Last modified September 1st, 2024.
These Terms of Service (these “Terms”) are a binding legal agreement between you and Mt. Billy, Inc. (“Brand Kit,” “we,” “us,” or “our”) and apply to Brand Kit’s online services, applications, tools, and other technology made available via https://Brandkit.fun and any successor links and associated webpages (the “Site”) (collectively, our “Services”).
BY AGREEING TO THESE TERMS, EXCEPT FOR (A) CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 15, (B) WHERE YOU EXERCISE YOUR RIGHT TO OPT OUT OF ARBITRATION AS DESCRIBED IN SECTION 15, OR (C) TO THE EXTENT PROHIBITED BY LAW, DISPUTES BETWEEN YOU AND BRAND KIT WILL BE RESOLVED SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, ANY OTHER KIND OF REPRESENTATIVE PROCEEDING, OR BY JURY TRIAL.
BY BROWSING THE SITE, CONNECTING A DIGITAL WALLET (AS DEFINED BELOW), OR OTHERWISE USING OUR SERVICES, YOU (I) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS, (II) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER OR OF LEGAL AGE REQUIRED IN YOUR JURISDICTION TO ENTER INTO A BINDING AGREEMENT, AND (III) ACCEPT THESE TERMS AND AGREE THAT YOU ARE LEGALLY BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE OUR SERVICES.
THESE TERMS CONTAIN IMPORTANT DISCLAIMERS AND LIMIT OUR LIABILITY, INCLUDING, WITHOUT LIMITATION, THE DISCLAIMERS IN SECTION 11, THE LIMITATION OF LIABILITY IN SECTION 12, AND THE RELEASES IN SECTION 13.
We may make changes to these Terms from time to time. If we make changes, we will provide you with notice of such changes, such as by sending an email, providing a notice through our Services, or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of our Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using our Services. notice, the amended Terms will be effective immediately, and your continued use of our Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using our Services.
Our Services are designed to enable the following transactions:
Our Services, including all intellectual property rights therein and thereto, are owned by Brand Kit or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to our Services, including all intellectual property rights therein and thereto, are reserved by us or our licensors. Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable right to access and use our Services. Any use of our Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the rights granted herein and violate our intellectual property rights.
Users may also purchase and/or sell blockchain-based non-fungible tokens, purchase and/or sell blockchain-based fungible tokens associated with the Digital Collectibles. TRANSACTIONS ARE CONDUCTED ON A SEPARATE MARKETPLACE OPERATED BY THIRD PARTIES AND ARE THEREFORE NOT INCLUDED IN, OR PART OF, OUR SERVICES. WE ACCEPT NO RESPONSIBILITY OR LIABILITY FOR THIRD PARTY TRANSACTIONS. Brand Kit does not endorse or make any representations or warranties regarding any third party transactions, including, without limitation, as to their effectiveness, reliability, accuracy, safety, or appropriateness, or your results. Your participation in any third party Transactions and interactions or communications with any third party marketplace or vendor is solely between you and the applicable Vendor (including, without limitation, being subject to any terms of service or terms of use governing such Transactions and/or Marketplace). Brand Kit is not responsible or liable in any manner for any Transactions or your interactions or communications with any Marketplace or Vendors, or for any loss, damage or harm of any sort incurred as the result of any of the foregoing. You participate in any Transactions, and interact with and communicate with such Marketplace and/or Vendors, at your own risk.
For information about how we collect, use, share or otherwise process information about you, please see our Privacy Policy.
• Eligibility Criteria: In order to use our Services, you must meet, and represent and warrant that you do meet, the following eligibility criteria: You must not be located in a country that is subject to the United States government embargo, or that has been designated by the United States government as a “terrorist supporting” country. You must not be listed on any United States government list of prohibited or restricted parties. You must be at least 18 years of age. • Use on Behalf of Others: If you use our Services on behalf of another person or entity, (a) all references to “you” throughout these Terms will include that person or entity, (b) you represent that you are authorized to accept these Terms on that person`s or entity`s behalf, and (c) in the event you or the person or entity violates these Terms, the person or entity agrees to be responsible to us.
