Terms of Service
LAST UPDATED: June 9, 2022
Thank you for choosing to be part of the DIGIART community and art collective. These Terms of Service are adopted for Our sites, www.DIGIART.company and all related sites, software, and services provided by Us that link to or reference these Terms of Service (collectively, the “DIGIART Platform”). The DIGIART Platform is owned and operated by DIGIART LLC (“DIGIART”, “We”, “Us” or “Our”).
By accessing this site, accessible from DIGIART.company, you are agreeing to be bound by these site Terms and Conditions of Use and agree that you are responsible for the agreement with any applicable local laws. If you disagree with any of these terms, you are prohibited from accessing this site. The materials contained in this site are protected by copyright and trade mark law.
These Terms of Service and all policies and additional terms posted on and in our site and Application set out the terms on which we offer you access to and use of our Services which are currently in beta stage. You agree to comply with these Terms of Service when accessing or using our Services.
By using our Services including downloading, accessing and using the Application, you agree to these Terms of Service. You are not permitted to use our Services if you do not agree to these Terms of Service. Where your access and use of the Services is on behalf of another person (e.g. a company), you confirm that you are authorised to, and do in fact, agree to these Terms of Service on that person’s behalf and that, by agreeing to these Terms on that person’s behalf, that person is bound by these Terms of Service.
We may change these Terms of Service at any time by posting a notification on the Application; unless stated otherwise, any change will take effect immediately. You are responsible for ensuring that you are familiar with the latest Terms of Service. If you keep using our Services after the notification is posted, you will be deemed to have accepted the changes. If you don’t accept any changes, you must stop using our Services immediately and uninstall and delete the Application.
In these Terms of Service:
- Account means your registered account to use the Services.
- Application means the site or DIGIART mobile application (as applicable), on which Users can sell, re-sell, trade, collect and view Assets
- Assets means licensed digital art assets incorporating the Digital Property and minted as an NFT, available to buy through the Marketplace, and buy, sell and trade through listings on the Marketplace.
- CCPA means the California Consumer Privacy Act.
- Content means all content included in or made available through our Services by us, such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations and Software, scripts, graphics, photos, sounds, music, videos, audio-visual combinations, communications, interactive features, augmented reality, virtual reality, works of authorship of any kind, and information or other materials that are generated, provided, or otherwise made available through our Services, but excludes User Content.
- Device means a desktop, a mobile device or augmented reality device
- Digital Property means digital images, collectibles or artworks based on or derived from a licensor’s Intellectual Property Rights, authorized by the relevant licensor.
- Fees means the fees payable by you to us in respect of the Application, including upto 10% commission of the Price of each transaction.
- Force Majeure means an event that is beyond the reasonable control of a party, excluding an event to the extent that it could have been reasonably avoided by a party taking reasonable steps or reasonable care or a lack of funds for any reason
- GDPR means the General Data Protection Regulation of the European Union
- Intellectual Property Rights includes copyright and all rights anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trademarks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.
- Listing means a listing on the Application through which you offer to sell or trade an Asset in the Marketplace.
- Loss includes loss of profits, savings, revenue or data, and any other claim, damage, loss, liability and cost, including legal costs on a solicitor and own client basis.
- Marketplace means the secondary Marketplace function on the Application which permits Users to buy, sell and trade Assets with other Users.
- NFT or Non-Fungible Token means a unique digital certificate associated with an Asset to identify the Asset, which is securely stored by us and transferred on the blockchain. Each NFT associated with an Asset on the Application contains a unique mint number.
- Objectionable means includes being objectionable, defamatory, obscene, offensive, harassing, threatening, unlawful, spam, inaccurate, misleading, harmful, defamatory, libellous, discriminatory, sexual or pornographic or similar in any way
- Personal information means information about an identifiable, living person, and includes personal data, personally identifiable information and equivalent information under applicable privacy and data protection laws
- Price means the purchase price payable for an Asset advertised via a Listing on the Marketplace or via the Store
- Sales Tax means sales tax, goods and services tax, value added tax or equivalent tax payable under any applicable law.
