ECOSAPIENS NFT TERMS
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, THESE TERMS EXPLAIN SOME EXCEPTIONS AND HOW YOU CAN OPT OUT OF ARBITRATION.
EXPORT CONTROLS NOTICE: BY ACCESSING, USING, OR HOLDING ANY ECOSAPIENS NFTS, AS DEFINED BELOW, YOU REPRESENT THAT YOU ARE NOT A “SANCTIONED PERSON,” AS DEFINED BELOW.
Please carefully review these Terms. If you don’t agree with these Terms, you may not access, use, or purchase any NFTs identified herein or participate in any Utility (as defined below) associated therewith.
For more information on the ECOSAPIENS NFTs, please visit ecosapiens.xyz (the “Website”).
Background: ECOSAPIENS NFTs
ECOSAPIENS™ is a collection of digital collectible characters represented by non-fungible tokens (“ECOSAPIENS NFTs”) minted by a smart contract (the “Verified Smart Contract”). The Verified Smart Contract associates each ECOSAPIENS NFT with a piece of digital art featuring one of the ECOSAPIENS characters and its associated carbon offsets, trademarks, copyrights, artwork, logos, graphics, video, text, data and other associated materials (“ECOSAPIENS Characters”).
The owner of a digital wallet that holds a ECOSAPIENS NFT, as recorded by the Verified Smart Contract, holds the exclusive right to hold, sell, transfer, and execute blockchain transactions involving that ECOSAPIENS NFT (“Your ECOSAPIENS NFT”). Except for any ECOSAPIENS NFTs we own, ECOSAPIENS has no right or ability to seize, freeze, or otherwise modify the ownership of any ECOSAPIENS NFT.
ECOSAPIENS owns all rights, title, and interest in and to the ECOSAPIENS Characters, including any and all copyrights, trademarks, and other intellectual property rights therein. However, we grant you the License (defined below) to use the ECOSAPIENS Character associated with Your ECOSAPIENS NFT (“Your ECOSAPIENS Character”), subject to these Terms, for as long as you hold such ECOSAPIENS NFT, as set forth below.
Restrictions and Reservations.
Owner’s Representations and Warranties.
Limitation of Liability.
(a) Grant. Subject to your acceptance of, and compliance with, these Terms, including the restrictions and reservations set forth below, upon lawfully acquiring a ECOSAPIENS NFT, and for so long as you own that ECOSAPIENS NFT (both dates as recorded by the Verified Smart Contract) (the “License Term”), ECOSAPIENS grants to you an exclusive, universe-wide, royalty-free, sublicensable license to reproduce, distribute, prepare Derivative ECOSAPIENS Works (as defined below) based upon, publicly display, publicly perform, transmit, and otherwise use and exploit, Your ECOSAPIENS Character for any lawful non-commercial purpose, in any and all media, whether existing now or invented later (“License”). For the sake of clarity, and as further detailed below, the License does NOT grant you any rights to use any Ecosapiens trademark or any other trade names, copyrights or trademarks.
Restrictions and Reservations.
Reserved Rights. ECOSAPIENS reserves for itself, and does not grant to you, any rights to use any ECOSAPIENS Character, including Your ECOSAPIENS Character, in or as the basis for: (1) any artwork, media, or content associated with, linked to, accessed using, or sold as an NFT or other digital asset other than the ECOSAPIENS NFT; or (2) any audiovisual works that are eight (8) minutes or longer in duration including, without limitation, any motion pictures, animations, short films, Internet or social media videos, broadcasts, live streams, television shows, music videos, commercials, video games, or non-linear works including compilations of such duration.
Integrated ECOSAPIENS Character Only. The License extends only to Your ECOSAPIENS Character—meaning the complete selection and arrangement of all base layers, features, traits, attributes, and other elements that comprise Your ECOSAPIENS Character. Thus, while the License allows you to create and exploit Derivative ECOSAPIENS Works (defined below), the License does not grant you rights in any individual element of Your ECOSAPIENS Character or the license to exploit any individual element separate and apart from Your ECOSAPIENS Character.
