NFT Sweepstakes OWNership agreement
Last Modified: January 25, 2023
PLEASE BE ADVISED: THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW DISPUTES BETWEEN YOU AND SMARTMEDIA ARE TO BE RESOLVED (SEE SECTION 12 BELOW). THESE PROVISIONS INCLUDE A MANDATORY ARBITRATION AGREEMENT REQUIRING ANY DISPUTES BETWEEN YOU AND US TO BE RESOLVED THROUGH INDIVIDUAL ARBITRATION RATHER THAN BY A JUDGE OR JURY IN COURT.
“Art” means any artwork (whether or not animated), video, graphics, photographs, music, images, designs, logos, taglines, and drawings that are part of or linked to the NFT in which you acquire Licensed Rights.
“Awarded NFT” means the NFT and linked Art in which You have the Licensed Rights if You are the current rightful owner. The ownership record of an Awarded NFT will be implemented on the SM Marketplace which does not use blockchain to maintain a record of the transaction or on the designated Supported Blockchain. If the transfer is recorded on SM Marketplace without use of a blockchain, the records of the SM Marketplace shall be conclusive evidence for the purposes of these terms of the current owner of an Awarded NFT; if the transfer is recorded on the relevant Supported Blockchain, such recordation shall be conclusive evidence for the purposes of these terms of the current owner of an Awarded NFT. All transfers are final when approved. The SM Marketplace enables peer to peer sales and trading of NFTs in the SmartMedia App with other users of the SmartMedia App. Any such transfers are subject to the relevant Acquisition Terms for the NFT and are final when approved by you on the SmartMedia App.
“Creator” means any creator, owner or licensor of Art, including SmartMedia.
“Licensed Rights” means the right to exercise certain intellectual property rights (including Name and Likeness) in the Art linked to the Awarded NFT as set forth in Section 3.
“Name and Likeness” means name, nicknames, images, likenesses, marks, copyrights, trade dress colors, trade dress designs, and/or all other intellectual property of the Creator and the other persons in the Art.
“NFT” means any non-fungible token implemented on the SM Marketplace or the Supported Blockchain.
“SM Marketplace” means the proprietary technology platform developed by or for SmartMedia that enables the creation, issuance, sale, transfer, trading and distribution of NFTs which includes the Sweepstake Site, as SmartMedia may update from time to time.
“Supported Blockchain” means the blockchains designated by SmartMedia from time to time, an initial list of which is set forth in Exhibit A.
You acknowledge and agree that Creator (or, as applicable, its licensors) owns all legal right, title and interest in all intellectual property rights in the Art. The rights that You have in and to the Awarded NFT are limited to those expressly stated in Section 3 of this Agreement. SmartMedia, Creator and their licensors reserve all rights and ownership in and to the intellectual property rights in the Awarded NFT not expressly granted to You in Section 3 of this Agreement.
3. LICENSED RIGHTS.
1. Your Rights in an Awarded NFT. The award of an Awarded NFT through the sweepstakes entitles you to ownership of the NFT and a single copy of the Art linked to the NFT which together are the Awarded NFT. Such rights, however, do not include intellectual property rights in the Art and You have only the limited rights in the Art as set forth in this Agreement.
3. Permissible Transfers of Your Awarded NFT. In the event SmartMedia enables functionality to allow for transfer of your Acquired NFT, You and any future owner of the Awarded NFT have the limited right to transfer the Awarded NFT (“Secondary Sale”), provided that (i) the transferee accepts all of the terms of this Agreement (and the then current Official Rules); (ii) SmartMedia will be paid a percentage set forth in the relevant smart contract which can be reviewed in etherscan.io (“Secondary Sale Percentage”) of the gross amounts paid by such party to the Secondary Sale relating to the Awarded NFT, including but not limited to any transfer price and any other related compensation (e.g., (1) if the transfer price is $100,000 and the Secondary Sale Percentage is 10% then SmartMedia will be entitled to $10,000 or (2) if the transfer price is $100,000 and an additional $50,000 is paid as related use fee and the Secondary Sale Percentage is 10% then SmartMedia would be entitled to $15,000) and such payment shall be paid on the same terms and at the same time as You are paid; (iii) prior to the transfer, You have not breached the terms of this Agreement (or the then current Official Rules); and (iv) the party purchasing the Awarded NFT provides SmartMedia with a valid e-mail address. Upon completion of the transfer of the Awarded NFT on the SM Marketplace or Supported Blockchain, You will no longer have any rights to the Awarded NFT and the new owner shall be become the “You” in this Agreement. You acknowledge and agree that the foregoing amounts payable to SmartMedia under Section 3(c)(ii) hereof do not include, and are not intended to cover, any additional fees imposed or required by the platform through which You are transferring the Awarded NFT. You further and represent that You will not transfer the Awarded NFT in any Secondary Sale to a transferee that would violate the restrictions in Section 9 (“Prohibited Transferees”).