You will be required to create and/or connect a Digital Currency wallet (each, a “Digital Wallet”) to access certain features of our Services. By creating and/or connecting your Digital Wallet, you acknowledge and agree that we have no control over, and expressly disclaim any and all responsibility and liability for, your Digital Wallet, including, without limitation, any Digital Collectibles Transactions (as defined below) you may effectuate or attempt to effectuate with your Digital Wallet. Without limiting the foregoing, you acknowledge and agree as follows: Third-Party Terms: Digital Wallets and related services are made available, supported, operated, and otherwise controlled by third parties, not Brand Kit (each, a “Wallet Service Provider”). Each Wallet Service Provider has separate terms and conditions that apply to its Digital Wallet, and by using such Digital Wallet, you will be bound by such terms and conditions. We are not a party to such terms and conditions and accept no responsibility or liability therefor. Security: You are solely responsible for maintaining the security of your Digital Wallet and control over any (a) assets (including, without limitation, United States dollars or other fiat currency (“Fiat Currency”), Digital Currency, and/or other assets) held in your Digital Wallet and (b) passwords, access keys (including, without limitation, private keys), or any other codes that you use to access your Digital Wallet. We do not control any of the foregoing. Any unauthorized access to your Digital Wallet by third parties could result in the loss or theft of assets held in your Digital Wallet (including, without limitation, Digital Currency accounts). We are not responsible for managing or maintaining the security of your Digital Wallet or for any unauthorized access to or use of your Digital Wallet. You are responsible for monitoring your Digital Wallet. No Responsibility for Losses: In providing your Digital Wallet address, you assume full responsibility and liability for any losses in connection with providing such address, including, without limitation, any loss resulting from errors, typos and inaccuracies in such address, designating an address that is non-compatible with the currency of payment, and blockchain malfunctions.
• Our Services enable Creators to offer Digital Collectibles and Tokens via time-limited releases of groups of Digital Collectibles over our product. Creators and/or Brand Kit may impose certain requirements, limitations, rules, conditions, and/or other criteria (collectively, “Criteria”) with respect to our releases, including, without limitation, (a) requirements and limitations on Users’ access to Digital Collectibles and Tokens (such as the possession of certain quantities of Digital Collectibles and Tokens, subscription to particular Channels, or other Criteria that a User must meet or fulfill in order to donate and/or acquire Digital Collectibles) and/or (b) minimum thresholds or requirements that Creators must meet or fulfill to release Digital Collectibles and Tokens or conditions on Creators’ ability to receive Digital Collectibles and Tokens or redeem Digital Currency (such as minimum obligations to periodically release Digital Collectibles via such Creator’s Channel). We accept no responsibility or liability for any (i) User inability to access a Digital Collectibles and Tokens, (ii) Creator inability to release a Digital Collectibles and Tokens, receive Digital Collectibles and Tokens, or redeem Digital Currency in connection with a Digital Collectible and/or Token, or (iii) the imposition or consequences of any Criteria (whether imposed by Brand Kit or a Creator). Without limiting the foregoing, Creators are solely responsible and liable for any Criteria they impose and Users are solely responsible and liable for meeting or otherwise fulfilling any Criteria. • Tokens: Tokens are not Fiat Currency and their use as Digital Currency is limited to the use cases described in these Terms. Tokens have no value (including, without limitation, cash value). Users may purchase, and Creators may create, Tokens only by following the procedures on our Services and Tokens may be purchased and redeemed only in the amounts set forth on our Services. We reserve the right, in our sole discretion, to change, modify, discontinue, or cancel Tokens at any time without notice to you or to otherwise limit your ability to access Tokens you may have already purchased, including, in each instance, with retroactive effect. Without limiting the foregoing, you acknowledge and agree that: (a) the Criteria for the purchase and/or redemption of Tokens may change from time to time without notice to you; (b) the qualifying Fiat Currency and/or Digital Currency that you may use to purchase and/or redeem Tokens may change from time to time without notice to you (e.g., we may change the Digital Currency with which Tokens may be purchased and/or for which Tokens may be redeemed); and (c) the quantity of Tokens that you may purchase and/or redeem may change from time to time without notice to you. We accept no responsibility or liability for the consequences of the foregoing actions, including, without limitation, any inability to purchase and/or redeem Tokens. • Transactions: Each acquisition of a Digital Collectible is referred to in these Terms as a “Digital Collectibles Transaction.” Each Digital Collectibles Transaction is between the transferor and the transferee, and those parties are solely responsible for the terms and conditions of the Transaction, including, without limitation, any rights to Digital Content therein and other benefits associated therewith (the “Digital Collectible Terms”). Brand Kit is not a party to any Digital Collectibles Transaction or any associated Digital Collectible Terms and has no responsibility or liability in connection therewith (including, without limitation, any responsibility or liability to mediate or otherwise participate in any disputes thereunder and any responsibility or liability for ownership, licensing, loss, or impairment of any intellectual property rights in any Digital Content). Digital Collectible Terms may include terms and conditions restricting or limiting exploitation of the Digital Collectible, including, without limitation, restrictions or limitations