Revised: January 12, 2023
ACCEPTANCE OF TERMS
- PLEASE REVIEW THE TOU CAREFULLY. IT IMPOSES BINDING ARBITRATION AND A WAIVER OF CLASS ACTIONS. THE TOU REQUIRES BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING FROM OR RELATING TO THE TOU OR YOUR ACCESS TO OR USE OF THE SERVICE, INCLUDING THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THE TOU (EACH, A “CLAIM”). YOU AGREE THAT ANY CLAIM WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. PLEASE REVIEW SECTION 23 CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.
- BY REGISTERING FOR AN ACCOUNT OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE TO BE BOUND BY THE TOU, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO YOU. IF YOU ARE ENTERING INTO THE TOU ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED AND LAWFULLY ABLE TO BIND SUCH ENTITY TO THE TOU, IN WHICH CASE THE TERM “YOU” WILL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THE TOU, YOU MAY NOT ACCESS OR USE THE SERVICE, AND YOU MUST UNINSTALL ANY COMPONENTS OF THE SERVICE FROM ANY DEVICE WITHIN YOUR CUSTODY OR CONTROL.
- You represent and warrant that you are at least 18 years of age or the age of majority in your jurisdiction, whichever is greater, and of legal age to form a binding contract. You further represent and warrant that you are not a person barred from accessing or using the Service under the laws of your country of residence or any other applicable jurisdiction.
- You acknowledge and agree that: (i) by accessing or using the Service, Indelible Labs may receive certain information about you, including personal information, and Indelible Labs may collect, use, disclose, store and process such information in accordance with the TOU, including any Additional Terms; and (ii) technical processing and transmission of data, including Your Content (defined in Section 11(a)), associated with the Service may require transmissions over various networks and changes to conform and adapt to technical requirements of connecting networks or devices.
OTHER AGREEMENTS AND TERMS
- Access to or use of the Service may require you to have custody or control of a crypto wallet, which is an application that stores public and/or private keys for crypto transactions (“Wallet”). Wallets may also: (i) store tokens (including NFTs), cryptocurrencies and other crypto or blockchain-based digital assets (collectively, “Digital Assets”); (ii) link to decentralized applications, including decentralized exchanges (collectively, “dApps”); and (iii) facilitate the exchange, purchase and sale of Digital assets on a peer-to-peer basis as facilitated by dApps.
- By linking a Wallet to the Service or otherwise using a Wallet with the Service, you represent and warrant that: (i) you have proper authorization from all parties with a legal interest in the Wallet to access and use the Wallet; and (ii) any acts or omissions by you with respect to the Wallet have been properly authorized by all parties with a legal interest in the Wallet.
- You may browse and access some parts of the Service without registering, but some features may not be accessible unless you register, which may consist of creating a user account or linking your Wallet to the Service. In registering for the Service, you agree to: (i) provide true, accurate, current and complete information about yourself as prompted by the Service (the “Registration Data”); and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Indelible Labs reasonably suspects that you have done so, Indelible Labs may suspend or terminate your account.
- You may not share your account or password with anyone. You are fully responsible for all activities that occur under your account, whether or not you authorized the particular use, and regardless of your knowledge of such use. Upon becoming aware of any unauthorized access to or use of your account or password or any other similar breach of security, you shall promptly notify Indelible Labs.
- If your account remains inactive for three months or longer, Indelible Labs reserves the right to suspend or terminate your account, with or without notice to you, and delete Your Content.
Registration and Account
- Some features of the Service are free to use, but fees may apply for subscriptions, premium features and other components, such as fees for using the Service to create and mint Digital Assets (“Minting Fees”). If there is a fee listed for any portion of the Service, by accessing or using that portion, you agree to pay the fee. Indelible Labs reserves the right to change such fees at any time in its sole discretion.
- Minting Fees, calculated based upon a percentage of the value of the initial sale of the applicable NFT, are due when you use the Service to create and mint an NFT. The applicable Minting Fees will be as posted within the Service at the time you use the Service to create and mint the NFT and will be coded into the smart contract for the NFT. Upon the initial sale of the NFT, the Minting Fees due will automatically be transferred to Indelible Labs pursuant to the applicable smart contract. By using the Service to create and mint an NFT, you agree to pay Indelible Labs the applicable Minting Fees.
- Any amount payable hereunder by you are exclusive of any value-added, sales, use, excise or other similar taxes (collectively, “Taxes”). You are solely responsible for paying all applicable Taxes, except for any Taxes based upon Indelible Labs’s net income. If Indelible Labs has the legal obligation to collect any Taxes, you shall reimburse Indelible Labs upon invoice by Indelible Labs.
