Last Updated: 28th October 2022
ARBITRATION NOTICE: YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE
RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU WAIVE ANY RIGHT TO
PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION OR A TRIAL
BY JURY. BELOW, WE EXPLAIN SOME EXCEPTIONS AND HOW YOU CAN OPT OUT OF
ARBITRATION.
EXPORT CONTROLS NOTICE: BY PARTICIPATING IN THIS SERVICE, YOU REPRESENT
THAT YOU ARE NOT IN A SANCTIONED COUNTRY OR A “SANCTIONED PERSON,” AS
DEFINED BELOW, UNDER UNITED STATES LAW.
Dazzle Ship, Inc. (“Dazzle Ship,” “we” “us”) provides an online service,
accessible at www.dazzleship.com (“Website”), that, among other things,
allows eligible participants to interact with one or more smart contracts
in order to buy or mint non-fungible tokens (“NFTs”) associated with
digital artwork (“Artwork”), together with other services, websites, smart
contracts, software, tools, features, and functionality made available by
Dazzle Ship (collectively, the “Services”).
You are entering into a binding agreement. By accessing or using our
Services, you are entering into a binding agreement with Dazzle Ship that
includes: (a) these terms and conditions, which govern your access to and
use of our Services, products, and properties including intangible property
such as NFTs made available through our Services (“Terms”); (b) our Privacy
Policy, available at <INSERT PRIVACY POLICY LINK>, which governs our
collection and use of personal information and other data (“Privacy
Policy”); and (c) any other terms, conditions, or policies linked to in our
Terms or Privacy Policy. Therefore, please carefully review these
documents. If you do not agree with the terms of these documents, you may
not use our Services. If there is a conflict between these Terms and any
other terms or conditions covering a specific area of the Services, the
latter terms and conditions shall control unless they expressly state
otherwise.
We may modify these Terms. We reserve the right to clarify or amend these
terms by publishing an updated version of them to the Website. You
acknowledge and agree that, in the event we publish a clarification or
amendment of these Terms, your continued use of the Services will be
contingent upon your acceptance of the updated Terms.
We may modify the Services. We reserve the right, at our sole discretion,
to change the URL of the Website or modify all or part of the Services
without notice to you.
HOW TO PARTICIPATE IN OUR NFT PROJECT
Our Services are for adults only. The Services are intended solely for
persons who are the age of majority in the applicable jurisdiction. Any
access to or use of the Services by anyone under the age of majority is
expressly prohibited. By accessing or using the Services, you represent and
warrant that you are the age of majority.
You may use our Services to acquire NFTs from Dazzle Ship. Eligible
participants may, in accordance with these Terms, use our Services to
acquire NFTs offered by Dazzle Ship, while supplies last. Dazzle Ship
reserves the right to change any Artwork from the look and appearance that
it had at the time of acquisition.
You must have a digital wallet capable of transacting using NFTs. If you
wish to acquire NFTs using our Services, you must own or establish a
compatible digital wallet that allows you to purchase, store, and engage in
transactions using cryptocurrency and NFTs (“Wallet”), and you must connect
and unlock your Wallet through the Services. Once you submit an order to
mint or purchase an NFT, your order is passed on to the applicable
Extension (defined below), which completes the transaction on your behalf.
Each NFT will be transferred to the Wallet of the acquirer of the NFT, and
the transaction will be completed in accordance with these Terms. You are
solely responsible for the security of your Wallet, including, without
limitation, safekeeping the seed phrase, private keys, and password
associated with your Wallet.
