Terms of Service
Last updated: September 29, 2021
Welcome to VUELE.io, which is provided by EnderbyWorks LLC (“EnderbyWorks”, “we”, “our” or “us”).
These Terms of Service (the “Terms”) govern the relationship, and form a legally binding agreement, between you and us and set forth the terms and conditions on which you may access and use (a) the website operated at VUELE.io, and other locations from time to time (the “Website”), (b) any applications or other software we provide you (the “Application”), excluding third party software that may interact with the Service as defined below, and (c) the services we provide through the Website and the Application, including any offering in respect of Collectibles (as this term is defined herein) (Website, Application, and Collectibles shall be collectively referred to as the “Service”). Any reference to the “Services” includes a reference to any part of the Services.
For purposes of these Terms, “you” and “your” means you as the user of the Services. If you are agreeing to these Terms and using the Service on behalf of a corporation, partnership, or other legal entity, you represent that you have all required legal rights and authority to bind that entity to these terms. In such a case, any further reference to “you” in these terms means that other legal entity.
The Service enables you to purchase, collect, showcase, and possibly sell digital collectibles (“Collectibles”) which are created by us or our business partners (each a “Seller”). Each Collectible is a non-fungible token (“NFT”) minted on a CurrencyWorks Blockchain (the “blockchain”) and tied to content hosted on the Service as well as a license to use such content as represented by the Collectible in certain ways. Sales are subject to the creation of any secondary marketplace, which we cannot guarantee will exist.
PLEASE NOTE THAT DIFFERENT TERMS MAY APPLY TO YOU BASED ON WHERE YOU LIVE. MAKE SURE YOU READ THE JURISDICTION-SPECIFIC TERMS FOR YOUR COUNTRY OF RESIDENCE, AS APPLICABLE. These specific terms concern important aspects of our agreement, including how you consent to these Terms, your consumer cancellation rights, your privacy, our rights to terminate your account or access to the Services, our warranties and liability, and the law applicable to these Terms.
ARBITRATION NOTICE FOR USERS IN THE UNITED STATES: THESE TERMS CONTAIN AN ARBITRATION CLAUSE AND A WAIVER OF RIGHTS TO BRING A CLASS ACTION AGAINST US. EXCEPT FOR CERTAIN TYPES OF DISPUTES MENTIONED IN THAT ARBITRATION CLAUSE, YOU AND ENDERBYWORKS AGREE THAT DISPUTES BETWEEN US WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION, AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT, CLASS-WIDE ARBITRATION, OR ANY OTHER COLLECTIVE OR REPRESENTATIVE ACTION.
1. Age and Acceptance of Terms.
Access to certain Services or features of the Services may be subject to age restrictions and not available to all users of the Services. The Services are only for users 18 years of age and older. By accessing or using our Services, you confirm that: (a) you are over 18 and can form a binding contract with us; (b) you accept these Terms; and (c) you agree to comply with these Terms. If you are over 18 but under the legal age to enter into a contract in your jurisdiction, your parents or legal guardian must read and agree to these Terms, as well as supervise your use of the Services. If you do not have consent from your parents or legal guardians, you must cease accessing or using the Services. If we learn that someone under the relevant age is using the Services, we will terminate access to the Services for such user.
2. Supplemental Terms for Specific Jurisdictions
If you access or use the Services from within a jurisdiction for which there are separate supplemental terms, you also agree to the supplemental terms applicable to you in the applicable jurisdiction as outlined below. If there is a conflict between the provisions of the supplemental terms that are applicable to you, and the rest of these Terms, your jurisdictions’ supplemental terms will supersede and control.
3. Changes to the Terms
We reserve the right in our sole and absolute discretion to revise and update these Terms from time to time. All changes are effective immediately upon posting and apply to your continued access to and use of the Services. We may post reminders and summary information about material changes to these Terms, including where there are substantial amendments that affect your rights and obligations, but it is your responsibility to review them. You agree to periodically review these Terms in order to be aware of any such changes and your continued use shall mean your acceptance of any such changes, whether given notice or not.
You agree that we will not be liable if, for any reason, all or any part of the Service or these Terms is changed, withdrawn, terminated, restricted to users, or unavailable at any time or for any period or if such restriction or unavailability impacts the use, functionality, or value of Collectibles.
For clarity, if any of the terms and conditions described in these Terms, or any future modifications thereto, are unacceptable to you, you should: (i) discontinue your use of the Services; and (ii) if you have set up an account, delete your account from your account management page. Your use of the Services now, or your continued use of the Services following the implementation of updated Terms, will indicate acceptance by you of such Terms or modifications. If you do not agree to the Terms as applicable from time to time, you must stop accessing or using the Services.
4. Your Account and Security
In consideration of your use of the Services, you hereby agree to: (a) provide true, accurate, current and complete information about yourself as requested by any registration forms on the Service (“Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. By providing Registration Data to us through the Services, you will provide personal account information. You hereby agree to be fully responsible for: (w) all use of your User Account; (x) any action that takes place using your account by any person or automated process; (y) maintaining the confidentiality and security of your account and passwords; and (z) immediately notifying us upon any unauthorized use of your password or account, or if you know of any other breach of security in relation to the Services. You are responsible for any password misuse or any unauthorized access. You agree that your disclosure of login information to third parties may negate our user authentication measures and allow unauthorized access to your account. We will not be liable for any loss or damage arising from any unauthorized use of your account(s).
We have provided ways for you to contact us about various issues on our website at VUELE.io. You acknowledge and understand that these are the only authorized ways to contact us. Third parties may advertise or publish alternative ways to contact us or use other measures to pose as us. We cannot verify the authenticity of any such alternative contacts, and they pose a risk of fraud and other malfeasance, so we strongly recommend you do not attempt to contact us using these methods. You agree that we cannot be held liable for unauthorized access to your account or other loss resulting from such fraud or other malfeasance by third parties.