- Services means the provision of our Application, site, tools, infrastructure and other services provided by us from time to time.
- My Collection means a virtual showroom in which Users can display their Assets. Licensors may have exclusive My Collections on the Application, in which Users can display their Assets relating to that licensor only.
- Software means the software owned by DIGIART (and its licensors) that is used to provide the Application.
- Store means the virtual storefront which operates as the primary Marketplace function on the Application through which Users can purchase Assets directly from DIGIART.
- Terms of Service mean these Terms of Service titled Terms of Service.
- We, us, our means DigiArt, our company.
- User means a user of our Services
- Underlying Systems means the Software, IT solutions, systems and networks (including software and hardware) used to provide the Services, including any third party solutions, systems and networks.
- User Content means content, data, and information (including personal information) that is owned, held, used or created by you or on your behalf, and that is then stored, transmitted via, input into or displayed via the Application including, in the case of a Listing, all content, data and information uploaded into the Application by you when creating a Listing text,
- Site means DIGIART.company
- You means you as an individual with an Account, both you and the other person on whose behalf you are acting
When you use our Services, or send e-mails, text messages, and other communications from your Device to us, or other Users, you may be communicating with us electronically. You consent to receive communications from us electronically, such as e-mails, SMS, mobile push notices, or notices and messages on our sites or through our Services. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
- The Application allows you to access the DIGIART digital environment, showroom, social media and message service, and the Store and Marketplace for Assets. On the Application you will be able to store, show, buy, sell or transfer Assets to and communicate with other Users of our Services.
- Any guidance we provide as part of our Services, such as pricing, distribution, listing, and sourcing is solely informational and you may decide to follow it or not.
- You agree to use the Application solely for personal consumptive and/or entertainment purposes, and will not rely on the Services for any other reason.
- Our provision of the Services to you is non-exclusive. Nothing in these Terms prevents us from providing the Services to any other person. We will use reasonable efforts to ensure that the Application is available on a 24/7 basis. However, it is possible that on occasion, the Application may be unavailable to permit maintenance or other development activity to take place, or due to Force Majeure.
- To use our Services you will need to first visit the Application and register an Account. You agree that your selected username will not be Objectionable in any way. We can decline to make the Application or the Services available to you without notice and for any reason, including on the basis of your selected username if we consider it to be Objectionable in our sole discretion.
- You agree that you will provide accurate, complete and truthful information at all times that you are required to provide information (including when setting up an Account), and must promptly update that information as required so that the information remains true, current and complete.
- Your Account will comprise your showroom, your communications, your transactions and any Assets you purchase.
- You are responsible for maintaining the security of your Account and agree to accept responsibility for all activities that occur under your Account. You must not share your login information or other security related information with any other person, or allow any other person to access your Account. You warrant that all activities on your Account are your own.
- You understand that anyone accessing your Account will be able to enter into transactions using your Assets and, to the extent that you have credit card details saved into your Account, purchase Assets using your credit card details, and we have no obligation to verify or take any steps to verify any instructions from you or appearing to be sent by you.
Permission is granted to temporarily download one copy of the materials on DIGIART's site for personal, non-commercial transitory viewing only. This is the grant of a license, not a transfer of title, and under this license you may not:
- modify or copy the materials;
- use the materials for any commercial purpose or for any public display;
- attempt to reverse engineer any software contained on DIGIART's site;
- remove any copyright or other proprietary notations from the materials; or
- transferring the materials to another person or "mirror" the materials on any other server.
This will let DIGIART to terminate upon violations of any of these restrictions. Upon termination, your viewing right will also be terminated and you should destroy any downloaded materials in your possession whether it is printed or electronic format. These Terms of Service have been created with the help of DIGIART’s legal attorney.
