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Unsellable LLC Terms of Service
Effective Date: 10/24/22
Unsellable LLC (including affiliates/subsidiaries: “COMPANY”, “Unsellable”, “we” or “us”) is a platform for the sale/disposition of certain NFT’s and related assets. COMPANY operates [www.unsellablenfts.com], and may operate other sites in the future (collectively, the “Site” or “Sites”) and offers various products and services on or through the Sites (collectively, the “Services”). These Terms of Service (“Terms”) govern your access to and use of the Unsellable website(s), our APIs, mobile app (the “App”), and any other software, tools, features, or functionalities provided on or in connection with our services; including without limitation using our services to view, sell, or otherwise transfer NFTs (collectively, the “Service”) and/or receive payment for NFT and similar/related assets. “NFT” in these Terms means a non-fungible token or similar digital item implemented on a blockchain (such as the Ethereum blockchain), which uses smart contracts to link to or otherwise be associated with certain content or data (including but not limited to digital artwork), and as used herein includes such data or content.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE USING OUR SERVICES.
1. Acceptance of Terms
THESE TERMS OF SERVICE, AS AMENDED FROM TIME TO TIME AND PUBLISHED AT [www.unsellablenfts.com] AND AS INCORPORATING THE COMPANY PRIVACY POLICY AVAILABLE AT [www.unsellablenfts.com] (“TERMS OF SERVICE”), ARE A LEGAL AGREEMENT BETWEEN COMPANY (“COMPANY”) AND YOU (“YOU” or “USER”).
YOU MUST READ AND AGREE TO THESE TERMS OF SERVICE, INCLUDING THE PRIVACY POLICY, BEFORE USING THE SITES AND/OR SERVICES CONTROLLED BY COMPANY. BY USING THE SITES AND/OR THE SERVICES, YOU AGREE TO THESE TERMS OF SERVICE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, DO NOT USE THE SITES AND/OR THE SERVICES.
You are responsible for regularly reviewing the Terms of Service, as the Terms of Service may be modified at any time. All such modifications will be effective immediately upon posting. If You are dissatisfied with any modification to the Terms of Service, Your only remedy is to terminate Your use of the Sites and/or the Services, as described in Section 15 (Termination and Survivability) of these Terms of Service. Your continued use of the Sites and/or the Services after a change or update has been made to the Terms of Service constitutes Your acceptance of such change or update.
2. Eligibility
YOU MUST BE AT LEAST 18 YEARS OF AGE TO USE THE SITES AND/OR THE SERVICES. By using the Sites and/or the Services, You represent and warrant that
- You are 18 years of age or older;
- All registration or other information You submit to COMPANY is truthful and accurate;
- You will maintain the accuracy of such information; and
- Your use of the Services or the Sites does not violate any applicable law or regulation.
3. Use of Services
Provided that you comply with these Terms of Service, COMPANY grants you a limited, revocable, nonexclusive, non-assignable, non-sublicensable license and right to access the Services, through a generally available web browser or mobile device, to view information and use the Services offered by COMPANY.
4. User Accounts
To use the Sites and/or the Services, You may be required to create a user account (“Account”). If You create an Account, You agree to provide COMPANY current, complete, true and accurate information, and to update this information should it change. COMPANY may suspend, terminate, modify, or delete Your Account with or without notice to You, at any time for any reason or for no reason, including but not limited to for violation of the Terms of Service.
To use our Services, you must use a third-party wallet (e.g. Metamask, Phantom Wallet, etc.) which allows you to engage in transactions on blockchains. By using your wallet in connection with the Service, you agree that you are using that wallet under the terms and conditions of the applicable provider of the wallet. Wallets are not operated by, maintained by, or affiliated with Unsellable, and Unsellable does not have custody or control over the contents of your wallet and has no ability to retrieve or transfer its contents. Unsellable accepts no responsibility for, or liability to you, in connection with your use of a wallet and makes no representations or warranties regarding how the Service will operate with any specific wallet. You are solely responsible for keeping your wallet secure and you should never share your wallet credentials or seed phrase with anyone. If you discover an issue related to your wallet, please contact your wallet provider. Likewise, you are solely responsible for your Account and any associated wallet and we are not liable for any acts or omissions by you in connection with your Account or as a result of your Account or wallet being compromised. You agree to immediately notify us if you discover or otherwise suspect any security issue related to the Service or your Account. You are solely responsible for maintaining the confidentiality of your Account and you accept responsibility for all activities that occur under your Account.
WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSS AND TAKE NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO YOU FOR, ANY USE OF NFTS, CONTENT, AND/OR CONTENT LINKED TO OR ASSOCIATED WITH NFTS, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES, OR CLAIMS ARISING FROM: (A) USER ERROR, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED ADDRESSES, INCLUDING MISTYPED/INCORRECT WALLET ADDRESSES; (B) SERVER FAILURE OR DATA LOSS; (C) UNAUTHORIZED ACCESS OR USE; (D) ANY UNAUTHORIZED THIRD-PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK AGAINST THE SERVICE OR NFTS. NFTS EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE ASSOCIATED BLOCKCHAIN (E.G., ETHEREUM NETWORK). ANY TRANSFERS OR SALES OCCUR ON THE ASSOCIATED BLOCKCHAIN (E.G., ETHEREUM). UNSELLABLE DISCLAIMS RESPONSIBILITY FOR THE TRANSFER OF TITLE OR RIGHT IN ANY NFTS OR UNDERLYING OR ASSOCIATED CONTENT OR ITEMS.
