Terms of Service

 

 

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.

 

INTRODUCTION

 

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