You are responsible for paying any necessary transaction fees and
applicable taxes. You must have enough funds in your Wallet to cover the
total cost of your intended acquisition, including “gas” and any other
applicable fees. All pricing and payment terms for our Services are as
indicated at point of sale, otherwise on the Services, or in any applicable
third-party terms, and any payment obligations you incur are binding at the
time of purchase. You may not substitute any other currency, whether
cryptocurrency or fiat currency, for the currency in which you have
contracted to pay at the time of purchase. For clarity, no fluctuation in
the value of any currency, whether cryptocurrency or otherwise, or
applicable gas or other fees shall impact or excuse your obligations with
respect to any purchase. You agree to bear sole responsibility for paying
any and all taxes payable as the result of purchase, ownership, sale,
transfer, use, and/or exploitation of any NFT or Artwork.
All transactions and sales are final, and all costs are non-refundable.
Once an NFT has been successfully sold and/or transferred, it may not be
returned and the payment and any associated transaction (i.e., gas) costs
will not be refunded.
USER REPRESENTATIONS AND WARRANTIES
By accessing or using our Services, you represent, warrant, and agree that:
You are sophisticated, experienced, and knowledgeable in the minting,
bidding on, buying, or selling of NFTs and any Utility, as applicable. Additionally, you have conducted an independent investigation of the
Services 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 mint, bid on, buy, or sell any NFTs and any Utility using
the Services, 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, without limitation, the 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 the 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,
Dazzle Ship, in determining to enter into these Terms, mint, bid on, buy,
or sell any Utility or use the Services.
Your use of the Services does not violate the rights of any third party or
any applicable agreement or law. These Terms do not, and the performance of
your obligations under these Terms and your minting, bidding on, buying, or
selling of any NFTs or Utility, as applicable to your use of the Services,
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 have not failed to comply with, and have not violated, any applicable
legal requirement relating to any blockchain technologies, token trading
activities, or minting of 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 the Services.
You have all requisite capacity, power, and authority to enter into and be
bound by these Terms. If you accept these Terms on behalf of a company or
other legal entity, you represent and warrant that you have the authority
to bind that company or other legal entity to these Terms and, in such
event, “you” and “your” will refer and apply to that company or other legal
entity.
GENERAL PROHIBITIONS
You agree that you will NOT do any of the following:
- Use, display, mirror, or frame the Services, or any individual element
within the Services, Dazzle Ship’s name, any Dazzle Ship trademark, logo,
or other proprietary information, or the layout and design of any page or
form contained on a page, without Dazzle Ship’s express written consent;
- Except as allowed under these Terms, use any of Dazzle Ship’s intellectual
property rights (such as trademarks, copyright, and design rights) whether
registered or unregistered. All rights therein and goodwill associated
therewith shall inure to the benefit of Dazzle Ship.
-Access, tamper with, or use non-public areas of the Services, Dazzle Ship’s
computer systems or network, or the smart contracts and technical delivery
systems of Dazzle Ship and its providers;
Attempt to probe, scan, or test the vulnerability of any Dazzle Ship system
or network or breach any security or authentication measures;
-Avoid, bypass, remove, deactivate, impair, descramble, or otherwise
circumvent any technological measure implemented by Dazzle Ship or any of
Dazzle Ship’s providers or any other third party (including another user)
to protect the Services;
Use any meta tags or other hidden text or metadata utilizing a Dazzle Ship
trademark, logo, URL, or product name without Dazzle Ship’s express written
consent;
-Use the Services for any commercial purpose or the benefit of any third
party in any manner not otherwise permitted by these Terms;
Forge any TCP/IP packet header or any part of the header information in any
email or newsgroup posting, or in any way use the Services to send altered,
