Terms & Conditions
Welcome to Americana© We provide the new standard for collecting, where collectors curate their identity, protect their most prized possessions and connect with like-minded communities. Americana© is brought to you by Americana Technologies, Inc. (“ATI”, “we”, “us”, “our”). Through the Americana© website (the “Website”), ATI provides an opportunity for Website users (“Users”, “you”) to purchase tangible collectibles (“Collectibles”), including physical works of art, and to receive a non-fungible token representing that Collectible (“Americana NFT”).
PLEASE BE ADVISED: THESE TERMS CONTAIN PROVISIONS THAT GOVERN HOW CLAIMS BETWEEN YOU AND ATI CAN BE BROUGHT. THESE PROVISIONS REQUIRE YOU TO: (1) WAIVE YOUR RIGHT TO A JURY TRIAL, AND (2) SUBMIT CLAIMS YOU HAVE AGAINST ATI TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, GROUP OR REPRESENTATIVE ACTION OR PROCEEDING.
Please see the “Last Updated” date at the end of these Terms to determine if new Terms are applicable.
Use of the Website and Services
The content and information posted by us on the Website or through the Services may be used only for informational, personal, or other purposes authorized by us. By accessing and using the Website or Services, you represent and warrant that: (a) all information you submit, including account and payment information, is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you are 18 years of age or the age of majority in your jurisdiction, whichever is or older; and (d) your use of the Website or Services does not violate any applicable law, rule or regulation. While we may sell digital products that appeal to children, these products are intended for sale only to adults. The Website is a general use site and is not targeted toward anyone under the age of 18 years of age or the age of majority in your jurisdiction, whichever is or older. The Website and Services are intended for use by residents of the United States. Any non-U.S. residents that access or use the Website or Services agree to do so in accordance with U.S. laws and the Terms. Use of and access to the Website or Services is void where prohibited.
You may not use the Website for any unauthorized use or for any illegal or unlawful purpose. Any unauthorized use or violation of these Terms may immediately and automatically terminate your right to use and access of the Website or Services and may subject you to legal liability. Appropriate legal action may be taken for any illegal or unauthorized use of the Website or Services. We may remove any unauthorized content, links, etc. without notice. Some examples of unauthorized, illegal or unlawful use of the Website include, but are not limited to:
- Using the Website in a manner inconsistent with any applicable law, rule or regulation, including but not limited to trafficking in counterfeit or stolen goods or money laundering.
- Copying, modifying, displaying, performing, distributing, republishing, or retransmitting any content or material (including, by way of example, images and text), in whole or in part, from or on the Website without our prior written consent.
- Collecting usernames or email addresses of users for the purpose of sending unsolicited email.
- Criminal or tortious activity, including fraud, spamming, spimming (spam by instant message), sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets.
- Covering or obscuring the banner advertisements on the Website, if any, via HTML/CSS or any other means.
- Any automated use of any system, such as using scripts to alter content.
- Interfering with, disrupting, or burdening the Website or the networks, systems or Services connected to the Website.
- Using any automated system or software to extract data from the Website for commercial purposes (including “screen scraping”).
- Attempting to impersonate another user or person.
- Using the account, username, or password of another user or disclosing your password, as applicable, to any third party or permitting any third party to access your account.
- Displaying an advertisement, or accepting payment or anything of value from a third person in exchange for your performing any commercial activity on or through the Website on behalf of that person, such as placing commercial content on the Website.
- Using the Website for any harassing, threatening, libelous, abusive, obscene or privacy-invading purposes.
- Acknowledgment of Beta Product
You understand and acknowledge that from time to time, the Website and Services may include beta products (“Beta Products”). Such Beta Products will be designated as such either on the Website or in these Terms. By using a Beta Product, you acknowledge and agree that: (a) Beta Products are not an official product and have not been commercially released for use or sale by us; (b) the Beta Product may not operate properly, be in final form or fully functional; (c) the Beta Products may contain errors, design flaws or other problems; (d) it may not be possible to make the Services being tested in beta form fully functional; (e) the information obtained using the Beta Product may not be accurate and may not accurately correspond to information extracted from any database or other source; (f) use of the Beta Product may result in unexpected results, loss of data or communications, project delays or other unpredictable damage or loss; (g) ATI is under no obligation to release a commercial version of a Beta Product ; and (h) ATI has the right unilaterally to abandon development of the Beta Product, at any time and without any obligation or liability to you. You acknowledge and agree that you should not rely on the Beta Product for any reason. You are solely responsible for maintaining and protecting all data and information that is retrieved, extracted, transformed, loaded, stored or otherwise processed by the Beta Product. Beta Products may be subject to additional terms, which will be published in association with the specific Beta Product.