Restrictions. You may not use any ECOSAPIENS Characters or ECOSAPIENS NFTs in any manner that: (1) is gratuitously pornographic or otherwise distasteful, offensive, or objectionable, as determined in ECOSAPIENS’s sole and absolute discretion; (2) expresses hate or encourages violence towards a person or group based on membership in a protected class, such as race, religion, gender, orientation, or disability; or (3) violates applicable law or these Terms.
All Other Rights Reserved. All rights not expressly granted herein including, without limitation, any storylines, character names, or backstories related to the ECOSAPIENS Characters, are reserved by us.
(i) These Terms do not grant you any rights in or to ECOSAPIENS’s (or any other) trade names or trademarks (collectively, “ECOSAPIENS TM Rights”), all of which are expressly reserved to ECOSAPIENS. You hereby agree that any ECOSAPIENS TM Rights you purport to acquire, together with any associated goodwill, shall automatically, immediately, and at your expense be assigned to ECOSAPIENS. For the sake of clarity, the ECOSAPIENS TM Rights do not include Your ECOSAPIENS Character, in which you may acquire trademark rights through the exercise of your rights in accordance with, and subject to, these Terms and applicable law.
(ii) Any application to register a trademark in Your ECOSAPIENS Character must be submitted during the License Term and must be based solely upon the actual use of the ECOSAPIENS Character in commerce and solely for the goods or services in connection with which the ECOSAPIENS Character actually has been used in commerce in the applicable jurisdiction as of the date of the application. Thus, you may not seek to register a trademark in any ECOSAPIENS Character on an “intent to use” basis or where you otherwise have not used such ECOSAPIENS Character in commerce.
(c) Derivative ECOSAPIENS Works. As between you and ECOSAPIENS, you own all rights, title, and interest in and to any “derivative work,” as defined by the United States Copyright Act, based upon Your ECOSAPIENS Character created during the License Term (“Derivative ECOSAPIENS Work”); provided, however, that (i) we retain the copyright in Your ECOSAPIENS Character underlying any Derivative ECOSAPIENS Work; (ii) your use of any Derivative ECOSAPIENS Work during and after the License Term is subject to these Terms; (iii) your use of any Derivative ECOSAPIENS Work after the License Term (i.e., after you sell or transfer Your ECOSAPIENS NFT) may require a license from the subsequent (i.e., then-current) owner of the ECOSAPIENS NFT; and (iv) your use is non-commercial.
Copyright Notice. You may include the following copyright notice with Your ECOSAPIENS Character: “ECOSAPIENS © 2023 Climaverse PBC.” (the “ECOSAPIENS Copyright Notice”). Subject to your compliance with these Terms, you may include a copyright notice identifying you, or such other person you designate, as the copyright owner of any Derivative ECOSAPIENS Work you create under the authority of the License during the License Term, provided that you also include the ECOSAPIENS Copyright Notice.
Copyright Registrations. Any application to obtain a copyright registration in Your ECOSAPIENS Character shall identify “Climaverse PBC” as the copyright owner of the ECOSAPIENS Character. Any application to obtain a copyright registration in a Derivative ECOSAPIENS Work may identify you or such other person you designate as the copyright owner and shall identify Your ECOSAPIENS Character as a preexisting work underlying the Derivative ECOSAPIENS Work.
Actions. To the extent applicable law authorizes you to bring a claim for infringement based upon the unauthorized use of Your ECOSAPIENS Character, you agree that (1) any such claim shall be based solely upon the unauthorized use of Your ECOSAPIENS Character, not another ECOSAPIENS Character—for example, on the ground that the other ECOSAPIENS Character is substantially similar to Your ECOSAPIENS Character; and (2) ECOSAPIENS may, in its sole discretion, join and, with your consent (which shall not be unreasonably withheld), take over control of the prosecution of any such action.
Termination of License. Upon the transfer of Your ECOSAPIENS NFT to a new owner, as recorded by the Verified Smart Contract: (1) your License hereunder and any sublicenses you granted during the License Term shall immediately and automatically terminate; (2) you must discontinue any use of Your ECOSAPIENS Character as a trademark or other source identifier; and (3) any trademark and corresponding registration obtained in connection with your exercise of the License shall be deemed abandoned unless duly transferred to the new ECOSAPIENS NFT owner under a separately negotiated written agreement.