deceptive, or false source-identifying information;
-Attempt to decipher, decompile, disassemble, or reverse engineer any of the
software used to provide the Services;
Interfere with, or attempt to interfere with, the access of any user, host,
or network, including, without limitation, sending a virus, overloading,
flooding, spamming, or mail-bombing the Services;
-Collect, scrape, harvest, or store any data or personally identifiable
information from the Services from other users of the Services;
Impersonate or misrepresent your affiliation with any person or entity;
Use the Services for any illegal or unauthorized purpose, or engage in,
encourage, or promote any activity that violates any applicable law or
these Terms;
-Provide false or misleading information to Dazzle Ship;
-Use or attempt to use or access a digital wallet you do not own without
authorization from the owner;
-Take or attempt to take any action that in any way that could prevent,
disrupt, negatively affect, or inhibit others from fully enjoying the
Services, or that could alter, damage, disable, overburden, or impair the
functioning of the Services in any manner;
-Engage in or knowingly facilitate any “front-running,” “wash trading,”
“pump and dump trading,” “ramping,” “cornering,” or fraudulent, deceptive,
or manipulative trading activities, including, for the purpose of creating
or inducing a false, misleading, or artificial appearance of activity or
value in any NFT: (i) facilitate the trading of such NFT at successively
lower or higher prices or executing or causing the execution of any
transaction involving the NFT which causes no material change in the
beneficial ownership thereof; (ii) participating in, facilitating,
assisting, or knowingly transacting with any person or persons for the
purpose of artificially, unfairly, or deceptively influencing the market
price of an NFT; or (iii) otherwise artificially, unduly, or improperly
influencing the market price for any NFT available through the Services in
any manner, including without limitation, on or through social media;
-Encourage or enable any other individual or entity to do any of the
foregoing.
DAZZLE SHIP PROPERTY
Dazzle Ship reserves all rights not expressly granted herein. Unless
otherwise indicated in writing by us, the Services and all content and
other materials contained therein, including, without limitation, the
Dazzle Ship logo and all designs, text, graphics, pictures, information,
data, software, sound files, other files and the selection and arrangement
thereof (collectively, “Content”) are the proprietary property of Dazzle
Ship, or our respective partners, affiliates, or licensors, as applicable.
Notwithstanding anything to the contrary in these Terms, the Services and
Content may include software components provided by Dazzle Ship or its
affiliates or a third party that are subject to separate terms, in which
case those terms shall govern such software components. All other
trademarks, registered trademarks, product names, and other names or logos
mentioned on the Services are the property of their respective owners and
may not be copied, imitated, or used, in whole or in part, without the
permission of the applicable trademark holder. Reference to any products,
services, processes, or other information by name, trademark, manufacturer,
supplier, or otherwise does not constitute or imply endorsement,
sponsorship, or recommendation by Dazzle Ship.
WARRANTY DISCLAIMER
Dazzle Ship provides the Services “as is.” EXCEPT AS EXPRESSLY SET FORTH IN
THESE TERMS, DAZZLE SHIP MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND IN
CONNECTION WITH THE SERVICES, INCLUDING ANY THIRD-PARTY SERVICES AND ANY
INFORMATION OR MATERIALS PROVIDED OR MADE AVAILABLE BY DAZZLE SHIP. THE
SERVICES ARE PROVIDED "AS IS." NEITHER DAZZLE SHIP, DAZZLE SHIP PARTNERS,
DAZZLE SHIP’S AFFILIATES, OR ANY OF THEIR RESPECTIVE MEMBERS, EMPLOYEES,
OFFICERS, AGENTS, REPRESENTATIVES, SUCCESSORS, OR ASSIGNS (collectively,
“DAZZLE SHIP PARTIES”) REPRESENT OR WARRANT THAT (A) THE USE OF ANY OF THE
SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, WILL BE SECURE,
TIMELY, UNINTERRUPTED, OR ERROR-FREE, OR OPERATE IN COMBINATION WITH ANY
OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA, (B) ANY STORED DATA WILL BE
ACCURATE, SECURE, OR RELIABLE, OR (C) ERRORS OR DEFECTS WILL BE CORRECTED.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DAZZLE SHIP PARTIES
DISCLAIM ALL REPRESENTATIONS, WARRANTIES, PROMISES, OR GUARANTEES OF ANY
KIND WHATSOEVER AS TO THE SERVICES OR THIRD PARTY SERVICES, WHETHER EXPRESS
OR IMPLIED, STATUTORY, OR OTHERWISE.