Access Granted by Something Tokens
From time to time, you may be able to purchase ATI-created tokens called “Something Tokens” on a third party marketplace or through peer-to-peer transactions by using ETH or other designated payment means. Past purchases of Something Tokens or future purchases of Something Tokens may grant you access to Beta Products, and may provide other benefits in future, as determined by ATI. Access to the Beta Products and any other benefits provided shall be in accordance with these Terms and shall be granted and terminated at our sole discretion. Possession of a Something Token does not guarantee you access to the Services in any form, including but not limited to the beta form of the Services. We reserve the right to, at our sole discretion, restrict, limit, or deny any privileges or benefits to any Something Token purchaser or holder, or to limit the period of time that any privileges or benefits are available, for any reason, at any time. We will not be liable for any loss or damage associated with the use of a third-party digital wallet holding your Something Token.
Design Feedback and/or Beta Testing
ATI is not obligated to provide any warranty, technical or customer support for the Beta Product, however, as part of the testing, you may have direct access to certain product engineers, who may support you directly through the testing process. You may be asked to allow access to the engineers for troubleshooting, testing, and tuning. This would involve any device that is part of the test environment.
You agree to provide feedback (“Feedback”) to ATI concerning the functionality and performance of a Beta Product from time to time, as reasonably requested by ATI, including, without limitation, identifying potential errors and improvements, ideas, suggestions, and modifications. You may also provide Feedback regarding ATI’s Services, either upon request of ATI, or upon your own initiative. ATI shall own all intellectual property rights in such Feedback and may use the same for any purposes, including to improve or enhance the Beta Product or its Services. ATI is under no obligation to use or incorporate the Feedback into any commercially available product. You warrant that the Feedback does not infringe the intellectual property rights of any third party, including patents, copyrights, or trade secrets, and that any Feedback is not subject to any license terms that require Americana to comply with any additional obligations if it were to use or incorporate such Feedback.
The following is a general description and definition of our “Services”: An ATI-curated selection of artists and collectors (“Featured Curators”) make their Collectibles available for purchase on the Website through the Americana marketplace (“Marketplace”). When they do so, the Collectibles they offer for sale are vaulted in an ATI-contracted storage facility (the “Vault”) and a non-fungible token using a high-resolution photograph of that Collectible (a “CNFT”) will be minted and listed on the Marketplace. The CNFT serves as proof of ownership of the related Collectible. The rightful holder of the CNFT is the owner of the associated Collectible and related rights and privileges (“Owner”). An Owner may choose to sell or otherwise transfer their ownership of a Collectible to another User (a “Buyer”) by transfer of the Collectible’s CNFT. Any sales or transfers are recorded on the Ethereum blockchain, when the CNFT is transferred from the Owner’s wallet to the recipient’s wallet. An Owner may contact ATI at any time to request that the Collectible be shipped from the Vault directly to them. WHEN A COLLECTIBLE IS REMOVED FROM THE VAULT, THE RELATED CNFT WILL BE SENT TO A BURN ADDRESS AND WILL NO LONGER BE AVAILABLE TO THE OWNER. At this time, ATI can only support shipment to United States addresses; non-U.S. based Users should take that into consideration when choosing whether to purchase a CNFT.
Purchasing and Selling a Collectible
All purchases of Collectibles are subject to these Terms. The initial listing and sale of a Collectible (“Initial Sale”) may only be made through the Marketplace. Transfers of the Collectible subsequent to the Initial Sale (“Secondary Transfer”), may be through the Marketplace or via private, peer-to-peer transfer or sale, but not through third-party trading platforms.
Secondary Transfers are evidenced by the transfer of the relevant CNFT from the seller’s wallet to a Buyer’s wallet. Any transfer of a CNFT THAT DOES NOT COMPLY WITH THESE TERMS will be null and void, and MAY cause ATI to freeze/immobilize your CNFT, OR OTHERWISE TAKE MEASURES TO MAKE YOUR CNFT NOT-TRANSFERABLE, and may lead to seizure AND/OR AUCTION of your Collectible, as set forth in the Storage Agreement.
The purchase price for either an Initial Sale or a Secondary Transfer shall be known as the “Purchase Price”. The Purchase Price for an Initial Sale shall be shown on the Marketplace listing for that CNFT. The Purchase Price of any Secondary Transfer is set by the Owner of record at that time (as evidenced by possession of the CNFT), and may be listed on the Marketplace or collected by the seller in a peer- to-peer transaction.
With respect to each Initial Sale, the agreement for sale is between us and the Initial Buyer. Any Secondary Transfer of ownership of a Collectible, evidenced by the transfer of its related CNFT, is an assignment of the seller’s rights and obligations under these Terms and an assumption by the Buyer of its rights and obligations under these Terms.