on use of intellectual property rights and/or restrictions or limitations on transfer or other commercial exploitation. You acknowledge that although the Digital Collectible is sold or otherwise transferred to you, the associated Digital Content may not be sold to you. Digital Collectibles Transactions are processed by third parties, not Brand Kit. We are not responsible or liable for processing Digital Collectibles Transactions, including, without limitation, any partially completed Digital Collectibles Transactions, delayed Digital Collectibles Transactions, mistakenly processed Digital Collectibles Transactions, or unprocessed Digital Collectibles Transactions, and we make no representations, warranties, or guarantees with respect to any Digital Collectibles Transaction, including, without limitation, that any Digital Collectibles Transaction will be timely processed or processed at all. Brand Kit may at any time and in its sole discretion refuse any Digital Collectibles Transaction request submitted via our Services, impose limits on the amounts of Digital Collectibles Transactions that can be completed on a daily or other periodic basis, or impose any other conditions or restrictions upon your use of our Services, without prior notice. For example, Brand Kit may: (A) limit the number of Digital Collectibles that can be acquired or issued on a daily or other periodic basis; or (B) restrict Digital Collectibles Transaction requests from certain locations or if there is a reasonable suspicion of fraud, diminished capacity, inappropriate activity. You represent and warrant that you are not relying on any communication (written or oral) of Brand Kit as advice or recommendation to engage in any Digital Collectibles Transaction, including, without limitation, any Digital Collectibles Transaction involving Digital Currency and that Brand Kit has not (1) given any guarantee or representation as to the potential success, return, effect, or benefit (either legal, regulatory, tax, financial, accounting, or otherwise) of transacting in Digital Currency or (2) made any representation to you regarding the legality of transacting in Digital Currency under applicable laws, rules, or regulations. Each acquisition of a Token is referred to in these Terms as a “Token Transactions.” Each Token Transaction is between the transferor and the transferee, and those parties are solely responsible for the terms and conditions of the Transaction, including, without limitation, any rights to Token Content therein and other benefits associated therewith (the “Token Terms”). Brand Kit is not a party to any Token Transaction or any associated Token Terms and has no responsibility or liability in connection therewith (including, without limitation, any responsibility or liability to mediate or otherwise participate in any disputes thereunder and any responsibility or liability for ownership, licensing, loss, or impairment of any intellectual property rights in any Digital Content). Token Terms may include terms and conditions restricting or limiting exploitation of the Token, including, without limitation, restrictions or limitations on use of intellectual property rights and/or restrictions or limitations on transfer or other commercial exploitation. You acknowledge that although the Token is sold or otherwise transferred to you, the associated Content may not be sold to you. Token Transactions are processed by third parties, not Brand Kit. We are not responsible or liable for processing Token Transactions, including, without limitation, any partially completed token Transactions, delayed Token Transactions, mistakenly processed Token Transactions, or unprocessed Token Transactions, and we make no representations, warranties, or guarantees with respect to any Token Transaction, including, without limitation, that any Token Transaction will be timely processed or processed at all. Brand Kit may at any time and in its sole discretion refuse any Token Transaction request submitted via our Services, impose limits on the amounts of token Transactions that can be completed on a daily or other periodic basis, or impose any other conditions or restrictions upon your use of our Services, without prior notice. For example, Brand Kit may: (A) limit the number of Tokens that can be acquired or issued on a daily or other periodic basis; or (B) restrict token Transaction requests from certain locations or if there is a reasonable suspicion of fraud, diminished capacity, inappropriate activity. You represent and warrant that you are not relying on any communication (written or oral) of Brand Kit as advice or recommendation to engage in any Token Transaction, including, without limitation, any Token Transaction involving Digital Currency and that Brand Kit has not (1) given any guarantee or representation as to the potential success, return, effect, or benefit (either legal, regulatory, tax, financial, accounting, or otherwise) of transacting in Digital Currency or (2) made any representation to you regarding the legality of transacting in Digital Currency under applicable laws, rules, or regulations. Payments: Fees: You will always be provided with a breakdown of fees prior to your purchase or redemption of Tokens, Digital Collectibles, or points. All payments made under these Terms will be made via an authorized Brand Kit payment processor (a) in U.S. Dollars or Digital Currency, as applicable, and (b) via your Digital Wallet. Royalties: Royalties are determined and distributed using so-called “smart contracts” (i.e., contracts that are automatically executed on a decentralized, distributed third-party blockchain or related network) or using a similar mechanism (collectively, “Smart Contracts”) and as such, all royalties are distributed automatically. Brand Kit will not be responsible for, and accepts no responsibility or liability in connection with, any technological issues with respect to the transfer of royalties, including, without limitation, any flaws, defects, forks, technical node issues, server issues, corrupted wallets, unauthorized access to applications, unauthorized third-party activities, or any technological issues related to Smart Contracts (collectively, “Flaws”). Any results or consequences arising from such Flaws may not be reversible or correctible.