Transfer of Carbon Offsets. Upon the transfer of Your ECOSAPIENS NFT to a new owner, as recorded by the Verified Smart Contract, the new owner shall take ownership of all carbon offsets associated with that ECOSAPIENS NFT.
Published ECOSAPIENS Works. If, during the License Term, you create and make available to the public a work using Your ECOSAPIENS Character (a “Published ECOSAPIENS Work”), you may, except as set forth herein, continue to use and exploit that Published ECOSAPIENS Work in accordance with these Terms after the License Term; provided, however, that: (1) you will be responsible for any obligations or liabilities arising from your continued use of the Published ECOSAPIENS Work after the License Term; and (2) this privilege does not allow you to use the ECOSAPIENS Character to create any new works or materials after the License Term. Thus, for example, after the License Term, you may sell off existing (at the time of transfer) inventories of merchandise featuring Your ECOSAPIENS Character that were created and offered for sale during the License Term, but the creation or distribution of any new merchandise or inventory featuring Your ECOSAPIENS Character would require a license from the new ECOSAPIENS NFT owner.
(d) License Back. You grant to ECOSAPIENS an irrevocable, perpetual, nonexclusive, universe-wide, royalty-free, sublicensable license to reproduce, distribute, prepare derivative works based upon, publicly display, publicly perform, transmit, and otherwise use and exploit Your ECOSAPIENS Character in any and all media, now existing or hereafter invented, for any purpose including, without limitation, to promote ECOSAPIENS and the ECOSAPIENS NFTs and for advertising, merchandising, and trade.
1. Utility. Owners of ECOSAPIENS NFTs may be offered different rights, benefits, entitlements, or other utility (collectively, “Utility”), but these Terms do not confer any Utility except as granted by the License. ECOSAPIENS makes no assurances of any Utility, and any Utility offered to owners by ECOSAPIENS, if any, shall be in ECOSAPIENS’s sole and absolute discretion. ECOSAPIENS reserves the right to deny or revoke Utility to any Owner that ECOSAPIENS, in its sole and absolute discretion, is acting contrary to the values of ECOSAPIENS’s community or otherwise in bad faith. To the extent any third party offers any Utility in connection with any ECOSAPIENS NFTs or subjects the same to additional terms and conditions (collectively, “Third-Party Terms”), you understand and agree that ECOSAPIENS 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. You
2. Creator Royalty. Upon Owner’s sale of their ECOSAPIENS NFT, Owner agrees to pay ECOSAPIENS a royalty equal to 5% of the purchase price (“Creator Royalty”). Owner’s payment of the Creator Royalty is a condition precedent to the new Owner’s right to purchase the ECOSAPIENS NFT and the rights granted by the License. Owner shall be deemed to have satisfied this condition if they sell their ECOSAPIENS NFT on a third-party exchange or marketplace that honors and collects the Creator Royalty. Sale of a ECOSAPIENS NFT on a third-party exchange or marketplace that does not honor and collect the Creator Royalty is strictly prohibited, and the Owner of a ECOSAPIENS NFT acquired through a sale that does not comply with these Terms shall not be entitled to receive any Utility, including any of the rights granted by the License, unless and until the Creator Royalty due from such sale is paid to ECOSAPIENS. In addition to all other rights and remedies afforded by law and equity, ECOSAPIENS shall be entitled to recover from a selling Owner who violates this provision all costs, including reasonable attorney’s fees, that ECOSAPIENS expends to enforce its right to collect the Creator Royalty from the selling Owner. For the sake of clarity, the term “sale” includes any transfer to a third party for value or other consideration.
Owner’s Representations and Warranties.
Owner represents and warrants that Owner:
(e) has the legal capacity to enter into these Terms;
(f) will only use and interact with ECOSAPIENS NFTs and ECOSAPIENS Characters as authorized and in accordance with these Terms and applicable law;
(g) in the exercise of its rights and obligations under these Terms, will comply with all applicable laws and will not violate any right of ECOSAPIENS, its licensors, or any right of any third party;
(h) has not and will not knowingly execute a transaction involving a ECOSAPIENS NFT or ECOSAPIENS Character with any person who is: (i) located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; or (ii) listed on any U.S. Government list of prohibited or restricted parties.
