These Terms contain a mandatory arbitration provision that, as further set forth in the “Governing Law and Arbitration” section below, requires the use of arbitration on an individual basis to resolve disputes. It does not allow jury trials or any other court proceedings or class actions of any kind.
1. What DECA Is:
- Deca.art (the “Service”) is an online service via which users of such Service (“Users”) may (i) create a zone within the Service that displays copies of digital works of visual art that are linked to and represented by one-of-a-kind, non-fungible, cryptographic tokens for which there are no copies or substitutes (each such zone, a “Gallery,” each such work of visual art, an “Associated Artwork,” and each such token, an “NFT”) and (ii) visit the Galleries of other Users and view the Associated Artwork displayed there.
- Each User may select the Associated Artworks that are displayed in such User's Gallery (the “Displayed Artworks”), other than Associated Artworks that we deem to be inappropriate. We may screen the Associated Artworks that Users wish to display and reject any that we deem to be inappropriate for any reason, in our sole discretion. That said, we are not obligated to screen Associated Artwork, so it is possible that NSFW works or otherwise inappropriate works may be displayed on the Service. Also, even if we initially accept an Associated Artwork for display on the Service, we can later decide to take it down for any reason.
2. Transfers of NFTs:
You acknowledge and understand that any sale or other transfer of any NFT occurs outside and independently of the Service, and that we are in no way involved in any such sale or other transfer. As between you and us, your purchase or sale of any NFT is at your sole risk.
3. Intellectual Property:
- As between you and us, (i) you own any copyright in the selection or arrangement of the Displayed Artworks and (ii) subject to the foregoing, we own all intellectual property and other rights in or relating to the Service. We grant you no right or license under any of our intellectual property, other than the nonexclusive, revocable, limited license to use the Service in accordance with these Terms and any other instructions or documentation that we provide to you.
- You understand that you do not receive any right or license from us or otherwise via the Service to duplicate, publicly display, publicly perform or create derivative works based upon any Associated Artwork or otherwise relating to any Associated Artwork, including but not limited to any Displayed Artwork. You agree not to violate any copyright, moral right, trademark, right of publicity, right of privacy or other right of any type in or relating to any Associated Artwork or otherwise in connection with your use of the Service.
- You grant us a worldwide, nonexclusive, fully-paid-up, royalty-free, perpetual, irrevocable license to store, publicly display and publicly perform all of your Displayed Artwork and to duplicate the Displayed Artworks in connection with such storage, public display and public performance. We may assign or otherwise transfer the licenses that you grant to us in connection with any sale or other transfer of our business or assets related to the Service. We may grant sublicenses under those licenses to our vendors or service providers or otherwise in connection with the operation of the Service.
4. Posting Comments:
- The Service may enable Users to post comments or other materials, including, but not limited to, comments relating to NFTs or Associated Artworks that are displayed in any Gallery or in response to other comments posted via the Service (each, a “Post”). You acknowledge that any information you disclose in a Post may be publicly available and that you should exercise caution in deciding whether to include any personal, financial or other sensitive information in any Post. If you choose to include any of your personally identifiable or other information in a Post, you do so at your own risk.
- You retain ownership of the rights in or to your Posts. For each Post, your hereby grant to us a worldwide, nonexclusive, perpetual, irrevocable, royalty-free, fully-paid-up right and license to create derivative works based upon such Post and to duplicate, publicly display, publicly perform, distribute, transmit and otherwise use, commercialize and exploit such Post or derivative work in any way for any purpose, including for commercial or promotional purposes, without notice or compensation to you or any third party, at our sole discretion. You irrevocably waive any moral rights or other rights with respect to attribution of authorship or integrity of materials regarding all Posts that you may have under any applicable law or legal theory.
- You acknowledge and agree that we cannot prevent other Users from using Posts and personal information disclosed in any Posts, even if their use of that information violates the law or your personal privacy or safety. None of the Posts will be subject to any obligation, whether of confidentiality, attribution or otherwise, on our part, and we will not be liable for any use or disclosure of any Posts.
