount of cryptocurrency on the day of the transaction.
“Name and Likeness” means name, nicknames, images, likenesses, marks, copyrights, trademarks, trade dress colors, trade dress designs, and/or all other intellectual property of Company.
“NFT” means any blockchain-tracked, non-fungible token.
“Licensed Rights” with respect to a Licensed NFT means Purchaser’s rights to a Licensed NFT of which Purchaser is the current rightful licensee and which Purchaser acquired from a legitimate source, where proof of such purchase is recorded on the relevant blockchain. Purchaser’s Licensed Rights are only those rights expressly described in Section 5.
“Licensed NFT” means an NFT which Purchaser purchased from Company in compliance with the terms of this Agreement, or an NFT which originated from Company and is subject to the terms of this Agreement which Purchaser purchased from a third-party in compliance with the terms of this Agreement.
“Third Party IP” means any third-party patent rights (including, without limitation, 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.
“Platform” refers to the HelloVacay website and any applications developed by HelloVacay.
3. Acquiring NFTs. We may issue NFTs from time to time, which issuances may be at different prices, including discounted pre-sales, promotional giveaways or reserves for future issuance. We may require that you register an account with us to acquire an NFT, and to provide any additional information that we reasonably request. We may require that you share your digital wallet at the time of the order, or nominate a digital wallet at a later time, for delivery of any NFTs. We will undertake reasonable endeavors to deliver any acquired NFTs to your digital wallet by any date we provide for delivery. You acknowledge, however, that the delivery date may change for reasons (including for reasons outside or within our control) at our sole discretion.
4. Ownership. Purchaser acknowledges and agrees that Company (or, as applicable, its licensors) owns all legal right, title and interest in and to the Art and Name and Likeness, and all intellectual property rights therein. The Licensed Rights in and to the Licensed NFT and Art are limited to those expressly stated in Section 5 of this Agreement. Company and its licensors reserve all rights and ownership in and to the Licensed NFT, Name and Likeness, and Art not expressly granted to Purchaser in Section 5 of this Agreement. All purchases of Licensed NFTs, as well as associated charges, are non-refundable. This no-refund policy shall apply at all times regardless of Purchaser’s decision to terminate usage of the Licensed NFT, any disruption to the operations of any components of the Licensed NFT, or any other reason whatsoever.
5. Grant of License.
(a) Licensed Rights. Purchaser acknowledges and agrees that if Purchaser purchases a Licensed NFT, the Licensed NFT is made available solely for Purchaser’s personal and non-commercial purposes. Without limiting the foregoing and subject to Purchaser’s continued compliance with this Agreement, including as-amended, Company grants Purchaser a worldwide, non-exclusive, non-transferable (except as specifically provided herein in Section 5(b)), royalty-free license to display the Licensed NFT, solely for Purchaser’s own personal, non-commercial use and for Purchaser’s personal, non-commercial utility on platforms or websites owned or operated by Company.
(b) Permissible Transfers of Purchaser’s Licensed NFT. Purchaser has the limited right to transfer the Licensed NFT, provided that (i) the transferee accepts and agrees to be bound by all of the terms of this Agreement; (ii) Company is paid ten percent (10%) of the gross amounts paid by the transferee relating to the Licensed NFT, including, but not limited to, any transfer price and any other related compensation (e.g., (1) if the transfer price is the Equivalent of $100,000 then Company will be entitled to the Equivalent of $10,000, or (2) if the transfer price is Equivalent to $100,000 and an additional $50,000 is paid as related use fee then Company would be entitled to $15,000) and such payment shall be paid on the same terms and at the same time as the transferor is paid, (iii) Purchaser has not breached this Agreement prior to the transfer; (iv) Purchaser’s license to the Licensed NFT has not been terminated prior to the transfer; and (v) the transferee provides Company with a valid e-mail address, digital wallet address, or any other information reasonably requested by Company. Purchaser acknowledges and agrees that any such transfer will require a fee payable to Company by such party relating to the Licensed NFT in addition to any additional fees imposed or required by the platform through which Purchaser is transferring the Licensed NFT. Purchaser must provide explicit notice of this Agreement to any transferee.