YOU ARE ENTIRELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF YOUR PASSWORD(S) AND FOR ANY AND ALL ACTIVITIES THAT OCCUR IN ASSOCIATION WITH YOUR ACCOUNT, WHETHER OR NOT AUTHORIZED BY YOU. You agree to notify COMPANY immediately of any unauthorized use of Your Account or any other breach of security and to provide properly documented evidence as requested by COMPANY. You may not use anyone else’s Account at any time and You may not allow anyone else to use Your Account at any time. You agree that COMPANY will not be liable for any loss You may incur as a result of someone else using Your password or Account, either with or without Your knowledge, and You further agree that You will be liable for losses incurred by COMPANY or another party due to someone else using Your Account or password.
COMPANY reserves the right to terminate or suspend Your ACCOUNT AND/OR access to the Sites and/or the Services at any time, for any reason or no reason, with or without notice to you. COMPANY also reserves the right to change or discontinue any service, transaction or feature provided by COMPANY, including, without limitation, the Sites and the Services, at any time and without notice. You agree that COMPANY shall not be liable for any loss or damage caused, directly or indirectly, by any such termination, suspension, change or discontinuance.
In the event that Your Account is terminated, suspended or canceled, no refund will be granted and no other credits will be credited to You or converted to cash or other form of reimbursement, and You will have no further access to Your Account, Content or anything associated with it.
5. Purchase related representations and warranties
User represents and warrants to Unsellable that:
User agrees to sell and transfer good and marketable title to any relevant NFT asset to Unsellable and to complete the transaction contemplated by this Agreement;
The NFT is authentic, meaning the NFT was created by the artist indicated;
User is the sole legal and beneficial owner of the NFT and has good and marketable title to the NFT, and has any and all necessary rights, consents, and permissions to sell/transfer the relevant NFT asset to Unsellable.
User also represents that the relevant NFT or the sale of the NFT does not and will not: (i) infringe, violate, misappropriate, or otherwise breach any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property, contract, or proprietary right, and is not otherwise subject to or the subject of any rights or interests of others, claims, liens, security interests, restrictions, conditions, options or other encumbrances of any kind held or claimed by any person, entity, government or government agency (actual, threatened or pending);(ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Unsellable to violate any law or regulation or require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and your NFT could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
User is not aware of any challenges or disputes (current, past, pending or threatened) relating to the attribution, authenticity, description or provenance of the NFT. User has provided Unsellable with all information in User’s knowledge concerning the attribution, authenticity, description, and condition of the NFT;
The NFT is owned by User as the sole legal and beneficial owner thereof, with good and marketable title thereto, free and clear of all Encumbrances. Unsellable will have the same good and marketable title to the NFT, free and clear of all Encumbrances, and will be entitled to and enjoy all the same rights and benefits of the NFT as enjoyed by User prior to transfer of the NFT.
6. Purchase price/manner of payment/fees/sales
The purchase price for each distinct NFT transferred to Unsellable shall be one GWEI (10^9 Eth) or such other price as may be set by Unsellable in its sole discretion and agreed by You. (the “Purchase Price”). The full Purchase Price shall be paid after confirmation of transfer of any particular NFT asset. For the avoidance of doubt, the obligation to pay the Purchase Price is expressly conditioned on Unsellable’s ability to inspect the NFT asset and any related information, including but not limited to the ownership record.
You agree and understand that all fees/sales are transferred, processed, or initiated directly through one or more of the Smart Contracts on the Ethereum (or other) blockchain network. By transacting on the Service and by using the associated Smart Contracts, you hereby acknowledge, consent to, and accept all automated fees for the sale of NFT on the Service. You hereby consent to and agree to be bound by the Smart Contracts’ execution and distribution of the fees. You hereby waive any entitlement to royalties, commissions, or fees paid to another by operation of the Smart Contracts.
Sales are subject to fees and other charges including: (1) service fees associated with transactions on the Service (“Marketplace Fees”); (2) “Gas” or other blockchain transaction fees (including “tips”) paid to blockchain miners in ETH or other cryptocurrency through your Wallet as consideration for mining/processing your transactions (collectively “Fees”). Unsellable may change the Marketplace Fees for any feature of the Service, including additional fees or charges, with or without advance notice to you, and reserves all right to determine pricing for the Services. Before you pay any Fees, you will have an opportunity to review and accept the Fees that you will be charged. All Fees are in ETH or other cryptocurrency and are non-refundable except as required by applicable law. User acknowledges the dynamic nature of gas and other transaction fees. Company takes no responsibility for the amount of or payment of such fees, and user assumes all such responsibility for payment of fees. Further, Unsellable accepts no responsibility for and disclaims any obligation for verifying funds or confirming transactions for Users, e.g. via Etherscan or otherwise, and all such responsibility shall be borne by You.
Upon transfer of relevant NFTs to Unsellable, all right title and interest to said NFTs and any related digital assets transfer to and become the sole possession of, with full ownership by, Unsellable. This includes any and all associated intellectual property rights, including but not limited to copyrights. All sales are final. Unsellable reserves all rights to maintain or dispose of purchased NFT assets in any manner whatsoever in its sole discretion, and assumes no obligation to offer such assets for sale at any time to User or anyone.