- When viewing or responding to any Posts, you should not assume that people are who they say they are, know what they say they know or are affiliated with whom they say they are affiliated with. Information contained in Posts may not be reliable and it is not a good idea to purchase or sell NFTs or make any other decisions based solely or largely on information you cannot confirm. We are in no way responsible for the content or accuracy of any information in any Post and shall not be responsible or liable in any way for or in connection with any decisions you make or actions that you take or forego based on such information.
- We may and expressly reserve the right, but have no obligation, to monitor, review, analyze, store, alter or remove any Posts at any time, and to monitor, review or analyze your access to or use of any such Posts, in each case by manual, automated or other means, and in each case for any purpose. You acknowledge and agree that we have the right to disclose any information relating to any Posts, including, but not limited to, the circumstances surrounding its transmission and the identity of the poster, to any third party for any reason or purpose.
- You acknowledge and agree that a Post is not an effective way to provide us notices or otherwise communicate with us and that we shall not be deemed for any purpose to have knowledge of any information in any Post.
5. Acknowledgements, Representations and Warranties:
- You acknowledge and understand that (i) ownership of an NFT is distinct from ownership of any intellectual property, rights of publicity or other rights in or relating to the Associated Artwork to which it is linked; (ii) a purchaser of an NFT does not necessarily obtain ownership of, or any rights under, any intellectual property or other rights in or relating to the Associated Artwork; and (iii) the duplication, public display, public performance, distribution or importation of any Associated Artwork by anyone, including but not limited to the owner of the applicable NFT, may infringe or otherwise violate rights of third persons, including, but not limited to, copyrights, moral rights, trademark rights, rights of publicity and rights of privacy, and may constitute defamation. As between us and you, you are solely responsible for ensuring that you own or hold all required rights under any intellectual property or other rights in or to any Displayed Artwork.
- You represent and warrant that (i) you have the right and power to enter into these Terms and grant all of the rights granted to us in this Terms, and that neither the duplication, public display or public performance of any of the Displayed Artwork or Posts on or via the Service, nor our exercise of any other rights you grant to us relating in any way to any Displayed Artwork, Post or Feedback, will infringe or otherwise violate any copyright, moral right, trademark, right of publicity, right of privacy or other right of any person, constitute defamation, violate any applicable law or regulation, or give rise to any claim or liability, (ii) none of your Posts will be fraudulent, false or misleading in any respect, and (iii) none of your Displayed Artworks or Posts will include any content or material that is offensive, profane, inappropriate for general viewing or unlawful; encourages, condones or glorifies violence or illegal conduct; invades anyone's privacy; is intended to harass, annoy or embarrass anyone; or disparages any person or group on the basis of race, religion, national origin, gender, gender identity, appearance or sexual orientation, in each case as determined by us in our sole and absolute discretion.
6. Claims of Copyright Infringement:
The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that any Associated Artwork, Post or other materials displayed on the Service infringes your copyright, you (or your agent) may send us a notice by mail or e-mail requesting that we cease displaying such materials. If you believe in good faith that a notice of copyright infringement has been wrongly submitted to us (or our agent) under the DMCA by someone against you, the DMCA permits you to send us a counter-notice. Notices and counter-notices must meet the then-current requirements imposed by the DMCA and the regulations issued thereunder. Notices and counter-notices with respect to the Services should be sent to Philip A. Nicolosi, Phil Nicolosi Law, P.C as follows: By mail to 6735 Vistagreen Way, Suite 210, Rockford, IL 61107; and by e-mail to firstname.lastname@example.org. Philip A. Nicolosi, Phil Nicolosi Law, P.C.'s phone number is (815) 314-0022. We suggest that you consult your legal advisor before filing a notice or counter-notice. Also, be aware that there can be penalties for false claims under the DMCA.
