Escher Terms of Service
Last update: March 30, 2023.
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 APPLICABLE LAW.
Welcome to Escher! “Escher” is an online service operated by The Fractional Token Company d/b/a Tessera (“Tessera,” “we,” “our” or “us”) that, among other things, allows users to mint, buy, sell, browse, showcase, display, and collect non-fungible tokens (“NFTs”) associated with digital artwork.
These terms of service (“Terms”), together with any other terms, conditions, or policies linked to in these Terms, are a legally binding agreement between you and Tessera that govern your access to and use of Escher and all other websites, services, smart contracts, software, tools, products, property (including intangible property such as NFTs), features, and functionality made available by Tessera (collectively, “Services”). 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 reserve the right to clarify or amend these Terms by publishing an updated version of them to escher.xyz (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 also 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.
2.YOUR RELATIONSHIP WITH TESSERA
Aside from or in addition to browsing, purchasing, selling, showcasing, displaying, or collecting NFTs using our Services, you may use our Services to create and deploy NFTs linked to, or associated with, one or more unique and original works of art. Your ability to create, mint, list, showcase, deploy, display, or sell NFTs may be dependent upon, and subject to, your meeting certain eligibility requirements, agreeing to further terms and conditions, and/or receiving an invitation from Tessera. Tessera makes no guarantees or promises that any NFTs or other digital assets will be approved or listed, even if you were invited by Tessera to create and list them. Creators seeking an invitation to create and list NFTs for sale through the Services may submit a request here.
Ownership of particular NFTs may grant you certain rights (including intellectual property rights), benefits, privileges, opportunities, entitlements, or other utility (collectively, “Utility”) but, for the sake of clarity, these Terms do not confer any Utility in connection with ownership of any NFT, and Tessera makes no assurances or guarantees of any Utility. Any Utility offered by Tessera in connection with a particular NFT or collection of NFTs must be expressly provided for in a separate agreement (“Additional Tessera Terms”), and in the event of a conflict between Additional Tessera Terms and these Terms, the Additional Tessera Terms shall prevail.
Tessera is not responsible for, nor a party to, any agreement or interaction between you and any third party. This means that: (i) to the extent you offer, or any third party offers, any Utility in connection with an NFT or subjects the same to additional terms and conditions (“Third-Party Terms”), you understand and agree that Tessera shall not be a party to or have any responsibility or liability whatsoever for, arising out of, relating to, or in connection with such Utility or Third-Party Terms; and (ii) if you decide to purchase or sell an NFT acquired through our Services other than as the primary buyer through the Website, then Tessera is not a party to any agreement between the applicable buyer, seller, or facilitator of the secondary sale, nor will Tessera be liable for any damages you may suffer as a result of your transactions or any other interaction with any third parties.
You shall not be deemed an employee of Tessera or vice versa for any state or federal law purposes, including, but not limited to, the application of the Federal Insurance Contribution Act, Social Security Act, or any similar law applicable throughout the universe regarding worker compensation, unemployment, or taxation. You acknowledge and agree that you are obligated to report as income all compensation or other income received, if any, in connection with the Services. These Terms shall not be deemed to create a partnership, joint-venture, agency, employee/employer, or similar relationship between Tessera and any other party.
3.YOUR DIGITAL WALLET AND PROFILE
If you wish to create, list, buy, sell, acquire, or otherwise interact with 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 (including ETH) and NFTs (“Wallet”), and you must connect your Wallet through the Services. Once you submit an order to mint or purchase an NFT, your order is passed on to the applicable Wallet extension (e.g., MetaMask), which completes the transaction on your behalf. Each NFT will be in accordance with these Terms. You are solely responsible for the security of your Wallet including, without limitation, safekeeping the seed phrase, private keys, NFTs, cryptocurrency, and password associated with your Wallet.
To access or use some of our Services, you may need to create, use, or claim a profile or showroom associated with your Wallet address (“Profile”). You agree to provide complete, accurate, and up-to-date information in connection with your Profile. Tessera reserves the right to suspend or terminate your Profile if any information provided by you proves to be inaccurate, not current, or incomplete. We may from time to time ask you for additional identification information as may be required for regulatory or other reasons. You are solely responsible for any associated content, information, or materials provided or used in connection with your Profile. Tessera is not liable to you or any third party for any acts or omissions by anyone using, or otherwise in connection with, your Profile or that occur as a result of any information associated with your Profile being lost or compromised. If you discover or otherwise suspect any unauthorized use of, or security issues related to, your Profile, you agree to notify Tessera immediately. Tessera reserves the right to access, retain, and disclose your Profile information, artwork, and content if required to do so by law or we have a good faith belief that such access, retention, or disclosure is reasonably necessary to enforce these Terms, respond to your requests for customer service, respond to a legal notice, comply with legal process, or protect the rights, property, or personal safety of our company, our users, or the public.