THIRD-PARTY SERVICES
Dazzle Ship is not responsible for your use of third-party services. The
Services may provide access (paid or unpaid) to content, software,
products, platforms, and services operated by companies, entities, or
networks other than Dazzle Ship (“Third Party Offerings”). For example,
transactions initiated through our Website may be executed using
third-party digital wallet extensions (“Extensions”), and smart contracts
and other blockchain protocols and technology may facilitate various
blockchain transactions. If you choose to access, transact with, or
otherwise interact with any Third Party Offerings through the Services, you
acknowledge and agree that you do so at your own risk, and you understand
that by using the Services, you are directing the applicable company,
entity, or network to make Third Party Offerings available to you. You are
solely responsible for your dealings with third parties. When you use the
Services to access Third Party Offerings, these Terms and any applicable
usage terms associated with the Third Party Offerings will govern your use
thereof. For MetaMask, those are available at
https://metamask.io/terms.html and https://metamask.io/privacy.html. Dazzle
Ship does not endorse any Third Party Offerings made available or marketed
on or through the Services. Dazzle Ship is not responsible or liable to you
or others for information or services provided by any Third Party Offerings
or for the results obtained from using them. Dazzle Ship expressly
disclaims all liability related to, or arising from, or in connection
therewith.
EXPORT CONTROLS AND SANCTIONS
You are not a Sanctioned Person under U.S. law. You acknowledge and
understand that the Services and items offered through the Services,
including NFTs, Artwork, and Utility, are subject to U.S. export control
and sanctions laws and regulations, including, without limitation, the
Export Administration Regulations and the regulations, rules, and executive
orders administered by the Office of Foreign Assets Control of the U.S.
Department of the Treasury (“OFAC”) (collectively, the “Export Controls and
Sanctions Laws”). You represent that you are not a Sanctioned Person and
agree not to take any action that will cause anyone, including, without
limitation, Dazzle Ship, to be in violation of any Export Controls and
Sanctions Laws. For purposes of these Terms, “Sanctioned Person” means any
government, country, corporation, or other entity, group, or individual
with whom or which Export Controls and Sanctions Laws prohibit or restrict
a U.S. person from engaging in transactions, and includes, without
limitation, any individual, corporation, or other entity that appears on
OFAC’s Specially Designated Nationals and Blocked Persons List or other
lists maintained by OFAC or the U.S. Department of Commerce, as each such
list may be amended from time to time.
INVESTIGATIONS
If Dazzle Ship becomes aware of any possible violations by you of these
Terms, Dazzle Ship reserves the right to investigate such violations. If,
as a result of the investigation, Dazzle Ship believes that criminal
activity may have occurred, Dazzle Ship reserves the right to refer the
matter to, and to cooperate with, any and all applicable legal authorities.
Dazzle Ship is entitled, except to the extent prohibited by applicable law,
to disclose any information or materials on or in the Services in Dazzle
Ship’s possession in connection with your use of the Services, to (i)
comply with applicable laws, legal process, or governmental request; (ii)
enforce these Terms, or (iii) protect the rights, property, or personal
safety of Dazzle Ship, its affiliates, its users, the public, and all law
enforcement or other government officials, as Dazzle Ship in its sole
discretion believes to be necessary or appropriate.
Dazzle Ship may require you to provide additional information and documents
at the request of any competent authority or in order to help Dazzle Ship
comply with applicable law, regulation, or policy, including laws related
to anti-laundering (legalization) of incomes obtained by criminal means, or
for counteracting financing of terrorism. Dazzle Ship may also require you
to provide additional information and documents in cases where it has
reasons to believe that:
- Your Wallet or other access to the Services is being used for money
laundering or for any other illegal activity;
- You have concealed or reported false identification information and other
details; or
- Transactions effected via your Wallet were effected in breach of these
Terms or other applicable terms, laws, rules, covenants, orders, or
regulations.