7. No Warranties by Us:
- The Service is provided to you on a strictly “AS IS,” “WHERE IS,” and “AS AVAILABLE” basis. Without limiting the generality of the foregoing, Deca expressly disclaims (i) any warranty that the Service will be uninterrupted or error free and (ii) all implied warranties, including, but not limited to, any implied warranties of merchantability, fitness for a particular purpose, and non-infringement. Without limiting the generality of the foregoing, Deca shall have no liability or obligation hereunder or otherwise to you or your licensors arising out of in connection with the acts or omissions of any User, including, without limitation, the infringement or other violation by any User of your intellectual property or other rights. The duration of any implied warranty that is not effectively disclaimed will be limited to the longer of (i) thirty (30) days from the date that you first accept these Terms and (ii) the shortest period allowed under applicable law.
- Without limiting the generality of the foregoing, you acknowledge and agree that we have no obligation to review Submitted Artwork or Posts, that any review we do conduct may not detect all infringements, other violations of the rights of any person, or any matter that is or may be offensive, profane, inappropriate for general viewing, unlawful, violent, encourage or glorify violence or illegal conduct; or disparage any person or group on the basis of race, religion, national origin, gender, gender identity, appearance or sexual orientation, and that we shall have no liability whatsoever to you based upon or relating to our selection and display of Submitted Artwork or Posts.
- Some jurisdictions do not permit the disclaimer of implied warranties or limitations on how long an implied warranty lasts; therefore, some or all of the provisions of this section may not apply to you.
You will indemnify us and our affiliates, as well as our and our affiliates' respective employees, agents and representatives, and will hold us and them harmless from and with respect to, any loss, damage, claim, fine, penalty, liability, cost or expense (including, but not limited to, reasonable attorneys' fees and other expenses of litigation) (collectively, “Losses”) arising out of or in connection with any claim or action made, asserted, filed or threatened by any person (including, but not limited to, any law enforcement or regulatory agency) that is based in whole or part on allegations relating to (i) our display or other exercise of any of the rights you grant to us relating to any NFTs or any of your Displayed Artworks, Posts or Feedback, (ii) your sale or other transfer, or your purchase or other acquisition, of any NFT or (iii) your violation or alleged violation of these Terms, any law or regulation or the intellectual property or other rights of any person, but excluding in each case any Losses to the extent attributable to our breach of these Terms or our gross negligence or willful misconduct.
9. Changes to these Terms or the Service:
- We may change the Service at any time, in our sole and absolute discretion, without notice.
- Additionally, we may amend these Terms at any time by posting a new version of these Terms. We will make reasonable efforts to make our community of Users aware of any changes to these Terms. Your use of the Service after any such changes will be subject to the amended version of these Terms.
10. No Right to Use Service:
We may, in our sole and absolute discretion, terminate or suspend your access to or use of the Service, at any time and for any reason, including if we believe in our sole and absolute discretion that you have violated or acted inconsistently with the letter or spirit of these Terms or in any way that could harm us or any other Users or that is inconsistent with the values of our community of Users. Upon any such termination or suspension, your right to use the Services will immediately cease. You acknowledge and agree that any termination or suspension of your access to or use of the Service may be effected without notice and that, upon such termination or suspension, we may take down your Gallery and Posts. You agree that we shall not be liable to you or any third party for any termination or suspension of your use of or access to the Service.
11. Links to Other Sites:
- The Service may contain links to third-party web sites or services that are not owned or controlled by Deca. No such link should be construed as an endorsement of any type.
12. Arbitration and Dispute Resolution:
Please read this provision very carefully. It limits your rights in the event of a dispute between you and us.
- You and we agree that any and all past, present and future disputes, controversies, claims, or causes of action arising out of or relating to your use of any Service, or arising out of or relating to these Terms, or relating in any way to any NFT, Associated Artwork, Post or Feedback, and any other controversies or disputes between you and us (including disputes regarding the effectiveness, scope, validity or enforceability of this agreement to arbitrate) (collectively, “Dispute(s)”), shall be determined by arbitration, unless (A) your Country of Residence (as defined below) does not allow this arbitration agreement; (B) you opt out as provided below; or (C) your Dispute is subject to an exception to this agreement to arbitrate set forth below. You and we further agree that any arbitration pursuant to this section shall not proceed as a class, group or representative action. The award of the arbitrator may be entered in any court having jurisdiction.