5. Purchasing Collectible and Conducting Transactions on the Service
a. Payment Information and Your Wallet: You will need to use your VUELE wallet in order to purchase and store Collectibles via the Service. You can use your electronic wallet to purchase and store Collectibles and to engage in transactions using your credit card, or via one or more cryptocurrencies that we may elect to accept from time to time. Transactions that take place on the Service are managed and confirmed via the CurrencyWorks Blockchain network. You must provide and at all times must maintain accurate, complete, and current billing information, including your postal/zip code, credit card number, and credit card expiration date. We may suspend or terminate your account and access to the Services if your offered payment method (e.g., credit card) cannot be processed. In addition, orders may not be accepted from certain jurisdictions. By providing a payment method, you expressly authorize us and our third-party payment processors to charge the applicable fees on said payment method, as well as taxes and other charges related thereto, all of which depend on the Services you utilize. You agree that we may charge any unpaid amounts to your provided payment method and send you a bill for such unpaid fees. If you provide a payment method and our charge results in an overdraft, chargeback, or other fee from your bank, you alone are responsible for that fee. You are responsible for the security of your account for the Service and for your electronic wallet. If you become aware of a potential breach of security to your wallet or billing information (such as credit card loss or theft), you must notify us immediately.
b. Acquiring Collectibles: The Service allows you to purchase, collect and showcase Collectibles that are created on the Service by us and our Sellers. You can purchase Collectibles in two ways: (a) by buying specific Collectibles that are posted for sale on the Service; or (b) by buying packs of Collectibles from us or our Sellers on the Service (each, a “Pack”). There are different types of Packs available for purchase on the Service, and we reserve the right to modify the types, prices and numbers of Packs available at our discretion. Depending on the type of Pack you buy, you will receive Collectibles of varying levels of scarcity. Before you buy a Pack, we will let you know the types of Collectibles and how many of each type of Collectible (but not the exact Collectibles) that are contained in that Pack. If you buy an individual Collectible, you will know the exact Collectible that you are purchasing. We do not offer or sell Collectibles outside of the Service. We thus strongly discourage purchase of Collectibles that are offered for sale outside of the Service. If you decide to purchase Collectibles from third party websites or services, you understand that we do not and cannot verify or vouch for the authenticity or reliability of such Collectibles, and such purchases will be entirely at your sole risk.
c. Description of Collectibles: Collectibles are designed as film memorabilia and collectibles to enhance the experience of film enthusiasts. They are not intended to be investments or used for investment purposes. Collectibles can vary in composition and Sellers have the sole and absolute discretion as to what to include in each Collectible, including any rights associated with that Collectible. Generally, however, Collectibles can be associated with various types of content including statistics, photographs, videos, designs, audio recordings, artwork and other forms of media and information (collectively, “Collectible Content”). See “Intellectual Property Rights in and to the Collectibles and Collectible Content” below where we explain what rights you do and do not obtain by purchasing a Collectible; it is important to know that the association between the Collectible and the Collectible Content does not necessarily give you any rights in and to the Collectible Content itself. The value of each Collectible is inherently subjective, in the same way the value of other sports memorabilia is inherently subjective. Each Collectible has no inherent or intrinsic value. Some collectors might prefer to have a Collectible featuring a certain vehicle, while another might prefer an equivalent Collectible featuring a different vehicle. Therefore, when buying Collectibles you are strongly encouraged to carefully read the details for each Collectible before you make a purchase, as well as any additional terms and conditions that may go along with it. You accept full responsibility to comply with the scope of the rights granted to you by each Collectible.
All purchases of Collectibles on the Service are subject to these Terms as well as the terms and conditions of sale presented to you by the Seller at the time of purchase. Please note that some transactions and Collectibles you purchase are subject to additional restrictions, including those that relate to age and residency as well as those that impact your rights in and to the Collectible and the Collectible Content. By completing a purchase, you are thereby agreeing to any such additional terms and conditions.
d. Modifications to Services and Pricing: We reserve the right at any time and from time to time to change, modify, add, remove, suspend, cancel, or discontinue any aspect of the Services in our sole discretion, including the technologies used and even including the blockchain and other fundamental blockchain or NFT technologies. In addition, we may modify our fees from time to time.
e. Identifying the Seller: In each case, we are not necessarily the Seller of a given Collectible. When purchasing Collectibles we will indicate who the Seller is of each Collectible or Pack. For those transactions where we are not the Seller, we are not a broker, financial institution, or creditor and provide the Services as an administrative platform only to facilitate transactions of Collectibles. YOU BEAR FULL RESPONSIBILITY FOR VERIFYING THE IDENTITY, LEGITIMACY, AND AUTHENTICITY OF COLLECTIBLES YOU PURCHASE ON THE SERVICE. WE MAKE NO CLAIMS ABOUT THE IDENTITY, LEGITIMACY, OR AUTHENTICITY OF COLLECTIBLE CONTENT ON THE PLATFORM.
f. Payment Processors: All fiat currency (i.e. government issued currency) transactions that occur on the Service are managed, processed, and confirmed by Stripe and as such, all fiat currency transactions are subject to their terms of service. We reserve the right to change the method by which we process fiat currency transactions at any time. DUE TO THE NATURE OF BLOCKCHAIN TECHNOLOGY, WE HAVE NO CONTROL OVER CRYPTOCURRENCY OR COLLECTIBLE PAYMENTS OR TRANSACTIONS, NOR DO WE HAVE THE ABILITY TO REVERSE ANY PAYMENTS OR TRANSACTIONS.
g. REGARDLESS OF WHETHER PAID FOR WITH FIAT OR CRYPTOCURRENCY, WE DO NOT PROVIDE REFUNDS FOR ANY PURCHASES THAT YOU MIGHT MAKE ON OR THROUGH THE SERVICE – WHETHER FOR COLLECTIBLES, PACKS, OR ANYTHING ELSE.
h. Transaction Fees: Buying, selling (if possible) or transferring (if possible) Collectibles may be subject to fees, commissions, royalties and other charges (“Fees”) established from time to time in our sole discretion. Fees include: (a) service fees established by and payable to EnderbyWorks; and (b) commissions on secondary sales (if available) of Collectibles, established by and payable to the creators of such Collectibles. Service fees may be adjusted from time to time in our sole discretion.
i. Gas Fees: Every transaction on the CurrencyWorks Blockchain requires the payment of a transaction fee (each, a “Gas Fee”). The Gas Fees fund the network of computers that run the decentralized CurrencyWorks Blockchain. This means that you will need to pay a Gas Fee for each transaction that you instigate via the Service regarding Collectibles. Except as otherwise expressly set forth in these Terms, you will be solely responsible to pay any Gas Fee for any transaction that you instigate via the Service.
j. Responsibility for Taxes: Except as may be collected by us as required by applicable law and as indicated on the order page where you make purchases, you will be solely responsible to pay any and all sales, use, value-added and other taxes, duties, and assessments (except taxes on our net income) now or hereafter claimed or imposed by any governmental authority (collectively, the “Taxes”) associated with your use of the Service and all purchases of Collectibles.