In such cases, Dazzle Ship, in its sole discretion, may pause or cancel
your transactions through our Services until such requested additional
information and documents have been reviewed by Dazzle Ship 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, Dazzle Ship may refuse to provide any Content,
product, service and/or further access to the Services to you.
ASSUMPTION OF RISK; LIABILITY WAIVER
You understand, acknowledge, and knowingly and voluntarily assume all
blockchain-related risks. By participating in the Services:
You acknowledge and accept that transacting on a blockchain, including,
without limitation, signing or effectuating transactions using a digital
wallet, contains inherent risk. Such risks include but are not limited to:
(a) risk of sudden asset price changes; (b) risk of smart contract failure
or exploit; (c) risk of hardware, software, or connectivity failure; (d)
risk of malicious software; (e) risks of unauthorized access to your
digital wallet; (f) risk that you will no longer successfully retain
ownership of or access to the NFT(s); (g) risk that any data or any Artwork
becomes unavailable or decoupled from the NFT, including, without
limitation, because of an outage, data loss or pursuant to a valid Digital
Millennium Copyright Act takedown procedure; (h) risk from regulatory
inquiries, regulatory actions, legislation, or court rulings; and/or (i)
risks, bugs, malfunctions, cyberattacks, or changes to a blockchain network
(e.g., forks) or related technologies that disrupt or result in a total
loss of NFTs, their market value, or digital funds.
You acknowledge and accept that an arbitrator or court of competent
jurisdiction in accordance with these Terms may order the modification of
one or more smart contracts, including by altering or substituting the
registered owner of, or preventing the transfer of, an NFT, for the
purposes of investigating, preventing, reversing, redressing, or curing,
any threatened or actual breach of this Agreement or applicable law.
You acknowledge and accept these and all associated risks and
responsibilities and agree that your participation in the Services is at
your own risk. You should not participate in the Services, including to
engage in blockchain-based transactions, unless it is suitable given your
circumstances and financial resources.
You agree that Dazzle Ship 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 any of these risks.
You acknowledge and accept that the sale of NFTs as part of the Services is
facilitated and run by numerous third parties including, without
limitation, your digital wallet provider and one or more public
peer-to-peer networks including, without limitation, the Ethereum network
or other blockchain network and the Interplanetary File System (“IPFS”) or
other distributed system for storing and accessing files or other data.
None of these are under the control or influence of Dazzle Ship. Dazzle
Ship 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 any
third party, including, without limitation, lost, late, incomplete,
damaged, delayed, inaccurate, stolen, misdirected, undelivered, or garbled
NFTs, or for errors or difficulties of any kind related thereto, whether
human, mechanical, electronic, computer, network, typographical, or
otherwise. Transactions are publicly visible on the Ethereum or other
applicable blockchain when made.
You acknowledge and agree that Dazzle Ship is not a fiduciary and owes no
duties to you, including the duty to ensure fair pricing of any NFT(s).
You expressly agree that the release and waiver of liability contained
herein is intended to be as broad and as inclusive as is permitted by
applicable law and that if any portion hereof is held invalid, it is agreed
that the balance shall, notwithstanding, continue in full legal force and
effect.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ANY DAZZLE SHIP
PARTY BE LIABLE TO YOU FOR ANY LOSS, DAMAGE, OR INJURY OF ANY KIND
INCLUDING, WITHOUT LIMITATION, ANY INDIRECT, SPECIAL, INCIDENTAL,
EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE LOSSES OR DAMAGES, OR DAMAGES FOR
SYSTEM FAILURE OR MALFUNCTION OR LOSS OF PROFITS, DATA, USE, BUSINESS, OR
GOOD-WILL OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR IN CONNECTION WITH
THESE TERMS OR THE SERVICES. IN NO EVENT WILL THE DAZZLE SHIP PARTIES’
CUMULATIVE LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY, FROM ALL CAUSES
OF ACTION AND ALL THEORIES OF LIABILITY, EXCEED ONE DOLLAR ($1.00).