Digital Content: The following licenses and terms apply to Creators: Ownership: As between you and Brand Kit, and subject to the licenses and rights granted in these Terms, you own all rights, title, and interest in and to your Digital Content. You represent and warrant that (a) your Digital Content is your original work, (b) you solely and exclusively own all rights, title, and interest in and to your Digital Content, (c) you have the unrestricted right to grant the rights and licenses granted under these Terms in your Digital Content free and clear of any encumbrances, liens, registrations, or claims of any nature, and (d) the Digital Content and use by Brand Kit of the Digital Content as licensed herein does not and will not violate, misappropriate, or infringe on the rights of any third party. License to Brand Kit: You hereby grant Brand Kit a non-exclusive, royalty-free, worldwide, transferable, sublicensable right and license to adapt, publish, distribute, perform, display, and otherwise exploit your Digital Content (including, without limitation, your or any third party’s name, signature, voice, image, likeness, performance, movements, personal characteristics, gestures, mannerisms and biographical information (“Persona”)) therein or therewith). You further irrevocably waive, and agree not to exercise, any moral rights or other rights with respect to attribution of authorship or integrity of any Digital Content (including any rights pursuant to 17 U.S.C. § 106A and any other rights of a similar nature granted by any federal, state, or foreign laws), which rights you may have under any applicable law under any legal theory. You hereby waive any and all claims that you now have or may hereafter have for infringement of any Digital Content licensed hereunder to us, or for any use or exploitation of any Persona in accordance with these Terms. License to Users: When you transfer a Digital Collectible or Token, you are wholly responsible for any rights and licenses granted to Users (including, without limitation, rights and licenses that may pass from a User to a User in a Peer-to-Peer Transaction) with respect to Digital Content therein. We are not responsible or liable for any loss or impairment of any rights (including, without limitation, intellectual property rights) in your Digital Content in connection with your (or any User’s) transfer of any Digital Collectibles. Creator Content Policy: As a condition precedent to your ability to use our Services (including, without limitation, your ability to post or otherwise display Digital Content), you expressly acknowledge and agree to the Creator Content Policy set forth on Exhibit A (the “Creator Content Policy”). Other User Content: The following licenses and terms apply to Users: You hereby grant to Brand Kit a royalty-free, fully paid-up, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, copy, modify, create derivative works of, display, perform, publish, and distribute, in any form, medium or manner, any text, information, data, documents, images, or other content you provide to Brand Kit using our Services (excluding, for clarity, any Digital Content displayed in connection with your use or other exploitation of a Digital Collectible) (the “User Content”). You represent and warrant that: (a) you own the User Content or have the right to grant the rights and licenses in these Terms; and (b) the User Content and use by Brand Kit of the User Content as licensed herein does not and will not violate, misappropriate, or infringe on the rights of any third party. Enforcement: Enforcement of this Section 6 (including, without limitation, the Creator Content Policy) is solely at Brand Kit’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. This Section 6 does not create any right or private right of action on the part of any third party or any reasonable expectation that our Services will not contain any content that is prohibited by these Terms or that objectionable material will be promptly removed after it has been posted. We do not undertake to review all Digital Content or User Content (collectively, “Content”), and we expressly disclaim any duty or obligation to undertake any monitoring or review of any Content. Although we have no obligation to screen, edit, or monitor Content, we may: Delete or remove Content or refuse to post any Content at any time and for any reason with or without notice, including without limitation for any violations of applicable law or these Terms; Terminate or suspend your access to all or part of our Services, temporarily or permanently, if Content is reasonably likely, in our sole determination, to violate applicable law or these Terms; Take any action with respect to Content that is necessary or appropriate, in Brand Kit’s sole discretion, to ensure compliance with applicable law and these Terms, or to protect Brand Kit’s rights, or to protect any third-party rights, including third-party intellectual property and privacy rights (e.g., providing information to copyright owners in furtherance of Digital Millennium Copyright Act (“DMCA”) takedown requests); and As permitted by law, cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting User Content on or through our Services.