6. Intellectual Property Rights; Limited License
a. Intellectual Property Rights in and to the Service and Our Content: As between you and us, we and our third party licensors own any and all right, title, and interest in and to the Services and any and all data and content made available in and through the Services, including all software, computer code, tools, patches, updates, images, text, graphics, illustrations, logos, photographs, images, pictures, audio, sound effects, sound recordings, features, functionality, design, presentation videos, visual effects, music, music composition, user accounts, and “look and feel” of the Services, and all intellectual property rights related to the foregoing and the Services (the “Our Content”). Put simply, the Services and the Our Content (including all components thereof) are the property of their respective owners and are protected by copyright, trademark, patent, trade secret, and any other proprietary rights.
b. Limited License to the Service: You acknowledge and agree that you have no ownership rights in the Services or Our Content. Subject to all of the Terms, we grant you a non-exclusive, personal, non-transferable, non-sublicensable, revocable, limited license to access and use the Services and to access the Our Content solely for your personal use. We reserve all rights not expressly granted herein in the Services and Our Content. You acknowledge that your use of Our Content for any purpose not expressly permitted by these Terms is strictly prohibited. Without limiting the restrictions in Section 11: (a) neither Our Content nor the design or layout of the Services, nor any part or component of any of the foregoing, may be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any purpose whatsoever without our or, where applicable, our licensors’ prior written consent; and (b) you cannot create any work of authorship or proprietary right based on the Services (including Our Content). You will only use the Services as may be expressly provided in this Agreement or to the extent permitted by law or (if applicable) relevant open source licenses. We and our licensors reserve all rights not expressly granted in and to their content.
c. Intellectual Property Rights in and to the Collectibles and Collectible Content:
i. Ownership of Collectible. When you purchase a Collectible, you are purchasing an NFT that is associated with certain Collectible Content. To clarify, when you purchase a Collectible, you are not purchasing the associated Collectible Content but only the unique NFT specifically associated with that Collectible Content. All Collectible Content is licensed under these Terms and not sold and you do not have any legal ownership, right, or title to any copyrights, trademarks, or other intellectual property rights to the Collectible Content, excepting the limited license to the Collectible Content granted by these Terms and as modified by the additional terms and conditions that may apply to a given Collectible as noted above. Your ownership of Collectibles will only be recognized by us if you have purchased or otherwise rightfully acquired such Collectibles from us and is subject to both our or the Seller’s full receipt of the full purchase price of the Collectible and your full compliance with these Terms.
ii. License to Collectible Content. Subject at all times to your full compliance with these Terms, when you purchase a Collectible from us, we grant you a worldwide and non-exclusive license to display the Collectible Content associated with your purchased Collectible for only your own personal, non-commercial use as part of your personal collection for display on the Service. You agree that you may not, nor may you permit any third party to do or attempt to do any of the foregoing without our (or, as applicable, our licensors’) express prior written consent in each case: (a) modify the Collectible Content for your purchased Collectibles in any way, including, without limitation, the shapes, designs, drawings, attributes, or color schemes; (b) use the Collectible Content for your purchased Collectible to advertise, market, or sell any third-party product or service; (c) use the Collectible Content for your purchased collectible in connection with images, videos, or other forms of media that depict hatred, intolerance, violence, cruelty, or anything else that could reasonably be found to constitute hate speech or otherwise infringe upon the rights of others; (d) use the Collectible Content for your purchased Collectible in print media, photographs, videos, or any other forms of media, now known or hereinafter devised, except to the limited extent that such use is expressly permitted in these Terms; (e) 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 Collectible Content for your purchased Collectibles; (f) attempt to trademark, copyright, or otherwise acquire additional intellectual property rights in or to the Collectible Content for your purchased Collectibles; or (g) otherwise utilize the Collectible Content for your purchased Collectibles for your or any third party’s commercial benefit.
iii. Third Party IP. If the Collectible Content associated with your purchased Collectible contains “Third Party IP” (e.g., licensed intellectual property from any of our licensors), you understand and agree as follows: (a) that you will not have the right to use such Third Party IP in any way except as incorporated in the purchased Collectible, and subject to the license and restrictions contained herein; (b) that, depending on the nature of the license granted from the owner of the Third Party IP, we may need to (and reserve every right to) pass through additional restrictions on your ability to use the Collectible Content; and (c) to the extent that we inform you of such additional restrictions in writing, you will be responsible for complying with all such restrictions from the date that you receive the notice, and that failure to do so will be deemed a breach of the license contained in this Section 6.
iv. Other Terms of License. The license granted in this Section 6 above applies only to the extent that you continue to own the applicable purchased Collectible. If at any time you sell, swap, donate, give away, transfer, or otherwise dispose of your purchased Collectible for any reason, the license granted in this Section 6 will immediately expire with respect to that Collectible without the requirement of notice, and you will have no further rights in or to the Collectible Content for that Collectible. The terms of this Section 6 will survive the expiration or termination of these Terms for any reason.
d. Links: Where our Services may contain links to other sites and resources provided by third parties, these links are provided for your information only. We have no control over the contents of those sites or resources. Such links should not be interpreted as approval or endorsement by us of those linked websites or information you may obtain from them, and we are not responsible for any consequences, losses, or damages that may arise from your access or use of such sites or resources. For clarity, if you choose to access any such sites or resources, you do so at your own risk.
f. Trademarks, Brands and Logos: Other than trademarks, brands and logos that we expressly indicate belong to us, all other registered or unregistered trademarks, brands and logos found on the Service or in any Collectible Content belong to their respective owners. Nothing contained on the Service or in any Collectible Content should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any such trademarks, brands or logos without the written permission of us or such third party that owns them. Furthermore, no third-party trademarks, brands or logos imply any endorsement of, or association with, the Service by such respective owners thereof.
7. Feedback and User Submissions
While we are continually working to develop and evaluate our own product ideas and features, we also pay attention to the interests, feedback, comments, and suggestions we receive from our user community. You may choose to contribute by sending us any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual or other types of content), promotions, strategies, or product or feature names, or any related documentation, artwork, computer code, diagrams, or other materials (collectively, “Feedback”). In addition, the Service may contain interactive functionality such as applications, features, promotions, games, contests, chat functionality, e-mail, message boards, personal, or interest group web pages, profiles, forums, bulletin boards and other such functions (collectively, “Interactive Functions“) allowing content, material, or information you submit, post, publish, display, or transmit (collectively, “submit“) to the Service, to be viewed or used by us, other users or other persons via the Service (“User Content”, and together with Feedback, “User Submissions“). Regardless of what your accompanying communication may say, in order to avoid any misunderstandings the following terms will apply to all User Submissions. Accordingly, by submitting User Submissions to us, you agree that:
a. We have no obligation to review, consider, or implement your Feedback, or to return to you all or part of any User Submissions for any reason;
b. User Submissions are provided on a non-confidential and non-proprietary basis, and we are not under any obligation to keep any User Submissions you send confidential or to refrain from using or disclosing it in any way;
c. You irrevocably grant us an irrevocable, non-exclusive, worldwide, perpetual, royalty-free, sub-licensable (including via multiple tiers of sublicensing), transferable license to reproduce, distribute, create derivative works of, modify, publicly perform, communicate to the public, make available, publicly display, and otherwise use and exploit the User Submissions and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody User Submissions, whether in whole or in part, and whether as provided or as modified;
d. You have been deemed to have warranted to us that you have or own all the necessary legal rights to upload, post, or submit such User Submissions and grant us (and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns) the license to the User Submissions, and that the User Submissions do not and will not violate any law or the intellectual property, privacy, publicity, or other rights of any person;
e. You understand and agree that you are fully responsible for any User Submissions you submit or contribute, and you are fully responsible and legally liable, including to any third party, for such content, its accuracy, and your rights to use it; and
f. You waive any moral rights or other rights of authorship in and to any User Submissions in favor of us, including any rights you may have in the altered or changed User Submissions even if it is no longer agreeable to you.