Tessera may receive a fee (“Service Fee”) in connection with the minting, creation, purchase, sale, and transfer of digital assets facilitated through the Services. Blockchain-based smart contracts and other technology may cause or facilitate the automatic collection and transfer of the Service Fee.
You are responsible for paying any necessary transaction fees. You must have enough funds in your digital wallet to cover the total cost of your intended transaction, including “gas” and any other applicable fees. All pricing and payment terms for our Services are as indicated at point of sale or otherwise on the Services, 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.
5.LISTING DIGITAL ASSETS
You may not use our Services to list or sell any digital assets that you do not personally and lawfully own. In your use of the Services, you may list or transfer only digital assets that you have lawfully created or acquired and own personally. You may not submit digital assets utilizing the Services that were acquired unlawfully or over which you do not have lawful title.
Listings must adhere to our Terms. In order for Tessera to provide the Services, you must provide us with all the information we request and comply with all other requirements, terms, and guidelines presented to you. We reserve the right to edit any listings or offerings to ensure that they comply with our requirements and applicable law.
Listings shall be determined in our sole and absolute discretion. We reserve the right to limit the use of the Services in our sole and absolute discretion, and you acknowledge and agree that any such determination by us shall be binding and conclusive upon you.
It may take some time for your listings to appear. Listings of digital assets may not be immediately searchable by keyword or category for several hours (or up to 24 hours or more in some circumstances), and may be subject to Third-Party Terms. The placement of listings in search and browse results is in Tessera’s sole discretion and may be based on factors that include, without limitation, title, keywords, and price.
6.CONTENT ON ESCHER
Tessera Content. Unless otherwise indicated in writing by us, the Services and all content and other materials contained therein, including, without limitation, our logo(s) and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, “Tessera Content”) are the proprietary property of Tessera, or our respective partners, affiliates, or licensors, as applicable. Notwithstanding anything to the contrary in these Terms, the Services and Tessera Content may include software components provided by Tessera 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 Tessera. For purposes of clarification, Tessera shall be and remain the sole owner of all rights, title, and interest in and to the software and tools provided by Tessera, the Website, any related promotional materials, and any other programming, script, algorithms, technology, and/or code supplied by Tessera and/or its contractors and suppliers, including, without limitation, all copyright, trademark, patent, trade-secret rights, and related rights therein. Tessera reserves all rights not expressly granted herein.
User Content. If you upload, submit, post, contribute, display, showcase, or publish any artwork, metadata, information, materials, or other content using our Services (“User Content”), including in connection with your Profile, you agree that you, and not Tessera, have full responsibility for the User Content, including its non-infringement of third party rights, legality, reliability, accuracy, and appropriateness. User Content must comply with these Terms. We are not responsible or liable to any third party for the content, accuracy, or appropriateness of any User Content posted or displayed by you. You understand and acknowledge that any User Content that violates any of our policies may be modified, edited, or removed by Tessera in its sole and absolute discretion. By making available any User Content on or through the Services, you grant to Tessera a universe-wide, royalty-free license in perpetuity to crop, resize, publicly display, publicly perform, distribute, broadcast, transmit, prepare derivative works based upon, and otherwise use and exploit such User Content for purposes of operating or providing the Services and for marketing and promoting Escher and Tessera’s business. Although we are not required to monitor any User Content, we may, in our sole discretion, remove User Content at any time and for any reason without notice.
Feedback. In the event you choose to contact Tessera and provide any feedback, comments, and/or suggestions for improvements to, or errors and issues on or with, the Services (“Feedback”), you acknowledge and agree that your contribution of Feedback does not grant you any right, title, or interest in the Services or in any such Feedback, nor does such Feedback entitle you to any compensation whatsoever. Wherever necessary, you hereby assign to Tessera any and all right, title, and interest (including without limitation, any patent, copyright, trademark, know-how, moral rights and any other intellectual property rights) that you may have in and to any and all Feedback.
Infringing Content. If you believe that any user-generated content or other material made available through the Services violates your copyright, please submit a notification in accordance with the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. § 512 to Tessera’s DMCA Agent identified below. Tessera will respond to all such notices in accordance with the DMCA. In the case of a user who may infringe or repeatedly infringes the copyrights or other intellectual property rights of Tessera or any other party, we may, in our discretion, terminate or deny access to and use of the Services. In the case of such termination, Tessera will have no obligation to provide a refund of any amounts previously paid to Tessera, if any, or to make any other payments whatsoever.
