These Terms contain a mandatory arbitration provision that, as further set forth in the “Arbitration and Dispute Resolution” 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. Our Service:
- The website available at Deca.art (the “Website”) and the software made available and services enabled thereby (collectively with the Website, the “Service”) is an online service that enables Registered Users (defined below) to (i) create a profile within the Service and curate a collection of digital works of visual art that are linked to or embodied by non-fungible tokens (each such zone, a “Gallery,” each such work of visual art, an “Associated Artwork,” and each such token, an “NFT”); and (ii) view the Galleries of other users.
- Each Registered User may select the Associated Artworks that are displayed in such Registered User's Gallery ( “Displayed Artworks”), other than Associated Artworks that we deem to be inappropriate, illegal, or in violation of our then-current User Content Policy. We reserve the right, but have no obligation, to screen the Associated Artworks that Registered Users wish to display and reject any that we deem to be inappropriate for any reason, in our sole discretion. Each Registered User is solely responsible for all User Content (defined below), including without limitation the Associated Artworks, that they make available on or through the Service.
- Registered Users may be able to use the Service to mint one or more NFTs (each, a “Deca NFT”) comprising such Registered User's User Content or other Content (defined below), as selected by such Registered User. Deca may set limits on or other terms regarding the minting of such Deca NFTs, including, without limitation, any fee payable to Deca in connection with any subsequent sale of a Deca NFT after the initial mint of such Deca NFT (each such sale, a “Secondary Sale,” and such fee the “Secondary Sale Fee”). Deca does not guarantee that Deca NFTs will be transferable to any other platform. Deca is not and shall not be a party to any transaction or dispute between any initial creator of a Deca NFT and any third party, whether arising from any rights granted in that Deca NFT or otherwise.
- Certain features of the Service may be subject to additional guidelines, terms, or rules (“Supplemental Terms”), which will be displayed in connection with such features. These Terms and all such Supplemental Terms, which are incorporated by reference, are collectively referred to as the “Agreement.” If these Terms are inconsistent with any Supplemental Terms, the Supplemental Terms shall control solely with respect to such services.
2. Registering an Account:
- In order to access certain features of the Service you may be required to become a Registered User. For purposes of the Agreement, a “Registered User” is a user who has registered an account on the Website (“Account”) or has a valid account on the social networking service (“SNS”) through which the user has connected to the Website (each such account, a “Third-Party Account”).
- If you access the Service through an SNS, you may be able to link your Account with one or more Third-Party Accounts, by allowing Deca to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Deca and/or grant Deca access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Deca to pay any fees or making Deca subject to any usage limitations imposed by such third-party service providers. By granting Deca access to any Third-Party Accounts, you understand that Deca may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the Service (collectively, “Content”) that you have provided to and stored in your Third-Party Account (“SNS Content”) so that it is available on and through the Service via your Account. Unless otherwise specified in the Agreement, all SNS Content shall be considered to be Your Content (defined below) for all purposes of the Agreement. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to or make available through your Third-Party Accounts may be available on and through your Account on the Service. Please note that if a Third-Party Account or associated service becomes unavailable, or Deca's access to such Third-Party Account is terminated by the third-party service provider, then SNS Content will no longer be available on and through the Service. You may have the ability to disable the connection between your Account and your Third-Party Accounts through the Service or through the applicable Third-Party Accounts. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND DECA DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. Deca makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Deca is not responsible for any SNS Content.
- You must be eighteen (18) years old or otherwise capable of forming a binding contract in your jurisdiction to use the Service. By using the Service, whether to mint or purchase an NFT, view a Gallery, or otherwise, you agree (i) to provide accurate, current, and complete information about yourself as requested (“Registration Information”); and (ii) to maintain and promptly update such Registration Information from time to time as necessary.
- You will not buy, sell, rent, or lease access to the Service without our written permission; or log in or try to log in to access the Service through unauthorized third-party applications or clients.