6. (c) On Our Platform. Licensed NFT(s) may have certain utility or utilities on the Platform and while we offer those utilities, you will be entitled to those utilities while you own the Licensed NFT(s). In our sole and unfettered discretion, we may offer utilities that are limited to the first purchaser of a Licensed NFT and not available to any transferees of a Licensed NFT. We do not represent or guarantee that those utilities will always be uninterrupted or available, or will be maintained into the future. Reservation of Intellectual Property Rights. Purchaser agrees that Purchaser may not, nor permit any third party to do or attempt to do any of the following without express prior written consent from Company in each case (which consent may be withheld, conditioned or delayed by Company in its sole discretion): (i) modify, edit, alter, manipulate, reproduce, commercialize, distribute or reuse the Licensed NFT, Name and Likeness and/or Art for Purchaser’s Licensed NFT in any way, in whole or in part, including, without limitation, the shapes, designs, drawings, attributes, or color schemes; (ii) use the Licensed NFT, Name and Likeness and/or Art contained in Purchaser’s Licensed NFTs to advertise, market, promote, reproduce, offer, distribute or sell any product or service in any manner or media, whether for Purchaser’s own commercial benefit or that of any third party or otherwise; (iii) use the Licensed NFT, Name and Likeness and/or Art from Purchaser’s Licensed NFTs in connection with content, 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, drugs (including, without limitation, both prescription and non-prescription) or other supplements, death, pornography or other “adult only” or sexually explicit activities, massage parlors, prostitution or any dating or escort activities, weapons or ammunition, denigration or discrimination against individuals based on race, national origin, gender, religion, disability, ethnicity, sexual orientation, gender identity or age, medical conditions and/or political campaigns or causes; (iv) use the Licensed NFT, Name and Likeness and/or Art contained in Purchaser’s Licensed NFTs in movies, videos, or any other forms of media, except solely for Purchaser’s own personal, non-commercial use; (v) Create, display, advertise, market, promote, distribute, reproduce, or sell any derivative works of the Licensed NFT, Name and Likeness and/or Art (including any fractionalized interests in the Licensed NFT, Name and Likeness, and/or Art), or any merchandise of any kind that includes, contains, uses, incorporates, or consists of the Licensed NFT, Name and Likeness, and/or Art; (vi) 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 Licensed NFT, Name and Likeness and/or Art contained in or associated with Purchaser’s Licensed NFTs; (vii) attempt to trademark, copyright, or otherwise acquire additional intellectual property rights in or to the Licensed NFT, Name and Likeness and/or Art contained in or associated with Purchaser’s Licensed NFTs, any other intellectual property owned by or associated with Company or its other products or services, in whole or in part, anywhere in the world; (viii) challenge or negatively impact Company’s rights with respect to the Art, Licensed NFT, Name and Likeness, including but not limited to the ownership or validity thereof; (ix) make any additional representations or warranties to any third-party relating to the Licensed NFT, Name and Likeness and/or Art contained in or associated with Purchaser’s Licensed NFTs or (x) otherwise utilize the Licensed NFT, Name and Likeness and/or Art from Purchaser’s Licensed NFTs except in connection with the Licensed Rights granted herein, without Company’s prior express written consent to such use. Company may use or implement technical measures with respect to the security of the NFTs, and Purchaser will not take any action to interfere with, circumvent, disable or otherwise obstruct any such security-related features or other digital-rights-management functions associated with the Licensed NFTs.
To the extent that the Licensed NFT, Name and Likeness and/or Art contained in or associated with Purchaser’s Licensed NFTs contains Third Party IP, Purchaser understands and agrees as follows: (i) that Purchaser will not have the right to use such Third Party IP in any way except as incorporated in the Art, and subject to the license and restrictions contained herein; (ii) that, depending on the nature of the license granted from the owner of the Third Party IP, Company may need to pass through additional terms and/or restrictions on Purchaser’s ability to use the Art; and (iii) to the extent that Company informs Purchaser of such additional restrictions in writing (email is permissible), Purchaser will be responsible for complying with all such restrictions from the date that Purchaser receives the notice, and that failure to do so will be deemed a breach of this Agreement.
The restrictions in this Section will survive the expiration or termination of this Agreement.