- “Country of Residence” for purposes of this agreement to arbitrate means the country in which you hold citizenship or legal permanent residence; provided that if you have more than one country of citizenship or legal permanent residence, it shall be the country in which you hold citizenship or legal permanent residence with which you most closely are associated by permanent or most frequent residence.
- We want to address your concerns without the need for a formal dispute resolution process. Before filing a claim against us, therefore, you agree to try to resolve the Dispute informally by contacting us via e-mail at email@example.com to notify us of the actual or potential Dispute. Similarly, we will undertake reasonable efforts to contact you to notify you of any actual or potential dispute to resolve any claim we may possess informally before taking any formal action. The party that provides the notice of the actual or potential Dispute (the “Notifying Party”) will include in that notice (a “Notice of Dispute”) your name (to the extent known), the Notifying Party's contact information for any communications relating to such Dispute (including for the Notifying Party's legal counsel if it is represented by counsel in connection with such Dispute), and sufficient details regarding such Dispute to enable the other party (the “Notified Party”) to understand the basis of and evaluate the concerns raised. If the Notified Party responds within ten (10) business days after receiving the Notice of Dispute that it is ready and willing to engage in good faith discussions in an effort to resolve the Dispute informally, then each party shall promptly participate in such discussions in good faith.
- If, notwithstanding the Notifying Party's compliance with all of its obligations under the preceding paragraph, a Dispute is not resolved within 30 days after the Notice of Dispute is sent (or if the Notified Party fails to respond to the Notice of Dispute within ten (10) business days), the Notifying Party may initiate an arbitration proceeding as described below. If either party purports to initiate arbitration without first providing a Notice of Dispute and otherwise complying with all of its obligations under the preceding paragraph, then, notwithstanding any other provision of these Terms, the arbitrator(s) will promptly dismiss the claim with prejudice and will award the other party all of its costs and expenses (including reasonable attorneys' fees) incurred in connection with such Dispute
- Unless you opt out of this agreement to arbitrate as provided below, you and we each agree to resolve any Disputes that are not resolved informally as described above through final and binding arbitration as discussed herein, subject to the exceptions set forth below.
- If you do not wish to be subject to this agreement to arbitrate, you may opt out of this arbitration provision by sending a written notice to us via e-mail at firstname.lastname@example.org within thirty (30) days of the first time you accept these Terms (or any prior version of these Terms) or, if earlier, your first use the Service. You must date the notice and include your first and last name, address, email address and a clear statement that you do not wish to resolve disputes with us through arbitration. If no notice is submitted in the manner described above by the 30-day deadline, you will have irrevocably waived your right to litigate any Dispute except with regard to the exceptions set forth below. By opting out of the agreement to arbitrate, you will not be precluded from using any Service, but you and we will not be permitted to invoke the mutual agreement to arbitrate to resolve Disputes under the terms otherwise provided herein.
- You and we agree that the American Arbitration Association (“AAA”) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes in effect at the time arbitration is sought (“AAA Rules”). Those rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a general Demand for Arbitration.) Arbitration will proceed on an individual basis and will be handled by a sole arbitrator. The single arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA's roster of arbitrators. If the parties are unable to agree upon an arbitrator within fourteen (14) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules. The arbitrator(s) shall be authorized to award any remedies, including injunctive relief, that would be available in an individual lawsuit, other than remedies that you effectively waived pursuant to these Terms. Notwithstanding any language to the contrary in this paragraph, if a party seeks injunctive relief that would significantly impact other of our customers or Users, as reasonably determined by either party, the parties agree that such arbitration will proceed on an individual basis but will be handled by a panel of three (3) arbitrators. In that event, each party shall select one arbitrator, and the two party-selected arbitrators shall select the third, who shall serve as chair of the arbitral panel. That chairperson shall be a retired judge or an attorney licensed to practice law with experience arbitrating or mediating disputes. In the event of disagreement as to whether the threshold for a three-arbitrator panel has been met, the sole arbitrator appointed in accordance with this paragraph shall make that determination. If the arbitrator determines a three-person panel is appropriate, the arbitrator may – if selected by either party or as the chair by the two party-selected arbitrators – participate in the arbitral panel. Except as may be and to the extent otherwise required by law, the arbitration proceeding and any award shall be confidential.