We have the right, without provision of notice to remove or refuse to post on the Service any User Content for any or no reason in our sole and absolute discretion; monitor, filter, revise, edit, remove or refuse content using manual or automated third-party content moderation services; at all times, take such actions with respect to any User Submission deemed necessary or appropriate in our sole and absolute discretion, including for violating these Terms; take appropriate legal action, including referral to law enforcement or regulatory authority, or notifying the harmed party of any illegal or unauthorized use of the Service. Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Service; and terminate or suspend your access to all or part of the Service for any or no reason, including any violation of these Terms.
While we will take steps to monitor content and User Content in the Service, we make no representations or guarantees that we will be able to review all material that you or other users submit to the Service or to do so in a timely manner. We cannot ensure prompt removal of objectionable material after it has been posted and we have no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party, subject to applicable laws.
8. Equipment Requirement
To use the Services, you may need certain hardware, software, capabilities and other resources (including a suitable connection to the Internet). You are solely responsible for procuring and maintaining such resources at your own cost.
9. Updates, Interruption, and Termination
a. Updates: From time to time, we have the right (but not obligation) to provide updates (patches, new features, etc.) to the Services for free or for a fee. You understand that your access to certain features of the Services might be affected by such updates. You also understand that such updates may affect the necessary system specifications required to use the Services. In such case, you are responsible for any necessary equipment to continue to access the Services.
b. Interruption: You acknowledge that the Services or any part thereof may be interrupted for maintenance or reasons beyond our control, and we in general cannot guarantee that the Services will be uninterrupted. We will not be liable for any interruption of the Services, delay, or failure to perform resulting from any causes whatsoever. Additionally, the Services may be unavailable depending on geographic location. To the maximum extent permitted by applicable law, we reserve the right to discontinue the Services at any time in our sole discretion, for any reason, or for no reason, with or without notice.
c. Suspension or Termination of Access: To the extent allowable by applicable law, we reserve the right to suspend or terminate your access to the Services at any time for any reason, including if you have failed to comply with any of the provisions of these Terms, or if activities occur on your account which would or might (i) cause damage to or impair the Services or infringe or violate any third party rights (including intellectual property rights), or (ii) violate any applicable laws or regulations. Termination or suspension of your account also entails the termination or suspension of your license to use the Services, or any part thereof. If we suspend or terminate your account, we will notify you by email.
d. Termination of the Service: If we decide, in our sole discretion, to shut down the Service, we will use commercially reasonable efforts to provide you with reasonable advance notice via the contact information you provided to us and posted on the Service itself. IN THE EVENT THAT WE TERMINATE THE SERVICE, FOR ANY REASON, YOUR COLLECTIBLES WILL BE PERMANENTLY AND IRREVOCABLY DELETED.
10. Code of Conduct
As a condition of your access to and use of the Services, you agree that you will use the Services only for lawful purposes in accordance with these Terms and all applicable laws and regulations. You may not:
a. access or use the Services if you are not fully able and legally competent to agree to these Terms;
b. violate, or promote the violation of, any applicable federal, provincial, local, foreign, or international law or regulation, including laws prohibiting transactions with or investments in specified individuals, entities, governments, states, and nationals thereof and any laws regarding the export of data or software, patent, trademark, trade secret, copyright, or other intellectual property or legal rights (including the rights of publicity and privacy of others);
d. except as expressly permitted by these Terms or applicable law, directly or indirectly make unauthorized copies, modify, adapt, translate, reverse engineer, disassemble, decompile, publicly display, republish, download, store, transmit or create any derivative works of the Services or any content included therein, including any software (except that your computer and browser may temporarily store or cache copies of materials being accessed and viewed), or determine or attempt to determine any source code, algorithms, methods, or techniques embodied by the Services or any derivative works thereof;
e. distribute, license, transfer, or sell, in whole or in part, any of the Services or any derivative works thereof;
f. modify copies of any materials from the Services nor delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from the Services;
g. market, rent, or lease the Services for a fee or charge, or use the Services to advertise or perform any commercial solicitation;
h. use the Services or any part thereof, without our express written consent, for any commercial, political, or unauthorized purpose, including communicating or facilitating any commercial advertisement or solicitation or spamming;
i. purchase, sell, or otherwise trade any Collectibles using, operating, employing any computer program, including without limitation, computer programs designed to simulate the behavior of a user or to otherwise automate the purchasing, sale, or trading of Collectibles (a “Bot”);
j. purchase or sell your Service account or the wallet paired with your Service account;
k. engage in wash trading or other deceptive or manipulative trading activities;
l. use the Service to participate in fundraising for a business, protocol, or platform, including but not limited to creating, listing, or buying assets that are redeemable for financial instruments, assets that give owners rights to participate in a securities offering, or assets that entitle owners to financial rewards, including but not limited to, yield bonuses, staking bonuses, and burn discounts;
m. interfere with or attempt to interfere with the proper working of the Services, disrupt our website (if any), or any networks connected to the Services, or bypass any measures we may use to prevent or restrict access to the Services;
n. incorporate the Services or any portion thereof into any other program or product;
o. use automated scripts, software, code, or systems to collect information from or otherwise interact with the Services;
p. impersonate any person or entity, or falsely state or otherwise misrepresent you or your affiliation with any person or entity, including giving the impression that any content you upload, post, transmit, distribute, or otherwise make available emanates from the Services;
q. encourage any conduct that restricts or inhibits anyone’s use or enjoyment of the Services, or which, as determined by us, may harm us or users of the Services or expose us or them to liability;
r. involve, provide, or contribute any false, inaccurate, or misleading information;
s. impersonate or attempt to impersonate us, one of our employees, another user, or any other person or entity (including by using email addresses, or screen names associated with any of the foregoing);
t. involve stalking, attempting to exploit or harm any individual (including minors) in any way by exposing them to inappropriate content or otherwise or ask for personal information as prohibited under applicable laws, regulations, or code;
u. promote sexually explicit material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
v. use or attempt to use another user’s account, service, or system without authorization from us;
w. use the Services in a manner that may create a conflict of interest or undermine the purposes of the Services;
x. use or exploit any bots, hacks, bugs, errors, or design flaws to obtain unauthorized access to the Services;
y. use the Services to upload, transmit, distribute, store, or otherwise make available in any way:
i. files that contain viruses, trojans, worms, logic bombs, or other material that is malicious or technologically harmful; any unsolicited or unauthorized advertising, solicitations, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other prohibited form of solicitation; any private information of any third party, including addresses, phone numbers, email addresses, number and feature in the personal identity document (e.g., social security numbers, passport numbers, etc.), or credit card numbers; any material which does or may infringe any copyright, trade mark, or other intellectual property or privacy rights of any other person; any material which is defamatory of any person, obscene, violent, sexually explicit, offensive, pornographic, hateful, or inflammatory; any material that would constitute, encourage, or provide instructions for a criminal offence, dangerous activities, or self-harm; any material that is deliberately designed to provoke or antagonize people, especially trolling and bullying, or is intended to harass, harm, intimidate, hurt, scare, distress, embarrass, or upset people; any material that contains a threat of any kind, including threats of physical violence; any material that is racist or discriminatory, including discrimination on the basis of someone’s race, religion, age, gender, disability, or sexuality;
ii. any answers, responses, comments, opinions, analysis, or recommendations that you are not properly licensed or otherwise qualified to provide;
iv. material that restricts or inhibits any other person from using the Services, or which may expose EnderbyWorks, the Services, or its users to any harm or liability of any type.