All the materials on DIGIART’s site are provided "as is". DIGIART makes no warranties, may it be expressed or implied, therefore negates all other warranties. Furthermore, DIGIART does not make any representations concerning the accuracy or reliability of the use of the materials on its site or otherwise relating to such materials or any sites linked to this site. All the materials on DIGIART’s site are provided "as is". DIGIART makes no warranties, may it be expressed or implied, therefore negates all other warranties. Furthermore, DIGIART does not make any representations concerning the accuracy or reliability of the use of the materials on its site or otherwise relating to such materials or any sites linked to this site.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU AGREE TO INDEMNIFY US FROM, AND HOLD US HARMLESS FROM, AND AGAINST ALL LOSS THAT ARISES FROM OR IN CONNECTION TO:
- YOUR ACCESS AND USE OF OUR SERVICES;
- YOUR BREACH OF THESE Terms of Service; AND
- ANY USER CONTENT YOU MAY PROVIDE.
DIGIART has not reviewed all of the sites linked to its site and is not responsible for the contents of any such linked site. The presence of any link does not imply endorsement by DIGIART of the site. The use of any linked site is at the user’s own risk. DIGIART has not reviewed all of the sites linked to its site and is not responsible for the contents of any such linked site. The presence of any link does not imply endorsement by DIGIART of the site. The use of any linked site is at the user’s own risk.
ACCESS TO OUR SERVICES
- When using our Services, you acknowledge, agree, warrant and undertake that:
- you have not and will not breach or circumvent any applicable law, regulations or third-party rights;
- you will not trespass, or in any manner attempt to gain or gain access to any property or location where you do not have a right or permission to be, and will not otherwise engage in any activity that may result in injury, death, property damage, nuisance, or liability of any kind;
- you will not use our Services if you are not 13 years old (or the minimum age required in your country to use our Services), or are temporarily or indefinitely suspended from using our Services, or are a person with whom transactions are prohibited under economic or trade sanctions or embargo;
- you are responsible for complying with trade regulations and both foreign and domestic laws (e.g., you are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a "terrorist supporting" country, and you are not listed on any U.S. government list of prohibited or restricted parties);
- regulations may require us to collect more information or documentation from you and you will fully comply with all of our requests for more information or documentation from you and all information and documentation will be completely truthful, accurate and reliable;
- you will not use our Services for commercial use (for example, business (whether paid or unpaid), advertising, or marketing purposes);
- you will not attempt to undermine the security or integrity of our Services or interfere with or attempt to impair our Services or transit software viruses, worms, other harmful files or other malware;
- you will not post, upload or transfer User Content or communications that could be considered Objectionable on our Services;
- you will not transfer or give access to your Account and login credentials to another party without our prior written permission;
- you will not receive, transfer, buy, sell or trade any Asset except through our Services;
- you will not bypass, decipher, decompile, extract, copy, replicate, disassemble or reverse engineer any of the software used to provide our Services;
- you will not use any bot, emulator, robot, spider, scraper, deep link or other similar automated data gathering or extraction tool, program, algorithm or methodology to access, copy or monitor our Services, participate in auctions or enter into transactions;
- you will not impose an unreasonable or disproportionately large load on our Application;
- you will not harvest or otherwise collect information about Users of our Services without their consent;
- you will not circumvent any technical measures used to provide our Services;
- you will not infringe the Intellectual Property Rights that belong to or are licensed to DIGIART. Some, but not all, actions that may constitute infringement are reproducing, performing, displaying, distributing, copying, reverse engineering, decompiling, disassembling, or preparing derivative works from Content that belongs to DIGIART or any third party, using that Content to advertise, Marketplace or sell a product or service, or as a basis for a securities product; incorporating that Content in videos or other media; creating or selling merchandise that includes that Content; and using that Content for any commercial purpose;
- you will not infringe any Intellectual Property Rights that belong to third parties affected by your use of our Services or post User Content that does not belong to you;
- you will not do anything on our Services that could be Objectionable to or could harm the reputation or Intellectual Property Rights of us or our licensors;
- you will not commercialize our Services or any information or software associated with our Services, except with our prior written permission;
- you will not bid on domain names or terms in any search engine that mention DIGIART or any of its derivatives and misspellings, DIGIART with keywords such as but not limited to “DIGIART coupons”, “DIGIART promos”, “DIGIART promotions”;
- you will not breach our privacy or confidentiality or the privacy or confidentiality of any User of our Services;
- you will not create or register a security interest or encumbrance in or over any Asset, your money in our bank account or your User Content;
- you will not create the impression of a false Marketplace for any Asset on the Market;
- you will not manipulate the Marketplace for any Asset on the Market;
- you will not use an Asset or our Services to breach any law or government;
- you will not use an Asset or our Services to circumvent any law or government;
- you will not help another person, entity, contractual arrangement, algorithm or device to do anything prohibited above; and
- your access, use and continued access and use of our Services is conditional on you providing us and our authorized agents with any information you may be asked for us to comply with applicable law and you consent to our holding or disclosing of this information for our legal compliance.