(i) shall only acquire ECOSAPIENS NFTs, if any, for Owner’s personal use and enjoyment, and does not have any expectation of profit or other income or value including, without limitation, from the resale of any ECOSAPIENS NFT, arising from, relating to, or in connection therewith.
(j) EACH ECOSAPIENS NFT AND ECOSAPIENS CHARACTER IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, ECOSAPIENS EXPLICITLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
(k) EACH ECOSAPIENS NFT IS AN INTANGIBLE DIGITAL ASSET THAT EXISTS ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED ON THE ETHEREUM BLOCKCHAIN. ANY TRANSFER OF OWNERSHIP THAT MIGHT OCCUR IN ANY UNIQUE DIGITAL ASSET OCCURS ON THE DECENTRALIZED LEDGER WITHIN THE ETHEREUM BLOCKCHAIN, WHICH ECOSAPIENS DOES NOT CONTROL.
(l) WE WILL NOT BE RESPONSIBLE OR LIABLE TO OWNER FOR ANY LOSS IN CONNECTION WITH ANY ECOSAPIENS NFT OR ECOSAPIENS CHARACTER AND TAKES NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO OWNER FOR, ANY USE OF OR INABILITY TO USE ANY ECOSAPIENS NFT OR ECOSAPIENS CHARACTER, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES, OR CLAIMS ARISING FROM: (I) USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED WALLET ADDRESSES; (II) THE BEHAVIOR OR OUTPUT OF ANY SOFTWARE, PROTOCOL, NODE SERVER ERROR OR FAILURE, OR DATA LOSS OR CORRUPTION; (III) ANY FEATURES, DEVELOPMENT, ERRORS, OR OTHER ISSUES WITH BLOCKCHAIN NETWORKS OR WALLETS; (IV) UNAUTHORIZED ACCESS TO ANY ECOSAPIENS NFT OR ECOSAPIENS CHARACTER; OR (V) THE ACTS OR OMISSIONS OF ANY THIRD PARTY.
(m) SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN CONSUMER CONTRACTS, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
4. Assumption of Risk. Owner accepts and acknowledges all risks associated with the following:
(a) The value of digital assets and artwork is subjective. Digital assets, including ECOSAPIENS NFTs, and artwork, including ECOSAPIENS Characters, have no inherent value. As a result, their market prices can be volatile. By purchasing or otherwise using any ECOSAPIENS NFT or ECOSAPIENS Character, you agree to assume all risks associated therewith, including the risk that the ECOSAPIENS NFT or ECOSAPIENS Character loses any or all of its value.
(b) ECOSAPIENS NFTs and ECOSAPIENS Characters may be used in a variety of ways, subject to these Terms. While we strongly encourage transparency, communication, and research prior to acquiring a ECOSAPIENS NFT, including as to how previous or existing exploitations of ECOSAPIENS Characters may affect the value of a ECOSAPIENS NFT, ECOSAPIENS is not responsible for verifying or providing information on how a ECOSAPIENS NFT or its ECOSAPIENS Character have been exploited. Additional research and documentation may be necessary or prudent.
(c) ECOSAPIENS is not responsible for determining or paying any taxes that apply to any Owner’s purchase, sale, or transfer of rights in any ECOSAPIENS NFT or ECOSAPIENS Character. As between the parties, Owner is solely responsible for determining what, if any, taxes apply to such transactions.
(d) Transacting on a blockchain, including, without limitation, signing or executing transactions using a digital wallet or cryptocurrency, contains inherent risk. Such risks include but are not limited to: (i) risk of sudden and drastic changes in the price of assets including cryptocurrency and NFTs; (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 NFTs; (vii) 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; (viii) risk from regulatory inquiries, regulatory actions, legislation, or court rulings; and/or (vi) 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.
(e) Transactions involving ECOSAPIENS NFTs and ECOSAPIENS Characters rely on third-party or decentralized platforms, systems, networks, protocols, or marketplaces. We do not maintain, control, or assume any obligations with respect to any of the foregoing. To the extent that ECOSAPIENS provides links or access third party platforms, sites, or other resources, it does so only as a convenience and is not responsible for the content, products, or services on or available from those third parties or through any content displayed thereon or for the results of Owner’s use thereof.