We reserve the right, at any time and without prior notice, to remove or disable your access to the Services, including the Our Content, at our discretion for any reason or no reason. Some of the reasons for which we may remove or disable your access to the Services may include finding that you have violated these Terms, or that your actions are harmful to the Services or our users. You agree and understand that your continued use of the Services is at our sole and absolute discretion and that you will not seek to hold us liable for any suspension, restriction, or termination of our use of the Services.
While we will take steps to monitor content and Feedback in the Services, we make no representations or guarantees that we will be able to review all material that you or other users submit to the Services or to do so in a timely manner. We cannot ensure prompt removal of objectionable material after it has been posted and we have no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party, subject to applicable laws.
11. Exports and Location
You agree that you will not export, re-export, sell, or transfer, directly or indirectly the Services and other information or materials provided by us hereunder, to any country for which the United States, or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. In particular, but without limitation, the Services may not be exported or re-exported: (a) into any comprehensively embargoed countries or any country that your jurisdiction’s government has included on any official terrorism or terrorism-related lists; (b) to any governments of such countries; or (c) to anyone listed on your jurisdiction’s list of prohibited or restricted parties, including the U.S. Treasury Department’s list of Specially Designated Nationals, the U.S. Department of Commerce Denied Person’s List or Entity List, or Public Safety Canada’s terrorist entities list.
We administer and operate the Services from the United States. Although the Services are accessible in many territories throughout the world, not all features, products or Services discussed, referenced, provided or offered are available to all persons or in all geographic locations, or appropriate or available for use outside the United States. We reserve the right to limit, in our sole discretion, the provision and quantity of any feature, product or Service to any person or geographic area. Any offer for any feature, product or Service made is void where prohibited. If you choose to access the Services from outside the United States you do so on your own initiative and you are solely responsible for complying with applicable local laws.
To the maximum extent permitted by law, you agree to, at your sole cost, defend, indemnify, and hold harmless EnderbyWorks, our parents, subsidiaries, and affiliates, and each of their respective officers, directors, employees, agents, suppliers, and advisors, from and against any and all claims, liabilities, costs, fines, penalties, and expenses, including legal fees and expenses, arising out of or in any way connected with, whether alleged or actual: (i) a breach by you, or any user of your account, of any applicable obligation, representation, or warranty under these Terms; (ii) the content of or any inaccuracy in your Feedback; (iii) our use or publication of your Feedback, including if such infringes any third party intellectual property rights; (iv) your unauthorized access to or use of, or activities in connection with, the Services; (v) your violation of any applicable laws, rules, regulations, or contracts; or (vi) any misrepresentation made by you (all of the foregoing, “Indemnified Claims”). You will cooperate as fully required by us in the defense of any Indemnified Claims. Notwithstanding the foregoing, we retain the exclusive right to settle, compromise, and pay any and all Indemnified Claims. We reserve the right to assume the exclusive defense and control of any Indemnified Claims at our own cost. You will not settle any Indemnified Claims without, in each instance, our prior written consent or the consent of an individual whom we authorize, in writing, to approve such settlement.
13. Jurisdiction Specific Disclaimers
CONSUMERS IN QUEBEC, CANADA: QUEBEC’S CONSUMER PROTECTION ACT (CQLR C P-40.1) PROVIDES YOU WITH CERTAIN RIGHTS, INCLUDING WARRANTIES AS TO ACCEPTABLE QUALITY, SAFETY, DURABILITY, ACCURATE DESCRIPTION AND AGAINST HIDDEN DEFECTS. NOTHING IN THIS SECTION IS INTENDED TO LIMIT OR REPLACE ANY OF YOUR RIGHTS UNDER THE CONSUMER PROTECTION ACT (CQLR C P-40.1), AND TO THE EXTENT THAT IT IS PROHIBITED BY LAW, THE EXCLUSION HEREUNDER DOES NOT APPLY TO QUEBEC CONSUMERS.
IN ADDITION TO THE LIMITATIONS IN QUEBEC, CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE BELOW DISCLAIMERS, EXCLUSIONS OR LIMITATIONS IN “EXCLUSION OF WARRANTIES” AND “LIMITATION OF LIABILITY” MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. NOTHING IN THESE TERMS AND CONDITIONS IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY THAT MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. HOWEVER, TO THE MAXIMUM PERMITTED EXTENT UNDER APPLICABLE LAWS, YOU AGREE THAT ALL PROVISIONS OF THESE ARE INTENDED TO APPLY TO YOU.
a. Use of Blockchain Technology. We may use experimental cryptographic technologies and blockchain technologies, including tokens, cryptocurrencies, stablecoins, “smart contracts,” consensus algorithms, voting systems and distributed, decentralized or peer-to-peer networks or systems in performing the Service. You hereby acknowledge and agree that such technologies are novel, experimental, and speculative, and that therefore there is significant uncertainty regarding the operation and effects and risks thereof and the application of existing law thereto.
b. Certain Risks of Blockchain Technology. The technology utilized in delivering the Service may depend on public peer-to-peer networks such as the Parachain that are not under our control or influence and are subject to many risks and uncertainties. You are solely responsible for the safekeeping of the private key associated with any blockchain address used by you to participate in the Service. WE WILL NOT BE ABLE TO RESTORE OR ISSUE ANY REFUND IN RESPECT OF ANY COLLECTIBLES LOST DUE TO LOST PRIVATE KEYS.