- Deca may require you to provide additional information and documents from time to time, including without limitation at the request of any competent authority or in order to help Deca comply with applicable law, regulation, or policy, including laws related to the prevention of money laundering and counteracting financing of terrorism. Deca may also require you to provide additional information and documents in cases where it has reasons to believe that: (i) your Digital Wallet (defined below) or Account is being used for money laundering or for any other illegal activity; (ii) you have concealed or reported false Registration Information and/or other details; or (iii) transactions effected via your Digital Wallet may have been effected in breach of these Terms. In such cases, Deca, in its sole discretion, may pause or cancel your transactions until such requested additional information and documents have been reviewed by Deca and accepted as satisfying the requirements of applicable law, regulation, or policy. If you do not provide complete and accurate information and documents in response to such a request, Deca may refuse to provide any NFT, Content, product, service and/or further access to the Service to you.
When you purchase a Deca NFT or otherwise use the Service, you hereby represent and warrant, to and for the benefit of Deca, its affiliates and their respective representatives, as follows:
- You have all requisite capacity, power, and authority to enter into and perform your obligations under these Terms, including to mint, buy, display, or otherwise use any NFT. The execution, delivery, and performance of your obligations under these Terms have been duly authorized by all necessary action on your part and, if you are an entity, on the part of such entity's governing authorities.
- All information provided to Deca and/or its third-party designees by you, including Registration Information, is accurate and complete. None of: (i) you; (ii) any of your affiliates; (iii) any other person having a beneficial interest in you; or (iv) any person for whom you are acting as agent or nominee in connection with these Terms is: (A) a country, territory, entity or individual named on an OFAC list as provided at http://www.treas.gov/ofac, or a person or entity prohibited under the OFAC programs, regardless of whether or not they appear on the OFAC list; or (B) a senior foreign political figure, or any immediate family member or close associate of a senior foreign political figure.
- These Terms do not, and the performance of your obligations under these Terms and your use of the Service, will not: (i) if you are an entity, conflict with or violate any of the charter documents of such entity or any resolution adopted by its equity holders or other persons having governance authority over the entity; (ii) contravene, conflict with or violate any right of any third party or any applicable legal requirement to which you or any of the assets owned or used by you, is subject; or (iii) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under any material contract or agreement to which you are a party, permit held by you or legal requirement applicable to you.
- You are sophisticated, experienced, and knowledgeable in the listing, buying, selling, display, and other use of any NFTs, as applicable. Additionally, you have conducted an independent investigation of the Service and the matters contemplated by these Terms, have formed your own independent judgment regarding the benefits and risks of and necessary and desirable practices regarding the foregoing, and, in making the determination to use the Service, you have relied solely on the results of such investigation and such independent judgement. Without limiting the generality of the foregoing, you understand, acknowledge and agree that the legal requirements pertaining to blockchain technologies and digital assets generally, including NFTs, are uncertain, and you have conducted an independent investigation of such potentially applicable legal requirements and the resulting risks and uncertainties, including the risk that one or more governmental entities or other persons may assert that any digital assets or cryptographic tokens (including NFTs) may constitute securities under applicable legal requirements. You hereby irrevocably disclaim and disavow reliance upon any statements or representations made by or on behalf of, or information made available by, Deca, in determining to enter into these Terms.
- There is no legal proceeding pending that relates to your activities relating to any NFT- or digital asset-trading or blockchain technology related activities.
- You have not failed to comply with, and have not violated, any applicable legal requirement relating to any blockchain technologies, token trading activities or minting, buying, or selling NFTs. No investigation or review by any governmental entity is pending or, to your knowledge, has been threatened against or with respect to you, nor does any government order or action prohibit you or any of your representatives from engaging in or continuing any conduct, activity, or practice relating to minting, buying, or selling NFTs.
- You are an independent contractor and not a partner, joint venturer, agent, or employee of Deca, and you will not bind or attempt to bind Deca to any contract.
- You must provide all equipment and software necessary to connect to the Service. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Service.
3. Transferring NFTs:
- Deca is not an agent or intermediary of any Registered User. Deca does not store or have access to or control over any NFT or any of Registered User's private keys, passwords, Digital Wallets, or other property. Deca is not capable of performing transactions or sending transaction messages on behalf of any Registered User. The Service does not hold, and cannot purchase, sell, or trade any NFT. All transactions related to the Service are effected and recorded solely through the interactions of the Registered User with the applicable blockchain, which is not under the control of or affiliated with Deca or the Service.