- You and we further agree that the arbitration will be held in the English language in San Francisco County or, if you so elect, all proceedings can be conducted via videoconference, telephonically or via other remote electronic means. If we elect arbitration, we shall pay all of the AAA filing costs and administrative fees (other than hearing fees). If you elect arbitration, filing costs and administrative fees (other than hearing fees) shall be paid in accordance with the AAA Rules, or in accordance with countervailing law if contrary to the AAA Rules. However, if the value of the relief sought is $10,000 or less, at your request, we will pay all filing, administration, and arbitrator fees associated with the arbitration, unless the arbitrator(s) finds that either the substance of your claim or the relief sought was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). In such circumstances, fees will be determined in accordance with the AAA Rules. Each party shall bear the expense of its own attorneys' fees, except as otherwise provided herein or required by law.
- Regardless of the rules of any arbitration forum, you and we agree that the arbitration of any Dispute shall proceed on an individual basis, and neither you nor we may bring a claim as a part of a class, group, collective, coordinated, consolidated or mass arbitration (each, a “Collective Arbitration”). Without limiting the generality of the foregoing, a claim to resolve any Dispute against us will be deemed a Collective Arbitration if (i) two (2) or more similar claims for arbitration are filed concurrently; and (ii) counsel for the claimants are the same, share fees or coordinate across the arbitrations. “Concurrently” for purposes of this provision means that both arbitrations are pending (filed but not yet resolved) at the same time.
- To the maximum extent permitted by applicable law, neither you nor we shall be entitled to consolidate, join or coordinate disputes by or against other individuals or entities with any Disputes, or to arbitrate or litigate any Dispute in a representative capacity, including as a representative member of a class or in a private attorney general capacity. In connection with any Dispute, any and all such rights are hereby expressly and unconditionally waived. Without limiting the foregoing, any challenge to the validity of this paragraph or otherwise relating to the prohibition of Collective Arbitration shall be determined exclusively by the arbitrator.
Notwithstanding the agreement between you and us to arbitrate Disputes, you and we each retain the following rights:
- If your Country of Residence is the United States, you and we retain the right (A) to bring an individual action in small claims court; and (B) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
- If your Country of Residence is not the United States, you and we may assert claims, if they qualify, through the small claims process in the courts of your Country of Residence. Further, as applicable, this agreement to arbitrate does not deprive you of the protection of the mandatory provisions of the consumer protection laws in your Country of Residence; you shall retain any such rights and this agreement to arbitrate shall be construed accordingly.
- Except as otherwise required by the applicable law of your Country of Residence or provided in these Terms, in the event that the agreement to arbitrate is found not to apply to you or your Dispute, or you opt out of this agreement to arbitrate as provided above, you and we agree that any judicial proceeding may only be brought in a court of competent jurisdiction in San Francisco County. Both you and we consent to venue and personal jurisdiction in San Francisco County. Notwithstanding the foregoing, either party may bring any action to enforce its intellectual property rights or confirm an arbitral award in any court or administrative agency having jurisdiction.
- This agreement to arbitrate shall survive the termination or expiration of these Terms. With the exception of the provisions of this agreement to arbitrate that prohibit Collective Arbitration, if a court or arbitrator decides that any part of this agreement to arbitrate is invalid or unenforceable under applicable law, then the remaining portions of this agreement to arbitrate shall nevertheless remain valid and in force. If a court finds the prohibition of Collective Arbitration to be invalid or unenforceable under applicable law, then the entirety of this agreement to arbitrate shall be deemed void (but no provisions of these Terms unrelated to arbitration shall be void), and any remaining Dispute must be litigated in court.
13. Governing Law:
To the fullest extent permitted under the laws of your Country of Residence, these Terms shall be governed by and construed in accordance with the laws of the state of California applicable to contracts entered into and performed in California by residents thereof; provided that all provisions hereof related to arbitration shall be governed by and construed in accordance with the Federal Arbitration Act (U.S. Code Title 9).