7. Ownership of Site/Service Content
“Content” shall mean including, without limitation, data, images, drawings, photographs, video, audio, text, and any and all other material and information You see on the Sites and/or the Services, whether provided by COMPANY or by users of the Services. ALL USE OF CONTENT IS PROVIDED “AS IS” AND AT YOUR OWN RISK.
YOU ACKNOWLEDGE AND AGREE THAT ALL CONTENT IS THE PROPERTY OF COMPANY AND/OR ITS LICENSORS AND THAT YOU HAVE NO INTELLECTUAL PROPERTY RIGHTS OR OTHER RIGHTS IN ANY CONTENT, REGARDLESS OF WHETHER THAT CONTENT WAS PROVIDED BY COMPANY, YOU, OR ANOTHER USER OF THE SERVICES.
You acknowledge that the Content, Services and Sites may be protected by copyrights, trademarks, and other proprietary rights owned by COMPANY, and/or its licensors, including rights to the selection, coordination, arrangement and enhancement of such Content, and that these rights are valid and protected in all media existing now or later developed. Except as expressly provided herein, COMPANY and its licensors do not grant You any express or implied rights, and all right, title and interest that COMPANY has in the Sites and/or the Services, that are not expressly granted by COMPANY to You are retained by COMPANY. No Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, scraped, displayed, posted, transmitted or sold in any form or by any means, in whole or in part, without COMPANY’S prior written permission, except that the foregoing does not apply to Your own posted submission.
You agree that You may not upload or otherwise transmit on or through the Service Content that is subject to any third-party rights unless any holder of such rights has given express authorization for distribution on the Sites and/or the Services.
You agree that any Content You submit does not create an obligation for COMPANY to provide You any payment or other remuneration. If and to the extent You are deemed to have retained, under applicable law, any right, title or interest in or to any portion of the Content, You hereby transfer, grant, convey, assign and relinquish exclusively to COMPANY all of Your right, title and interest in and to the Content, without reservation and without additional consideration, under applicable patent, copyright, trade secret, trademark and other similar laws or rights, in perpetuity, and in the alternative to the extent such assignment is ineffective under applicable law, You hereby grant to COMPANY, the exclusive, irrevocable, sublicensable, transferable, worldwide, paid-up license to reproduce, fix, adapt, modify, translate, reformat, create derivative works from, manufacture, introduce into circulation, publish, distribute, sell, license, sublicense, transfer, rent, lease, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, display, perform, enter into computer memory, and use and practice the Content, all modified and derivative works thereof, all portions and copies thereof in any form, all inventions, designs, and marks embodied therein, and all patent, copyright, trade secret, trademark and other intellectual property rights thereto, and/or to incorporate the same in other works in any form, media, or technology now known or later developed. To the extent permitted by applicable laws, You hereby waive any moral rights You may have in the Content.
8. User Submissions
Company does not accept or consider unsolicited ideas, including ideas for new promotions, products, technologies or processes (collectively, “User Submissions”). You must not transmit any User Submission to or through the Company Sites or to Company through email that you consider to be confidential or proprietary, and any User Submissions shall be deemed non-confidential. You are responsible and liable for any User Submissions. You agree, represent and warrant that any User Submission is:
- Truthful, accurate, and not misleading,
- Offered in good faith, and
- That you have the right to transmit such information.
Certain information submitted by you, or otherwise collected from you, is subject to Company’s Privacy Policy. Except as expressly provided in Company’s Privacy Policy, you agree that by submitting User Submissions to Company, including any concepts, know-how or ideas, you hereby grant Company a perpetual, worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of and display the User Submissions in connection with the Company Sites and Company’s (and its successor’s) business, including without limitation for promoting and redistributing part or all of the User Submission (and derivative works thereof) in any media formats and through any media channels whether now known or hereafter developed, without payment or accounting to you or others.
9. Limitations
Any use of the Services in violation of these terms of SERVICE will be regarded as an infringement of COMPANY’S copyright rights in and to the content.
You may not, under any circumstances, modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, adapt, translate, transfer, buy, auction, rent, lease, loan or sell any Content, or other materials appearing in or generated by the Sites or Services, or any information obtained from the Sites or the Services, without the prior express written consent of COMPANY.
You may not, under any circumstances, exploit the Content or the Services for any purpose whatsoever.
You may not, under any circumstances, use the Content or the Services in any manner that is:
- Unlawful;
- That could damage, disable, overburden, or impair any COMPANY server or the network(s) connected to any COMPANY server;
- That could interfere with any other party’s use and enjoyment of the Services;
- That gains or attempts to gain unauthorized access to any Services, unpublished information or material, other users’ Accounts, or computer systems and/or networks connected to any COMPANY server, or to any of the Services, through hacking, password mining or any other means;
- That collects or aggregates information regarding other users’ actions relating to the Services; or
- That reverse engineers, decompiles, disassembles or attempts to reverse engineer, decompile, or disassemble any part of the Content or Sites.
10. COMPANY Copyright Policy
You will refrain from offering or posting any NFT, other information or items to the Sites or through the Services which are copied, in whole or in part, from third party sources without authorization. For further clarification, please see the U.S. Law on Copyrights, or see the web sites of the U.S. Copyright Office or U.S. Trademark Office. 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 materials hosted by COMPANY infringe your copyright, You (or your agent) may send us a notice requesting that the material be removed or access to it blocked.