4. Pricing; Payments.
- All pricing and payment terms are as indicated at point of sale or otherwise on the Service, and any payment obligations you incur are binding at the time of the applicable transaction. When you mint a Deca NFT, you agree that you have read, understand, and agree to be bound by any terms and conditions applicable to the Secondary Sale of that Deca NFT, including any Secondary Sale Fee (regardless of whether such Secondary Sale Fee is enforced or supported by the third-party platform or marketplace that facilitates a Secondary Sale). You further agree that, if you sell a Deca NFT, you will bind the purchaser of the Deca NFT to such Secondary Sale terms and conditions.
- You are solely responsible for ensuring that any payment made by you is sufficient to cover any Gas Fee required to complete the transaction. “Gas Fees” are transaction fees determined by market conditions on the blockchain at the time you effect a transaction, and are not determined, set, or charged by Deca.
- You may not substitute any other currency (including any other cryptocurrency) for the currency in which you have contracted to pay at the time you entered into an agreement. For clarity, no fluctuation in the value of any currency, whether cryptocurrency or otherwise, shall impact or excuse your obligations with respect to any other payment obligation. If the balance of cryptocurrency in your Digital Wallet is insufficient at the time you seek to mint any NFT, you may not be able to complete your desired transaction. Whether a particular cryptocurrency is accepted as a payment method by Deca is subject to change at any time in Deca's sole discretion. Deca may add or change any supported blockchains or payment processing services at any time in its sole discretion. All such services may be subject to additional terms and conditions.
5. Intellectual Property:
- Unless otherwise indicated in writing by us, the Service and all Content and other materials contained therein, including, without limitation, the Deca logo and all designs, text, graphics, pictures, information, data, software, sound files, other files, and the selection and arrangement thereof, are the proprietary property of Deca or our affiliates, licensors, or users, as applicable.
- You are hereby granted a limited, revocable, nonexclusive, nontransferable, non-assignable, non-sublicensable, “as-is” license to access and use the Service and Content for your own personal, non-commercial use; provided, however, that such license is subject to these Terms and does not include any right to (i) sell, resell, or use commercially the Service or Content; (ii) distribute, publicly perform, or publicly display any Content; (iii) modify or otherwise make any derivative uses of the Service or Content, or any portion thereof; (iv) use any data mining, robots, or similar data gathering or extraction methods; (v) download (other than page caching) any portion of the Service or Content, except as expressly permitted by us; and (vi) use the Service or Content other than for their intended purposes.
- 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.
- 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.
- You acknowledge and agree that the Service may use, incorporate, or link to certain software made available under an “open-source” or “free” license (“OSS”), and that your use of the Service is subject to, and you agree to comply with, any applicable OSS licenses. Each item of OSS is licensed under the terms of the end-user license that accompanies such OSS. Nothing in these Terms limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for the OSS. If required by any license for a particular OSS, Deca makes such OSS, and Deca's modifications thereto, available by written request at the notice address specified below.
6. User Content:
- Certain Content, including without limitation Associated Artworks and comments relating to such Associated Artworks, may be made available by you or by other Registered Users on or through the Service (“User Content”).
- If you choose to make User Content available on or through the Service (“Your Content”), you hereby grant Deca a fully paid, royalty-free, worldwide, non-exclusive right (including any moral rights), and license to use, sublicense, distribute, reproduce, modify, adapt, and display, Your Content (in whole or in part) for any purpose, including without limitation the purposes of (i) providing the Service, including making Your Content available to other users in accordance with your elections on the Service; (ii) improving the Service; and (iii) advertising and promoting Deca and its Service. You also hereby grant each other user of the Service a non-exclusive license to access Your Content through the Service, and to use, reproduce, distribute, display, and perform Your Content solely as permitted through the functionality of the Service and under this Agreement
- You are solely responsible for any User Content you provide. You represent and warrant that you have, or have obtained, all rights, licenses, consents, permissions, power, and/or authority necessary to grant the rights granted herein for any User Content (including any Associated Artworks) that you submit, post, make available or display on or through the Service. You agree that such User Content will not contain material subject to copyright or other proprietary rights, unless you have necessary permission or are otherwise legally entitled to post the material and to grant the licenses described above.