BY TRANSFERRING ITS CNFT TO A BUYER, A SELLER OF A COLLECTIBLE HEREBY TRANSFERS AND ASSIGNS ALL RIGHT, TITLE AND INTEREST IN THE COLLECTIBLE AND THE CNFT TO THE BUYER, AS WELL AS ALL RIGHTS AND OBLIGATIONS RELATING THERETO UNDER THESE TERMS.
BY RECEIVING THE TRANSFER OF A CNFT FROM A SELLER, A BUYER OF A COLLECTIBLE HEREBY ASSUMES ALL RIGHT, TITLE AND INTEREST IN THE COLLECTIBLE AND THE CNFT FROM THE SELLER, AS WELL AS ALL RIGHTS AND OBLIGATIONS RELATING THERETO UNDER THESE TERMS.
EACH SELLER OF A COLLECTIBLE HEREBY REPRESENTS AND WARRANTS THAT IT WILL NOTIFY THE BUYER OF THESE TERMS AND ENSURE THAT THE BUYER UNDERSTAND THAT THEY ARE OBLIGATED TO COMPLY WITH THESE TERMS.
If you sell a Collectible via the Marketplace, you are responsible for terminating all of your insurance agreements or policies and all other third-party agreements and relationships related to such sold Collectibles.
As stated above, by agreeing to these Terms you are also agreeing to the Storage Agreement, which has been incorporated herein by reference. The Storage Agreement sets out the terms on which an Owner’s Collectible(s) will be stored in the Vault, including Vault storage fees, the process for retrieving a Collectible from the Vault, and ATls and the Owner’s respective rights and remedies with respect to the same.
As stated above, WHEN A COLLECTIBLE IS REMOVED FROM THE VAULT, THE RELATED CNFT WILL BE SENT TO A BURN ADDRESS AND WILL NO LONGER BE AVAILABLE TO THE OWNER. At this time, ATI can only support shipment to United States addresses; non-U.S. based Users should take that into consideration when choosing whether to purchase a CNFT.
CNFTs are intended to function as a non-fungible utility token running on the Ethereum blockchain that evidence ownership of the related Collectible stored in the Vault. any and all sales, trades, gifts, or other transfers of a Collectible CNFT will also transfer ownership of the related CNFT and vice versa. CNFTs may also be enjoyed and displayed by Owners as digital art pieces, subject to the restrictions and requirements set forth in “Intellectual Property; Ownership and License” below. Notwithstanding the foregoing, nothing in these Terms should be construed as a representation or guarantee that any privileges or benefits whatsoever are or will be granted by virtue of holding a CNFT except for those privileges and benefits expressly described in these Terms. We reserve the right, at our sole discretion and to the extent allowable by law, to restrict, limit, or deny any privileges or benefits to any CNFT purchaser or holder, or to limit the period of time that any privileges or benefits are available, for any reason, at any time.
WE HAVE NO OBLIGATION OR LIABILITY TO YOU FOR KEEPING, STORING, OR HELPING YOU RECOVER ANY CNFT. THE SALE OF FRAUDULENTLY OBTAINED CNFT, CNFT TAKEN WITHOUT AUTHORIZATION, AND OTHER ILLEGALLY OBTAINED CNFT ON THE WEBSITE, OR THE SERVICES IS PROHIBITED. Listing illegally-obtained CNFT may result in a referral to law enforcement, your listings being canceled, your assets being hidden or blocked, or your account being suspended, frozen or terminated.
By acquiring one or more CNFTs, you understand, represent and warrant that:
- You are acquiring any CNFT (receiving a license to the applicable NFT Photo) solely for personal use or as a collector.
- You are not acquiring any CNFT (receiving a license to the applicable NFT Photo) as an investment dependent on anything other than market forces and/or your own efforts, and, as a CNFT holder, have no expectation of economic benefit or profit dependent on anything other than market forces and/or your own efforts.
- ATI makes no promises or guarantees regarding the current or future value of any CNFT.
- You will not acquire any equity or other ownership interest in ATI by virtue of owning a CNFT.
- You will not portray CNFTs as an investment or an opportunity to obtain an economic benefit or profit.
- You will inform any recipient of your CNFT of these Terms, and the fact that upon obtaining a CNFT they are bound to these Terms;
- You are not, nor will you , on behalf of yourself or any other person, transfer your interest in a CNFT to anyone who (i) appears on the Specially Designated Nationals and Blocked Persons List (“SDN List”) of the Office of Foreign Assets Control of the United States Department of the Treasury (“OFAC”), nor are otherwise a party with which ATI is prohibited to deal under the laws of the United States or other applicable law; (ii) is located in, or organized under the laws of a country or region subject to sanctions by OFAC, which may change from time to time but, as of the date of these Terms include, Crimea, Cuba, North Korea, Iran, Syria, and the Ukrainian regions of Luhansk and Donetsk; (iii) is a person identified as a terrorist organization on any other relevant lists maintained by any governmental authority.
