- You hereby represent and warrant that you have the full right, power, and authority to agree to, abide by and comply with these Terms, and to access the Service and purchase any NFT(s) as set forth herein. You further represent and warrant that you are of the legal age of majority in your applicable jurisdiction. You acknowledge and agree that you are solely responsible for ensuring compliance with any and all applicable laws and/or regulations in your local jurisdiction, and that OP3N shall not be liable to any extent for your compliance or failure to comply with any such laws and/or regulations.
- You further represent and warrant that all funds and/or assets (e.g., digital assets, such as that digital asset commonly known as “Ethereum,” “Ether” and/or “$ETH”) used by you in connection herewith (e.g., for payment of the Purchase Price (as defined below), etc.) have been lawfully obtained by you in compliance with all applicable laws and/or regulations. You acknowledge that OP3N may require you to provide additional information and/or documentation in order to ensure compliance with applicable laws and/or regulations (e.g., those related to anti-money laundering, etc.), and compliance with this Agreement, and agree that you will provide any such additional information and/or documentation upon request. You further acknowledge and agree that OP3N and/or its designee(s) may remove your access to the Service and your ability to purchase any NFT(s) at any time, for any reason, with or without notice to you.
- Sales, Prices and Taxes.
- Any order(s) placed on the Service for NFT(s) shall require immediate payment in full of the applicable purchase price (as set forth on the Service) (the “Purchase Price”) at the time of purchase, and shall be non-refundable. You hereby acknowledge and agree that, due to the nature of blockchain technology, once any transaction representing such order(s) has been broadcast to the Designated Blockchain (as defined below), such order cannot be cancelled or reversed for any reason.
- OP3N shall be permitted to change the Purchase Price for any NFT at any time prior to the applicable sale thereof, for any reason and without notice to you. You hereby authorize OP3N to charge you the applicable Purchase Price for any NFT that you purchase on the Service, as in effect at the time your purchase is confirmed. You further acknowledge and agree that, due to the nature of blockchain technology, the consensus rules of the Designated Blockchain may require the payment of an additional per-transaction fee, paid to the nodes or validators operating the Designated Blockchain (a “Gas Fee”).
- You will be solely responsible to pay any and all Gas Fee(s) associated with the blockchain-based transactions that you conduct in connection with the sale and/or acquisition of any NFT(s), as well as all taxes, fees, duties and governmental assessments that are imposed or become due in connection with your use of the Service (including, without limitation, any transactions involving your ownership or transfer of any NFT(s)). Except for income taxes directly levied on OP3N, you (i) will pay or reimburse OP3N for all taxes and assessments of any jurisdiction, including value added taxes and taxes as required by international tax treaties, customs or other import or export taxes, and amounts levied in lieu thereof based on charges set, services performed or payments made hereunder, as are now or hereafter may be imposed under the authority of any national, state, local or any other taxing jurisdiction; and (ii) shall not be entitled to deduct the amount of any such taxes, duties or assessments from any payment(s) made to OP3N pursuant to these Terms.
- You also acknowledge that in some jurisdictions (e.g. Brazil) you, as the hirer and acquirer of the Service and NFT(s), are solely responsible and liable by law for paying any applicable sales, services, use, duty, income, customs or other governmental taxes, levies, fees, social contributions and any other similar levies (“Taxes”) that may be due with respect to your purchase of the Service and NFT(s). Therefore, if you are located, resident or domiciled in any such jurisdictions, you hereby agree to bear the cost of any such Taxes that may be due in those jurisdictions, so that, in any case, any payment(s) made to OP3N shall be deemed as net from any such Taxes. When in doubt, you should consult a tax expert in your jurisdiction to determine your tax liability in connection with your purchases.
- Delivery. In order to purchase and receive any NFT(s) through the Service, you may be required to connect your digital-asset wallet to the Service. You hereby grant OP3N permission to access and/or interact with such wallet to the extent necessary to deliver such NFT(s) to you. Following the purchase of any NFT(s) pursuant hereto, OP3N will deliver such NFT(s) to such wallet. If OP3N is unable to deliver such NFT(s) to such wallet for any reason (e.g., a failure to broadcast the transaction representing the order of such NFT(s) to the Designated Blockchain), your purchase may be voided. You acknowledge and agree that OP3N shall not bear any responsibility for any NFT(s) misdelivered as a result of incorrect information provided by you, and that you shall bear sole responsibility for ensuring that your digital-asset wallet is accurately and properly connected to the Service. Any and all risk and title in and to any NFT(s) shall be deemed to transfer to you upon the successful broadcast of the applicable transaction representing the order of such NFT(s) to the Designated Blockchain.