- We take no responsibility for the User Content posted or listed via the Service. Deca has no obligation to review or monitor, and does not approve, endorse, or make any representations or warranties with respect to User Content. Deca has no obligation to store any NFTs (or any artwork embodied therein) or User Content that you make available on or through the Service. Without limiting anything else set forth herein, Deca has no responsibility or liability for: the deletion or accuracy of any User Content; the failure to store, transmit or receive transmission of User Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Service. You agree that Deca retains the right to create reasonable limits on Deca's use and storage of User Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Service and as otherwise determined by Deca in its sole discretion.
- You understand that all Associated Artwork is User Content provided by the applicable Registered User, and not by Deca; accordingly, 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.
7. Interactions with Other Registered Users.
- You are solely responsible for your interactions with other users and any other parties with whom you interact; provided, however, that we reserve the right, but have no obligation, to intercede in any disputes between Registered Users. The Service may contain User Content provided by other users. We are not responsible for and do not control User Content. We have no obligation to review or monitor, and do not approve, endorse, or make any representations or warranties with respect to, User Content, including without limitation any User Content embodied by or otherwise made available through NFTs. You use all User Content and interact with other users at your own risk. You agree that Deca will not be responsible for any liability incurred as the result of your interactions with other users.
- You acknowledge that any information disclosed in Your Content may be publicly available and that you should exercise caution in deciding whether to include any personal, financial, or other sensitive information in Your Content. If you choose to include any of your personally identifiable or other information in Your Content, you do so at your own risk.
- You retain ownership of the rights in or to Your Content. You hereby grant to us a worldwide, nonexclusive, perpetual, irrevocable, royalty-free, fully-paid-up right and license in Your Content to create derivative works based upon such content and to duplicate, publicly display, publicly perform, distribute, transmit, and otherwise use, commercialize, and exploit Your Content 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 Your Content that you may have under any applicable law or legal theory.
- You acknowledge and agree that we cannot prevent other Registered Users from using User Content and personal information disclosed in User Content, even if their use of that information violates the law or your personal privacy or safety. None of the User Content 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 User Content.
- When viewing or responding to User Content, 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 User Content 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 User Content 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 User Content at any time, and to monitor, review, or analyze your access to or use of User Content, 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 User Content, 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 User Content 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 User Content.
8. Registered User Acknowledgements, Representations and Warranties:
- You acknowledge and agree 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 these Terms, and that neither the duplication, public display, or public performance of any of the Displayed Artwork or Your Content on or via the Service, nor our exercise of any other rights you grant to us relating in any way to any Displayed Artwork, Your Content 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 Content will be fraudulent, false, or misleading in any respect and (iii) none of your Displayed Artworks or Your Content 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.
9. Claims of Copyright Infringement:
It is our policy to terminate privileges of any Registered User who repeatedly infringes copyright upon prompt notification to Deca by the copyright owner or the copyright owner's legal agent. Without limiting the foregoing, if you believe that your work has been copied and made available on the Service in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that you claim has been infringed; (iii) a description of the location on the Service of the material that you claim is infringing; (iv) your address, telephone number, and e-mail address; (v) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. Contact information for Deca's Copyright Agent for notice of claims of copyright infringement is as follows: Philip A. Nicolosi, Phil Nicolosi Law, P.C.: By mail to7210 E. State Street, Suite 208, Rockford, Illinois 61108; and by e-mail to email@example.com. Philip A. Nicolosi, Phil Nicolosi Law, P.C.'s phone number is (815) 314-0022.