Indelible Labs Fees
- You may incur fees from third parties relating to access to or use of External Materials (defined in Section 10), as well as any data, usage and other charges assessed by mobile, cable, internet or other communications services providers for your access to and use of the Service.
- Without limiting the generality of Section 6(a), you may incur transaction or “gas” fees assessed by third parties for processing transactions involving Digital Assets, including the exchange, purchase or sale of Digital Assets (collectively, “Transaction Fees”). Such third-party fees are not charged by Indelible Labs or paid to Indelible Labs. You, not Indelible Labs, are solely responsible for payment of any applicable third-party fees, including Transaction Fees.
- When you use the Service to create an NFT, the Service may provide you with an estimate of the likely Transaction Fees that may be assessed for minting the NFT. Indelible Labs provides the estimate for informational purposes only. You are solely responsible for making your own determination of the Transaction Fees that will be due and ensuring that you have a sufficient amount of digital currency in your Wallet to pay the applicable Transaction Fees. IF YOU UNDERSETIMATE THE TRANSACTION FEES THAT WILL BE DUE OR OTHERWISE DO NOT HAVE A SUFFICIENT AMOUNT OF DIGITAL CURRENCY IN YOUR WALLET TO PAY THE APPLICABLE TRANSACTION FEES, THE TRANSACTION MAY FAIL AND YOU WILL NOT RECEIVE A REFUND OF ANY DIGITAL CURRENCY PAID IN CONNECTION WITH THE FAILED TRANSACTION.
- Indelible Labs grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to: (i) access and view pages within the Service; (ii) access and use any online software, application and other similar component within the Service, to the extent that the Service provides you with access to or use of such component, but only in the form made accessible by Indelible Labs within the Service; and (iii) install, run and operate mobile applications (if any) that Indelible Labs makes available for accessing or using the Service (each a, “Mobile App”) on a mobile device that you own or control, but only in executable, machine-readable, object code form.
- All rights granted to you under the TOU are subject to your compliance with the TOU, including all Additional Terms, in all material respects.
Grant of Rights
- If any Mobile App is downloaded by you from the Apple Inc. (“Apple”) App Store (each, an “iOS Mobile App”), the right set forth in Section 7(a)(iii) with respect to such iOS Mobile App is further subject to your compliance in all material respects with the terms and conditions of the Usage Rules set forth in the Apple App Store Terms of Service.
- With respect to any iOS Mobile App, you and Indelible Labs acknowledge and agree that the TOU is concluded between you and Indelible Labs only, and not with Apple, and Apple is not responsible for iOS Mobile Apps and the contents thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to iOS Mobile Apps. Indelible Labs, not Apple, is responsible for addressing any claims from you or any third party relating to iOS Mobile Apps or your possession and/or use of iOS Mobile Apps, including product liability claims, any claim that iOS Mobile Apps fail to conform to any applicable legal or regulatory requirement, and claims arising under consumer protection or similar legislation. Apple and Apple’s subsidiaries are third-party beneficiaries of the TOU with respect to iOS Mobile Apps, and Apple shall have the right (and will be deemed to have accepted the right) to enforce the TOU against you as a third-party beneficiary hereof with respect to iOS Mobile Apps. Subject to Section 17, Indelible Labs, not Apple, shall be solely responsible for the investigation, defense, settlement and discharge of any intellectual property infringement claim attributable to iOS Mobile Apps.
IOS Mobile Apps
Some components of the Service may be provided with or incorporate third-party components licensed under open source license agreements or other third-party license terms (collectively, “Third-Party Components”). Third-Party Components are subject to separate terms and conditions set forth in the respective license agreements relating to such components. For more information about Third-Party Components, please see [URL].
External Materials and Third-Party Services
- All information, data, data records, databases, text, software, music, sounds, photographs, images, graphics, videos, messages, scripts, tags and other materials accessible through the Service, whether publicly posted or privately transmitted (“Content”), are the sole responsibility of the person from whom such Content originated. This means that you, and not Indelible Labs, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available through the Service (“Your Content”), and other users of the Service, and not Indelible Labs, are similarly responsible for all Content they upload, post, email, transmit or otherwise make available through the Service (“User Content”).
- Indelible Labs has no obligation to pre-screen Content, although Indelible Labs reserves the right in its sole discretion to pre-screen, refuse or remove any Content. Without limiting the generality of the foregoing sentence, Indelible Labs shall have the right to remove any Content that violates the TOU.