4. Special Offer. SmartMedia may offer certain additional events or rights to the initial recipient of the Awarded NFT which shall be communicated to You (if You are the initial recipient) by email. You agree that Your email address may be provided to SmartMedia for this purpose and grant any permission and consent necessary for your personal information to be shared.
5. Limitations. Except and solely to the extent such a restriction is impermissible under applicable law, You may not:
- ~Profit from, otherwise commercialize, use or license the Art, including in connection with the marketing, advertising, or selling of any third party product or service, except in connection with profits as part of a Secondary Sale;
- ~Modify the Art in any way or combine the Art with, or embed the Art into, any digital or other content or media;
- ~Use the Awarded NFT in any manner which infringes upon the intellectual property rights of any third party (whether a person or an entity);
- ~Use the Awarded NFT in connection with or to promote any illegal activity, hate speech, violence, inappropriate or obscene content, or in any other manner which could tarnish or harm the reputation of Creator, SmartMedia or its affiliates;
- ~Move or transfer the Awarded NFT out of your crypto wallet which is part of the SmartMedia App (except in connection with a Secondary Sale);
- ~Encourage or permit any third party to do any of the foregoing.
You are solely responsible for determining what taxes apply to your Awarded NFT transactions. By acquiring an Awarded NFT, you agree to pay all applicable fees, including hosting fees, and any other transaction fees, or “Gas Fees”, as applicable, (“Supported Blockchain Fees”) and you authorize SmartMedia to automatically charge you for such Supported Blockchain Fees or deduct such Supported Blockchain Fees directly from your payment, if any. Gas Fees are the transaction fees paid to the network of computers that run the decentralized Supported Blockchain, meaning that you will need to pay a Gas Fee for each transaction that occurs via the Supported Blockchain.
5. WARRANTY DISCLAIMER.
1. Transactions, including but not limited to primary sales, secondary market sales, listings, offers, bids, acceptances, and other operations may utilize smart contract and blockchain technology, including non-fungible tokens, cryptocurrencies, consensus algorithms, and decentralized or peer-to-peer networks and systems. You acknowledge and agree that such technologies are experimental, speculative, and inherently risky and may be subject to bugs, malfunctions, timing errors, hacking and theft, or changes to the protocol rules of the relevant blockchain (i.e., “forks”), which can adversely affect the smart contracts and may expose you to a risk of total loss, forfeiture of your digital currency or Awarded NFTs, or lost opportunities to buy or sell Awarded NFTs.
2. TO THE FULLEST EXTENT PROVIDED BY LAW, SMARTMEDIA WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE AWARDED NFTS. FURTHER, SMARTMEDIA IS NOT RESPONSIBLE OR LIABLE FOR ANY SUSTAINED LOSSES OR INJURY DUE TO VULNERABILITY OR ANY KIND OF FAILURE, ABNORMAL BEHAVIOR OR SOFTWARE (E.G., SMARTMEDIA WALLET, SMART CONTRACT), BLOCKCHAINS OR ANY OTHER FEATURES OF THE AWARDED NFTS. SMARTMEDIA IS NOT RESPONSIBLE FOR LOSSES OR INJURY DUE TO LATE REPORTS (OR NO REPORT AT ALL) BY DEVELOPERS OR REPRESENTATIVES OF ANY ISSUES WITH THE SUPPORTED BLOCKCHAIN LINKED TO THE AWARDED NFTS, INCLUDING FORKS, TECHNICAL NODE ISSUES OR ANY OTHER ISSUES.