- Where you breach any clause in these Terms of Service, including to avoid doubt, the matters set out above, we may, in our sole discretion, suspend, terminate your Account or restrict your access to our Services.
- If we terminate your access to our Services, your access will be limited indefinitely and for the sole purpose of enabling you to sell, trade or transfer your Assets. Once you complete this process, your Account could be suspended or terminated indefinitely. We can restrict other users’ access to our Services and suspend or terminate other Accounts if we determine, at our discretion, that an arrangement has been put in place to circumvent our power to restrict a user’s access to our Services and suspend or terminate an Account.
- You indemnify us against all Loss we suffer or incur as a direct or indirect result of:
- any actual or alleged claim by a third party that any User Content or any Asset infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that any User Content is Objectionable, incorrect or misleading;
- your failure to comply with these Terms of Service, including any failure of a person who accesses and uses the Services by using your Account; or
- any Loss arising from or in connection with an actual or alleged breach by you of any legal or regulatory requirements which occurs in connection with a contract between you and any other user or as a result of any other relationship established through the Services.
Our Intellectual Property
- You agree that all right, title and interest (including all copyright, trade mark, service marks, and other Intellectual Property Rights of any kind, whether registered or unregistered) in our Services (whether present or future), and all Content is the property of DIGIART, its licensors or their content suppliers (as applicable) and is protected by United States and international copyright and trademarks laws. Other than your User Content, we (and our licensors) own all proprietary and Intellectual Property Rights in the Application, the Software and the Underlying Systems, including all information, data, text, graphics, artwork, photographs, trade marks, logos, sound recordings, videos and look and feel, and including any modification, enhancement or derivative work of any of the foregoing.
- Subject to your compliance with these Terms of Service, we grant you a personal, non-commercial, non-exclusive, non-transferable, revocable, limited license (or sublicense, to the extent the Content was licenced to us) to download, view, display, and use the Content solely for your permitted use within our Services. You may not:
- modify any Content;
- use the Content to advertise or promote another product or service;
- commercialize the Content, such as by incorporating it into another product or service; or
- in any way attempt to obtain any intellectual property ownership rights in the Content.
- “DigiArt” and “DigiArtVERSE” are all registered trademarks registered marks of DigiArt or its licensors.
- You acknowledge and agree that the Intellectual Property Rights in all Assets remain with the relevant licensor. When you buy an Asset (either through a sale or trade) using the Marketplace or the Store,
- you are buying the NFT associated with the relevant Asset;
- we grant you, for so long as you own that Asset, a personal, non-commercial, non-exclusive, non-transferable (except as specifically provided in this clause), non-sublicensable, revocable, limited license to download, view, display, and use the Digital Property in that Asset and its associated Content solely for your permitted use within the Showroom and Market, including reselling the Asset on the Marketplace in accordance with these Terms of Service.
- When you sell an Asset through the Marketplace in accordance with these Terms of Service, the license of the Digital Property in the Asset transfers to the new owner of that Asset, and your license expires with immediate effect.
- The Intellectual Property Rights holder’s underlying rights in the Digital Property will be unaffected when you complete a transaction in the Marketplace or Store via the Application or site. Neither we nor the relevant licensors of the Intellectual Property Rights in the Digital Property and associated Content offer to sell or license the Intellectual Property Rights in the Digital Property or associated Content. You must notify us immediately if you become aware of any actual or potential breaches of Intellectual Property Rights relating to your Account.