If You believe in good faith that a notice of copyright infringement has been wrongly filed against You, the DMCA permits You to send COMPANY a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.copyright.gov for details.
Notices and counter-notices with respect to the Sites, including the Services, should be sent to the COMPANY’S DMCA Agent for notice of claims of copyright infringement at: www.unsellablenfts.com (with the subject line “DMCA Communication”).
COMPANY’S DMCA Agent should be contacted only for the purposes set forth in this Section 7. ALL OTHER INQUIRIES DIRECTED TO COMPANY’S DMCA AGENT WILL NOT BE ANSWERED.
11. Communications
By providing Your email address to COMPANY and subscribing to COMPANY communications, You understand You may receive periodic information regarding current and future services offered on the Sites and/or the Services and/or related third party products. You may unsubscribe at any time by terminating Your Account as described in Section 15 (Termination and Survivability).
12. Newsletters
By providing Your email address to COMPANY and subscribing to the COMPANY newsletter(s), You understand You may receive periodic information regarding current and future services offered on the COMPANY Sites and/or the COMPANY Services. You may unsubscribe at any time by following the directions contained in each newsletter.
13. Privacy/Security
You understand that any information provided by You or collected by COMPANY in connection with Your use of the Sites and/or Services will be used in the manner described in these Terms of Service and in COMPANY’S Privacy Policy, such privacy policy being incorporated into and made a part of these Terms of Service by this reference. If You do not agree to the Privacy Policy you may not use the Services. Without limiting the terms of the Privacy Policy, You understand that COMPANY does not guarantee that Your use of the Services and/or the information provided by You will be private or secure, and COMPANY is not responsible or liable to You for any lack of privacy or security You may experience. You are fully responsible for taking precautions and providing security measures best suited for Your situation and intended use of the Services.
14. Jurisdictional Issues and Export Control Laws
The Sites and/or Services are controlled and operated by COMPANY from the United States. COMPANY makes no representation that Content and other materials available through the Sites and/or Services are appropriate or available for use in any other locations. Those who choose to access the Sites and/or Services from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.
You agree to abide by applicable export control laws and not to transfer, by electronic transmission or otherwise, any Content or other materials subject to restrictions under such laws to a national destination prohibited by such laws, without first obtaining, and then complying with, any requisite government authorization. You further agree not to upload to the Sites any data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software.
The Content may not be re-exported, downloaded or otherwise exported into (or to a national or resident of) any country to which the U.S. has embargoed goods, or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. You represent and warrant that You are not located in, under the control of, or a national or resident of any country or on any such list.
15. Termination and Survivability
These Terms of Service are effective until terminated. COMPANY may terminate these Terms of Service with or without notice to You by terminating Your Account as set forth in Section 3 (User Accounts). You may terminate these Terms of Service and Your Account by sending an email stating Your intention to terminate these Terms of Service to COMPANY at: www.unsellablenfts.com, Attn: Accounts Department with the subject line “Account Termination”. Such termination will not be effective until acknowledged by COMPANY but not more than twenty (20) business days after sending such termination email.
The provisions of Sections 7 (Ownership of Content), 9 (Limitations), 10 (Use of Copyrighted, Trademarked or Other Protected Material), 15 (Termination and Survivability), 17 (Disclaimer of Warranty; Limitation of Liability), 31 (Indemnity), 32 (Jurisdiction and Choice of Law), and 33 (Dispute Resolution and Arbitration) shall survive any termination of these Terms of Service.
16. Links to Third-Party Sites
The Sites may link to third party sites (“Linked Sites”). These Linked Sites are not controlled by COMPANY. COMPANY is not responsible for the information of the Linked Sites, for the business practices or privacy policies of the Linked Sites, or for the collection, use or disclosure of any information by the Linked Sites. COMPANY provides links to the Linked Sites only as a matter of convenience, and the inclusion of any link does not imply an endorsement by COMPANY of any Linked Site.
You acknowledge and agree that COMPANY does not endorse, and shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such information, goods or services available on or through any Linked Sites. You agree that Your use of the Linked Sites, including without limitation Your use of any information, data, advertising, products, or other materials on or available through the Linked Sites, is at Your own risk and is subject to the term and conditions or use applicable to the Linked Sites.
COMPANY is not involved in any way in the actual transaction between the Linked Sites and You. COMPANY acts solely as a passive conduit for the Linked Sites’ sales, distribution and the communication of Your information with regards to transaction with Linked Sites.
You assume any and all risks, known or unknown, now existing or hereafter arising, related to the transactions with the Linked Sites’ items, including, but not limited to, completing transactions, default, negligence, unauthorized use of Your Account and password and other users acting under false identity.
You acknowledge that COMPANY is not a party to any possible future disputes between You and the Linked Sites. Resolution of any dispute is the full and sole responsibility of the involved parties and COMPANY will not act as a mediator between them. You release COMPANY, its agents, representatives and employees, from any and all claims, demands and damages, direct and indirect, suspected and unsuspected, arising from such dispute.
17. Disclaimer of Warranty; Limitation of Liability
YOU EXPRESSLY AGREE THAT THE USE OF THE SITES AND/OR SERVICES IS AT YOUR SOLE RISK. THE SITES AND/OR SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE, WITHOUT WARRANTIES (INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE) OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, UNLESS SUCH WARRANTIES OR CONDITIONS ARE LEGALLY INCAPABLE OF EXCLUSION.