Intellectual Property; Ownership and License of Collectibles and CNFTS
Users hereby agree to the following rights, obligations, and restrictions in connection with their use of the Website to buy, sell, and transfer ownership of Collectibles:
Intellectual Property Associated with a Collectible
- A purchaser of a Collectible through the Website is purchasing title to the Collectible and is not purchasing, and does not receive any ownership, right or license to or under, any intellectual property right covering the Collectible. Collectibles transferred using the Website may be the subject of certain intellectual property rights, including copyrights. Any intellectual property right associated with any Collectible transferred using the Website shall remain the property of the Featured Curator or of the original creator of the Collectible, and no such intellectual property rights shall be transferred pursuant to the transfer of a Collectible using the Website. A purchaser of a Collectible through the Website, whether an Initial Buyer or a Secondary Buyer, shall not obtain, in association with the purchase, any right to duplicate, reproduce, or create derivative works therefrom, and shall not otherwise commercialize any intellectual property associated with the Collectible.
- Intellectual Property Associated with a CNFT.
- In making a Collectible available for transfer using the Website, the Featured Curator of the Collectible authorizes ATI to capture a unique, digital photograph of the Collectible (the “NFT Photo”) and mint a non-fungible token associated with the Collectible and referencing the NFT Photo (the non-fungible token and the NFT Photo together comprising the CNFT), which non-fungible token will be used to record on the Ethereum blockchain any transfers of ownership of the Collectible using the Website or otherwise. To the extent, if any, that a Featured Curator of the Collectible is deemed to possess any right, title or interest, including without limitation of intellectual property rights, in or to a NFT Photo, Featured Curator hereby irrevocably assigns to ATI all such right, title and interest. A purchaser of a Collectible through the Marketplace shall obtain full ownership rights to the non-fungible token (computer code) and a limited, exclusive, royalty-free, revocable license to use and display the NFT Photo (i) for personal, non-commercial use; (ii) as part of the Marketplace. The limited license to use and display the NFT Photo is part-in- parcel to the CNFT, and the licensee is the holder of the Digital Wallet (as defined below) associated with the CNFT, who is also the Owner of the Collectible, which ownership may change from time to time as the Collectible is bought, sold, or transferred using the Marketplace or in a peer-to-peer transaction. ATI retains ownership of any and all intellectual property rights, including copyrights, associated with the NFT Photo and, notwithstanding the terms of the limited license granted pursuant to this section, retains all rights and authority associated therewith, including without limitation the rights to use, display, duplicate, reproduce, and/or create derivative works based upon the NFT Photo for marketing or promotional purposes or for any other internal or external business use.
- If the Collectible is a digital asset, ATI will receive such Collectible, wrap such Collectible into an ATI contract with a non-fungible token and return such Collectible as a wrapped non-fungible token into the Featured Curator’s wallet.
Website and Services License and Restrictions
We hereby grant you a limited, non-exclusive, non-transferable, revocable right to access and use the Website and Services. Our grant of such right to access and use is subject to the following conditions:
- You agree to use the Website and Services only for purposes that are legal, proper, and in accordance with these Terms.
- You agree not to engage in any activity which operates to defraud any ATI Party, other users, or any other person or company; or to provide any false, inaccurate, or misleading information to us.
- You agree not to utilize the Website and Services to engage in any lottery, bidding fee auctions, contests, sweepstakes, or other games of chance.
- You agree not to (1) distribute, publish, broadcast, reproduce, copy, retransmit, or publicly display any Website content; or (2) modify or create derivative works from the Website or Services, or any portion thereof, except as may be permitted by these Terms.
- You agree not to (i) incorporate the Website or Services into any other products or services, (ii) modify, create derivative, translate, reverse engineer, decompile, disassemble, (except to the limited extent expressly permitted by applicable law) the Website or Services; (iii) make unauthorized copies of any part of Website or Services; (iv) distribute, transfer or market the Services to third parties; (v) remove or modify any proprietary notices, labels or marks on or in the Website or Services.