- must not modify any Asset (including, to avoid doubt, the NFT or the Digital Property associated with the Asset);
- must not use any Asset or associated Content to advertise, Marketplace or sell a product or service, or as a basis for a securities product;
- agree not to remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Asset.
- When you access and use the Market, we act as an intermediary for Marketplace Users to transact, and are not a party to any agreement to buy, sell or trade the Assets advertised on the Market. When a User purchases an Asset and a User agrees to provide that Asset, they are entering into an agreement directly with each other. We do not act as an agent for any User.
- As we are not a party to the transaction, any interaction between you and another User, including any agreement entered into between you and another User, is a matter directly between you and them only. Other than our obligations set out in these Terms of Service, you agree that we:
- are not liable to you for the accuracy of any Listing, or any failure by a User to comply with these Terms of Service or any other legal obligation;
- are not liable or responsible for any guarantees or assurances made by the seller of any listing on the Application;
- have not made, and do not make any representation, guarantee or warranty that any Asset will meet your requirements or expectations;
- are not liable or responsible for any increase or decrease in value of any Asset, We have not made, and do not make, any promises (whether explicit, implied or otherwise) as to the value of any Asset, including whether the value of the Asset will increase or decrease in the future. The Prices of collectible assets are volatile and subjective, and we cannot guarantee that any Assets purchase will retain any value, which may depend on a number of inherently subjective factors beyond our control, including the desirability of a particular Asset; and
- will not be responsible for the negligence or misconduct of other Users (including where another User has attempted to defraud you, doesn’t have the right to sell an Asset to you, or fails to complete a transaction.)
- Listing: Where you list an Asset for sale or trade in the Marketplace:
- you must only list an Asset that you own in any Listing;
- your Listing must be accurate, current, complete and include all the relevant information on the Asset. We reserve the right, but are not required, to amend any listing to supplement, remove or correct information;
- your Listing must not be misleading (which includes ensuring no material information is left out); and
- you accept that, any sale of the Asset will be final, and that you will not be able to cancel the sale or retain ownership in the Asset. You enter into a legally binding contract to purchase an Asset when you commit to buy an Asset at the Price, your offer for an Asset is accepted by the seller (whether as a trade for another Asset(s) or for a Price), or if you have the winning bid in an auction.
- You must only place a bid on an auction if you intend to buy the Asset at Price. You cannot revoke a bid once it is placed.
- Where an Asset is sold by auction and you place the winning bid, you will be obliged to complete the purchase of the Asset at the Price and you will not be able to cancel your offer or negotiate a different Price once your bid has been lodged.
- You agree not to engage in any shill bidding (i.e. placing, or organizing someone to place, fake bids to manipulate price, desirability or the search position of your listing).
- Where we reasonably believe that you have engaged in shill bidding, we may suspend, or terminate your Account.
- Trading: Where you have entered into a trade with another User, that trade will be final and you will not be able to cancel the trade or negotiate a different trade.
- Prices specified on the Marketplace are set by the User offering the Asset for sale or trade. Prices are in USD (US Dollar). We do not make any representation that Prices set by Marketplace Users are reasonable or reflect the value of an Asset. We will not provide any refunds or reimbursements for any reason.
FEES AND PAYMENT
- Payments for our Services or Assets (through both the Store and Market) can be made by:
- using credit cards approved by us (approved cards will be listed on our Fees page; or
- using a cryptocurrency wallet, such as MetaMask.
- You will be charged the Price (including any Fees set out on our Fees page) for any Assets purchased either from the Store or from the Marketplace, or for any premium Content or features purchased through the Application. Any purchases made on our Services (for Assets, premium content, features or otherwise) are final and non-refundable, and you are advised to double check before making any purchases.
- Any funds that you transfer to your App Wallet, or that are received by us from buyers for the sale of your Assets on the Market, will be placed into our bank account and held on trust for your sole benefit (less any Fees charged in accordance with these Terms of Service), until you:
- use the funds to pay for Assets or Services on the Application; or
- instruct us to transfer the funds to your nominated bank account.
- You authorize us to deduct our Fees from funds held on trust and retain any interest earned on the funds held on trust.