COMPANY PROVIDES THE COMPANY SITES AND/OR COMPANY SERVICES ON A COMMERCIALLY REASONABLE BASIS AND DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE COMPANY SITES AND/OR COMPANY SERVICES AT TIMES OR LOCATIONS OF YOUR CHOOSING, OR THAT COMPANY WILL HAVE ADEQUATE CAPACITY FOR THE COMPANY SITES AND/OR COMPANY SERVICES AS A WHOLE OR IN ANY SPECIFIC GEOGRAPHIC AREA. COMPANY DOES NOT WARRANT THAT YOUR USE OF THE COMPANY SITES OR THE COMPANY SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE COMPANY SITES (OR ANY PART THEREOF INCLUDING THE CONTENT), THE SERVER(S) ON WHICH THE COMPANY SITES ARE HOSTED OR CONTENT ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE COMPANY PARTIES ASSUME NO RESPONSIBILITY FOR ANY DAMAGES SUFFERED BY YOU, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, LOSS OF ABILITY TO COMMENT, LOSS OF ITEMS OR OTHER LOSS FROM DELAYS, NONDELIVERIES, ERRORS, SYSTEM DOWN TIME, MISDELIVERIES OR SERVICE INTERRUPTIONS CAUSED BY THE COMPANY PARTIES, OR BY YOUR OR OTHER USERS’ ERRORS AND/OR OMISSIONS.
YOU ACKNOWLEDGE THAT YOU ARE RESPONSIBLE FOR OBTAINING AND MAINTAINING ALL COMPUTER HARDWARE AND OTHER EQUIPMENT NEEDED TO ACCESS AND USE THE COMPANY SITES AND ALL CHARGES RELATED THERETO. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE COMPANY SITES AND CONTENT AND YOUR RELIANCE THEREON. NO OPINION, ADVICE OR STATEMENT OF COMPANY OR ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS, AGENTS, MEMBERS, EMPLOYEES OR VISITORS, WHETHER MADE ON THE COMPANY SITES, IN THE CONTENT OR OTHERWISE, SHALL CREATE ANY WARRANTY.
YOUR USE OF THE SITES, SERVICES AND ANY CONTENT AND THE SERVICES ARE ENTIRELY AT YOUR OWN RISK.
THE DISCLAIMERS OF LIABILITY CONTAINED IN THIS SECTION APPLY TO ANY DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF DATA OR LOST PROFITS) OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION.
YOU ACKNOWLEDGE AND AGREE THAT TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW THE COMPANY PARTIES ARE NOT LIABLE FOR ANY ACT OR FAILURE TO ACT BY THEM OR ANY OTHER PERSON REGARDING CONDUCT, COMMUNICATION OR CONTENT ON THE COMPANY SITES AND/OR COMPANY SERVICES OR USE OF THE COMPANY SITES AND/OR COMPANY SERVICES. YOU ACKNOWLEDGE AND AGREE THAT YOUR EXCLUSIVE REMEDY FOR ANY DISPUTE WITH COMPANY IS TO STOP USING THE SITES AND/OR SERVICES, AND TO CANCEL YOUR ACCOUNT(S).
IN NO CASE SHALL THE COMPANY PARTIES BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF THE SITES, SERVICES, OR THE CONTENT, OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE SITES, SERVICES, OR THE CONTENT, OR INTERACTIONS WITH COMPANY.
BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, THE LIABILITY OF COMPANY AND THE COMPANY PARTIES SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW. COMPANY DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY THIRD-PARTY PRODUCT OR SERVICE OFFERED THROUGH THE SITES AND/OR SERVICES AND WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
THE COMPANY PARTIES MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY OF THE INFORMATION CONTAINED IN THE DOCUMENTS AND RELATED GRAPHICS PUBLISHED AS PART OF THE COMPANY SITES AND/OR COMPANY SERVICES FOR ANY PURPOSE. THE DOCUMENTS AND RELATED GRAPHICS PUBLISHED ON THE COMPANY SITES AND/OR COMPANY SERVICES MAY INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS.
COMPANY EXPRESSLY DISCLAIMS ALL REPRESENTATION AND WARRANTIES REGARDING GOODS OR SERVICES YOU OBTAIN FROM THIRD PARTIES DURING YOUR USE OF THE COMPANY SITES AND/OR COMPANY SERVICES. YOU AGREE TO LOOK SOLELY TO THIRD PARTIES FOR ANY AND ALL CLAIMS REGARDING SUCH TRANSACTIONS WITH THIRD PARTIES. YOU FURTHER AGREE THAT THIRD PARTY ITEMS PURCHASED ARE DONE SO VIA AN AGREEMENT BETWEEN YOU AND THE THIRD PARTY.
ANY REFERENCE TO A PERSON, ENTITY, PRODUCT, OR SERVICE ON THE COMPANY SITES DOES NOT CONSTITUTE AN ENDORSEMENT OR RECOMMENDATION BY COMPANY OR ANY OF ITS EMPLOYEES. NO COMMUNICATION OF ANY KIND BETWEEN YOU AND COMPANY OR A REPRESENTATIVE OF COMPANY SHALL CONSTITUTE A WAIVER OF ANY LIMITATIONS OF LIABILITY HEREUNDER OR CREATE ANY ADDITIONAL WARRANTY NOT EXPRESSLY STATED IN THE TERMS OF USE.