• You will not violate any applicable law, contract, intellectual property right or other third-party right or commit a tort, and you are solely responsible for your conduct while using our Services. You will not: • Engage in any harassing, threatening, intimidating, predatory or stalking conduct; • Use or attempt to use another user’s account without authorization from that user and Brand Kit; • Impersonate or post on behalf of any person or entity or otherwise misrepresent your affiliation with a person or entity; • Sell, resell or commercially use our Services; • Copy, reproduce, distribute, publicly perform or publicly display all or portions of our Services, except as expressly permitted by us or our licensors; • Modify our Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Services; • Use our Services other than for their intended purpose and in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services in any manner; • Reverse engineer any aspect of our Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Services; • Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of our Services that you are not authorized to access; • Use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract data from our Services; • Develop or use any applications that interact with our Services without our prior written consent; • Send, distribute or post spam, unsolicited or bulk commercial electronic communications, chain letters, or pyramid schemes; • Bypass or ignore instructions contained in our robots.txt file; • Market our Services, any Digital Collectibles, or any Digital Currency explicitly or implicitly as an investment or an opportunity to obtain an economic benefit or profit, engage in any price manipulation activity with respect to our Services, any Digital Collectibles, or any Digital Currency, use, or advertise the use of, our Services, any Digital Collectibles, or any Digital Currency as a medium of exchange, or use our Services, any Digital Collectibles, or any Digital Currency to engage in any investment-related activities, including, without limitation, any speculative activity with respect to our Services, any Digital Collectibles, or any Digital Currency; or • Use our Services for any unauthorized purpose or in violation of applicable laws, rules, or regulations, or engage in, encourage or promote any activity that violates these Terms. Enforcement of this Section 7 is solely at Brand Kit`s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. In addition, this Section 7 does not create any private right of action on the part of any third party or any reasonable expectation that our Services will not contain any content that is prohibited by such rules.
In accordance with the DMCA and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, the accounts of users who repeatedly infringe the intellectual property rights of others. If you believe that anything on our Services infringes any copyright that you own or control, you may send us a written notice by following our Copyright Dispute Policy, which is incorporated by reference into these Terms.
Any sweepstakes, contests, raffles, surveys, games, or similar promotions (collectively, “Promotions”) made available through our Services may be governed by rules that are separate from these Terms. If you participate in any Promotions, please review the applicable rules as well as our Privacy Policy. If the rules for a Promotion conflict with these Terms, the Promotion rules will govern.
To the fullest extent permitted by applicable law, you will indemnify and hold harmless Brand Kit and our subsidiaries and affiliates, and each of our respective officers, directors, agents, partners and employees (individually and collectively, the “Brand Kit Parties”) from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Indemnifiable Claims”) arising out of or related to (a) your issuance or acquisition of any Digital Collectibles or Tokens; (b) your use of our Services; (c) your violation of these Terms or any terms or policies (including, without limitation, the Creator Content Policy) referenced in these Terms; or (d) your violation of any applicable laws, rules, or regulations (including, without limitation, (i) the Commodity Exchange Act and the regulations promulgated thereunder by the CFTC (as defined below), (ii) U.S. federal securities laws and the regulations promulgated thereunder by the SEC (as defined below) and (iii) U.S. state securities laws and the regulations promulgated thereunder by the applicable state regulatory authority) or the rights of any other person or entity. Additionally, you will, at Brand Kit’s sole election, defend Brand Kit and the other Brand Kit Parties from any Indemnifiable Claims. If Brand Kit directs you to defend an Indemnifiable Claim, then (A) Brand Kit has the right to approve the counsel you select to defend the Indemnifiable Claim and (B) Brand Kit may also have its own counsel participate in the defense and settlement of the Indemnifiable Claim at your expense. Brand Kit may also exclusively retain control of the defense of an Indemnifiable Claim, in which case you agree to cooperate with Brand Kit in defending such Indemnifiable Claim and pay all losses, liabilities, damages, expenses and costs associated therewith. You will not settle an Indemnifiable Claim without Brand Kit’s written consent.