3. THE AWARDED NFT IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER SMARTMEDIA NOR ANY PERSON ASSOCIATED WITH SMARTMEDIA MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO, AND SMARTMEDIA DISCLAIMS ALL RESPONSIBILITY FOR, THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, LEGALITY OR SAFETY OF THE AWARDED NFT. WITHOUT LIMITING THE FOREGOING, NEITHER SMARTMEDIA NOR ANYONE ASSOCIATED WITH SMARTMEDIA REPRESENTS OR WARRANTS THAT THE AWARDED NFTS WILL BE ERROR-FREE, OR SECURE, THAT DEFECTS WILL BE CORRECTED, THAT ANY AWARDED NFTS YOU INTERACT WITH THROUGH THE SWEEPSTAKES SITE, OR THE SERVER OR BLOCKCHAIN THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE AWARDED NFTS WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. WE CANNOT GUARANTEE THE SECURITY OF ANY DATA YOU DISCLOSE ONLINE.
4. TO THE FULLEST EXTENT PROVIDED BY LAW, SMARTMEDIA HEREBY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, AND FITNESS FOR PARTICULAR PURPOSE. WE WILL NOT BE LIABLE FOR ANY LOSS OF ANY KIND FROM ANY ACTION TAKEN OR TAKEN IN RELIANCE ON MATERIAL OR INFORMATION, CONTAINED ON THE SWEEPSTAKES SITE. NO ADVICE OR INFORMATION, WHETHER ORAL OR OBTAINED FROM SMARTMEDIA OR THROUGH THE SWEEPSTAKES SITE, WILL CREATE ANY WARRANTY OR REPRESENTATION NOT EXPRESSLY MADE HEREIN.
5. WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSS AND TAKE NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO YOU FOR AWARDED NFTS, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (A) USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED ADDRESSES; (B) SERVER FAILURE OR DATA LOSS; (C) CORRUPTED WALLET FILES; (D) UNAUTHORIZED ACCESS OR USE; (E) ANY UNAUTHORIZED THIRD PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK AGAINST AWARDED NFTS.
6. AWARDED NFTS ARE INTANGIBLE DIGITAL ASSETS. THEY EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE ASSOCIATED BLOCKCHAIN. ANY TRANSFER OF TITLE OR SALES OCCUR ON THE ASSOCIATED BLOCKCHAIN. WE DO NOT GUARANTEE THAT SMARTMEDIA CAN EFFECT THE TRANSFER OF TITLE OR RIGHT IN ANY NFTS OR UNDERLYING OR ASSOCIATED CONTENT OR ITEMS.
7. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Without limiting the indemnification obligations under the then current Official Rules, you additionally agree, to the fullest extent permitted by applicable law, to defend, indemnify, and hold harmless SmartMedia, Creator, its and their respective affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, suppliers, successors, and assigns from and against any and all claims, liabilities, damages, judgments, awards, losses, penalties, interest, costs (including, without limitation, court costs, costs of settlement, and costs of pursuing indemnification or insurance), expenses, or fees (including, without limitation, reasonable attorneys’ fees and expenses), of every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured or unmatured, in law or inequity, whether in contract, tort, or otherwise, arising out of or relating to (a) your breach of this Agreement; (b) your violation of the terms of the Purchaser Terms of the relevant Awarded NFTs; (c) your violation of applicable laws, rules or regulations, and (d) your negligence or willful misconduct. You further agree that SmartMedia 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 A WRITTEN AGREEMENT BETWEEN YOU AND SMARTMEDIA.
7. LIMITATION OF LIABILITY.
1. TO THE FULLEST EXTENT PROVIDED BY LAW, YOU AGREE THAT IN NO EVENT WILL SMARTMEDIA, ITS AFFILIATES, CREATORS OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS, OR CREATOR OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE AWARDED NFTS, BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR IN CONNECTION WITH THIS AGREEMET OR AWARDED NFTS, OR FOR ANY DAMAGES RELATED TO LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL OR LOSS OF DATA, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE NFTS, AND WHETHER CAUSED BY STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE AND EVEN IF SMARTMEDIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY OTHER CLAIM, DEMAND, OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. RECEIPT OF AWARDED NFTS IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA RESULTING THEREFROM.
2. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF SMARTMEDIA ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE USE OR INABILITY TO USE AWARDED NFTS EXCEED $1,000.