COMPANY RESERVES THE RIGHT TO REMOVE ANY MATERIAL POSTED ON THE MESSAGE BOARDS, FORUMS OR OTHER AREAS OF THIS WEBSITE THAT IT DETERMINES IN ITS SOLE DISCRETION IN VIOLATION OF ANY LAW OR RIGHT OF ANY PERSON, INFRINGES THE RIGHTS OF ANY PERSON, OR IS OTHERWISE INAPPROPRIATE FOR POSTING ON THE WEBSITE.
18. No Financial Advice Provided; No Fiduciary Duty
You agree that you are solely responsible for all actions (or the lack thereof), and other decisions as related to the Services and your use of the Site. Although the Site may provide data, information or content provided by other parties, you should not construe any such information or content as tax, legal, financial, or investment advice. You hereby warrant and acknowledge that your use of the Site and /or the Services is solely your responsibility. The Company has no special relationship with or fiduciary duty to you. You agree and acknowledge that you are solely responsible for conducting a full and diligent review of any and all legal, accounting, regulatory or tax related implications that may result from your use of the Services. We recommend that you consult with a licensed legal, tax and financial professional prior to accessing the Site or utilizing the Services.
19. No Security/No Reliance
This document does not constitute investment or tax advice, counsel or solicitation for investment in any security and shall not be construed in that way. This agreement and the services do not constitute or form part of, and should not be construed as, any offer for sale or subscription of, or any invitation to offer to buy or subscribe for, any securities in any form. Further, the Company disclaims any and all responsibility for any direct or consequential loss or damage of any kind whatsoever arising directly or indirectly from: (i) reliance on any information contained in this document, (ii) any error, omission or inaccuracy in any such information or (iii) any action resulting therefrom.
20. Risks Associated with Blockchain Protocols
Because the subject of the Company’s activities relates indirectly to certain blockchain protocols, any malfunction, breakdown or abandonment of any such platform may have a material adverse effect on tokens or other products that are the subject of the Service. Moreover, advances in cryptography, or technical advances such as the development of quantum computing, could present risks to underlying blockchains, tokens and related ecosystems, for example, by rendering ineffective cryptographic consensus mechanisms. The Company takes no responsibility for such risks and expressly disclaims same. To the maximum extent permitted by applicable law, and notwithstanding anything otherwise expressly provided herein, Unsellable disclaims any and all liability related to the following:
(a) Use of Blockchain Technology. Unsellable utilizes or may utilize experimental cryptographic and blockchain technologies, including tokens, cryptocurrencies, “smart contracts,” consensus algorithms, and distributed, decentralized or peer-to-peer networks or systems in providing the Service. You acknowledge and agree that such technologies are novel, experimental, and speculative, and that therefore there is significant uncertainty regarding the operation and effects and risks thereof and the application of existing law thereto. To the maximum extent permitted by applicable law, Unsellable disclaims any and all liability related to the foregoing.
(b) Certain Risks of Blockchain Technology. The technology utilized in delivering the Service depends on public peer-to-peer networks that are not under the control or influence of Unsellable and are subject to many risks and uncertainties. Unsellable may have limited or no ability to change these technologies, other than ceasing to support certain “smart contracts” and adding support for new “smart contracts”. You are solely responsible for the safekeeping of the private key associated with the address used to participate in the Service. Unsellable will not restore or issue any refunds due to lost private keys. If you are not able to use the Service due to loss or theft of a private key or otherwise, Unsellable does not guarantee and is not responsible for your ability to exercise their rights with respect to any applicable digital assets.
(c) Certain Risks of Smart Contract Technology. NFTs and the content embodied therein and other digital assets relevant to the Service depend on smart contracts , and some may be coded or deployed by persons. Once deployed, the code of smart contracts cannot be modified. In the event that applicable smart contracts are adversely affected by malfunctions, bugs, defects, malfunctions, hacking, theft, attacks, negligent coding or design choices, or changes to protocol rules, you may be exposed to a risk of total loss and forfeiture.
(d) Asset Prices. The fiat-denominated prices and value in public markets of assets such as ETH, NFTs, and other digital assets have historically been subject to dramatic fluctuations and are highly volatile. As relatively new products and technologies, blockchain-based assets are not widely accepted as a means of payment for goods and services. A significant portion of demand for these assets is generated by speculators and investors seeking to profit from the short- or long-term holding of blockchain assets. You acknowledge and agree that the costs and speeds of transacting with cryptographic and blockchain-based systems are variable and may increase or decrease dramatically at any time, resulting in prolonged inability to access or use any ETH or other cryptocurrency, NFTs, or other digital assets associated with the Service.
(e) Regulatory Uncertainty. Blockchain technologies and digital assets are subject to many legal and regulatory uncertainties, and the Service, Collectibles, and other digital assets could be adversely impacted by one or more regulatory or legal inquiries, actions, suits, investigations, claims, fines or judgments, which could impede or limit your ability to continue the use and enjoyment of such assets and technologies.