7. Termination of the License. The Licensed Rights granted to Purchaser hereunder may be terminated by Company and all rights shall return to Company if: (i) at any time Purchaser sells, trades, donates, gives away, transfers, or otherwise disposes of Purchaser’s Licensed NFT for any reason except as specially provided in Section 5 of this Agreement; (ii) the digital wallet address Purchaser provides to Company is no longer valid, is flagged by the Office of Foreign Assets Control (OFAC), is found on the OFAC Sanctions List, or is otherwise found to be or is suspected of illegally bypassing the OFAC Sanctions List; (iii) Purchaser breaches any provision of this Agreement; (iv) Purchaser has a trustee, receiver or similar party appointed for Purchaser’s property, becomes insolvent, acknowledges Purchaser insolvency in any manner, makes an assignment for the benefit of Purchaser’s creditors, or files a petition of bankruptcy; (v) Purchaser engages in any unlawful business practice related to the Licensed NFT; (vi) Purchaser initiates any legal actions against Company or any of its officers, directors, shareholders, agents, attorneys or employees; or (vii) Purchaser disparages Company or any parties related to or associated with it.
8. Disclaimer of Warranties & Limitation of Liability. ALL LICENSED NFTs AND ANY BENEFITS PROVIDED BY COMPANY OR ANY THIRD PARTY IN CONNECTION WITH OWNING A LICENSED NFT ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY BE LIABLE TO PURCHASER OR ANY THIRD PARTY FOR ANY PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER AND/OR DEVICE OR TECHNOLOGY FAILURE OR MALFUNCTION, OR FOR ANY FORM OF DIRECT OR INDIRECT DAMAGES, AND/OR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES BASED ON ANY CAUSES OF ACTION WHATSOEVER ARISING FROM OR RELATED TO ANY LICENSED NFT OR THE PURCHASE OF ANY NFT, INCLUDING, BUT NOT LIMITED TO: (A) THE LICENSED NFT; (B) ANY TECHNOLOGY AND/OR THIRD PARTIES, INCLUDING, BUT NOT LIMITED TO, THE PUBLIC BLOCKCHAIN; (C) USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED ADDRESSES; (D) SERVER FAILURE OR DATA LOSS; (E) CORRUPTED WALLET FILES; (F) UNAUTHORIZED ACCESS TO APPLICATIONS; (G) ANY UNAUTHORIZED THIRD-PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTE FORCING OR OTHER MEANS OF ATTACK AGAINST COMPANY’S WEBSITE, PLATFORM, OR NFTS; (H) LOSSES DUE TO VULNERABILITY OR ANY KIND OF FAILURE OR ABNORMAL BEHAVIOR OF SOFTWARE (E.G., WALLET, SMART CONTRACT), BLOCKCHAINS OR ANY FEATURES OF THE NFTS; (I) LOSSES DUE TO LATE REPORT BY DEVELOPERS OR REPRESENTATIVES (OR NO REPORT AT ALL) OF ANY ISSUES WITH THE BLOCKCHAIN SUPPORTING THE NFTS INCLUDING FORKS, TECHNICAL NODE ISSUES OR ANY OTHER ISSUES HAVING FUND LOSSES OR NFT LOSSES AS A RESULT.
ANY TRANSFER OF TITLE THAT MIGHT OCCUR IN ANY UNIQUE DIGITAL ASSET OCCURS ON THE DECENTRALIZED LEDGER WITHIN A BLOCKCHAIN NETWORK WHICH COMPANY DOES NOT CONTROL. COMPANY DOES NOT GUARANTEE THAT COMPANY CAN AFFECT THE TRANSFER OF TITLE OR RIGHT IN ANY NFT. PURCHASER BEARS FULL RESPONSIBILITY FOR VERIFYING THE IDENTITY, LEGITIMACY, AND AUTHENTICITY OF ASSETS PURCHASED BY PURCHASER.
PURCHASER AGREES THAT THIS LIMITATION OF LIABILITY APPLIES WHETHER SUCH ALLEGATIONS ARE FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR FALL UNDER ANY OTHER CAUSE OF ACTION, REGARDLESS OF THE BASIS UPON WHICH LIABILITY IS CLAIMED AND EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND IN ANY EVENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY’S TOTAL AGGREGATE LIABILITY SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100) OR TEN PERCENT (10%) OF THE TOTAL SUM PAID DIRECTLY BY PURCHASER TO COMPANY FOR THE APPLICABLE LICENSED NFT, WHICHEVER IS LESS.