3. YOU ACKNOWLEDGE AND AGREE THAT WE HAVE ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE REPRESENTATIONS AND WARRANTIES, DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN, WHICH REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN SMARTMEDIA AND YOU AND FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN SMARTMEDIA AND YOU.
4. SOME JURISDICTIONS LIMIT THE ABILITY TO DISCLAIM CERTAIN RIGHTS BY AGREEMENT AND NOTHING IN THESE TERMS AND CONDITIONS PURPORTS TO MODIFY OR EXCLUDE ANY SUCH STATUTORY RIGHTS WHICH CANNOT BE DISCLAIMED OR LIMITED. ANY AND ALL OTHER WARRANTIES WHICH ARE NOT STATUTORY RIGHTS OR EXPRESSLY SET OUT IN THIS AGREEMENT ARE EXCLUDED. TO THE EXTENT YOU HAVE ANY CLAIM UNDER STATUTORY RIGHTS, YOUR SOLE REMEDY WILL BE FOR US TO PROVIDE YOU WITH A REFUND
In order to receive the Awarded NFT you must be 18 years of age or older if the age of lawful capacity of forming binding contracts is older in the relevant jurisdiction. If (a) You are an individual, You agree that You are not and (b) if You are an entity, You agree that neither You nor any of your owners or investors or any of their directors, officers, employees, agents or affiliates acting on your behalf is: (i) related in any way to, the governments of, or any persons within, any country or jurisdiction under a U.S. embargo enforced by the Office of Foreign Assets Control (OFAC), or any persons who are named on any list of sanctioned individuals or entities; (ii) (or has ever been) prohibited from the transaction pursuant to U.S. anti-money laundering, anti-terrorist, economic sanctions and asset control laws; and (iii) resident in a country or jurisdiction under a U.S. embargo enforced by OFAC, including the Crimea Region of Ukraine, Cuba, Donbas, Iran, North Korea, and Syria.
9. ASSUMPTION OF RISKS.
1. The value of Awarded NFTs is subjective and therefore can be extremely volatile. Awarded NFTs and similar assets may be collectibles and have no inherent or intrinsic value. Fluctuations in the price of other digital assets or cryptocurrency could materially and adversely affect the Awarded NFTs, which may also be subject to significant price volatility. SmartMedia does not and cannot guarantee that any Awarded NFTs received will retain their original value. You acknowledge that you fully understand this subjectivity and volatility. You agree to assume all risk associated with the use and value of the Awarded NFT.
2. There are risks associated with receiving or purchasing items associated with content created by third parties through peer-to-peer transactions, including but not limited to, the risks of receiving or purchasing counterfeit items, mislabeled items, items that are vulnerable to metadata decay, items on smart contracts with bugs, and items that may become untransferable. You represent and warrant that you have done sufficient research and investigation before making any decisions to purchase, sell, obtain, transfer, or otherwise interact with any Awarded NFTs.
3. A lack of use or public interest in the creation and development of distributed ecosystems could negatively impact the development of those ecosystems and related applications, and could therefore also negatively impact the potential utility or value of Awarded NFTs.
4. The regulatory regime governing blockchain technologies, non-fungible tokens, cryptocurrencies, tokens and other crypto-based items is uncertain, and new regulations or policies may materially adversely affect the utility of Awarded NFTs.
10. ASSUMPTION OF RISKS.
All matters relating to this Agreement and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of New York [NTD: Should this be Colorado?] without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction). Any legal suit, action, or proceeding arising out of, or related to, this Agreement that is not subject to arbitration shall be instituted exclusively in the federal courts of the United States or the courts of the State of New York, in each case located in the City of New York. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