(f) Fork Handling. Certain elements of the Service may be subject to “forks.” Forks occur when some or all persons running the software clients for a particular blockchain system adopt a new client or a new version of an existing client that: (i) changes the protocol rules in backwards-compatible or backwards-incompatible manner that affects which transactions can be added into later blocks, how later blocks are added to the blockchain, or other matters relating to the future operation of the protocol; or (ii) reorganizes or changes past blocks to alter the history of the blockchain. Some forks are “contentious” and thus may result in two or more persistent alternative versions of the protocol or blockchain, either of which may be viewed as or claimed to be the legitimate or genuine continuation of the original. Unsellable may not be able to anticipate, control or influence the occurrence or outcome of forks, and does not assume any risk, liability or obligation in connection therewith. Without limiting the generality of the foregoing, Unsellable does not assume any responsibility to notify you of pending, threatened or completed forks. You assume full responsibility to independently remain apprised of and informed about possible forks, and to manage your own interests in connection therewith.
(g) Essential Third-Party Software Dependencies. Smart Contracts deployed are public software utilities which are accessible directly through a Wallet. Because the Service does not provide Wallet software nodes, such software constitutes an essential third-party or User dependency without which the Service cannot be utilized and NFTs and other digital assets cannot be traded or used. Furthermore, Descriptors defining the art, text or other data associated with a relevant NFT must be stored off of relevant Blockchains. Unsellable cannot guarantee the continued operation of such third-party platforms.
21. Risk of Hacking and Security Weaknesses
Hackers or other malicious groups or organizations may attempt to interfere with the Company, relevant NFTs or underlying blockchains in a variety of ways, including, but not limited to, malware attacks, denial of service attacks, consensus-based attacks, Sybil attacks, phishing, bruteforcing, smurfing, other hacking or spoofing. Furthermore, because the Company and underlying blockchains are based on open-source software, there is a risk that a third party or a member of the Company team may intentionally or unintentionally introduce weaknesses into the core infrastructure of the Company or related blockchains, which could have negative consequences. The Company takes no responsibility for and expressly disclaims responsibility for such attacks/security weaknesses, viruses, or any other third-party attacks. Further, the Company shall bear no liability whatsoever, for any damage or interruptions caused by any computer viruses, spyware, scareware, Trojan horses, worms or other malware that may affect your computer or other equipment, or any phishing, spoofing or other attack.
22. Risk of Uninsured Losses
Unlike bank accounts or accounts at financial institutions, NFTs and cryptocurrencies are uninsured unless you specifically obtain your own private insurance to insure them. Thus, in the event of loss or loss of utility value, there is no public insurer or private insurance arranged by us, to offer recourse to you. The Company takes no responsibility in this regard and expressly disclaims same.
23. AML and KYC Policy
You agree to assist the Company in compliance with “AML” (anti-money laundering) and “KYC” (know your customer) regulations, including agreeing to provide information upon request relative to such compliance efforts. The Company reserves the right to report any suspicious activities to police or relevant authorities without the client's knowledge. The Company reserves the right to request documentation, including but not limited to Know-Your-Customer / Anti-Money Laundering (AML) applications, at any time, including prior to activating your account, and including in order to comply with applicable law or regulation. We may refuse your access to the Site should it have doubts as to validity, authenticity and genuineness of any information provided by you. You agree to provide us with such information promptly upon request, and you acknowledge that we may refuse participation in the Services or use of the Site until you provide such requested information.
24. Taxes
Any tax treatment and/or tax obligations are solely and completely your responsibility and you agree that the Company has no responsibility and undertakes no obligation whatsoever relative to any tax related matter, including but not limited to tax reporting, filing or advice. You are solely responsible for assessing all Taxes owed and/or any write-offs or other potential tax advantages, if any, from your use of the Service, including, but not limited to, tax liabilities or potential write-offs or other potentially asserted tax advantages associated with any sales of your NFTs. You agree that your use of the site and/or sale of any NFTs is not made based upon reliance upon any particular tax treatment of transactions or other use of the Service and you acknowledge that Unsellable provides and has provided no advice whatsoever relating to any tax related issue. You are advised to seek tax advice from a qualified tax professional and Unsellable disclaims, to the fullest extent possible, any responsibility in this regard. As used herein, “Taxes” means the taxes, duties, levies, tariffs, and other governmental charges that you may be required to collect and remit to governmental agencies, and other similar municipal, state, federal, national or other withholding and personal or corporate income taxes.
25. Sophisticated Participant.
You warrant that you have a sufficient understanding of the functionality, usage, storage, transmission mechanisms and other material characteristics of cryptographic tokens (for example, such as Bitcoin or Ether), token storage mechanisms (such as token wallets), blockchain technology and blockchain-based software systems, NFTs, delegation and validation of blockchains to understand the terms of this Agreement and to appreciate the risks and implications of participating in activities relative to the Company and the Site.
26. User Conduct.
You agree, at all times, to utilize the Site and Services solely for the purposes for which they are intended and not for any illegal or fraudulent activity of any kind whatsoever. You agree that you will not attempt to circumvent any security measures employed by the Site or Services, nor undertake any activity or conduct that would interfere with the proper function of the Site or the delivery of the Services, or that would otherwise be damaging or harmful to the Company.
27. No Third Party Beneficiaries
Except as expressly provided in these Terms of Use, there shall be no third-party beneficiaries to these Terms of Use. The Company shall have the right to assign its rights or delegate any of its responsibilities under these Terms of Use to an affiliate or in connection with a merger, consolidation or reorganization of the Company for the sale of substantially all of its assets.