PURCHASER ACCEPTS THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET AND PURCHASER AGREES THAT COMPANY HAS NO LIABILITY OR RESPONSIBILITY FOR ANY BREACH OF SECURITY UNLESS IT IS DUE TO COMPANY’S GROSS NEGLIGENCE.
IF APPLICABLE LAW DOES NOT ALLOW ALL OR ANY PART OF THE ABOVE LIMITATIONS OF LIABILITY TO APPLY TO PURCHASER, THE LIMITATIONS WILL APPLY TO PURCHASER ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
9. Assumption of Risk. As noted above, the Licensed NFTs are made available solely for personal and non-commercial purposes. The Licensed NFTs are for use with the Platform and are not intended for investment or speculative purposes. You will only be able to use your Licensed NFT to interact with the Platform if your digital wallet is connected and unlocked and you have completed the account opening process.
Purchaser agrees that Purchaser assumes the following risks: (A) To the extent there is a price or market for a blockchain asset such as a Licensed NFT, such markets and prices are extremely volatile, and variations in the price of other digital assets could materially and adversely affect the value of any digital asset(s) Purchaser owns, including Purchaser’s Licensed NFT, and there is no guarantee that Purchaser Licensed NFTs will have or retain any value; (B) the commercial or market value on a Licensed NFT that Purchaser purchases may materially diminish in value as a result of a variety of things such as negative publicity in connection with Company; (C) there are risks associated with using Internet-native assets (e.g., non-fungible tokens, cryptocurrencies, etc.) including, but not limited to, the risk of hardware, software, and Internet connections and/or failures, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to information stored within Purchaser’s digital wallet or elsewhere, and Company will not be responsible for any of these, however caused; (D) Company does not make any promises or guarantees about the availability of the Licensed NFT or the Art on the Internet or that it will host the Licensed NFT or the Art at any specific location and/or for any specific period of time; € Company does not make any promises or guarantees related to the public blockchain or any other third parties and each of their applications and/or services, including, but not limited to, the continued availability of either and/or the protection and/or storage of any data Purchaser provides to those parties; (F) the risk of losing access to Licensed NFTs due to loss of private key(s), custodial error, or purchaser error; (G) the risk of mining attacks; (H) the risk of hacking, security weaknesses, fraud, counterfeiting, cyberattacks and other technological difficulties; (I) the risk of changes to the regulatory regime governing blockchain technologies, cryptocurrencies, and tokens and new regulations, unfavorable regulatory intervention in one or more jurisdictions or policies any of which may materially adversely affect your use and value of the Licensed NFT; (J) the risks related to taxation; (K) that NFTs are not legal tender and are not backed by any government; and (L) Company is not responsible for any transaction between Purchaser and a third party (e.g., Purchaser’s transfer of a Licensed NFT from a third party on a so-called “secondary market”), and Company shall have no liability in connection with any such transaction.
Purchaser agrees that the purchase of NFTs is at Purchaser’s own risk, and the foregoing risks may not be all the risks associated with the Licensed NFTs. In addition to assuming all of the above risks, Purchaser acknowledges that Purchaser has obtained sufficient information to make an informed decision to license the Licensed NFT and that Purchaser understands and agrees that Purchaser is solely responsible for determining the nature, tax consequences, suitability, and appropriateness of these risks for Purchaser.
Company cannot and does not represent or warrant that any Licensed NFT, or its supporting systems or technology, is reliable, current or error-free, meets Purchaser’s requirements, or that defects in the Licensed NFT, or its supporting systems or technology, will be corrected. Company cannot and does not represent or warrant that the Licensed NFT or the delivery mechanism for it are free of viruses or other harmful components. Company does not store, send, or receive NFT assets. Any transfer of NFT assets occurs within the supporting blockchain that is not controlled by Company. Transactions involving Licensed NFTs may be irreversible, and, accordingly, losses due to fraudulent or accidental transactions may not be recoverable. Some transactions shall be deemed to be made when recorded on a public blockchain ledger, which is not necessarily the date or time that Purchaser initiated the transaction. Company does not provide refunds for any NFT purchases that Purchaser makes with Company.