- If we allow you to transfer any kind of cryptocurrency or virtual asset (excluding an Asset) to the Application, these will be held in your App Wallet until such time as the cryptocurrency is transferred out of your App Wallet to an external wallet.
- There is no charge for downloading our Application but you will need an internet connection. You are responsible for all associated charges from your internet or mobile network providers.
- By using our Services, you accept that it is your responsibility to calculate and pay:
- any taxes applicable to any transactions you conduct on our Services. We accept no responsibility for, nor make any representation in respect of, your tax liability;
- any fees associated with your payment method of choice; and
- any currency conversion fees
- We may change, modify or increase the Fees we charge for our Services from time to time by giving 30 days’ notice. We will notify you of any increase and the effective date of the increase by emailing you at the email contact address that you have most recently supplied to us. If you do not wish to pay the increased Fees, you may remove your Account. If you do not remove your Account before the effective date of the increase, you are deemed to have accepted the increased Fees.
- Banks and other credit or debit card issuers may offer a dispute process or credit or debit card payments. If your bank or issuer determines that a transaction on the Marketplace should be refunded (a Chargeback) and you are the seller, we will give effect to the Chargeback by debiting your App Wallet. Where we give effect to the Chargeback, you agree to indemnify us against any costs incurred as a result of the Chargeback, and authorize us to debit your App Wallet for the amount of any such costs. If your App Wallet contains insufficient funds for the Chargeback or our costs and we are unable to debit your App Wallet, this will create a debt between us and you.
- While we take all reasonable steps to ensure that your Assets and User Content are secure, you are responsible for the security and system integrity of your Account, Device and your associated connection to the internet. You acknowledge and accept all Assets are associated with Digital Collectible on the Ethereum blockchain, a distributed ledger network operated by several parties independent to us. The security of the Assets depends on the security of the Ethereum network.
- You must exercise every possible care to ensure the safety of your Account and device by taking all reasonable care to prevent loss, theft and unauthorized or fraudulent use. That includes:
- not allowing anyone else to use your device without your authority;
- keeping your login details secret and unique;
- locking your device when it is not in use; and
- ensuring you have set up password access to your device and it is active.
- If you become aware or suspect that your login credentials to our Services have been compromised in any way, you must immediately notify us and also cease using our Services and uninstall and delete the Application.
- You must take all reasonable precautions to protect the value of your Assets to you including insuring your Assets.
THIRD PARTY WEBSITES OR RESOURCES
- The Services may contain links to third party websites or resources. We provide these links only as a convenience and we are not responsible for the content, products, or services on or available from those websites or resources, or links displayed on such websites. To the extent permitted under applicable law, you acknowledge sole responsibility for and assume all risk arising from, your use of any third party websites or resources, we do not endorse or support any third party website content nor are we responsible for what is contained on such third party websites.
- We are not responsible for the availability or quality of third party services, including cell phone networks, hotspots, wireless internet and other services. Such third party services may affect your ability to utilize our Services and you hereby waive and release us and any other party involved in creating or delivering our Services from Loss or liability which may arise out of, result from, or relate in any way to such third party services.
- Through the use of web services and APIs, the Application may interact with a range of third party service features. We do not make any warranty or representation on the availability or performance of those features. Without limiting the previous sentence, if a third party feature provider ceases to provide that feature or creases to make that feature available on reasonable terms, we may cease to make that feature available to you. To avoid doubt, if we exercise our right to cease the availability of a third party feature, you are not entitled to any refund, discount or other compensation.
- You may cease using the Services at any time by removing your Account from the Application. If you do this, these Terms of Service and your right to access and use the Services will terminate immediately.
- We may refuse to create an Account for you, or close your Account and terminate, suspend or modify your access to our Services at any time, for whatever reason, without prior notice or reason given to you.
- We may, at our sole discretion and for whatever reason, change, modify, suspend or discontinue any of our Services, including the provision of the Application, the Store or the Market, at any time without prior notice or reason given to you.
- Termination of these Terms of Service does not affect either party’s rights and obligations that accrued before that termination.