UNDER NO CIRCUMSTANCES SHALL ANY DAZZLE SHIP PARTY BE REQUIRED TO DELIVER
TO YOU ANY VIRTUAL CURRENCY AS DAMAGES, MAKE SPECIFIC PERFORMANCE, OR ANY
OTHER REMEDY. IF YOU WOULD BASE YOUR CALCULATIONS OF DAMAGES IN ANY WAY ON
THE VALUE OF VIRTUAL CURRENCY, YOU AND WE AGREE THAT THE CALCULATION SHALL
BE BASED ON THE LOWEST VALUE OF THE VIRTUAL CURRENCY DURING THE PERIOD
BETWEEN THE INITIAL INCIDENT RESULTING IN THE ACCRUAL OF THE CLAIM AND THE
AWARD OF DAMAGES.
THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER
OTHER PROVISIONS OF THESE TERMS HAVE BEEN BREACHED OR HAVE PROVEN
INEFFECTIVE. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY
REGARDLESS OF THE FORM OF ACTION, WHETHER THE ASSERTED LIABILITY OR DAMAGES
ARE BASED ON CONTRACT, INDEMNIFICATION, TORT, STRICT LIABILITY, STATUTE, OR
ANY OTHER LEGAL OR EQUITABLE THEORY AND WHETHER OR NOT THE DAZZLE SHIP
PARTIES HAVE BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN
WARRANTIES AND LIABILITIES PROVIDED IN THIS SECTION, SO SOME OF THE ABOVE
LIMITATIONS AND DISCLAIMERS MAY NOT APPLY TO YOU. TO THE EXTENT APPLICABLE
LAW DOES NOT PERMIT DAZZLE SHIP PARTIES TO DISCLAIM CERTAIN WARRANTIES OR
LIMIT CERTAIN LIABILITIES, THE EXTENT OF DAZZLE SHIP PARTIES’ LIABILITY AND
THE SCOPE OF ANY SUCH WARRANTIES WILL BE AS PERMITTED UNDER APPLICABLE LAW.
INDEMNIFICATION
You will indemnify Dazzle Ship and its affiliates for your use of the
Services. To the fullest extent permitted by applicable law, you agree to
indemnify, defend, and hold harmless Dazzle Ship and the Dazzle Ship
Parties from and against all actual or alleged third party claims, damages,
awards, judgments, losses, liabilities, obligations, penalties, interest,
fees, expenses (including, without limitation, attorneys’ fees and
expenses), and costs (including, without limitation, court costs, costs of
settlement, and costs of or associated with pursuing indemnification and
insurance), of every kind and nature whatsoever arising out of or related
to these Terms or your use of the Services, whether known or unknown,
foreseen or unforeseen, matured or unmatured, or suspected or unsuspected,
in law or equity, whether in tort, contract or otherwise (collectively,
“Claims”) that are caused by, arise out of, or are related to: (a) your use
or misuse of the Services, (b) your violation of these Terms; (c) your
violation of the rights of any third party, including another user of any
digital wallet; (d) any breach or non-performance of any representation,
warranty, covenant, or agreement made by you; and (e) your buying, selling,
or trading of any NFTs.
RESOLUTION OF DISPUTES; AGREEMENT TO ARBITRATE
PLEASE READ THIS SECTION CAREFULLY – IT SIGNIFICANTLY AFFECTS YOUR LEGAL
RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY
HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION
AND A CLASS ACTION WAIVER.