c. Certain Risks of Smart Contract Technology. Collectibles and other digital assets relevant to the Service depend on smart contracts deployed to the Parachain, some of which may be coded or deployed by persons other than us. Once deployedParachain, the code of smart contracts, cannot be modified. IN THE EVENT THAT THE SMART CONTRACTS ARE ADVERSELY AFFECTED BY MALFUNCTIONS, BUGS, DEFECTS, MALFUNCTIONS, HACKING, THEFT, ATTACKS, NEGLIGENT CODING OR DESIGN CHOICES, OR CHANGES TO THE PROTOCOL RULES OF THE PARACHAIN, YOU MAY BE EXPOSED TO A RISK OF TOTAL LOSS AND FORFEITURE OF ALL COLLECTIBLES. We assume no liability or responsibility for any of the foregoing matters, except as otherwise expressly provided by these Terms or required by applicable law.
d. Collectible Value. The fiat-denominated prices and value in public markets of assets such as Collectibles have historically been subject to dramatic fluctuations and are highly volatile. As relatively new products and technologies, blockchain-based assets are not widely accepted as a means of payment for goods and services. A significant portion of demand for these assets is generated by speculators and investors seeking to profit from the short- or long-term holding of blockchain assets. The market value of any Collectible may decline below the price for which you acquired such asset through the Service or on any other platform. You acknowledge and agree that the costs and speeds of transacting with cryptographic and blockchain-based systems such as the Parachain are variable and may increase or decrease dramatically at any time, resulting in prolonged inability to access or use any Collectibles or other digital assets associated with the Service.
e. Regulatory Uncertainty. Blockchain technologies and digital assets are subject to many legal and regulatory uncertainties, and the Service and the Collectibles could be adversely impacted by one or more regulatory or legal inquiries, actions, suits, investigations, claims, fines or judgments, which could impede or limit your ability to continue the use and enjoyment of such assets and technologies.
f. Cryptography Risks. Cryptography is a progressing field. Advances in code cracking or technical advances such as the development of quantum computers may present risks to the Parachain, the Service, Collectibles and NFTs generally, including the theft, loss or inaccessibility thereof.
g. Changes to or Termination of the Service. As set out in “Updates, Interruption and Termination” and “Modifications to Services or Pricing” above, we reserve the right, and may in fact, make changes to the Services from time to time. Furthermore, there is always a risk that we may elect to terminate the Service in whole or in part, or in particular relation to any group of users, at any time as set out in such provisions. These changes or that termination may significantly affect any Collectibles or Collectible Content.
h. WITHOUT LIMITING THE FOREGOING, YOU ACCEPT AND ACKNOWLEDGE:
i. THE PRICES OF COLLECTIBLES MAY BE EXTREMELY VOLATILE, AND FLUCTUATIONS IN THE PRICE OF OTHER DIGITAL ASSETS COULD MATERIALLY AND ADVERSELY AFFECT THE COLLECTIBLES, WHICH MAY ALSO BE SUBJECT TO SIGNIFICANT PRICE VOLATILITY. WHEN YOU ACQUIRE A COLLECTIBLE, YOU ARE RECEIVING THE FULL VALUE THEREFOR BY THE TRANSFER OF THE COLLECTIBLE, AND NO PART OF ANY TRANSACTION INVOLVING A COLLECTIBLE INCLUDES ANY GUARANTEE FROM US OR ANY OTHER PERSON THAT ANY HOLDER OF A COLLECTIBLE WILL NOT LOSE MONEY OR THAT THE COLLECTIBLE WILL INCREASE IN VALUE.
ii. THE COLLECTIBLES ARE INTANGIBLE, DIGITAL ASSETS. THEY EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE PARACHAIN OR ANY BLOCKCHAIN NETWORK. ANY TRANSFER OF TITLE THAT MIGHT OCCUR IN ANY UNIQUE DIGITAL ASSET OCCURS ON THE DECENTRALIZED LEDGER WITHIN THE PARACHAIN OR ITS ASSOCIATED BLOCKCHAIN PLATFORM. EXCEPT TO THE EXTENT WE ARE ABLE TO CONTROL THE PARACHAIN, WE DO NOT GUARANTEE THAT WE OR ANY SELLER CAN EFFECT THE TRANSFER OF TITLE OR RIGHT IN ANY COLLECTIBLES.
iii. YOU ARE SOLELY RESPONSIBLE FOR DETERMINING WHAT, IF ANY, TAXES APPLY TO YOUR COLLECTIBLES TRANSACTIONS, AND NEITHER THE COMPANY NOR ANY OTHER PERSON BESIDES YOU ARE RESPONSIBLE FOR DETERMINING THE TAXES THAT APPLY TO YOUR TRANSACTIONS.
iv. APPLICABLE LAWS, REGULATIONS, OR POLICIES (COLLECTIVELY, “LAWS”) OR LAWS PASSED ON THE FUTURE GOVERNING BLOCKCHAIN TECHNOLOGIES, CRYPTOCURRENCIES, NFTS AND COLLECTIBLES ARE UNCERTAIN, AND NEW APPLICATIONS OF EXISTING LAWS OR NEW LAWS MAY MATERIALLY ADVERSELY AFFECT THE DEVELOPMENT OF THE MARKETPLACE, THE SERVICE, OR THE UTILITY OF COLLECTIBLES.
i. Secondary Trading. The Services do not currently include a marketplace for the secondary trading of Collectibles. While we intend to provide such a marketplace shortly, we cannot guarantee if or when such marketplace will exist, and you bear the risk that there may never exist a marketplace to resell any Collectibles.
15. EXCLUSION OF WARRANTIES
TO THE MAXIMUM EXTENT PERMITTED BY LAW: YOU UNDERSTAND AND AGREE THAT YOUR USE OF AND ACCESS TO THE SERVICE, INCLUDING THE PARACHAIN, IS AT YOUR OWN RISK AND THAT (I) THE SERVICES, INCLUDING THE PARACHAIN, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE; AND (II) WE EXPRESSLY DISCLAIM AND EXCLUDE ALL WARRANTIES, INCLUDING ALL CONDITIONS, WARRANTIES, OR OTHER TERMS, WHETHER STATUTORY, EXPRESS, OR IMPLIED (INCLUDING ANY IMPLIED WARRANTIES AS TO MERCHANTABILITY, NON-INFRINGEMENT, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR CONFORMANCE WITH DESCRIPTION), EXCEPT TO THE EXTENT THAT THEY ARE EXPRESSLY SET OUT IN THESE TERMS.
IN PARTICULAR NONE OF THE ENDERBYWORKS PARTIES REPRESENT OR WARRANT TO YOU THAT:
● YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS;
● YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR FREE FROM ERROR;
● THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS;
● ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE;
● DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO YOU AS PART OF THE SERVICES WILL BE CORRECTED; OR
● THE CONTENT OBTAINED THROUGH THE SERVICES IS ACCURATE, COMPLETE, OR RELIABLE.