- No compensation is payable by us to you as a result of termination of these Terms of Service for whatever reason, and you will not be entitled to a refund of any amount that you have already paid to us.
WARRANTIES, LIABILITY AND DISCLAIMERS
- TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, OUR SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE DISCLAIM AND EXCLUDE ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF NON-INFRINGEMENT, AND DO NOT WARRANT THAT THE SERVICES (INCLUDING, TO AVOID DOUBT, THE APPLICATION) WILL BE:
- UNINTERRUPTED, SECURE, OR ERROR-FREE (INCLUDING FREE FROM VIRUSES OR OTHER MALICIOUS CODE);
- CAPABLE OF QUIET ENJOYMENT, OF MERCHANTABLE QUALITY, FIT FOR A PARTICULAR PURPOSE, OR NON-INFRINGING; OR
- COMPATIBLE WITH YOUR DEVICE.
- TO THE FULLEST EXTENT PERMITTED BY LAW, WE ARE NOT LIABLE FOR ANY LOSS, LOST PROFITS, LOSS OF DATA, LOSS OF GOODWILL, COSTS, COSTS OF SUBSTITUTE SERVICES, LIABILITY, EXPENSES (INCLUDING REASONABLE ATTORNEY/CLIENT FEES) OR DAMAGES (INCLUDING DIRECT OR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL) ARISING FROM OR IN RELATION TO:
- YOUR ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) OUR SERVICES;
- ANY COMMUNICATIONS, INTERACTIONS, OR MEETINGS WITH OTHER USERS OF OUR SERVICES OR PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF OUR SERVICES;
- A SUSPENSION OR OTHER ACTION TAKEN WITH RESPECT TO YOUR ACCOUNT;
- ANY ACT OR OMISSION OF A THIRD PARTY, INCLUDING NEGLIGENT, MALICIOUS OR WILFUL ACTS OR OMISSIONS;
- TELECOMMUNICATIONS UNAVAILABILITY, INTERRUPTION, DELAY, FAILURE OR FAULT;
- OUR DECISION TO CHANGE, MODIFY, SUSPEND OR DISCONTINUE ANY OF OUR SERVICES;
- MAINTENANCE OR REPAIRS CARRIED OUT BY US OR ANY THIRD PARTY SERVICE PROVIDER IN RESPECT OF ANY SYSTEMS USED IN CONNECTION WITH THE PROVISION OF OUR SERVICES, WHETHER THESE LEAD TO DELAYS OR DISRUPTIONS IN OUR SERVICES OR NOT; OR
- ANY FORCE MAJEURE EVENT,
- WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SHOULD A COURT NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY IN THIS USER AGREEMENT, SO THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
- YOU ASSUME ALL RISKS RELATING TO YOUR USE OF OUR SERVICES WHICH INCLUDES THE RISKS GENERALLY LINKED TO USE OF THE INTERNET, MOBILE OR DESKTOP APPS, BLOCKCHAIN TECHNOLOGY, CYBERSECURITY, LICENSES, MARKETPLACES, REGULATION AND YOUR ONLINE OR OFFLINE COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF OUR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF OUR SERVICES. YOU UNDERSTAND THAT WE DO NOT SCREEN OR INQUIRE INTO THE BACKGROUND OF ANY USERS OF OUR SERVICES. WE MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF OUR SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF OUR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF OUR SERVICES, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON.
- EXCEPT TO THE EXTENT PERMITTED BY LAW, NOTHING IN THESE TERMS HAS THE EFFECT OF CONTRACTING OUT OF THE UNITED STATES CONSUMER GUARANTEES ACT 1993, OR ANY OTHER CONSUMER PROTECTION LAW THAT CANNOT BE EXCLUDED. TO THE EXTENT OUR LIABILITY CANNOT BE EXCLUDED BUT CAN BE LIMITED, OUR LIABILITY WILL BE LIMITED TO USD$100.