11. ARBITRATION; NO CLASS ACTION.
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
- Binding Arbitration. You agree that any and all disputes, controversies or claims that have arisen or may arise between you and us, whether arising out of or relating to this Agreement (including any alleged breach thereof), your access to or use of the Service, any products sold or distributed through the Service, or any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, including threshold questions of the arbitrability of such dispute, controversy, or claim, in accordance with the terms of this Arbitration Agreement, except that (i) you or SmartMedia may assert individual claims in small claims court, if your claims qualify, the claims remain only in such court, and the claims remain on an individual, non-representative, and non-class basis; and (ii) you or SmartMedia may seek injunctive or equitable relief in court of proper jurisdiction for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). You agree that, by entering into this Agreement, you and we are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
- Prohibition of Class and Representative Actions. YOU AND WE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
- Pre-Arbitration Dispute Resolution. You and SmartMedia both agree to engage in good-faith efforts to resolve disputes prior to either party initiating an arbitration, small claims court proceeding, or equitable relief for intellectual property infringement. You must initiate this dispute resolution process by sending a letter describing the nature of your claim and desired resolution to: SmartMedia Technologies, Inc., Attn: Legal Department, 201 Main Street, Suite 102, Carbondale, CO 81623. If the parties do not resolve the dispute within thirty (30) calendar days after the letter is received by us, you or we may commence an arbitration proceeding. A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to us should be sent to SmartMedia Technologies, Inc., Attn: Legal Department, 201 Main Street, Suite 102, Carbondale, CO 81623 (the “Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. During the arbitration, the amount of any settlement offer made by us or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or we are entitled.
- Arbitration Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the rules and procedures of the American Arbitration Association (“AAA”), including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/ as may be updated from time to time. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of this Agreement as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under this Agreement and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
- Location of Arbitration. Unless we and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for US$10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds US$10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
- Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules.
- Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
- Severability. Severability. If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the section entitled “Prohibition of Class and Representative Actions” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of the section above entitled “Prohibition of Class and Representative Actions” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of this Agreement will continue to apply. If a court or the arbitrator decides that any term or provision of this Agreement is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified.
- 30-Day Right to Opt Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of Your decision to opt-out via email at email@example.com with subject line LEGAL OPT OUT. The notice must be sent within 30 days of Your first receipt or purchase of the Awarded NFT, otherwise You shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If You opt-out of these arbitration provisions, SmartMedia will also not be bound by them.
12. GENERAL TERMS.
1. Entire Agreement. This Agreement (including the then current Official Rules) constitutes the entire and exclusive understanding and agreement between You and SmartMedia regarding the subject matter and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the subject matter. If any provision of this Agreement is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect. Except as provided in Section 3(c), You may not assign or transfer the rights and obligations under this Agreement, by operation of law or otherwise, without SmartMedia’s prior written consent. Except as provided in Section 3(c), any attempt by You to assign or transfer any of the rights and obligations under this Agreement, without such consent, will be null. SmartMedia may freely assign or transfer this Agreement without restriction. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns. In the case of a conflict between the terms of this Agreement and the then current Official Rules, the terms of this Agreement shall prevail over any conflicting terms of the Official Rules with respect to Awarded NFTs.
2. Termination; Survival. Without limiting the terms of the then current Official Rules, if You violate the terms of this Agreement, SmartMedia may terminate your rights under this Agreement, including terminating your access to the Awarded NFT (including the Art). You agree and understand that all provisions of this Agreement which by their nature should survive the termination or expiration of this Agreement shall survive such termination or expiration and shall continue in full force and effect. Termination will not limit any of SmartMedia’s other rights or remedies at law or in equity.
3. Notices. Any notices or other communications provided by SmartMedia under this Agreement, including those regarding modifications to the terms of this Agreement, may be given via email, push notifications, text messages, other types of messages, or by posting notices to the Sweepstakes Site. These communications may include notices about the status of a transaction or other transactional information, and are part of Your relationship with SmartMedia. You agree that any notices, agreements, disclosures or other communications that SmartMedia sends to You electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from SmartMedia by printing a paper copy or saving an electronic copy. SmartMedia may also send you promotional communications via email, including, but not limited to, newsletters, special offers, surveys and other news and information SmartMedia thinks will be of interest to You. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided therein. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
4. California Residents. If you are a California resident, in accordance with Cal. Civ. Code 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834 or by telephone at (800) 952-5210.
5. Waiver of Rights. No waiver by SmartMedia of any term or condition set out in this Agreement shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of SmartMedia to assert a right or provision under this Agreement shall not constitute a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of SmartMedia. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
13. EXHIBIT A.
Ethereum Blockchain is the mainnet of the Layer 1 blockchain as described by the Ethereum Foundation and, if applicable, after a hard fork, any successor to such blockchain network commonly recognized by the blockchain industry as legitimate successor to the Ethereum mainnet.
Binance Smart Chain