10. Disclaimers; Assumption of Risk:
- THE SERVICE, CONTENT CONTAINED THEREIN, AND NFTS LISTED THEREIN, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. DECA (AND ITS SUPPLIERS) MAKE NO WARRANTY THAT THE SERVICE: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, COMPLETE, LEGAL, OR SAFE. DECA DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT AS TO THE SERVICE OR ANY CONTENT CONTAINED THEREIN. DECA DOES NOT REPRESENT OR WARRANT THAT THE SERVICE OR CONTENT ON THE SERVICE IS ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE. 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 SERVICE. WHILE DECA ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF THE SERVICE AND CONTENT SAFE, DECA CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICE, CONTENT, OR ANY NFTS LISTED ON OUR SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE CANNOT GUARANTEE THE SECURITY OF ANY DATA THAT YOU DISCLOSE ONLINE. YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET AND WILL NOT HOLD US RESPONSIBLE FOR ANY BREACH OF SECURITY UNLESS IT IS DUE TO OUR GROSS NEGLIGENCE.
- WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSSES YOU SUSTAIN AS A RESULT OF YOUR USE OF THE SERVICE. WE TAKE NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO YOU FOR, ANY USE OF NFTS, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (I) USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED ADDRESSES; (II) SERVER FAILURE OR DATA LOSS; (III) CORRUPTED DIGITAL WALLET FILES; (IV) UNAUTHORIZED ACCESS TO APPLICATIONS; (V) ANY UNAUTHORIZED THIRD PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK AGAINST THE SERVICE OR NFTS; OR (VI) ANY USE OR MISUSE OF THE SERVICE BY YOU OR ANY THIRD PARTY.
- FROM TIME TO TIME, DECA MAY OFFER NEW “BETA” FEATURES OR TOOLS. ALL SUCH FEATURES OR TOOLS ARE OFFERED “AS IS” AND WITH ALL FAULTS, SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT DECA'S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
- NFTS ARE INTANGIBLE DIGITAL ASSETS. THEY EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE BLOCKCHAIN NETWORK. ANY TRANSFER OF TITLE THAT MIGHT OCCUR IN ANY UNIQUE DIGITAL ASSET OCCURS ON THE DECENTRALIZED LEDGER WITHIN THE BLOCKCHAIN NETWORK. WE DO NOT GUARANTEE THAT DECA OR ANY DECA ENTITY CAN EFFECT THE TRANSFER OF TITLE OR RIGHT IN ANY NFTS. WE CANNOT AND DO NOT GUARANTEE THAT ANY TOKEN WILL HAVE OR RETAIN ANY INHERENT VALUE.
- Deca is not responsible for any losses or harms sustained by you due to vulnerability or any kind of failure, abnormal behavior of software (e.g., wallet, smart contract), blockchains, or any other features of or inherent to the NFTs. Deca is not responsible for casualties due to developers or representatives delay or failure to report any issues with any blockchain supporting NFTs, including without limitation forks, technical node issues, or any other issues that result in losses of any sort.
- Nothing in these Terms shall exclude or limit liability of either party for fraud, death, or bodily injury caused by negligence, violation of laws, or any other activity that cannot be limited or excluded under the laws applicable to your jurisdiction. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN CONTRACTS WITH CONSUMERS, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU
You acknowledge and agree that:
- The prices of digital assets are extremely volatile. Fluctuations in the price of other digital assets could materially and adversely affect the value of NFTs, including Deca NFTs.
- You are solely responsible for determining what, if any, taxes apply to any transaction involving Deca NFTs. Neither Deca nor any other Deca Entity (defined below) is responsible for determining the taxes that may apply to Deca NFTs.
- NFTs exist and can be transferred only by virtue of the ownership record maintained on the blockchain supporting such NFTs. Our Service does not store, send, or receive NFTs. Any transfer of NFTs occurs within the supporting blockchain and not on the Service.
- There are risks associated with using digital currency, including but not limited to the risk of hardware, software, and Internet connections, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to information stored within your Digital Wallet.
- There are risks associated with use of blockchain technology, including but not limited to security flaws and vulnerabilities, bugs, and other factors. Deca makes no representations as to the security of the underlying blockchain, and you transact on any blockchain at your own risk.
- Deca does not monitor, and is not liable to you for, any user activity in connection with the Service. Deca cannot control, and makes no representations with respect to, the behavior of any other Registered User, including without limitation any actions taken in violation of these Terms.
- The legal and regulatory regime governing blockchain technologies, cryptocurrencies, and NFTs is uncertain, and new regulations or policies may materially adversely affect the development of the Service and the utility of Deca NFTs.