- TO THE MAXIMUM EXTENT PERMITTED BY LAW AND ONLY TO THE EXTENT CLAUSES IN THIS DOCUMENT DO NOT APPLY, OUR TOTAL LIABILITY TO YOU IN CONNECTION WITH THESE Terms of Service OR THE SERVICES WILL NOT EXCEED USD$100.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU AGREE TO INDEMNIFY US FROM, AND HOLD US HARMLESS FROM, AND AGAINST ALL LOSS THAT ARISES FROM OR IN CONNECTION TO:
- YOUR ACCESS AND USE OF OUR SERVICES;
- YOUR BREACH OF THESE Terms of Service; AND
- ANY USER CONTENT YOU MAY PROVIDE.
- Each party must, unless it has the prior written consent of the other party:
- keep confidential at all times the Confidential Information of the other party;
- effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorized access or use; and
- disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of.
- The obligation of confidentiality does not apply to any disclosure or use of Confidential Information:
- for the purpose of performing a party’s obligations, or exercising a party’s rights, under these Terms of Service;
- required by law (including under the rules of any stock exchange);
- which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
- which was rightfully received by a party from a third party without restriction and without breach of any obligation of confidentiality; or
- by us if required as part of a bona fide sale of our business (assets or shares, whether in whole or in part) to a third party, provided that we enter into a confidentiality agreement with the third party.
- These Terms of Service constitute the entire and exclusive understanding and agreement between us and you in respect to any matter raised in these Terms of Service, and these Terms of Service supersede and replace any and all prior oral or written understandings or agreements between us and you with respect to any matter raised in these Terms of Service.
- You may not assign or transfer any of your rights under these Terms of Service without our prior written permission. Any attempt by you to assign or transfer these Terms of Service, without such permission, will be null. We may freely assign or transfer these Terms of Service, including any right or obligation set out in these Terms of Service, without restriction, and the transferor or assignor shall not remain jointly and severally liable. Subject to the foregoing, these Terms of Service will bind and inure to the benefit of the parties, their successors and permitted assigns.
- We may provide you with notices, including notices relating to these Terms of Service by way of electronic communications, including by email or other electronic communication through the Application. You are solely responsible for ensuring your contact details in your Account are always up to date.
- If any part of these Terms of Service is, or becomes, legally invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms of Service will remain in full force and effect.
- We reserve the right to add, vary or otherwise change these Terms of Service at any time. We will publish the most recent version of the Terms of Service on the Application.
- If we do not exercise or enforce any rights available to us under these Terms of Service, that does not constitute a waiver of those rights. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of us. Except as expressly set forth in these Terms of Service, the exercise by either party of any of its remedies under these Terms of Service will be without prejudice to its other remedies under these Terms of Service or otherwise.
- Our shareholders, subsidiaries, affiliates, officers, directors, agents, subsidiaries, joint ventures, and employees will have the benefit of our rights, powers and protections in these Terms of Service and any one of them can enforce any of our rights, powers and protections as if they were a party to these Terms of Service.
- Nothing in these Terms of Service shall be deemed or is intended to be deemed, nor shall it cause, either you or us to be treated as partners, joint ventures or as the agent of the other.
- Neither us, nor any user of our Services, nor any other party involved in creating, producing, or delivering our Services shall be liable for any failure to perform its obligations under these Terms of Service to the extent caused by Force Majeure provided that the affected party:
- notifies the other party as soon as practicable;
- uses best efforts to overcome the Force Majeure; and
- continues to perform its obligations to the extent practicable.
- These Terms of Service shall be governed by the laws of the United States of America and must be interpreted in accordance with the laws of the United States of America.
- YOU AGREE THAT DISPUTES RELATING TO OR ARISING OUT OF THE APPLICATION OR SERVICES WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
- If you live in a jurisdiction which allows you to agree to arbitration, you agree that any disputes (including the validity or enforceability of this arbitration provision) will be settled by binding arbitration, except that any party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent actual or threatened infringement, misappropriation, or violation of a party’s Intellectual Property Rights. Notwithstanding this arbitration agreement, we reserve the right to bring an action in any court of competent jurisdiction against you to stop you from breaching or continuing to breach these Terms, to seek all available remedies against you under these Terms (including all forms of damages and compensation) and/or to enforce our rights or powers under these Terms.