Your use of our Services is at your sole risk. Except as otherwise provided in a writing by us, our Services, any content in our Services, AND ALL DIGITAL COLLECTIBLES AND TOKENS are provided “as is” and “as available” without warranties of any kind, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, Brand Kit does not represent or warrant that our Services are accurate, complete, reliable, current or error-free. we do not represent or warrant that our Services or servers are free of viruses or other harmful components. You assume the entire risk as to the quality and performance of our Services. WITHOUT LIMITING THE FOREGOING, YOU ASSUME THE ENTIRE RISK OF ENGAGING IN DIGITAL COLLECTIBLES AND TOKEN TRANSACTIONS, INCLUDING, WITHOUT LIMITATION, (A) ANY FRAUD, THEFT, MISREPRESENTATION, OR OTHER MISCONDUCT OF CREATORS OR OTHER USERS, (B) THAT ANY PRODUCTS OR SERVICES ACQUIRED FROM ANY CREATOR OR ANY OTHER USER (INCLUDING, WITHOUT LIMITATION, ANY DIGITAL COLLECTIBLES) IN DIGITAL COLLECTIBLES TRANSACTIONS MAY NOT BE MERCHANTABLE, FIT FOR ALL OR ANY PURPOSES, AUTHENTIC, OR OTHERWISE MEET YOUR EXPECTATIONS OR ANY REPRESENTATIONS MADE BY SUCH CREATOR OR USER WITH RESPECT TO SUCH PRODUCTS OR SERVICES (WHETHER VISUAL, WRITTEN, ORAL, OR OTHERWISE), (C) THAT THE CREATOR OR USER WITH WHOM YOU ENGAGE IN DIGITAL COLLECTIBLES AND TOKEN TRANSACTIONS HOLDS MARKETABLE TITLE TO THE PRODUCT OR SERVICE OFFERED OR SOLD TO YOU, OR THAT SUCH USER HAS THE RIGHTS NECESSARY TO CONVEY THE RIGHTS IN THE PRODUCT OR SERVICE PROVIDED TO YOU, AND (D) ANY OTHER CONDUCT OF THE CREATOR OR USER WITH WHOM YOU ENGAGE IN DIGITAL COLLECTIBLES AND TOKEN TRANSACTIONS. WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSS OF, AND TAKE NO RESPONSIBILITY FOR ANY USE OF, DIGITAL COLLECTIBLES, DIGITAL CURRENCY, TOKENS, OR FIAT CURRENCY, INCLUDING, WITHOUT LIMITATION, ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (I) USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED ADDRESSES; (II) SERVER FAILURE OR DATA LOSS; (III) CORRUPTED WALLET FILES; (IV) UNAUTHORIZED ACCESS TO APPLICATIONS; (V) ANY THIRD PARTY ACTIVITIES, INCLUDING, WITHOUT LIMITATION, (1) FRAUD, THEFT, MISREPRESENTATION, OR OTHER MISCONDUCT OR (2) THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK AGAINST OUR SERVICES, DIGITAL COLLECTIBLES, DIGITAL CURRENCY, OR FIAT CURRENCY; OR (VI) ANY OF THE MATTERS DESCRIBED IN SECTION 13 BELOW. DIGITAL CURRENCY ARE INTANGIBLE DIGITAL ASSETS. THEY EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED ON A BLOCKCHAIN. ANY TRANSFER OF TITLE THAT MIGHT OCCUR IN ANY DIGITAL CURRENCY OR OCCURS ON THE DECENTRALIZED LEDGER WITHIN THE APPLICABLE BLOCKCHAIN. WE DO NOT GUARANTEE THAT THE TRANSFER OF TITLE OR RIGHT IN ANY DIGITAL CURRENCY CAN BE EFFECTED. You are responsible for complying with all applicable laws, rules and regulations, including, but not limited to, the Commodity Exchange Act and the regulations promulgated thereunder by the U.S. Commodity Futures Trading Commission (“CFTC”), the U.S. federal securities laws and the regulations promulgated thereunder by the U.S. Securities and Exchange Commission (“SEC”), and any U.S. state securities laws and the regulations promulgated thereunder by the applicable state regulatory authority. You understand that Brand Kit is not registered or licensed by the CFTC, the SEC, or any financial regulatory authority. No financial regulatory authority has reviewed or approved the use of our Services. Our Services do not constitute advice or a recommendation concerning any commodity, security, or other asset. Brand Kit is not acting as an investment adviser or commodity trading adviser to any person or a money transmitter. Brand Kit is not your broker, lawyer, intermediary, agent, or advisor and has no fiduciary relationship or obligation to you regarding any other decisions or activities that you effect when using our Services. Neither our communications nor any information that we provide to you is intended as, or will be considered or construed as, advice. Brand Kit makes no recommendation and does not provide any advice about the value of any Digital Collectible or Digital Currency. EACH DIGITAL COLLECTIBLE OR TOKEN IS INTENDED FOR CONSUMER ENJOYMENT, USE AND CONSUMPTION ONLY. IT IS NOT A “SECURITY,” AS DEFINED UNDER THE U.S. FEDERAL SECURITIES LAWS, OR UNDER THE SECURITIES LAWS OF ANY U.S. STATE.