WE MAY CHANGE, SUSPEND, WITHDRAW, OR RESTRICT THE AVAILABILITY OF ALL OR ANY PART OF THE SERVICES FOR BUSINESS AND OPERATIONAL REASONS AT ANY TIME WITHOUT NOTICE. YOU ARE RESPONSIBLE FOR VERIFYING ANY INFORMATION OBTAINED THROUGH THE SERVICES BEFORE RELYING ON IT. YOU FREELY ACCEPT AND VOLUNTARILY AGREE TO ASSUME ALL RISKS, INCLUDING OF PERSONAL INJURY, DEATH, AND PROPERTY DAMAGE OR LOSS, CONNECTED WITH YOUR USE OF THE SERVICES HOWSOEVER ARISING
YOUR USE OF THE SERVICES DEPENDS ON THE INTERNET, INCLUDING NETWORKS, CABLING, FACILITIES, AND EQUIPMENT THAT IS NOT IN OUR CONTROL. ACCORDINGLY: (I) WE CANNOT GUARANTEE ANY MINIMUM LEVEL REGARDING SUCH PERFORMANCE, SPEED, RELIABILITY, AVAILABILITY, USE, OR CONSISTENCY; AND (II) YOU ACKNOWLEDGE AND AGREE THAT DATA, MESSAGES, INFORMATION, OR MATERIALS SENT OVER THE INTERNET MAY NOT BE COMPLETELY PRIVATE, AND YOUR ANONYMITY IS NOT GUARANTEED.
TO THE FULLEST EXTENT PROVIDED BY LAW, THE ENDERBYWORKS PARTIES WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY USER ERROR INCLUDING YOUR FAILURE TO REMEMBER OR LOSS OF PASSWORDS OR SIMILAR AUTHENTICATORS SUCH AS PRIVATE KEYS, FAILURES OF THE PUBLIC INTERNET, FAILURES OF THE UNDERLYING BLOCKCHAIN TECHNOLOGY INCLUDING FORKS, TECHNICAL NODE ISSUES, OR ANY OTHER BLOCKCHAIN FAILURES WHICH MAY RESULT IN YOU INCURRING A LOSS, DENIAL-OF-SERVICE ATTACK, DISTRIBUTED DENIAL-OF-SERVICE ATTACK, OVERLOADING, FLOODING, FAILURE OF YOUR WALLET INCLUDING BUT NOT LIMITED TO CORRUPTED WALLET FILES, MAILBOMBING, OR CRASHING, VIRUSES, TROJAN HORSES, WORMS, LOGIC BOMBS, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SERVICES, THE PARACHAIN OR ANY SERVICES, COLLECTIBLES, OR ITEMS FOUND OR ATTAINED THROUGH THE SERVICES, THE PARACHAIN OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY SERVICES LINKED TO IT.
16. NO RELIANCE
All information provided by or on behalf of us is for informational purposes only and should not be construed as professional, accounting or legal advice. You should not take or refrain from taking any action in reliance on any information contained in these Terms or provided by or on behalf of us. Before you make any financial, legal, or other decisions involving the Service or any Collectible, you should seek independent professional advice from persons licensed and qualified in the area for which such advice would be appropriate.
17. LIMITATION OF LIABILITY
NOTHING IN THESE TERMS WILL EXCLUDE OR LIMIT OUR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. SUBJECT TO THE FOREGOING, IN NO EVENT WILL THE ENDERBYWORKS PARTIES BE LIABLE (JOINTLY OR SEVERALLY) TO YOU OR ANY OTHER PERSON FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES, LOST PROFITS (WHETHER INCURRED DIRECTLY OR INDIRECTLY), LOST SAVINGS, LOST REVENUES, LOST GOODWILL, BUSINESS INTERRUPTION, OR LOST OPPORTUNITY (COLLECTIVELY, THE “EXCLUDED DAMAGES“). THESE LIMITATIONS APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHER THEORY OF LIABILITY, EVEN IF ANY OF THE ENDERBYWORKS PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN ANY OF THE EXCLUDED DAMAGES, AND IRRESPECTIVE OF ANY FAILURE OF AN ESSENTIAL PURPOSE OF A LIMITED REMEDY, AND YOU HEREBY WAIVE, RELEASE, AND FOREVER DISCHARGE THE ENDERBYWORKS PARTIES FROM AND AGAINST ALL OF THE EXCLUDED DAMAGES. IF ANY APPLICABLE AUTHORITY HOLDS ANY PORTION OF THIS SECTION TO BE UNENFORCEABLE, THEN THE ENDERBYWORKS PARTIES’ LIABILITY WILL BE LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY APPLICABLE LAW.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE EXCLUDED DAMAGES INCLUDE ANY LOSSES OR DAMAGES WHICH MAY BE INCURRED BY YOU AS A RESULT OF:
● ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY, OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE SERVICES;
● DUE TO VULNERABILITY OR ANY KIND OF FAILURE, ABNORMAL BEHAVIOR OF SOFTWARE (SUCH AS WALLETS OR SMART CONTRACTS), BLOCKCHAINS OR ANY OTHER FEATURES OF THE COLLECTIBLES;
● LATE REPORTING OR NON-REPORTING BY DEVELOPERS OR MAINTAINERS OF ANY ISSUES WITH THE BLOCKCHAINS SUPPORTING THE COLLECTIBLES INCLUDING FORKS, TECHNICAL NODE ISSUES OR ANY OTHER ISSUES
● ANY CHANGES WHICH WE MAY MAKE TO THE SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES);
● THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE ANY COLLECTIBLE, COLLECTIBLE CONTENT, OR OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICES;
● YOUR FAILURE TO PROVIDE US WITH ACCURATE ACCOUNT INFORMATION; OR
● YOUR FAILURE TO KEEP YOUR PASSWORD, PRIVATE KEY, OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL.
YOU ARE RESPONSIBLE FOR ANY INTERNET OR MOBILE CHARGES THAT MAY APPLY TO YOUR USE OF OUR SERVICES, INCLUDING TEXT-MESSAGING AND DATA CHARGES. IF YOU’RE UNSURE WHAT THOSE CHARGES MAY BE, YOU SHOULD ASK YOUR SERVICE PROVIDER BEFORE USING THE SERVICE.
IN NO EVENT WILL ENDERBYWORKS PARTIES’ TOTAL, AGGREGATE LIABILITY EXCEED, WITH RESPECT TO THE SERVICES, THE LESSER OF (i) THE TOTAL AMOUNT PAID BY YOU TO US IN THE SIX-MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM; AND (ii) USD$100.00.