- Your User Account and Your Digital Wallet
In order to transact on the Marketplace, you will be required to establish a User account with us, which will include some details that will serve as your profile on the Website as well as identification of the Ethereum-compatible digital wallet (“Digital Wallet”) that you wish to use to hold your CNFT. Without limiting any rights which we may otherwise have, we reserve the right to take any and all actions we deem necessary or reasonable to ensure the security of the Services your account and your Digital Wallet. This may include without limitation, terminating your account or requesting additional information to authorize transactions on your account. Notwithstanding the above, we may rely on the authority of anyone accessing your account or Digital Wallet and in no event and under no circumstances shall we be held liable to you for any liabilities or damages resulting from or arising out of: (i) any action or inaction of ATI under this provision, (ii) any compromise of the confidentiality of your account or Digital Wallet, or (iii) any unauthorized access to your account or Digital Wallet or use of your password(s). You may not use anyone else’s account at any time. You understand and agree you are solely responsible for taking the necessary security measures to protect your account, Digital Wallet, and personal information. ATI makes no warranty, guarantee, or representation that use of our Website or the Services are protected from viruses, security threats, or other vulnerabilities. We will not be liable for any loss or damage (of any kind and under any legal theory) to you or any third party arising from your inability or failure for any reason to comply with any of the foregoing obligations.
Payment and Fees
- Payment for Collectibles - Payment for any Collectible must be made at the time of sale of the Collectible, in one of the digital currencies/tokens accepted by ATI at the time of sale, a list of which can be found here and may change from time to time at ATI’s sole discretion. Payment will only be accepted from a registered User out of the Digital Wallet associated with their User Account. In the event of a refund or payment/transfer of payment token of any kind from ATI to a User, such transfer will be made only to a Digital Wallet associated with a User’s account.
- Vault Storage Fees - At this time, ATI is waiving its annual Vault storage fee for a period of twelve (12) months from date of purchase of a Collectible and may, in its sole discretion, extend the waiver period. If you are an Owner at the end of the Vault fee waiver period, you will be notified of the impending assessment of Vault storage fees at least two (2) months prior to ATI’s invoice and demand for payment, allowing you to arrange for de-vaulting prior to the assessment of the Vaulting fee if you so choose. If you do not de-vault your Collectible by the end of the waiver period, you hereby agree to pay the Vault storage fee within the amount of time specified on the invoice.
Gas Fees and Taxes
All aspects of the Services are on the Ethereum blockchain. Anytime you use any of the Services, your wallet will incur ‘gas fees.’ These fees are variable, and are not set by us. We do not receive the fees or any portion thereof. The gas fees are a third-party transaction for which we are not responsible as explained in the Third-Party Transactions section. You agree to pay any gas fees, transaction fees, or taxes applicable to any transaction related to your CNFT, use of the Website or Services. If you do not have sufficient Ethereum in your wallet to pay the gas fees for a Secondary Transfer, the transfer will not occur.
ATI respects the intellectual property rights of others and expects its users to do the same. In accordance with the Digital Millennium Copyright Act of 1998, the text of which may be found on the U.S. Copyright Office website at http://www.copyright.gov/legislation/dmca.pdf, ATI will respond expeditiously to claims of copyright infringement committed using the Website or its Services if such claims are reported to ATI’s Designated Copyright Agent identified in the sample notice below.
If you are a copyright owner, authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the Website by completing the following DMCA Notice of Alleged Infringement and delivering it to ATI’s Designated Copyright Agent. Upon receipt of Notice as described below, ATI will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged content from the Website.
DMCA Notice of Alleged Infringement (“DMCA Notice”)
We reserve the right to not act upon any notice that does not comply with the requirements listed below. In order to be actionable, any DMCA Notice must:
- Identify the copyrighted work that you claim has been infringed, or - if multiple copyrighted works are covered by this DMCA Notice - you may provide a representative list of the copyrighted works that you claim have been infringed.
- Identify the material or link you claim is infringing (or the subject of infringing activity) and to which access is to be disabled, including at a minimum, if applicable, the URL of the link shown on the Website or the exact location where such material may be found.
- Provide your company affiliation (if applicable), mailing address, telephone number, and, if available, email address.
- Include both of the following statements in the body of the DMCA Notice:
- “I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use).”
- “I hereby state that the information in this DMCA Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of, the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
- Provide your full legal name and your electronic or physical signature.
- Deliver this notice, with all items completed, to ATI’s Designated Copyright Agent: help americana.io.
These Terms shall remain in full force and effect while you use or access the Website or Services, or hold a CNFT.