We will attempt to resolve any and all Disputes in good faith. Prior to
commencing any legal proceeding of any kind against Dazzle Ship, including
an arbitration as set forth below, you agree that you will attempt to
resolve any dispute, claim, controversy, or cause of action between us
arising out of or relating to these Terms, the Services, or any NFTs made
available through the Services (each, a “Dispute”) by engaging in good
faith negotiations. Such good faith negotiations require, at a minimum,
that the aggrieved party provide a written notice to the other party
specifying the nature and details of the Dispute. The party receiving such
notice shall have (30) days to respond to the notice. Within sixty (60)
days after the aggrieved party sent the initial notice, the parties shall
meet and confer in good faith by videoconference or by telephone to try to
resolve the Dispute. If the parties are unable to resolve the Dispute
within ninety (90) days after the aggrieved party sent the initial notice,
the parties may agree to mediate their Dispute, or either party may submit
the Dispute to arbitration as set forth below.
New York law governs these Terms, and Disputes will be resolved in New York
City. These Terms are governed by and construed in accordance with the
internal laws of the State of New York without giving effect to any choice
or conflict of law provision or rule that would require or permit the
application of the laws of any jurisdiction other than those of the State
of New York. In the event a Dispute is for any reason not subject to
arbitration, any legal suit, action, or proceeding arising out of or
related, either directly or indirectly, to these Terms or the Services will
be instituted exclusively in the federal courts of the United States or the
courts of the State of New York in each case located in the city and County
of New York, and each party irrevocably submits to the exclusive
jurisdiction of such courts in any such suit, action, or proceeding.
You and we expressly waive a trial by jury. Except as provided below, you
and we agree that any Dispute that cannot be resolved through the
procedures set forth above will be resolved through binding arbitration, as
set forth herein, on an individual basis. Class actions and class
arbitrations are not allowed.
You may bring a claim only on behalf of yourself and cannot seek relief
that would affect other users of our Services. If there is a final judicial
ruling that any particular Dispute (or a request for particular relief)
cannot be arbitrated in accordance with these Terms, then only that
particular Dispute or request for relief may be brought in court. All other
Disputes (or requests for relief) remain subject to this provision.
Questions of arbitrability—i.e., whether a particular claim is subject to
arbitration—shall be treated as any other Dispute as set forth herein.
Instead of commencing an arbitration, you or we may also bring claims in
your local “small claims” court if the rules applicable to that court allow
it. Otherwise, the claims must be resolved by binding, individual
arbitration as set forth herein.
Arbitration will be governed by the rules identified herein. The
arbitration will be conducted by the American Arbitration Association
(“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in
effect, except as modified by these Terms. The AAA Rules are available at
www.adr.org or by calling 1-800-778-7879. A party who wishes to start
arbitration must submit a written Demand for Arbitration to AAA and give
notice to the other party as specified in the AAA Rules. The AAA provides a
form Demand for Arbitration at www.adr.org. Any arbitration hearings will
take place in New York, New York, with provision to be made for remote
appearances to the maximum extent permitted by the AAA rules, unless the
parties both agree to a different location. The parties agree that the
arbitrator shall have exclusive authority to decide all issues relating to
the interpretation, applicability, enforceability, and scope of these
Terms. In all cases, there shall be one (1) arbitrator, who will be agreed
to by the parties within thirty (30) days of receipt by respondent of a
copy of the demand for arbitration. If the parties cannot agree on an
arbitrator within that time, then at the request of either party, such
arbitrator shall be appointed by the AAA. The arbitrator will have
experience adjudicating matters involving Internet technology (ideally,
including blockchain technology) and intellectual property matters.
Arbitration costs will be paid in accordance with these Terms. Payment of
all filing, administration, and arbitrator fees will be governed by the AAA
Rules, and Dazzle Ship won’t seek to recover the administration and
arbitrator fees for which Dazzle Ship is responsible unless the arbitrator
finds your Dispute is frivolous. The prevailing party shall be entitled to
an award of its attorneys’ fees and expenses.