To the fullest extent permitted by applicable law, Brand Kit and the other Brand Kit Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, strict liability, warranty, or otherwise—for any indirect, consequential, exemplary, incidental, punitive or special damages or lost profits, even if Brand Kit or the other Brand Kit Parties have been advised of the possibility of such damages. The total liability of Brand Kit and the other Brand Kit Parties for any claim, regardless of the form of the action, arising out of or relating to these Terms or our Services is limited to the greater of $100 or the amount in USD paid by you for the products or services on our Services that gives rise to the liability. The limitations set forth in this Section 12 will not limit or exclude liability for the gross negligence, fraud or intentional misconduct of Brand Kit or the other Brand Kit Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.
There are risks associated with the acquisition, use, holding, exchange and transfer of, and otherwise transacting in, Digital Collectibles and Digital Currency and use of our Services that may cause you to incur financial losses including, without limiting, the following: • Your Digital Collectibles or Digital Currency may be stolen or accessed (or your Digital Collectibles may be copied) without your authorization, including, without limitation, due to theft, loss, or mishandling of applicable private keys; • You may be unable to collect Digital Collectibles or receive Digital Currency if you are unwilling or unable to create the applicable account or enter the applicable code or other mechanism for identifying your purchase transaction; • The existence of any Digital Collectible or Digital Currency may be compromised due to technological failure, technological progression, changes in operating rules of the underlying protocols of a Digital Collectible or Digital Currency (commonly known as “forks”), third-party attacks (including, without limitation, attacks on third-party systems on which our Services may rely, such as banks, credit card companies or networks, cloud computing services or data centers, or other Third-Party Services), or third party failures (including, without limitation, failures of third parties on which our Services may rely, such as bank failures that prevent depositor access to funds in those banks); • The value of Digital Currency or Digital Collectibles may be highly volatile (including, without limitation, rapidly decreasing or falling to zero), and any Digital Currency or Digital Collectible may lose some or all of its value due to, among other things, lack of demand, market manipulation, changes to applicable law, government regulation; • Information or instructions transmitted over the Internet may be delayed, interrupted, stolen, or altered due to software or hardware malfunction or third-party attacks; • Your Digital Currency or Digital Collectibles may be subject to scams or other types of fraud perpetrated by third parties; • The risks described in Section 11 with respect to Digital Collectibles Transactions may occur; and • Your Digital Wallet may not be a depository account and funds stored in your Digital Wallet may not earn any interest and may not be protected by any government-backed depositor compensation, insurance or guarantee scheme; You assume full responsibility and agree that Brand Kit will not have any responsibility or liability for any losses, damages, or other harm you may incur in connection with any or all such risks. You hereby irrevocably waive, release, and discharge any and all claims, whether known or unknown to you, against Brand Kit or any of the other Brand Kit Parties and their respective shareholders, members, directors, officers, employees, attorneys, agents, representatives, service providers, suppliers, and other business partners related to any of the risks set forth herein, any Digital Collectibles Transactions, disputes between users of our Services (including, without limitation, any disputes related to Digital Collectibles Transactions), or the acts or omissions of third parties (including, without limitation, the acts of any other users in connection with Digital Collectibles Transactions). You waive application of Section 1542 of the Civil Code of the State of California, or any similar statute or law of any other jurisdiction. Section 1542 reads as follows: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS, HER, OR THEIR FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM, HER, OR THEM, WOULD HAVE MATERIALLY AFFECTED HIS, HER, OR THEIR SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
In order for us to provide our Services, you agree that we may process, transfer and store information about you in the United States and other countries, where you may not have the same rights and protections as you do under local law.