- Digital Assets. As used herein, a “Digital Asset” means a given NFT, together with those certain license rights specifically granted pursuant to these Terms with respect to any digital “bundle of value” (which may include, but not be limited to, access to content, opportunities and/or experiences) directly associated with such NFT (with respect to a given NFT, such “bundle of value” is referred to as “Associated Value”). Associated Value is separate from the NFT associated therewith, and the rights, title and interests therein shall be licensed to you solely as set forth in Section 5 below. For the avoidance of doubt, in no event shall any such rights, title and/or interests be deemed to have been sold or otherwise transferred to you (whether as a result of the sale of the associated NFT by OP3N through the Service, or otherwise).
- Grant of Rights. Subject to and fully conditioned upon your continued compliance with these Terms, and solely for so long as you own an NFT associated with Associated Value, OP3N grants to you a limited, personal, non-exclusive, non-sublicensable, worldwide license with respect to the Associated Value directly and identifiably associated with, applicable and specific to such NFT solely for non-commercial, personal use, subject to the terms and conditions set forth herein.
Notwithstanding anything to the contrary and for the avoidance of doubt, the foregoing shall not permit the use of, and you will not, and you will not authorize, permit or assist any third party to, directly or indirectly use, any Associated Value in connection with any of the following:
- any physical or digital product or service that is promoted, marketed, offered, sold or provided by, on behalf of or in connection with any person or legal entity that manufactures, markets, promotes, sells, distributes, or offers for sale or distribution any product or service that competes with any product or service of OP3N or any affiliate of OP3N;
- any audiovisual media (e.g., videos, television shows, feature films, so-called “web series,” etc.);
- any physical or digital firearm or weapon;
- any physical or digital tobacco product, pharmaceutical product or regulated drug, or product, substance or material containing any tobacco product or regulated drug (excluding alcohol);
- any counterfeit physical or digital product;
- any illegal product or service or any other use in violation of applicable law;
- any product, service, content, material or speech that is defamatory, obscene, pornographic, indecent, abusive, offensive, harassing, violent, hateful, racist, discriminatory, inflammatory or otherwise objectionable or inappropriate, as determined by OP3N in its sole discretion; and/or
- any NFT or Digital Asset that would use or incorporate any Associated Value.
- Ownership and Limitations. OP3N retains all right, title and interest in the Associated Value and all copyrights and/or other intellectual property rights therein. Except as specifically set forth in Section 5 above, you do not have and will not have any right, title or interest in or to any Associated Value and you shall not be deemed to be granted any rights, whether express or implied, with respect to any Associated Value or any derivative works thereof.
Without limiting the foregoing, in addition to any limitations set forth elsewhere in these Terms, the licenses granted herein do not grant you the right to, and you will not, and you will not authorize, permit or assist any third party to: (a) create, sell or attempt to create or sell fractionalized interests in any NFT and/or any Associated Value and/or Digital Asset associated therewith; (c) separate, unlink or decouple any Associated Value from the NFT(s) and/or Digital Asset(s) with which it is associated; (d) use any Associated Value to create, sell or attempt to create or sell any new cryptographic token (e.g., any NFT(s)); (e) reverse-engineer, decompile or otherwise attempt to discover the source code for any NFT or Associated Value; and/or (f) use any Associated Value and/or exercise any license rights in any manner not expressly authorized herein.
For avoidance of doubt, you have no right to, and you will not, and you will not authorize, permit or assist any third party to, use any name, trademark, logo, branding or other intellectual property of OP3N or any affiliate, commercial partner or licensor of OP3N for any purpose not specifically set forth herein, or otherwise do or say anything to indicate or imply that OP3N or any of its affiliates sponsors, promotes or endorses any product, service or media or provides any representations or warranties with respect to any product, service or media.
For the avoidance of doubt, if at any time you transfer an NFT to a third party, any rights granted to you hereunder with respect to the Associated Value and/or Digital Asset associated therewith shall immediately terminate (without the requirement of notice) with no outstanding or ongoing obligation or liability to you.
- Blockchain Forks.