28. Compliance Disclaimer
We make no representation that this Site is operated in accordance with the laws, rules, or regulations of, or governed by, any country or nation. Thus, you are solely and exclusively responsible for your use of the Services. You, not Us, are responsible for compliance with any applicable local and/or national laws.
29. Your Legal Compliance
You represent and warrant that your participation in the services and use of the site complies with applicable law and/or regulation in your jurisdiction, including, but not limited to, (i) legal capacity and any other applicable legal requirements (ii) any foreign exchange or regulatory restrictions applicable to such participation, and (iii) any governmental or other consents that may need to be obtained. If you are participating on behalf of any entity, you are authorized to accept this Agreement on such entity’s behalf and that such entity will be responsible for breach of the provisions of this Agreement by you or any other employee or agent of such entity. You represent and warrant that you are not an entity organized in or a citizen of a nation or geographic area in which access to or use of the site or services is prohibited by applicable law, decree, regulation, treaty, or administrative act. You further represent that you are not a citizen or resident of, or located in, a nation or geographic area that is subject to any sovereign country sanctions or embargoes, or an individual, entity or an individual employed by or associated with an entity, identified on any denied persons or entity lists, specially designated nationals or blocked persons lists, or the debarred parties’ lists.
30. Arbitration/Mediation
Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Santa Clara Co. or San Francisco Co. CA, U.S.A., before a single arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
1. The parties agree that any and all disputes, claims or controversies arising out of or relating to this Agreement shall first be submitted to JAMS, or its successor, for mediation, and if the matter is not resolved through mediation, then it shall be submitted to JAMS, or its successor, for final and binding arbitration pursuant to the clause set forth in Paragraph 5 below.
2. Either party may commence mediation by providing to JAMS and the other party a written request for mediation, setting forth the subject of the dispute and the relief requested.
3. The parties will cooperate with JAMS and with one another in selecting a mediator from the JAMS panel of neutrals and in scheduling the mediation proceedings. The parties agree that they will participate in the mediation in good faith and that they will share equally in its costs.
4. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator or any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation.
5. Either party may initiate arbitration with respect to the matters submitted to mediation by filing a written demand for arbitration at any time following the initial mediation session or at any time following 45 days from the date of filing the written request for mediation, whichever occurs first ("Earliest Initiation Date"). The mediation may continue after the commencement of arbitration if the parties so desire.
6. At no time prior to the Earliest Initiation Date shall either side initiate an arbitration or litigation related to this Agreement except to pursue a provisional remedy that is authorized by law or by JAMS Rules or by agreement of the parties. However, this limitation is inapplicable to a party if the other party refuses to comply with the requirements of Paragraph 3 above.
7. All applicable statutes of limitation and defenses based upon the passage of time shall be tolled until 15 days after the Earliest Initiation Date. The parties will take such action, if any, required to effectuate such tolling.
31. Indemnity
You agree to defend, indemnify and hold harmless COMPANY and its directors, officers, employees, agents, shareholders, licensors, parent companies and representatives, from and against all claims, losses, costs and expenses (including without limitation reasonable attorneys’ fees) arising out of:
- Your use of, or activities in connection with the Sites, including the Services;
- Any violation of these Terms of Service by You or through Your Account or using Your user name; or
- Any allegation that any NFT or any other information, messages, or materials that You make available or create through the Sites and/or Services infringe or otherwise violate the copyright, trademark, trade secret, privacy or other intellectual property or other rights of any third party.
32. Jurisdiction and Choice of Law
These Terms of Service, and any disputes arising from or relating to the conduct covered by the Terms of Service, are governed by the laws of the State of California. You hereby submit to the exclusive jurisdiction, including waiving any objection to personal jurisdiction, of the courts of Santa Clara Co., California without regards to any principles of conflicts of laws and the United Nations Convention on Contracts for the International Sale of Goods. Those who choose to access the Sites and/or the Services from locations outside of the United States do so on their own initiative and are responsible for compliance with local laws if and to the extent local laws are applicable.
33. Assignment
COMPANY may assign these Terms of Service, in whole or in part, at any time. You may not assign, transfer or sublicense these Terms of Service or any or all of Your rights or obligations under these Terms of Service without COMPANY’S express prior written consent.
34. Waiver
No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default.
35. Headings
Any heading, caption or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof.
36. Notice
Notices to You may be made via posting to the Sites, by email, or by regular mail, in COMPANY’S discretion. COMPANY may also provide notices of changes to these Terms of Service or other matters by displaying such notices or by providing links to such notices on COMPANY’S Sites. Without limitation, You agree that a printed version of these Terms of Service and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms of Service to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
37. Severability
If any part of these Terms of Service is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms of Service shall continue in effect.
38. Complete Agreement
These Terms of Service, including the documents expressly incorporated by reference, constitute the entire agreement between You and COMPANY with respect to its subject matter. These Terms of Service supersede all prior or contemporaneous communications, whether electronic, oral or written, between You and COMPANY with respect to its subject matter and You represent that You have not relied on any such communications in accepting these Terms of Service.
39. Notice for California Users
Under California Civil Code Section 1789.3, California Website users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.
40. Questions
If you have any questions, comments or complaints regarding these Terms of Service or the Sites or Services, feel free to contact us at: www.unsellablenfts.com.
41. General Provisions
A printed version of these Terms of Service and of any notices given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms of Service to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
The parties agree that all correspondence relating to these Terms of Service, shall be written in the English language.