10. Purchaser Representations and Warranties. You represent and warrant that: (i) you are sufficiently experienced and educated to make decisions regarding the procurement or acquisition of NFTs, including sufficient experience in dealing with and storing NFTs using a digital wallet and other storage mechanisms, cryptocurrencies, blockchain technology and the use, characteristics, functionality, programming and/or other material characteristics of all of the foregoing, to fully understand and agree to this Agreement and the disclaimers and risks outlined herein, or have consulted with professional advisors in relation to the foregoing such that any participation by you in the acquisition or storage of any NFT constitutes an informed acceptance of such disclaimers and risks; (ii) you have all necessary experience, resources, certificates, licenses, permits and approvals to procure or acquire of NFTs applicable in your jurisdiction, and any transactions under this Agreement or in your use of the Platform will be legal under the applicable laws of your jurisdiction; (iii) you are acquiring Licensed NFTs for use with the Platform and not for any investment or speculative purpose; (iv) all information you supply to us is true and accurate as at the time it is given, and any digital wallet address you provide to us has been generated in accordance with best practice security measures and no other party, other than you or your authorized representative, has used, or has access to, the seed phrases, private keys, or analogous passwords required to effect transfers from the digital wallet; (v) there are no facts, circumstances or other information which you have not fully and fairly disclosed to us in a manner and to an extent that it would impact our ability to make a reasonable assessment of those facts, matters and circumstances prior to entering into a transaction to sell you a Licensed NFT; (vi) you will not use NFTs or the Platform in a manner inconsistent with any applicable laws or regulations; (vii) if we request, you will identify and substantiate the source of funds involved in transactions to acquire NFTs; (viii) you are the lawful owner of any digital wallet nominated for delivery of NFTs and each digital wallet is owned and operated solely for your benefit, and no person has any right, title or interest in or to your nominated digital wallet; and (ix) you have had the opportunity to obtain independent legal advice in relation to the terms and effect of this Agreement.
CAREFULLY READ THE FOLLOWING ARBITRATION AGREEMENT (“ARBITRATION AGREEMENT”). IT INCLUDES AN AGREEMENT TO MANDATORY ARBITRATION FOR USERS IN THE UNITED STATES, WHICH MEANS THAT YOU AGREE TO SUBMIT ANY DISPUTE TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEED IN COURT. THIS PROVISION ALSO INCLUDES A CLASS ACTION WAIVER AND A JURY WAIVER, WHICH MEANS THAT YOU AGREE TO PROCEED WITH ANY DISPUTE INDIVIDUALLY AND NOT AS PART OF A CLASS ACTION, AND WITHOUT A JURY.
Most disputes can be resolved without resort to arbitration. If you have any dispute with us arising from or related to the Licensed NFT or this Agreement, you agree that before taking any formal action, you will contact us at [email protected], provide a brief, written description of the dispute and your contact information. Except for intellectual property, you and Company agree to use reasonable efforts to settle any dispute, claim, question, or disagreement directly with each other, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration. If an agreed-upon solution is not reached within a period of thirty (30) days from the time informal dispute resolution is initiated, then either party may initiate a binding arbitration as the sole means to resolve claims, (except as provided below) subject to the terms forth below. Specifically, all claims arising out of or relating to the Licensed NFT or this Agreement shall be finally settled by binding arbitration administered by JAMS in accordance with the JAMS Streamlined Arbitration Procedure Rules for claims that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000 in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions. Arbitration shall be initiated and take place in Orange County, California, United States, and you and Company agree to submit to the personal jurisdiction of any federal court in Orange County, California in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
The claim or dispute must be brought within one (1) year of the first date of the event giving rise to such action and the arbitration. The arbitrator shall apply California law consistent with the Federal Arbitration Act and shall honor claims of privilege recognized at law. Both parties will bear their own costs of representation and filing the dispute; where possible, both parties shall be entitled to appear via video for all proceedings. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded, which shall be deemed final and binding upon the parties and may be enforced as needed by any court of competent jurisdiction. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties.
This Arbitration Agreement applies to any claim Purchaser may have against Company except that (1) either party may assert claims in small claims court if the claims qualify; and (2) either party may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents).
Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A OR COLLECTIVE CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE PERSON CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER PERSON. If a decision is issued stating that applicable law precludes enforcement of any part of this subsection’s limitations as to a given claim for relief, then that claim must be severed from the arbitration and brought in the state or federal courts located in Orange County, California. All other claims shall be arbitrated.
EXCEPT WHERE PROHIBITED, PURCHASER AGREES THAT: (1) ANY AND ALL CLAIMS, JUDGMENTS, AND AWARDS SHALL BE LIMITED TO ACTUAL OUT-OF-POCKET COSTS INCURRED, BUT IN NO EVENT SHALL AN AWARD INCLUDE ATTORNEYS’ FEES; (2) NO PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR OTHER DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, MAY BE AWARDED (COLLECTIVELY, “SPECIAL DAMAGES”), AND (3) PURCHASER HEREBY WAIVES ALL RIGHTS TO CLAIM SPECIAL DAMAGES AND ALL RIGHTS TO HAVE SUCH DAMAGES MULTIPLIED OR INCREASED.
12. Eligibility. Purchase of an NFT is available only to individuals at least eighteen (18) years of age who have the right and authority to enter into this Agreement, are fully able and competent to satisfy the terms, conditions, and obligations herein and who are using currency that such party is the lawful holder thereof. When you purchase a Licensed NFT, you are representing that you have the legal right to enter into a contract, and we rely on that representation.
13. Information Collected. You agree to provide us with all information and documents we request in order to verify your identity. We may require you to provide additional information and documents in cases where we have reason to believe that you are involved in money laundering or in any other illegal activity or that you are in breach of this Agreement. In such cases, we may deny the transfer of the Licensed NFT to you and terminate the Agreement. You acknowledge and agree that in some countries, and for certain people or entities, there may be restrictions on the purchase of NFTs under applicable export control and sanctions laws and regulations or restrictions on the sale of NFT, and therefore your ability to purchase an NFT may be limited or restricted without any liability of Company.
14. Indemnity. To the fullest extent permitted by applicable law, Purchaser will defend, indemnify, and hold harmless Company, including its officers, directors, employees, agents, or shareholders, from any claims, actions, suits, losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of or related to Purchaser’s license, sale, or possession of the Licensed NFT, including: (1) Purchaser’s breach or alleged breach of this Agreement, any representations and warranties contained herein, or the documents it incorporates by reference; (2) Purchaser’s violation of any law including failure to pay any taxes, or the rights of a third party as a result of Purchaser’s own interaction with such third party; (3) any allegation that any materials that Purchaser submits to Company or transmits in the course of purchase, communications seeking Company’s consent to activities or otherwise, infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party; (4) any other activities in connection with the Licensed NFT, including but not limited to Purchaser’s transfer or attempted transfer of the Licensed NFT; and/or (5) any misrepresentation made by Purchaser.
15. Taxes: Purchaser is responsible for determining and paying all applicable tax including any VAT, sales or compensating use tax or equivalent tax wherever such taxes may arise and any other taxes you may owe as a result of the receipt, sale, or any other activity with respect to the NFTs. The applicable sales tax rate will be determined based upon the state, county, or locale. Company is not responsible for determining the taxes that may apply to Purchaser’s transaction(s). Purchaser will, promptly upon Company’s request, provide Company an applicable information or tax forms necessary for Company to comply with applicable tax reporting obligations.
16. Translation: If Purchaser is provided a translation of this Agreement, the original version in English will be used in deciding any issues or disputes which arise under this Agreement.
17. Waiver: No waiver of any provision hereof shall be effective unless made in writing and signed by the waiving party. The failure of any party to require the performance of any term or obligation of this Agreement, or the waiver by any party of any breach of this Agreement, shall not prevent any subsequent enforcement of such term or obligation or be deemed a waiver of any subsequent breach.
18. Severability: If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
19. Survival: All provisions regarding indemnification, warranty, liability, and limits thereon, arbitration, choice of law and venue, or protections of proprietary rights and trade secrets, and any other provision that by its nature should survive termination, shall survive the termination of this Agreement.
20. Entire Agreement: This Agreement, including as-amended, constitutes the entire Agreement of the parties with respect to the matters provided for herein and is not intended to be modified or limited in any way by any other written instrument or oral agreement previously made or entered into by the parties hereto.