- There are risks associated with NFTs, including but not limited to, the risk of purchasing counterfeit assets, mislabeled assets, assets that are vulnerable to metadata decay, assets on smart contracts with bugs, and assets that may become untransferable.
- Deca reserves the right to hide collections, contracts, and assets that Deca suspects or believes may violate these Terms. Deca NFTs you purchase may become inaccessible on the Service. Under no circumstances shall the inability to view your assets on the Service serve as grounds for a claim against Deca.
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 your use of the Service and the matters contemplated by this Agreement, including without limitation 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 the Displayed Artworks, Your Content, 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.
12. Arbitration and Dispute Resolution:
- 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 Registered Users or that is inconsistent with the values of our community of Registered 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 delete your Account and/or take down your Gallery. 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.
- If Deca becomes aware of any possible violations by you of these Terms, Deca reserves the right to investigate such violations. If, as a result of the investigation, Deca believes that criminal activity may have occurred, Deca reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Deca is entitled, except to the extent prohibited by applicable law, to disclose to third parties any information or materials (including without limitation Your Content) in Deca's possession, including in order to: (i) comply with applicable laws, legal process or governmental request; (ii) enforce these Terms; (iii) respond to any claims that User Content violates the rights of third parties; (iv) respond to your requests for customer service; or (v) protect the rights, property or personal safety of Deca, its users, or the public, as Deca in its sole discretion believes to be necessary or appropriate. By agreeing to these Terms, you hereby provide your irrevocable consent to such monitoring. You understand, acknowledge, and agree that you have no expectation of privacy concerning your use of the Service, including without limitation text, voice, or video communications.
13. 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. Deca does not review, approve, monitor, endorse, warrant, or make any representations with respect to any third-party services, or their products or services.
14. 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, User Content 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 (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 firstname.lastname@example.org 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 thirty (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 email@example.com 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 Registered 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.
15. 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 notwithstanding any choice of law principles; 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).
16. Exclusion of Damages and Limitation of Liability:
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL DECA BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM THESE TERMS, THE SERVICE, ANY DECA 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, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE AND EVEN IF DECA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICE IS UNDERTAKEN BY YOU 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.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF DECA ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS, YOUR ACCESS TO AND USE OF THE SERVICE, CONTENT (INCLUDING YOUR CONTENT), YOUR USE OF OR INABILITY TO USE ANY GAME, OR ANY TOKENS MINTED THROUGH THE SERVICE EXCEED THE GREATER OF (A) $1000 OR (B) THE AMOUNT PAID TO DECA BY YOU FOR THE SERVICE IN THE TRANSACTION OR INCIDENT THAT IS THE SUBJECT OF THE CLAIM.
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to yo
You hereby release and forever discharge Deca and our officers, employees, agents, successors, and assigns (the “Deca Entities”) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action, and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Service (including any interactions with, or act or omission of, other users). IN CONNECTION WITH THE FOREGOING YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, OR ANY SIMILAR LAW OR RULE IN YOUR JURISDICTION, WHICH STATES IN SUBSTANCE: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
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 them in writing at1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
- You may terminate these Terms by deleting your Account, ceasing all further use of the Service, and sending us notice of your intention to terminate these Terms at the address set forth below; provided that these Terms will continue to apply to any Deca NFT that you own for so long as you own such Deca NFT. We reserve the right in our sole discretion to modify, suspend, or discontinue the Service, or any features or parts thereof, whether temporarily or permanently, at any time with or without notice to you in our sole discretion. All sections of these Terms intended by their nature to survive, including without your indemnification obligations, all disclaimers, your release of Deca, and our limitation of liability hereunder, shall survive such termination.
- Our failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision or of any other right or provision on such occasion or on any future occasions. 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.
- 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.
- You may not assign, sub-license, or otherwise transfer any of your rights under these Terms. Deca may freely assign these Terms or any of its rights or obligations hereunder.
- 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.
- 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.
- Except as otherwise provided herein, these Terms are intended solely for the benefit of Deca and you and are not intended to confer third party beneficiary rights upon any other person or entity.
- 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.