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7.REPRESENTATIONS AND WARRANTIES
You have all requisite capacity, power, and authority to enter into and be bound by these Terms. You represent and warrant that: (i) you have all rights, licenses, consents, permissions, authorizations, approvals, and releases necessary to enter into this agreement and authorize Tessera to perform the Services and grant the rights granted herein; (ii) the rights granted herein are owned or controlled solely by you; (iii) you are over the age of majority (or else will have your parent or legal guardian sign this agreement on your behalf); (iv) if an agent enters into this agreement on your behalf, then, by signing, the agent represents and warrants that it has the right and authority to sign on your behalf and bind you to the terms hereof and agrees to defend, indemnify, and hold harmless the Indemnified Parties (defined below) from any claims or damages arising from a breach of such representation and warranty.
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 creating, listing, bidding on, buying, selling, transferring, or otherwise transacting with any digital assets, 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, including any Third-Party Terms; (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; or (iv) otherwise give rise to any third-party claims or cause Tessera to incur any additional fees.
You have not failed to comply with, and have not violated, any applicable legal requirement relating to any blockchain technologies, transactions involving tokens, 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.
8.PROHIBITIONS AND RESTRICTIONS
You agree that you will NOT use the Services to do or attempt to do any of the following:
- Infringe upon the intellectual property or other rights of any person or entity
- Violate applicable laws, rules, or regulations, or terms
- Use any trademarks, logos, or proprietary information contained on the Services except as expressly provided herein
- Attempt to reverse engineer or access non-public areas or systems
- Circumvent technological measures to protect the Services or any content
- Impersonate or misrepresent an affiliation with any person or entity
- Facilitate or engage in any fraudulent, deceptive, or manipulative trading activities
- Engage in offensive, violent, hateful, discriminatory, or dangerous behavior
- Provide the services to any third party
- Encourage or enable others to engage in any of the foregoing
9.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 digital assets and artwork, 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, Tessera, 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.
You will participate in investigations as reasonably requested by Tessera. If Tessera becomes aware of any possible violations by you of these Terms, Tessera reserves the right to investigate such violations. If, as a result of the investigation, Tessera believes that criminal activity may have occurred, Tessera reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Tessera is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Services in Tessera’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 Tessera, its affiliates, its users, the public, and all law enforcement or other government officials, as Tessera in its sole and absolute discretion believes to be necessary or appropriate.
Tessera may require you to provide additional information and documents at the request of any competent authority or in order to help Tessera 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. Tessera may also require you to provide additional information and documents in cases where it has reasons to believe that: (i) your digital wallet or other access to the Services is being used for money laundering or for any other illegal activity; (ii) you have concealed or reported false identification information and/or other details; or (iii) transactions effected via your digital wallet were effected in breach of these Terms or other applicable terms, laws, rules, covenants, orders, or regulations.
In such cases, Tessera, in its sole and absolute discretion, may pause, suspend, or cancel your access to and use of the Services until such requested additional information and documents have been reviewed by Tessera 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, Tessera may refuse to provide any content, product, service, and/or further access to the Services to you.
Tessera provides the Services “as is.” EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, TESSERA MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND IN CONNECTION WITH THE PROTOCOLS OR THE SERVICES, INCLUDING THE THIRD PARTY SERVICES AND ANY INFORMATION OR MATERIALS PROVIDED OR MADE AVAILABLE BY TESSERA. THE SERVICES ARE PROVIDED "AS IS." NEITHER TESSERA, TESSERA’S AFFILIATES, OR ANY OF THEIR RESPECTIVE MEMBERS, STOCKHOLDERS, EMPLOYEES, CONSULTANTS, OFFICERS, DIRECTORS, AGENTS, REPRESENTATIVES, SUCCESSORS, OR ASSIGNS (collectively, “TESSERA PARTIES”) REPRESENT OR WARRANT THAT (I) THE USE OF ANY OF THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE, WILL BE AVAILABLE WHEN YOU DESIRE TO UTILIZE THE SERVICES, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA, (II) ANY STORED DATA WILL BE ACCURATE, SECURE, OR RELIABLE, OR (III) ERRORS OR DEFECTS WILL BE CORRECTED. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE TESSERA 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.