- You represent and warrant that: (i) you have all necessary rights and authority to grant the rights set forth in the TOU with respect to Your Content; and (ii) Your Content does not violate any duty of confidentiality owed to another party, or the copyright, trademark, right of privacy, right of publicity or any other right of another party.
RESPONSIBILITY FOR CONTENT
- Indelible Labs does not claim ownership of Your Content. However, you hereby grant Indelible Labs and its service providers a worldwide, royalty-free, non-exclusive, sublicensable, transferable right and license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made Your Content (in any form and any medium, whether now known or later developed) as necessary to (i) provide access to and use of the Service to you and other users; and (ii) monitor and improve the Service. To the extent you have made any portion of Your Content accessible to others through the Service, Indelible Labs may continue to make that portion of Your Content accessible to others through the Service even after: (1) termination of the TOU pursuant to Section 21; or (2) you have deleted your account or that portion of Your Content from your account.
- As between Indelible Labs and you, Indelible Labs owns all rights, title and interest (including all intellectual property rights) in the Service and all improvements, enhancements or modifications thereto, including all Content and other materials therein (except with respect to Your Content). The Service is protected by United States and international copyright, patent, trademark, trade secret and other intellectual property laws and treaties. Indelible Labs reserves all rights not expressly granted to you.
- You acknowledge and agree that Indelible Labs may collect or generate Aggregate Data (defined below) in connection with providing you with access to and use of the Service, and you hereby grant Indelible Labs a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable right and license to create, collect, use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made Aggregate Data (in any form and any medium, whether now known or later developed) for any lawful purpose. “Aggregate Data” means Your Content or any data generated through your access to or use of the Service that has been aggregated or de-identified in a manner that does not reveal any personal information about you and cannot reasonably be used identify you as the source or subject of such data.
RIGHTS TO CONTENT
- upload, post, email, transmit or otherwise make available any Content that: (i) is illegal, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful or otherwise objectionable; (ii) any Applicable Law (defined in Section 24) or contractual or fiduciary obligation prohibits you from making available (such as confidential or proprietary information learned as part of an employment relationship or under a non-disclosure agreement); (iii) infringes any copyright, patent, trademark, trade secret or other proprietary right of any party; (iv) consists of unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, commercial electronic messages or any other form of solicitation; (v) contains software viruses, malware or any other code, files or programs designed to interrupt, destroy, limit the functionality of, make unauthorized modifications to, or perform any unauthorized actions through any software or hardware; or (vi) consists of information that you know or have reason to believe is false or inaccurate;
- use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights to the Service (except for Your Content);
- reverse engineer, disassemble, decompile or translate, or otherwise attempt to derive the source code, architectural framework or data records of any software within or associated with the Service;
- remove or obscure any proprietary notice that appears within the Service;
- access or use the Service for the purpose of developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the Service or any other products or services offered by Indelible Labs;
- impersonate any person or entity, including Indelible Labs personnel, or falsely state or otherwise misrepresent your affiliation with any person or entity;
- rent, lease, lend, sell or sublicense the Service or otherwise provide access to the Service as part of a service bureau or similar fee-for-service purpose;
- forge or manipulate identifiers, headers or IP addresses to disguise the origin of any Content transmitted through the Service or the location from which it originates;
- act in any manner that negatively affects the ability of other users to access or use the Service;
- take any action that imposes an unreasonable or disproportionately heavy load on the Service or its infrastructure;
- interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
- frame or utilize any framing technique to enclose the Service or any portion of the Service (including Content);
- use spiders, crawlers, robots, scrapers, automated tools or any other similar means to access the Service, or substantially download, reproduce or archive any portion of the Service;
- sell, share, transfer, trade, loan or exploit for any commercial purpose any portion of the Service, including your user account or password; or
- violate any Applicable Law.
In connection with your access to or use of the Service, you shall not (subject to the limited rights expressly granted to you under Section 7):
If you elect to provide or make available to Indelible Labs any suggestions, comments, ideas, improvements or other feedback relating to the Service (“Suggestions”), you hereby grant Indelible Labs a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable right and license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make or have made Suggestions in any form and any medium (whether now known or later developed), without credit or compensation to you.
DEALINGS WITH THIRD PARTIES
Your dealings with third parties (including other users or businesses within the Service) who market, sell, buy or offer to sell or buy any goods or services within or through the Service (collectively, “Third-Party Participants”), including payment for and delivery of such goods or services and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the applicable Third-Party Participant.