5. Not an Investment. Owner acknowledges and understands that neither ECOSAPIENS nor any of its related entities nor anyone working on their behalf, including their respective officers, directors, employees, representatives, agents, affiliates, licensees, successors, and assigns makes any representation regarding the likelihood of appreciation of the ECOSAPIENS NFTs or ECOSAPIENS Characters associated therewith nor any element thereof, and has no control whatsoever on the value of any NFT, including on any secondary markets, which are completely outside of the control of any of the foregoing parties.
6. Indemnity. Owner shall defend, indemnify, and hold ECOSAPIENS, its licensors, affiliates, representatives, and service providers, and each of them, and all of their respective officers, directors, employees, and agents (the “Indemnified Parties”) harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, expenses, and other similar results or occurrences (including attorneys’ fees) that directly or indirectly arise from or are related to or in connection with any claim, suit, action, dispute, demand, proceeding, occurrence, process, or other similar activity, that is initiated, made, brought, or financed by a third party (including any person who accesses or transacts using any ECOSAPIENS NFT or ECOSAPIENS Character, whether or not such person personally purchased a ECOSAPIENS NFT) against the Indemnified Parties, or on account of the investigation, defense, or settlement thereof, arising out of, related to, or in connection with: (a) your access to or use of any NFT marketplace or third-party or decentralized services or products, (b) your breach or alleged breach of these Terms, (c) your exercise or attempted exercise of the License, or (d) your actual or alleged violation of applicable law. Counsel to be used in the defense of such claim must be approved by ECOSAPIENS in writing prior to retention of such counsel and, upon our request, you will allow us to participate in the defense of any such claims. You will not enter into any settlement or compromise of any claim or litigation or that includes an admission of liability without our prior written consent.
Limitation of Liability.
(n) TO THE MAXIMUM EXTENT PERMITTED BY LAW, NO INDEMNIFIED PARTY WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE OR INTERACT WITH ANY ECOSAPIENS NFT OR ECOSAPIENS CHARACTER, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ECOSAPIENS OR ITS SERVICE PROVIDERS HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL ANY INDEMNIFIED PARTY’S CUMULATIVE LIABILITY HEREUNDER FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY EXCEED $100. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THESE TERMS HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
(o) UNDER NO CIRCUMSTANCES SHALL ANY INDEMNIFIED PARTY BE REQUIRED TO DELIVER TO YOU ANY VIRTUAL CURRENCY OR NFT 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 OR AN NFT, YOU AND WE AGREE THAT THE CALCULATION SHALL BE BASED ON THE LOWEST VALUE OF THE VIRTUAL CURRENCY OR NFT DURING THE PERIOD BETWEEN THE INITIAL INCIDENT RESULTING IN THE ACCRUAL OF THE CLAIM AND THE AWARD OF DAMAGES.
(p) THE RELEASE AND WAIVER OF LIABILITY CONTAINED HEREIN IS INTENDED TO BE AS BROAD AND AS INCLUSIVE AS IS PERMITTED BY APPLICABLE LAW, AND IF ANY PORTION HEREOF IS HELD INVALID, IT IS AGREED THAT THE BALANCE SHALL, NOTWITHSTANDING, CONTINUE IN FULL LEGAL FORCE AND EFFECT.
(q) BY PURCHASING OR OWNING OR ATTEMPTING TO ACQUIRE OR OTHERWISE USE ANY ECOSAPIENS NFT OR ECOSAPIENS CHARACTER, OWNER ACKNOWLEDGES THAT THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ECOSAPIENS AND OWNER.
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.
Mandatory Arbitration of Disputes. Any dispute, claim, or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation, or validity thereof, or the use of the ECOSAPIENS NFT or ECOSAPIENS Character (“Dispute”) must be resolved solely by binding, individual arbitration and not in a class, representative, or consolidated action or proceeding. Each party waives the right to a trial in court and/or by a jury. This arbitration provision shall survive any termination of the License or these Terms.
Exceptions. As a limited exception to the above: (i) the parties may seek to resolve a Dispute in small claims court if it qualifies; and (ii) each party retains the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of its intellectual property rights.
Conducting Arbitration and Arbitration Rules. 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 the county (or parish) where one lives, 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.