12.ASSUMPTION OF RISK
The value of digital assets and artwork is subjective. Digital assets, including NFTs, and artwork have no inherent value, and their prices can therefore be volatile. By purchasing or otherwise using any digital assets or artwork, you agree to assume all risks associated therewith, including the risk that the digital asset or artwork loses any or all of its value.
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 through the Services using a digital wallet, contains inherent risk. Such risks include but are not limited to: (i) risk of sudden asset price changes; (ii) risk of smart contract failure or exploit; (iii) risk of hardware, software, or connectivity failure; (iv) risk of malicious software; (v) risks of unauthorized access to your digital wallet; (vi) risk that you will no longer successfully retain ownership of or access to digital assets or artwork; (vii) risk that any data or any artwork becomes unavailable or decoupled from the digital asset, including, without limitation, because of an outage, data loss, or pursuant to a valid Digital Millennium Copyright Act takedown procedure; (viii) risk from regulatory inquiries, regulatory actions, legislation, or court rulings; and/or (ix) 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 digital assets, their market value, or digital funds.
- 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 Tessera 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 digital assets utilizing 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 Tessera. Tessera 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 digital assets, 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 Tessera is not a fiduciary and owes no duties to you, including the duty to ensure fair pricing of any digital assets or artwork.
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.
13.LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ANY TESSERA 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 TESSERA PARTIES’ CUMULATIVE DIRECT AND INDIRECT 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 TESSERA 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 TESSERA 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 TESSERA PARTIES TO DISCLAIM CERTAIN WARRANTIES OR LIMIT CERTAIN LIABILITIES, THE EXTENT OF TESSERA PARTIES’ LIABILITY AND THE SCOPE OF ANY SUCH WARRANTIES WILL BE AS PERMITTED UNDER APPLICABLE LAW.
You will indemnify the Tessera Parties for your use of the Services and blockchain technology. To the fullest extent permitted by applicable law, you agree to indemnify, defend, and hold harmless Tessera and the Tessera Parties from and against all actual or alleged 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 or any blockchain technology, 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: (i) your use or misuse of the Services, (ii) your violation of these Terms; (iii) your violation of any law, regulatory requirement, judgment, order, or decree; (iv) your violation of any rights of any third party, including another user of any digital wallet; (v) infringement or misappropriation of any kind of any materials provided or licensed to Tessera; (vi) any breach or non-performance of any representation, warranty, covenant, or agreement made by you; and (vii) your minting, creating, buying, selling, transferring, marketing, displaying, or promoting of any digital assets or artwork.
15.BREACH AND TERMINATION
If you breach these Terms, or any of our other terms that apply to you: (i) we may take action against you, including, among other things, suspending or denying your Profile or Wallet access to our Services or removing any of your artwork or content from our Services; and (ii) you acknowledge and agree that Tessera shall have no further obligation or responsibility to you including, without limitation, to distribute any royalties or other payments to you.
16.RESOLUTION OF DISPUTES; AGREEMENT TO ARBITRATE
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT 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 Disputes in good faith. Prior to commencing any legal proceeding of any kind against Tessera, 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 or 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. 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 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 resolved in arbitration. 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.
Arbitration will be governed by the rules identified herein. All Disputes between the parties arising hereunder shall be resolved by arbitration conducted by JAMS in New York, New York, before a single retired judge or professional arbitrator with relevant subject-matter experience in accordance with the then-current JAMS Streamlined Arbitration Rules and Procedures, and judgment upon any arbitral award may be entered by any court having jurisdiction thereof. If no single arbitrator can be agreed upon by the parties, the arbitrator shall be selected in accordance with the rules of JAMS. The arbitrator’s decision in any such arbitration shall be final and binding upon the parties; and the arbitrator shall be empowered to order specific performance and injunctive relief. The costs and fees of arbitration shall be allocated in accordance with the arbitration provider's rules, including rules regarding frivolous or improper claims. The arbitration will be governed by the Federal Arbitration Act. The prevailing party will be entitled to an award of their reasonable attorney’s fees and costs.
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 can 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 firstname.lastname@example.org 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 noted above, 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 Tessera within one year of the occurrence giving rise to such claim. Regardless of any statute or law to the contrary, any Dispute arising out of or relating, either directly or indirectly, to these Terms or the Services must be filed within one (1) year after such claim or cause of action arose, or will be forever barred.
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 Tessera 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 Tessera. Any purported assignment without Tessera’s prior written approval shall be null and void.
You may contact us at any time. If you have any questions, would like to provide feedback, or would like more information about Tessera, please feel free to email us at email@example.com.
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