- Subject to any Additional Terms, Indelible Labs reserves the right to modify, suspend or discontinue the Service or any product or service to which it connects, with or without notice, and Indelible Labs shall not be liable to you or to any third party for any such modification, suspension or discontinuance.
- Indelible Labs may, in its sole discretion, from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Service or related products or services (collectively, “Updates”). Indelible Labs may develop Updates that require installation by you before you continue to access or use the Service or related products or services. Updates may also be automatically installed without providing any additional notice to you or receiving any additional consent from you. The manner in which Updates may be automatically downloaded and installed is determined by settings on your device and its operating system.
- The Service may experience temporary interruptions due to technical difficulties, maintenance or testing, or Updates, including those required to reflect changes in relevant laws and regulatory requirements. Indelible Labs has no obligation to provide any specific content through the Service.
- Your access to or use of the Service may be part of a beta test or otherwise involve access to or use of a component that has not been fully tested, audited or validated, as designated within the Service (each, a “Beta Component”). You acknowledge and agree that: (i) each Beta Component is a beta test version of software that has not been fully tested, audited or validated and may contain bugs, defects, vulnerabilities and errors (collectively, “Errors”); (ii) the Beta Component may not contain functions or features of that Indelible Labs may make available as part of a general availability version of the component; (iii) Indelible Labs has no obligation to resolve any Error or otherwise provide maintenance or support for the Beta Component; and (iv) you access or use a Beta Component solely at your own risk.
MODIFICATIONS TO The Service and Beta Access
You agree that Indelible Labs shall have no liability for and you shall indemnify, defend and hold Indelible Labs and its affiliates, and each of their officers, directors, employees, agents, partners, business associates and licensors (collectively, the “Indelible Labs Parties”) harmless from and against any claim, demand, loss, damage, cost, liability and expense, including reasonable attorneys’ fees, arising from or relating to: (a) Your Content; (b) your violation of the TOU, Applicable Law, or any rights (including intellectual property rights) of another party; or (c) your access to or use of the Service.
No Professional Advice or Fiduciary Duties
All information provided in connection with your access to and use of the Service should not and may not be construed as professional advice. You should not take or omit any action in reliance on any information obtained through the Service or that Indelible Labs makes available. You are solely responsible for verifying the accuracy, completeness and reliability of any such information. Before you make any financial, legal or other decisions involving your access to or use of the Service, you should seek independent professional advice from an individual who is licensed and qualified in the area for which such advice would be appropriate. The TOU is not intended to, and does not, create or impose any fiduciary duties on Indelible Labs.
- YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE INDELIBLE LABS PARTIES EXPRESSLY DISCLAIM: (i) ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; AND (ii) ANY LOSS, DAMAGE OR OTHER LIABILITY ARISING FROM OR RELATING TO EXTERNAL MATERIALS, THIRD-PARTY COMPONENTS OR THIRD-PARTY PARTICIPANTS, OR ANY OTHER PRODUCTS OR SERVICES NOT PROVIDED BY INDELIBLE LABS.
- THE INDELIBLE LABS PARTIES MAKE NO WARRANTY OR REPRESENTATION THAT: (i) THE SERVICE WILL MEET YOUR REQUIREMENTS; (ii) ACCESS TO THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) THE INFORMATION AND ANY RESULTS THAT MAY BE OBTAINED FROM ACCESS TO OR USE OF THE SERVICE WILL BE ACCURATE, RELIABLE, CURRENT OR COMPLETE.
- THE SERVICE RELIES ON EMERGING TECHNOLOGIES SUCH AS THIRD-PARTY DECENTRALIZED EXCHANGES. SOME SERVICES ARE SUBJECT TO INCREASED RISK THROUGH YOUR POTENTIAL MISUSE OF THINGS SUCH AS PUBLIC/PRIVATE KEY CRYPTOGRAPHY OR YOUR MODIFICATION OF CODE OR OTHER MATERIALS PROVIDED BY THE SERVICE. BY USING THE SERVICE, YOU ACKNOWLEDGE AND ACCEPT THESE HEIGHTENED RISKS. INDELIBLE LABS SHALL NOT BE LIABLE FOR THE FAILURE OF ANY MESSAGE TO BE DELIVERED TO OR BE RECEIVED BY THE INTENDED RECIPIENT THROUGH YOUR ACCESS TO OR USE OF SERVICE, OR FOR THE DIMINUTION OF VALUE OF ANY DIGITAL ASSET.