Arbitration Costs. Payment of all filing, administration, and arbitrator fees will be governed by the AAA Rules, including rules regarding frivolous or improper claims. The prevailing party will be entitled to an award of their reasonable attorney’s fees and costs.
Injunctive and Declaratory Relief. 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 ECOSAPIENS 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.
Arbitration Opt-Out. You can opt out of this arbitration agreement within thirty (30) days of the date you acquired Your ECOSAPIENS NFT. To opt out, you must provide written notice to ECOSAPIENS in person or by registered or certified mail, postage prepaid, or by recognized overnight courier, addressed to ECOSAPIENS at the address shown below, which notice must include your full name, 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.
3190 Scott Street San Francisco CA, 94123 US
Class Action Waiver. YOU AND ECOSAPIENS 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.
Severability. With the exception of any of the provisions of the Class Action Waiver Section, if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
Disputes Among Owners. ECOSAPIENS has no obligation to support the resolution of, or resolve any, dispute that may arise between or involve any ECOSAPIENS NFT owners.
7. Amendments. ECOSAPIENS reserves the right to clarify or amend these Terms by publicly publishing a new version of them, including, but not limited to, on tim.blog, tim.blog/Ecosapiens, Ecosapiens.com, or any successor or affiliated website.
8. Governing Law and Forum Choice. These Terms and any action related thereto will be governed by the U.S. Federal Arbitration Act, federal arbitration law, and the laws of the State of California, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in the Disputes Section, the exclusive jurisdiction for all Disputes (defined above) will be the state and federal courts located in Los Angeles, California, and you and ECOSAPIENS each waive any objection to jurisdiction and venue in such courts.
(a) Because virtually all public blockchains are licensed under open source licenses, it is possible that the blockchain may fork, merge, or duplicate the original blockchain that initially recorded ownership of Your ECOSAPIENS NFT. In such case, any rights granted to you under these Terms will be granted only to the lawful owners of such ECOSAPIENS NFT whose ownership is recorded on the mainnet version of the blockchain that is generally recognized and predominantly supported in the blockchain industry as the legitimate successor of the original blockchain (as determined in our sole discretion). Any rights purportedly granted hereunder to the owner of a ECOSAPIENS NFT recorded on any other blockchain is void ab initio.
(b) These Terms will transfer and be binding upon and will inure to the benefit of the parties and their permitted successors and assigns.
(c) These Terms constitute the entire agreement, and supersede any and all prior or contemporaneous representations, understandings, and agreements, between the parties with respect to the subject matter of these Terms, all of which are hereby merged into these Terms. Without limitation, the terms of any other document, publication, course of dealing, or course of trade will not modify these Terms, except as expressly provided herein or as the parties may agree in writing.
(d) Failure to promptly enforce a provision of these Terms or any rights related to the ECOSAPIENS NFT or ECOSAPIENS Character will not be construed as a waiver of such provision or rights.
(e) Nothing contained in these Terms will be deemed to create, or be construed as creating, a joint venture or partnership between the parties. Neither party is, by virtue of these Terms or otherwise, authorized as an agent or legal representative of the other party. Neither party is granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf or in the name of the other party. Nothing contained in these Terms will be deemed to create any third-party beneficiary right upon any third party whatsoever.
(f) The parties shall execute and deliver to the other party any and all such other instruments in reasonable mutually acceptable form and substance and shall take any and all such other actions as may be reasonably necessary to carry the intent of these Terms into full force and effect.
(g) If any one or more of the provisions of these Terms should be ruled wholly or partly invalid or unenforceable, then the provisions held invalid or unenforceable will be deemed amended, and the arbitrator, court, or other government body is authorized to reform the provision(s) to the minimum extent necessary to render them valid and enforceable in conformity with the parties’ intent as manifested herein.
(h) The headings to sections of these Terms are for convenience or reference only and do not form a part of these Terms and will not in any way affect its interpretation.
(i) Neither party will be afforded or denied preference in the construction of these Terms, whether by virtue of being the drafter or otherwise.
(j) For purposes of these Terms, the words and phrases “include,” “includes”, “including” and “such as” are deemed to be followed by the words “without limitation.”
(k) Owner may contact ECOSAPIENS by sending an email to email@example.com