14. Exclusion of Damages and Limitation of Liability:
In no event shall Deca, its affiliates, service providers or licensors, or their respective directors, shareholders, members, officers, employees, agents or representatives, be liable under these Terms or otherwise to you in connection with the Service, any NFT, any Associated Artwork, any Post, any Feedback or these Terms (i) for any lost profits or any special, incidental, indirect, or consequential damages, in either case whether based in contract, tort (including but not limited to negligence), strict liability, or otherwise, even if an authorized representative of Deca has been advised of, or knew of, or should have known of, the likelihood of such damages or (ii) in an amount, in the aggregate for all claims, that exceeds one thousand dollars ($1,000). Some jurisdictions do not permit the exclusion or limitation of incidental or consequential damages; therefore, some or all of the limitations in this section may not apply to you.
We welcome questions, comments and other feedback about these Terms and the Services, including ideas, proposals, suggestions or other materials (“Feedback”). However, you acknowledge and agree that we will treat all Feedback as non-confidential, and you hereby grant us a nonexclusive, worldwide, perpetual, irrevocable, royalty-free, fully-paid-up license to create derivative works based upon any of your Feedback and to reproduce, publicly display, publicly perform, use, commercialize, disclose, import and distribute such Feedback in any way and for any purpose, and to assign or otherwise transfer such license or otherwise authorize others to do any of the foregoing, without notice or obligation to you. You further acknowledge and agree that your provision of Feedback is gratuitous, unsolicited and without restrictions, and does not place us under any fiduciary or other obligation.
16. No Waiver:
If you breach these Terms and Deca chooses not to immediately respond, or chooses not to respond at all, Deca will still be entitled to all rights and remedies at any later date, or in any other situation, where you breach these Terms. No failure to act or delay in acting by Deca will be deemed to be a waiver of any type.
17. Force Majeure:
Deca is not responsible for, and shall not be deemed to have breached these Terms, by reason of anything caused by circumstances beyond Deca's reasonable control, including, but not limited to, the unlawful, dishonest, fraudulent or malicious acts of any third persons, natural disasters, failure of telecommunications or other infrastructure or services, war, riot, civil unrest, labor disturbances, pandemic, changes in law, or the acts of any court or other governmental actors.
18. No Assignment:
You may not assign, sub-license or otherwise transfer any of your rights under these Terms.
Except as provided above with respect to the provisions of these Terms prohibiting Collective Arbitration, if any provision of these Terms is held to be invalid, ineffective or unenforceable by a court of competent jurisdiction or arbitrator, the remaining provisions of these Terms will remain valid, effective and enforceable.
20. Entire Agreement:
These Terms constitute the entire agreement between you and us regarding the Service. If there exists any prior agreement, whether oral or written, regarding the Service, that prior agreement is replaced by these Terms.
21. Important Note to New Jersey Consumers:
If you are a consumer residing in New Jersey, the following provisions of these Terms do not apply to you (and do not limit any rights that you may have) to the extent that they are unenforceable under New Jersey law: (a) the disclaimer of liability for any indirect, incidental, consequential, special, exemplary or punitive damages of any kind (for example, to the extent unenforceable under the New Jersey Punitive Damages Act, New Jersey Products Liability Act, New Jersey Uniform Commercial Code and New Jersey Consumer Fraud Act); (b) the limitations of liability for lost profits or loss or misuse of any data (for example, to the extent unenforceable under the New Jersey Identity Theft Protection Act and New Jersey Consumer Fraud Act); (c) application of the limitations of liability to the recovery of damages that arise under contract and tort, including negligence, strict liability or any other theory (for example, to the extent such damages are recoverable by a consumer under New Jersey law, including the New Jersey Products Liability Act); (d) the requirement that you indemnify Deca and the other indemnified parties (for example, to the extent the scope of such indemnity is prohibited under New Jersey law); and (e) the governing law provision (for example, to the extent that your rights as a consumer residing in New Jersey are required to be governed by New Jersey law).
If you have any questions about these Terms, please contact us.