Injunctive and declaratory relief may be limited. Except as provided above,
the arbitrator shall determine all issues of liability on the merits of any
claim asserted by either party and may award declaratory or injunctive
relief only in favor of the individual party seeking relief and only to the
extent necessary to provide relief warranted by that party’s individual
claim. To the extent that you or Dazzle Ship prevail on a claim and seek
public injunctive relief (that is, injunctive relief that has the primary
purpose and effect of prohibiting unlawful acts that threaten future injury
to the public), the entitlement to and extent of such relief must be
litigated in a civil court of competent jurisdiction and not in
arbitration. The parties agree that litigation of any issues of public
injunctive relief shall be stayed pending the outcome of the merits of any
individual claims in arbitration.
YOU AND DAZZLE SHIP AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE
OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS
MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if a
Dispute is resolved through arbitration, the arbitrator may not consolidate
another person’s claims with a party’s claims, and may not otherwise
preside over any form of a representative or class proceeding. If this
specific provision is found to be unenforceable, then the entirety of this
Dispute Resolution section shall be null and void.
Arbitration proceedings are confidential. Except as may be required by law,
the parties shall preserve the confidentiality of all aspects of the
arbitration, and shall not disclose to a third party (other than disclosure
to the affiliates of a party on a need-to-know basis and such affiliates
are informed of the confidential nature of such information and are
instructed to keep such information confidential), all information made
known and documents produced in the arbitration not otherwise in the public
domain, all evidence and materials created for the purpose of the
arbitration, and all awards arising from the arbitration, except, and to
the extent that disclosure is required by law or regulation, is required to
protect or pursue a legal right or is required to enforce or challenge an
award in legal proceedings before a court or other competent judicial
authority.
You can opt out of arbitration. You may opt out of this arbitration
agreement within thirty (30) days of the date you agreed to these Terms. To
opt out, you must send an email to us at broadside@dazzleship.com with your
full name and email address and a clear statement that you want to opt out
of this arbitration agreement (such notice, an “Arbitration Opt-out
Notice”). If you do not provide us with an Arbitration Opt-out Notice
within the thirty (30) day period, you will be deemed to have knowingly and
intentionally waived your right to litigate any Dispute.
You may only initiate a cause of action against Dazzle Ship within one year
of the occurrence giving rise to such claim. Regardless of any statute or
law to the contrary, any dispute, claim, controversy, or cause of action
arising out of or relating, either directly or Dispute must be filed in the
applicable tribunal within one (1) year after such Dispute arose, or will
be forever barred.
MISCELLANEOUS TERMS AND CONDITIONS
These Terms are severable. Should any portion of these Terms be rendered
void, invalid, or unenforceable by any court of competent jurisdiction, the
remaining provisions shall nevertheless be binding upon the parties.
These Terms survive expiration or termination of this agreement. Any
provision of these Terms that by its nature would extend beyond its
expiration or termination shall remain in effect in perpetuity or until
fulfilled.
This is the entire agreement between the parties. These Terms constitute
the sole and entire agreement of the parties with respect to the subject
matter of these Terms and supersedes all prior and contemporaneous
understandings, agreements, and representations and warranties, both
written and oral, with respect to such subject matter.
We may amend or clarify these Terms. We reserve the right to clarify or
amend these terms by publicly publishing an updated version of them to the
Website or any successor website. You acknowledge and agree that in the
event we clarify or amend these terms, your use or continued use of or
access to the Services will be contingent upon your agreement to the
updated Terms.
Only Dazzle Ship may assign this agreement. These Terms will be binding on
and inure to the benefit of the parties and (as applicable) their
respective successors, heirs, executors, legal representatives, affiliates,
and authorized assigns. You may not, directly or indirectly, assign all or
part of your rights or obligations under these Terms to any other person or
entity without first obtaining the written permission of Dazzle Ship. Any
purported assignment without Dazzle Ship’s prior written approval shall be
null and void.
CONTACT INFORMATION
You may contact us at any time. If you have any questions, would like to
provide feedback, or would like more information about Dazzle Ship, please
feel free to email us at broadside@dazzleship.com