You agree to indemnify, defend, and hold us, our parent companies, subsidiaries, affiliates, contractors, suppliers, business partners and licensors and each of our respective officers, agents, partners and employees (the “ATI Parties”) harmless from any claims and/or demand, loss, liability, fines, penalties and/or attorneys’ fees arising from due to or arising out of (1) your use of the Website or Services in violation of these Terms or additional terms or arising from a breach of these Terms or additional terms (including, without limitation, any breach of your representations and warranties set forth herein); (2) any allegation that any content or other material you have submitted or transmitted to the Website or through the Services, including, without limitation, any CNFT, infringe, misappropriate or otherwise violate the copyright, trademark, trade secret or other rights of any person; (3) your violation of applicable law; or (4) your activities or omissions in connection with the Website or Services. You further agrees to indemnify and hold the ATI Parties harmless against any and all liability, loss, damages, costs, claims, penalties, fines and/or expenses, including but not limited to reasonable attorney’s fees, which an ATI Party may hereafter incur, suffer or be required to pay by reason of such claims.
You hereby permit any ATI Party to assume and control (at the ATI Party’s expense) the defense of any such claim, suit or proceeding should an ATI Party choose to do so. In the event that any claim, suit or proceeding is brought against an ATI Party, it shall give notice to you of such claim, suit or proceeding by air dropping a notice NFT into your Digital Wallet.
DISCLAIMER OF WARRANTIES
YOUR USE OF THE WEBSITE AND SERVICES IS AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU ARE RESPONSIBLE FOR COMPLYING WITH THESE TERMS AND ALL APPLICABLE LAWS WITH RESPECT TO THE USE OF THE WEBSITE OR SERVICES. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS, THE WEBSITE AND SERVICES, INCLUDING ALL INFORMATION AND CONTENT MADE AVAILABLE ON OR ACCESSED THROUGH THE WEBSITE OR SERVICES, ARE MADE AVAILABLE TO YOU “AS IS” WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND. FURTHER, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, THE ATI PARTIES DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OF THE WEBSITE OR SERVICES, THEIR CONTENTS AND THE PRODUCTS OR SERVICES LISTED OR PURCHASED THROUGH THE WEBSITE. WE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE WEBSITE, SERVICES, OR ANY MATERIALS OR CONTENT CONTAINED THEREIN WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE WEBSITE, SERVICES, OR THE SERVER THAT MAKES THEM AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. TO THE FULLEST EXTENT PERMITTED BY LAW, THE ATI PARTIES SHALL NOT BE LIABLE FOR THE USE OF THE WEBSITE, OR SERVICES INCLUDING, WITHOUT LIMITATION, THE CONTENT AND ANY ERRORS CONTAINED THEREIN. CNFT ARE INTANGIBLE DIGITAL ASSETS THAT EXIST BY VIRTUE OF THE RECORD MAINTAINED ON A DIGITAL LEDGER. ANY TRANSFER OF TITLE THAT MIGHT OCCUR IN ANY UNIQUE DIGITAL ASSET OCCURS ON A DECENTRALIZED LEDGER. THE ATI PARTIES DO NOT GUARANTEE THAT THE TRANSFER OF TITLE OR RIGHT IN ANY DIGITAL ASSETS CAN BE EFFECTUATED. THE ATI PARTIES WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSS AND TAKE NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO YOU FOR ANY USE OF A CNFT OR A DIGITAL LEDGER, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (A) USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED ADDRESSES; (B) SERVER FAILURE OR DATA LOSS; (C) CORRUPTED DIGITAL WALLET FILES; (D) UNAUTHORIZED ACCESS TO APPLICATIONS; (E) ANY UNAUTHORIZED THIRD PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING OR OTHER MEANS OF ATTACK AGAINST THE WEBSITE, SERVICES OR A CNFT. THIS DISCLAIMER CONSTITUTES AN ESSENTIAL PART OF THESE TERMS.
Assumption of risk
The value of collectibles and associated tokens are subjective and therefore can be volatile. Any purchase or sale you make, accept or facilitate of a Collectible and its CNFT will be entirely at your own risk. Legislative and regulatory changes or actions at the state or federal level within the U.S. or in jurisdictions outside the U.S. may adversely affect the use, transfer, exchange, and value of collectibles and tokens. IT IS NOT INTENDED THAT YOUR CNFT WILL HAVE ANY INTRINSIC OR RESALE VALUE INDEPENDENT OF THE RESALE VALUE OF ITS RELATED COLLECTIBLE, AND THERE IS NO GUARANTEE THAT YOUR COLLECTIBLE WILL HAVE ANY RESALE VALUE AND YOU MAY FACE A COMPLETE RISK OF LOSS. You acknowledge that you have obtained sufficient information to make an informed decision to authorize, bid, purchase, or sell a Collectible and its related CNFT and that you have sufficient financial resources to withstand a complete risk of loss of the value of any Collectible with CNFT that you purchase. The ATI Parties do not and cannot guarantee that any Collectible with CNFT will retain their original value, and expressly deny and disclaim any liability to you for any losses you may incur by transacting, or facilitating transactions, with your Collectible with CNFT.