19. Copyright Claims
If you believe that anything on the Services infringes upon any copyright which you own or control, you may file a notification of such infringement to the following contact information: [email protected]
The notification must be a written communication that includes the following:
1. a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
2. if the complaint is about copyright or other intellectual property rights, identification of the copyrighted work or other intellectual property right claimed to have been infringed, or, if multiple infringements are covered by a single notification, a representative list of such infringements;
3. if the complaint is about objectionable content, the reasons for the objection;
4. identification of the material that you are objecting to and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
5. information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number and, if available, an electronic mail address at which the complaining party may be contacted;
6. a statement that the information in the notification is accurate; and
7. if the complaint is about copyright or other intellectual property rights, a statement under penalty of perjury, that (i) the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed, and (ii) the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the owner thereof, its agent or the law.
These Terms, their subject matter and their formation, are governed by the laws of the State of California and the federal laws of the United States applicable therein, without giving effect to any choice or conflict of law provisions or rules. You and we agree that the UN Convention on Contracts for the International Sale of Goods (Vienna, 1980) will not apply to these Terms, the Services, or to any dispute or transaction arising out of these Terms or the use of the Services.
USERS IN QUEBEC: The provisions set out in this section are prohibited by Quebec’s Consumer Protection Act (CQLR c P-40.1) and therefore do not apply to users in Quebec, Canada.
21. Dispute Resolution; Mandatory Arbitration and Class Action Waiver
This section includes an agreement to arbitrate and an agreement that all such claims will be brought in arbitration only in your individual capacity (and not as a class action or other representative proceeding). Please read it carefully. You may opt out of the arbitration agreement by following the opt out procedure described below.
a. Informal Process First. You agree that in the event of any dispute between you and us, you will first contact us and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation any court action. This is a condition precedent to proceeding in arbitration.
b. Arbitration Agreement. After the informal dispute resolution process, any remaining dispute, controversy, or claim (collectively, “Dispute”) arising out of or relating in any way to this Agreement or your use of our services or products, including the Services, or relating in any way to the communications between you and us or any other user of the Services, will be finally resolved by binding arbitration. This mandatory arbitration agreement applies equally to you and us. However, this arbitration agreement does not (a) govern any Dispute by us for infringement of its intellectual property or access to the Services that is unauthorized or exceeds authorization granted in these Terms; or (b) bar you from making use of applicable small claims court procedures in appropriate cases. If you are an individual you may opt out of this arbitration agreement within thirty (30) days of the first of the date you access or use this Services by following the procedure described below.
You agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and us are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision will survive any termination of these Terms.
If you wish to begin an arbitration proceeding, after following the informal dispute resolution procedure, you must send a letter requesting arbitration and describing your Dispute to:
3250 Oakland Hills Court
Fairfield, California 94534
Email Address: [email protected]
The arbitration will be administered by the American Arbitration Association (AAA) under its rules including, if you are an individual, the AAA’s Consumer Arbitration Rules. If you are not an individual or have used the Services on behalf of an entity, the AAA’s Consumer Arbitration Rules will not be used. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879.
Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. If you are an individual and have not accessed or used the Services on behalf of an entity, we will reimburse those fees for claims where the amount in dispute is less than $10,000, unless the arbitrator determines the claims are frivolous, and we will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.
The arbitrator, and not any federal, state, or local court, will have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, enforceability, or formation of this arbitration agreement, including any claim that all or any part of this arbitration agreement is void or voidable. However, the preceding sentence will not apply to the “Class Action Waiver” section below.
IF YOU DO NOT WANT TO ARBITRATE DISPUTES WITH US AND YOU ARE AN INDIVIDUAL, YOU MAY OPT OUT OF THIS ARBITRATION AGREEMENT BY SENDING AN EMAIL TO [email protected] WITHIN THIRTY (30) DAYS OF THE FIRST OF THE DATE YOU ACCESS OR USE THE SERVICES.
Class Action Waiver. To the maximum extent permitted by the consumer protection or other applicable laws in your jurisdiction of residence, all Disputes must be brought in the respective party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff, or similar proceeding (“Class Action”) except that an individual may seek in the arbitration public injunctive relief, and the AAA may include such relief in the award, where applicable. The parties expressly waive any ability to maintain any Class Action in any forum. If the Dispute is subject to arbitration, the arbitrator will not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. The parties understand that any right to litigate in court, to have a judge or jury decide their case, or to be a party to a class or representative action, is waived, and that any Dispute must be decided individually, through arbitration.
This class action waiver does not apply to the strict extent that the laws of your jurisdiction would not permit it. If this class action waiver is found to be unenforceable or if this class action waive does not apply to you due to local laws in your jurisdiction, then the entirety of the arbitration agreement, if otherwise effective, will be null and void. If for any reason a Dispute proceeds in court rather than in arbitration, you and us each waive any right to a jury trial.
22. Other Terms
b. Links. You may link to our home page or page of the Services, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it. You must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists. You must not establish a link to our Services in any website that is not owned by you. The website in which you are linking must comply in all respects with the content standards set out at “Your Access to and Use of Our Services” above. We reserve the right to withdraw linking permission without notice.
c. Interpretation. In these Terms, (a) the captions and headings are for convenience only and do not constitute substantive matter and are not to be construed as interpreting the contents of these Terms, (b) the word “including”, the word “includes,” the phrase “such as”, and similar words and phrases, when following a general statement or term (whether or not non-limiting language such as “without limitation” or “but not limited to” or other words of similar import are used with reference thereto), is not to be construed as limiting, and the word “or” between two or more listed matters does not imply an exclusive relationship between the matters being connected, and (c) all references to Services will also include any successor or replacement applications, websites, content, or services containing substantially similar information as the referenced Service(s).
d. Assignment. We may at any time assign our rights and obligations under these Terms, in whole or in part, without notice to you. You may not assign these Terms without our prior, written consent. These Terms will inure to the benefit of and bind you and us and our respective personal and legal representatives, successors and permitted assigns.
e. No Waiver. Our failure to insist upon or enforce any provision of these Terms will not be construed as a waiver of any provision or right.
f. Security. The transmission of information via the internet is inherently not completely secure and we do not guarantee that our Services will be secure or free from bugs or viruses. You are responsible for configuring your information technology and computer programs to access our Services. You should use your own virus protection software.
g. Severability. If any court of law, having jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms, and the remaining provisions of the Terms will continue to be valid and enforceable.
i. Force Majeure. We will not be liable for delays, failures in performance, or interruptions of the Services that result directly or indirectly from any cause or condition beyond our reasonable control, including significant market volatility, any delay or failure due to any act of God, act of civil or military authorities, act of terrorism, civil disturbance, war, strike or other labor dispute, fire, interruption in telecommunications or internet services or network provider services, failure of equipment and/or software, epidemic, outbreak of illness or disease, declaration of public health emergency, other catastrophe or any other occurrence which is beyond our reasonable control and shall not affect the validity and enforceability of any remaining provisions.
j. Translations. In the event of any conflict or inconsistency between the Terms in the English and any translation thereof in any other language, the English version will prevail.