DISCLAIMER OF WARRANTIES
- THE INDELIBLE LABS PARTIES SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR COST OF COVER, OR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES ARISING FROM OR RELATING TO ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS, EVEN IF THE INDELIBLE LABS PARTIES HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL THE INDELIBLE LABS PARTIES’ TOTAL LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATING TO THE TOU OR YOUR ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE SERVICE EXCEED THE GREATER OF $100 OR THE AMOUNT PAID BY YOU TO INDELIBLE LABS (IF ANY) FOR ACCESS TO OR USE OF THE SERVICE DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM AROSE.
- CERTAIN STATE LAWS 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 ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
LIMITATION OF LIABILITY
- If you violate the TOU, all rights granted to you under the TOU terminate immediately, with or without notice to you.
- Upon termination of the TOU for any reason: (i) you must immediately cease accessing or using the Service; (ii) Indelible Labs may remove and discard Your Content and delete your account; (iii) any provision that, by its terms, is intended to survive the termination of the TOU will survive such termination; and (iv) all rights granted to you under the TOU immediately terminate, but all other provisions will survive termination.
The TOU will be governed by and construed and enforced in accordance with the United States Federal Arbitration Act, other applicable federal laws, and the laws of the State of Texas, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to the TOU.
- ALL CLAIMS (DEFINED IN SECTION 1(b)) WILL BE RESOLVED BY BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT IF YOUR CLAIMS ARE WITHIN THE COURT’S JURISDICTION. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.
- The arbitration will be conducted by the American Arbitration Association (AAA) under its then-applicable Commercial Arbitration Rules or, as appropriate, its Consumer Arbitration Rules. The AAA’s rules are available at http://www.adr.org/. The arbitrator will, among other things, have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any Claims. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. The arbitration will be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, such hearing will be conducted in Austin, Texas, or, if the Consumer Arbitration Rules apply, another location reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, as determined by the arbitrator. The decision of the arbitrator on all matters relating to the Claim will be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.
- YOU AND INDELIBLE LABS EACH: (i) AGREES THAT ALL CLAIMS (DEFINED IN SECTION 1(b)) WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS; AND (ii) EXPRESSLY WAIVES ANY RIGHT TO HAVE A CLAIM DETERMINED OR RESOLVED ON A CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE BASIS. IF FOR ANY REASON THE PROVISIONS OF THE PRECEDING SENTENCE ARE HELD TO BE INVALID OR UNENFORCEABLE IN A CASE IN WHICH CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE CLAIMS HAVE BEEN ASSERTED, THE PROVISIONS OF THIS SECTION 23 REQUIRING BINDING ARBITRATION WILL LIKEWISE BE UNENFORCEABLE AND NULL AND VOID. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, YOU AND INDELIBLE LABS EACH WAIVES ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM WILL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN AUSTIN, TEXAS. YOU HEREBY SUBMIT TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.
- Notwithstanding anything to the contrary, you and Indelible Labs may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect our intellectual property rights, whether in aid of, pending or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section 23.
- If Indelible Labs implements any material change to this Section 23, such change will not apply to any Claim for which you provided written notice to Indelible Labs before the implementation of the change.
BINDING ARBITRATION AND CLASS ACTION WAIVER
- “Applicable Law” means all applicable laws and regulations, including Anti-Corruption/AML Laws, Export Control and Import Laws and the Prohibited Party List. “Anti-Corruption/AML Laws” means all applicable anti-corruption, “know your customer,” anti-bribery, anti-kickback, anti-money laundering, anti-terrorist financing, anti-fraud, anti-embezzlement and similar laws and regulations, including the U.S. Foreign Corrupt Practices Act of 1977 as amended (15 U.S.C. §§78dd-1, et seq.), the U.S. Travel Act, the U.S. Domestic Bribery Statute contained in 18 U.S.C. § 201, and the USA PATRIOT Act. “Export Control and Import Laws” means all applicable export control and import laws, and all applicable laws governing embargoes, sanctions and boycotts, including the Arms Export Controls Act of 1976 (22 U.S.C. Ch. 39); the International Emergency Economic Powers Act (50 U.S.C. §§1701 et seq.); the Trading with the Enemy Act (50 U.S.C. app. §§1 et seq.); the International Boycott Provisions of Section 999 of the Internal Revenue Code; the International Traffic in Arms Regulations (22 C.F.R. §§120 et seq.); the Export Administration Regulations (15 C.F.R. §§730 et seq.); the laws administered by the Office of Foreign Assets Control of the United States Department of the Treasury or the United States Customs and Border Protection; and all rules, regulations and executive orders relating to any of the foregoing. “Prohibited Party List” means any U.S. government list of parties with whom companies and other entities are prohibited from transacting business, including the Specially Designated Nationals and Blocked Persons List, Foreign Sanctions Evaders List, Sectoral Sanctions Identification List, Denied Persons List, Entity List and Unverified List, each as may be maintained and updated by U.S. Treasury Department’s Office of Foreign Assets Control or the Bureau of Industry and Security of the U.S. Department of Commerce.