Transactions of a CNFT may be irreversible and, accordingly, losses due to fraudulent or accidental transactions may not be recoverable. Some transactions shall be deemed to be made when recorded on a public ledger, which is not necessarily the date or time that you initiated the transaction. Before making the decision to bid, buy, sell or hold a Collectible, you should conduct your own due diligence and consult your own financial advisors. The ATI Parties will not be held responsible for any decisions you make to bid, buy, sell, or hold any Collectible, CNFT or other digital assets based on the information provided by any ATI Parties.
Hacking is a prevalent problem within the distributed ledger ecosystem, including but not limited to hacks of the distributed ledgers themselves and digital wallets, and as this new technology develops, there are risks of systemic failure. Hacks and technological failures in the ecosystem may result in temporary or permanent errors or partial or complete loss of functionality, which can result in irreversible losses to you.
As stated above, FAILURE TO PAY STORAGE FEES OR ANY SECONDARY TRANSFER IN VIOLATION OF THESE TERMS MAY cause ATI to freeze/immobilize your CNFT, OR OTHERWISE TAKE MEASURES TO MAKE YOUR CNFT NON-TRANSFERRABLE, and may lead to seizure AND/OR AUCTION of your Collectible, as set forth in the Storage Agreement.
You agree and understand that you access and use the Services and CNFTs at your own risk; however, this brief statement does not disclose all of the risks associated with CNFTs and other digital assets. You agree and understand that we will not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience when using CNFT, however caused.
LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN OR ELSEWHERE, IN NO EVENT SHALL THE ATI PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOSS OF GOODWILL, LOSS OF REPUTATION, COST OF COVER DAMAGES OR INTANGIBLE LOSSES OF ANY KIND ARISING FROM THESE TERMS, THE TRANSACTIONS CONTEMPLATED UNDER THESE TERMS, YOUR USE OF THE WEBSITE OR SERVICES, YOUR INABILITY TO USE THE WEBSITE OR SERVICES, INCLUDING WITHOUT LIMITATION THE MARKETPLACE, OR THE PRODUCTS OR SERVICES AVAILABLE THROUGH THE WEBSITE, EVEN IF THE ATI PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN OR ELSEWHERE, THE TOTAL CUMULATIVE LIABILITY OF ATI PARTIES FOR ALL DAMAGES AND LIABILITIES ARISING FROM OR RELATING TO THESE TERMS, THE TRANSACTIONS CONTEMPLATED UNDER THESE TERMS, COLLECTIBLES, CNFTS, NFT PHOTOS, YOUR USE OF THE WEBSITE OR SERVICES, YOUR INABILITY TO USE THE WEBSITE OR SERVICES, INCLUDING WITHOUT LIMITATION THE MARKETPLACE, THE PRODUCTS OR SERVICES AVAILABLE THROUGH THE WEBSITE, THE STORAGE AGREEMENT, THE TRANSACTIONS CONTEMPLATED UNDER THE STORAGE AGREEMENT, THE LISTING AGREEMENT AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED UNDER THE LISTING AGREEMENT, REGARDLESS OF THE FORM OF ACTION (INCLUDING, BUT NOT LIMITED TO, ACTIONS FOR BREACH OF CONTRACT, NEGLIGENCE, INDEMNITY, STRICT LIABILITY, RESCISSION, MISREPRESENTATION AND BREACH OF WARRANTY) SHALL NOT, IN THE AGGREGATE, EXCEED THE FEES ACTUALLY PAID BY YOU TO US DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF YOUR FIRST CLAIM MADE UNDER OR RELATING TO THESE TERMS (OR THE TRANSACTIONS CONTEMPLATED HEREUNDER) FOR PRODUCTS AND SERVICES THAT ARE THE SUBJECT OF SUCH FIRST CLAIM. THE FOREGOING IS AN AGGREGATE CAP AND MULTIPLE INCIDENTS OR MULTIPLE CLAIMS WILL NOT INCREASE THE CAP. THE EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF AN EXCLUSIVE REMEDY OF YOU UNDER THESE TERMS HAS FAILED OF ITS ESSENTIAL PURPOSE.
Through your use of the Website and the Services, you may have the opportunity to engage in commercial or other transactions with other users, vendors and other third parties. You acknowledge that all transactions relating to any products or services offered by any third party, including but not limited to the purchase terms, payment terms, warranties, guarantees, maintenance, and delivery terms relating to such transactions, are agreed to be solely between the third-party seller or purchaser of such products and services and you, and that you will look solely to such third party to enforce any of your rights. In the event of any problem with the products or services that you have purchased from a third party you agree that you will address such issues with the third party, but all limitations of liability and other rights of ATI shall apply nonetheless.