- You acknowledge and agree that each NFT sold through the Service shall be created and subsequently held on a designated digital blockchain ledger and network that is recognized by the nodes or validators of such network as canonical as of the time of such sale (the “Designated Blockchain”); provided that, for the avoidance of doubt, the Designated Blockchain does not refer to any Persistent Forks (as defined below), any digital blockchain ledgers which are not operating in a production environment or blockchains which are referred to as a “testnet”. As used herein, a “Persistent Fork” means a digital blockchain ledger and network generally recognized in the blockchain industry as the mainnet and consensus blockchain of a persistent “contentious hardfork” from the Designated Blockchain, which such hardfork has or would reasonably be expected to have material value independent from the Designated Blockchain.
- In the event of a Persistent Fork that creates a copy(ies) of any Digital Asset(s) at the same addresses at which they were then held on the Designated Blockchain, the scope of the term “you” under these Terms, and all licenses granted to and other rights of you under these Terms, shall be deemed expanded to include each person who lawfully holds exclusive title to and ownership of the copy(ies) of the applicable NFT(s) that are included on the Persistent Fork. You hereby acknowledge and agree that, as a result of the preceding sentence, in the event of a Persistent Fork, the aggregate number of the Digital Assets may be increased and/or unlimited minting of such Digital Assets may be permitted, which could have an adverse effect on the value of each Digital Asset and/or the aggregate value of the total Digital Assets.
- Assumption of Risk. You acknowledge that any and all Digital Asset(s), NFT(s) and/or Associated Value is/are made available solely for entertainment purposes and not as an investment instrument of any kind. Accordingly, you acknowledge and agree that you assume the following risks:
- to the extent there is a secondary market and/or price for any NFT, such markets and/or prices are extremely volatile, and variations in the price of other digital assets could materially and adversely affect the value of any digital asset(s) you own, such NFT, and as such there is no guarantee that such NFT will have or retain any value;
- risks associated with digital assets (e.g., NFTs) including, but not limited to, (i) hardware, software and/or Internet failures, (ii) the loss of access to NFT(s) due to, e.g., loss of so-called “private key(s)” or third-party custodial error, (iii) malicious software introduction (e.g., hacking or cyber-attacks), and/or (iv) that third parties may obtain unauthorized access to information stored within your so-called “digital wallet” or elsewhere (e.g., fraud);
- upgrades, so-called “hard forks,” failures, cessations or other changes to the blockchain(s) underlying the NFTs that may affect your access to and/or use of any Digital Asset;
- risks associated with third-party software providers, marketplaces and/or other actors that may be associated with any Digital Asset(s), including with respect to the continued availability of such third party(ies) and/or the protection and/or storage of any digital assets or other data that you may provide to such third party(ies);
- the risk of changes to the regulatory and/or policy regime(s) governing blockchain technologies (e.g., NFTs) which may adversely affect your access to and/or use of any Digital Asset;
- risks associated with transaction(s) between you and any third party(ies) (e.g., your transfer of an NFT to any such third party).
In addition to assuming all of the above risks, you acknowledge that you have obtained sufficient information to make informed decision(s) with respect to any Digital Asset(s) or NFTs (including, without limitation, the acquisition thereof and/or your entering into these Terms) and that you understand and agree that you are solely responsible for determining the nature, suitability and appropriateness of these risks for yourself.
- Indemnification. To the fullest extent permitted by applicable law, you agree to indemnify, defend and hold harmless OP3N and its commercial partners and licensors, and each of their respective past, present and future employees, officers, directors, contractors, consultants, equity holders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors and assigns (individually and collectively, the “OP3N Parties”), from and against all actual or alleged claims, damages, awards, judgments, losses, liabilities of every kind and nature whatsoever (including, without limitation, attorneys’ fees and other legal expenses), whether known or unknown, that are caused by, arise out of or are related to (a) your ownership, use or misuse of any Digital Asset, NFT and/or Associated Value; (b) your breach or violation of these Terms; and/or (c) your breach or violation of any right(s) of any third party (collectively, “Claims”). You agree to promptly notify OP3N of any Claim(s) and shall cooperate fully with the OP3N Parties in defending such Claims. You further agree that the OP3N Parties shall have control of the defense or settlement of any third party Claims. THIS INDEMNITY IS IN ADDITION TO, AND NOT IN LIEU OF, ANY OTHER INDEMNITIES SET FORTH IN ANY WRITTEN AGREEMENT(S) BETWEEN YOU AND OP3N.
- Limitation of Liability.
- EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY OP3N, THE DIGITAL ASSETS AND ANY NFT(S) AND/OR ASSOCIATED VALUE ASSOCIATED THEREWITH ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. OP3N (AND ITS AFFILIATE(S), LICENSOR(S) AND/OR OTHER BUSINESS ASSOCIATE(S)) MAKE NO WARRANTY THAT THE FOREGOING: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, COMPLETE, LEGAL OR SAFE. OP3N DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE DIGITAL ASSETS AND ANY NFT(S) AND/OR ASSOCIATED VALUE ASSOCIATED THEREWITH. YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET AND WILL NOT HOLD OP3N RESPONSIBLE FOR ANY BREACH OF SECURITY UNLESS IT IS DUE TO OP3N’S GROSS NEGLIGENCE.
- TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL OP3N OR ITS AFFILIATES, OR ITS OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, CONTRACTORS, AGENTS, OFFICERS OR DIRECTORS, BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, LOSS OF DIGITAL ASSETS (E.G., NFTS), LOSS OF SO-CALLED “PRIVATE KEY(S)”, LOSS OF SO-CALLED “SEED PHRASE(S)”, LOSS OF ACCESS TO ANY SO-CALLED “DIGITAL WALLET(S)”, OR ANY OTHER DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO ACCESS OR USE, ANY DIGITAL ASSET(S), NFT(S) AND/OR ASSOCIATED VALUE, INCLUDING BUT NOT LIMITED TO ANY CONTENT ON THE SERVICE OR ANY OTHER WEBSITES AND/OR MOBILE APPLICATIONS AND/OR ANY ITEMS OBTAINED THROUGH THE SERVICE OR SUCH OTHER WEBSITES AND MOBILE APPLICATIONS, WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.
- IN NO EVENT WILL OP3N’S AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE DIGITAL ASSET(S), NFT(S) AND/OR ASSOCIATED VALUE, AND/OR THE ACCESS TO AND/OR USE THEREOF, EXCEED $100.
- ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM SHALL BE DEEMED PERMANENTLY WAIVED AND BARRED.
- THIS SECTION DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW, THEREBY MINIMIZING OUR LIABILITY TO YOU TO THE LOWEST AMOUNT PERMITTED BY APPLICABLE LAW.
- Governing Law. These Terms will be construed in accordance with the laws of the state of California as applied to contracts made and performed entirely therein, and without regard to conflicts of laws principles to the contrary. Except as otherwise set forth in Section 12 below, any disputes relating to these Terms will be brought solely in the state or federal courts located in Los Angeles County, California and you hereby consent to the exclusive jurisdiction of such state and federal courts and waive any defense of forum non conveniens. EACH PARTY HEREBY EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BROUGHT BY OR AGAINST EITHER PARTY IN CONNECTION WITH THESE TERMS. You may only bring claims in your individual capacity on your own behalf, and not in any representative capacity or on behalf of any class or purported class, and no dispute you commence hereunder may be joined with or include any claims by any other persons.
- Remedies. In addition to any other rights and remedies to which OP3N may be entitled under contract, at law or in equity, in the event that you breach these Terms at any time, your right to copy, display, perform and/or distribute the Associated Value and any and all other license rights that you may have under these Terms will immediately terminate without any requirement of notice and with no outstanding or ongoing obligation or liability to you. Upon any termination of your license rights hereunder, you will immediately cease all use of any Associated Value. OP3N may disable digital-wallet and/or similar functionality(ies) with respect to the affected Associated Value, prohibit any platform or service from retrieving or rendering any such Associated Value in connection with the services they provide and/or take any other steps to prevent unauthorized use of any Associated Value. OP3N will have no obligation or liability to you for any such actions and you will not interfere with, or seek to prevent, any such actions.
Miscellaneous. These Terms do not, and may not be construed to, create any partnership, joint venture or agency relationship between you and OP3N. For the avoidance of doubt, you acknowledge and agree that in no event shall OP3N be deemed hereunder to be party to any agreement or arrangement by and between you and any seller, holder, purchaser and/or acquirer of any NFT that is not OP3N. If any term, clause or provision of these Terms is held invalid or unenforceable, then that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms. If OP3N fails to insist that you perform any of your obligations under these Terms, or if OP3N does not enforce its rights against you, or if it delays in doing so, that will not mean that OP3N has waived its rights against you and will not mean that you do not have to comply with those obligations. If OP3N does waive a default by you, it will only do so in writing, and that will not mean that it will automatically waive any later default by you. These Terms are personal to you, and are not assignable, transferable or sublicensable by you except with OP3N’s prior written consent, unless otherwise specifically set forth herein. All notices under these Terms will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.