- You shall comply with all Applicable Laws in all material respects in connection with your access to or use of the Service. Without limiting the generality of the foregoing, you understand that the Service may be subject to Export Control and Import Laws and the Prohibited Party List. You shall not access or use the Service in violation of any Export Control and Import Laws, and you represent and warrant that you are not on any Prohibited Party List whenever you access or use the Service. You further represent and warrant that you have legally obtained the Digital Assets that you maintain or transfer using the Service, and you are the legal owner of such Digital Assets and are duly authorized to engage in transactions using such Digital Assets using the Service. You shall not use the Service to transmit or exchange Digital Assets that are the direct or indirect proceeds of any criminal or fraudulent activity, including terrorism or tax evasion, nor may you use the Service in violation of any Anti-Corruption/AML Laws.
- You shall not provide any information that is false, inaccurate or misleading while using the Service or engage in any activity that defrauds Indelible Labs, other users of the Service, or any other entity.
United States Government Entities
This section applies to access to or use of the Service by a branch or agency of the United States Government. The Service includes “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and qualifies as “commercial items” as defined in 48 C.F.R. 2.101. Such items are provided to the United States Government: (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3. The United States Government shall acquire only those rights set forth in the TOU with respect to the such items, and any access to or use of the Service by the United States Government constitutes: (i) agreement by the United States Government that such items are “commercial computer software” and “commercial computer software documentation” as defined in this section; and (ii) acceptance of the rights and obligations herein.
NO THIRD-PARTY BENEFICIARIES
You acknowledge and agree that there are no third-party beneficiaries to the TOU, except for the Indelible Labs Parties and Apple (as set forth in Section 8).
Procedure for Making Claims of Copyright Infringement
If you believe that your work has been made available through the Service in a way that constitutes copyright infringement, please provide Indelible Labs’s Agent for Notice of Copyright Claims the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) a description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) a description of the material that you claim is infringing and where that material may be accessed within the Service; (d) your address, telephone number and email address; (e) a statement by you that you have a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement from you that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Indelible Labs’s Agent for Notice of Copyright Claims can be reached as follows:
Indelible Labs LLC
Attn: Agent for Notice of Copyright Claims
PO BOX 16594
Austin, Texas 78761
Phone: (512) 222-8656
Email: [email protected]
California Users And Residents
In accordance with California Civil 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 contacting such unit in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, by telephone at (800) 952-5210, or as otherwise set forth at https://www.dca.ca.gov/about_us/contactus.shtml (or a successful URL).
The TOU (together with the Additional Terms) constitutes the entire agreement between you and Indelible Labs concerning your access to and use of the Service. It supersedes all prior and contemporaneous oral or written negotiations and agreements between you and Indelible Labs with respect to such subject matter. In the event of any conflict between or among the TOU and any Additional Terms, the TOU will take precedence and govern. The TOU may not be amended by you except in a writing executed by you and an authorized representative of Indelible Labs. For the purposes of the TOU, the words “such as,” “include,” “includes” and “including” will be deemed to be followed by the words “without limitation.” You may not assign or delegate any right or obligation under the TOU without the prior written consent of Indelible Labs. Indelible Labs may assign or delegate any of its rights or obligations under the TOU without your consent. The failure of Indelible Labs to exercise or enforce any right or provision of the TOU will not constitute a waiver of such right or provision. If any provision of the TOU is held to be invalid or unenforceable under Applicable Law, then such provision will be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of the TOU. Except with respect to your obligation to pay fees when due, any prevention of or delay in performance by Indelible Labs hereunder due to any act of god, fire, casualty, flood, war, Indelible Labs, lock out, failure of public utilities, injunction or any act, exercise, assertion or requirement of any governmental entity, epidemic, pandemic, public health crisis, destruction of production facilities, insurrection or any other cause beyond Indelible Labs’s reasonable control will excuse the performance of its obligations for a period equal to the duration of any such prevention or delay.