ANY WARRANTY THAT IS PROVIDED IN CONNECTION WITH ANY PRODUCTS, SERVICES, MATERIALS OR INFORMATION AVAILABLE ON OR THROUGH THE WEBSITE FROM A THIRD PARTY IS PROVIDED SOLELY BY SUCH THIRD PARTY AND NOT BY US.
These Terms and your use of the Website will be governed by United States federal and Delaware law, regardless of the conflict of law provisions thereof and regardless of where you live or from where you access or use the Website or Services.
Arbitration; No Class Action
PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. Use or accessing the Website or Services constitutes your acceptance of this provision.
As a condition of using the Website or Services, you and we agree that any and all disputes, claims, and causes of action (collectively, “Claims”) arising out of or connected with these Terms, the Storage Agreement, the transactions contemplated under these Terms or the Storage Agreement, the Listing Agreement, the transactions contemplated under the Listing Agreement, Collectibles, CNFTs, NFT Photos, the Website or Services (except for small claims court Claims, if applicable) shall be resolved exclusively by binding arbitration under the rules of the American Arbitration Association (“AAA”), including the Supplementary Procedures for Consumer Related Disputes, for full and final settlement of such Claim applying the Federal Arbitration Act and other federal arbitration laws. YOU UNDERSTAND AND AGREE THAT YOU ARE WAIVING YOUR RIGHT TO SUE OR GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS UNDER THIS CONTRACT. YOU AND WE ALSO AGREE THAT (A) ANY AND ALL CLAIMS ARISING OUT OF OR CONNECTED WITH THESE TERMS, THE STORAGE AGREEMENT, THE TRANSACTIONS CONTEMPLATED UNDER THESE TERMS OR THE STORAGE AGREEMENT, THE LISTING AGREEMENT AGREEMENT, THE TRANSACTIONS CONTEMPLATED UNDER THE LISTING AGREEMENT, COLLECTIBLES, CNFTS, NFT PHOTOS, THE WEBSITE OR SERVICES WILL BE RESOLVED INDIVIDUALLY NOT AS A PLAINTIFF OR CLASS REPRESENTATIVE, MEMBER OF OTHERWISE ON BEHALF OF OTHERS IN ANY PROPOSED CLASS, COLLECTIVE, OR REPRESENTATIVE PROCEEDING AND NOT THROUGH ANY CLASS ACTION, (B) IF A SUCH CLAIM PROCEEDS IN COURT ANYWAY, WE BOTH WAIVE ANY RIGHT TO A JURY TRIAL; AND (C) NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN OR ELSEWHERE EITHER YOU OR WE (OR BOTH) MAY SEEK A COURT INJUNCTION REGARDING INTELLECTUAL PROPERTY INFRINGEMENT. ARBITRATION DOES NOT INVOLVE A JUDGE OR JURY. Although court review of an arbitration award may be limited, an arbitrator is empowered to award the same damages and relief as a court, including injunctive relief or statutory damages. Notwithstanding the foregoing, either party may seek temporary or emergency equitable relief to enforce its rights in any court of competent jurisdiction.
You may seek arbitration of a Claim by contacting our registered agent at: Corporation Service Company - 251 Little Falls Drive, Wilmington, DE 19808. The arbitration may be conducted via telephone, written submissions or in person in a mutually agreed location. Payment of all filing, administration, arbitrator and/or mediator fees (“Arbitration Fees”) will be governed by AAA’s rules. The AAA’s rules are available at: www.adr.org or call 800-778-7879 (toll-free) for instructions on how to obtain a copy. Unless the AAA arbitrator determines that your Claim was frivolous, we will (i) reimburse you for the Arbitration Fees paid by you, and (ii) will not seek reimbursement from you for our attorneys’ fees and costs associated with the arbitration. You and we further agree that an award and any judgment confirming it only applies to the arbitration in which it was awarded and cannot be used in any other proceeding except to enforce the award itself and any post-arbitration action seeking to enforce an arbitration award or action seeking equitable or injunctive relief shall be brought exclusively in the courts of the State of Delaware, or the United States District Court for the District of Delaware. For any Claims that are not subject to arbitration, if any: (a) the exclusive jurisdiction and venue for proceedings involving Claims shall be the courts of competent jurisdiction sitting within the State of Delaware (the “Forum”), and the parties hereby waive any argument that any such court does not have personal jurisdiction or that the Forum is not appropriate or convenient; (b) you and we waive any and all rights to trial by jury with respect to any Claims.
Your account on the Website is personal to you and may not be transferred or assigned.
If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect.
Contact Information - ATI can be contacted at [email protected]