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND Brand Kit TO ARBITRATE CERTAIN DISPUTES AND CLAIMS AND LIMITS THE MANNER IN WHICH WE CAN SEEK RELIEF FROM EACH OTHER. ARBITRATION PRECLUDES YOU AND Brand Kit FROM SUING IN COURT OR HAVING A JURY TRIAL. YOU AND Brand Kit AGREE THAT ARBITRATION WILL BE SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, OR ANY OTHER KIND OF REPRESENTATIVE PROCEEDING. Brand Kit AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY. NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS ARE ALLOWED UNDER THIS ARBITRATION AGREEMENT. (a) Informal Dispute Resolution Prior to Arbitration. For any dispute or claim that you have against Brand Kit, that Brand Kit has against you or that you have, or Brand Kit has, in each case relating in any way to these Terms or our Services, or any aspect of the relationship between you and Brand Kit as relates to these Terms or our Services (collectively, “Claims” and each a “Claim”), you and Brand Kit agree to attempt to first resolve the Claim informally via the following process. If you assert a Claim against Brand Kit, you will first contact Brand Kit by sending a written notice of your Claim (“Claimant Notice”) to Brand Kit by certified mail addressed to 7710 North FM 620, Building 13-D, Suite 111, Austin, Texas 78726 or by email to Hello@billypitch.com. The Claimant Notice must (i) include your name, residence address, email address, and telephone number; (ii) describe the nature and basis of the Claim; and (iii) set forth the specific relief sought. If Brand Kit asserts a Claim against you, Brand Kit will first contact you by sending a written notice of Brand Kit`s Claim (“Brand Kit Notice”) to you via email to the primary email address associated with your account. The Brand Kit Notice must (x) include the name of a Brand Kit contact and the contact’s email address and telephone number; (y) describe the nature and basis of the Claim; and (z) set forth the specific relief sought. If you and Brand Kit cannot reach an agreement to resolve the Claim within thirty (30) days after you or Brand Kit receives such a Notice, then either party may submit the Claim to binding arbitration as set forth below. The statute of limitations and any filing fee deadlines shall be tolled for thirty (30) days from the date that either you or Brand Kit first send a Claimant Notice or a Brand Kit Notice, so that the parties can engage in this informal dispute-resolution process. (b) Claims Subject to Binding Arbitration; Exceptions. Except for (i) small claims disputes in which you or Brand Kit seek to bring an individual action in small claims court located in the jurisdiction of your billing address or (ii) any disputes exclusively related to the intellectual property or intellectual property rights of you or Brand Kit, including any disputes in which you or Brand Kit seek injunctive or other equitable relief for the alleged unlawful use of your or Brand Kit`s intellectual property or other infringement of your or Bra`nd Kit`s intellectual property rights (“IP Claims”), all Claims, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, including Claims that are not related to intellectual property or intellectual property rights but are jointly filed with IP Claims, that are not resolved in accordance with Section 15(a) will be resolved by a neutral arbitrator through final and binding arbitration instead of in a court by a judge or jury. Such Claims include, without limitation, disputes arising out of or relating to interpretation or application of this arbitration provision, including the enforceability, revocability, or validity of the arbitration provision or any portion of the arbitration provision. The arbitrator will have the authority to grant any remedy or relief that would otherwise be available in court. (c) Federal Arbitration Act. These Terms affect interstate commerce, and the enforceability of this Section will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the extent permitted by law. As limited by the FAA, these Terms, and the AAA Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. (d) Arbitration Procedures. All Claims must be submitted to the American Arbitration Association (the “AAA”) and will be resolved through binding arbitration before one arbitrator. The AAA administers arbitration pursuant to the due process standards set forth by the AAA and rules set forth by the AAA, and the then-current version of the AAA’s Consumer Arbitration Rules, which are available on the AAA’s website (adr.org), as amended by these Terms as follows, will apply to any arbitration between you and Brand Kit: • YOU AND Brand Kit AGREE THAT ANY ARBITRATION UNDER THESE TERMS WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED, AND YOU AND Brand Kit ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitrator may conduct only an individual arbitration and, except as described below for the additional procedures to govern if twenty-five (25) or more similar or coordinated claims are asserted against Brand Kit or you by the same or coordinated counsel, may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding, or preside over any proceeding involving more than one individual. • For any arbitration you initiate, you will pay the consumer filing fee, and Brand Kit will pay the remaining AAA fees and costs. For any arbitration initiated by Brand Kit, Brand Kit will pay all AAA fees and costs. • For all arbitrations where the Claims asserted are $25,000 or less, the arbitration shall be resolved according to the AAA’s Procedures for the Resolution of Disputes through Document Submission, and for all other arbitrations the following procedure will apply: (i) the arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate; (ii) any in-person appearances will be held at a location that is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, and (iii) if the parties are unable to agree on a location, such determination will be made by the AAA or by the arbitrator. • If you or Brand Kit submits a dispute to arbitration and the arbitrator orders any exchange of information, you and Brand Kit agree to cooperate to seek from the arbitrator protection for any confidential, proprietary, trade secret, or otherwise sensitive information, documents, testimony, and/or other materials that might be exchanged or the subject of discovery in the arbitration. You and Brand Kit agree to seek such protection before any such information, documents, testimony, and/or materials are exchanged or otherwise become the subject of discovery in the arbitration. • In addition, the provisions of Federal Rule of Civil Procedure 68 shall apply and be enforced by the arbitrator. • The arbitrator’s decision will follow these Terms and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of these Terms, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in these Terms will preclude you from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against us for you. • The AAA Supplementary Rules for Multiple Case Filings and the AAA Multiple Consumer Case Filing Fee Schedule will apply if twenty-five (25) or more similar claims are asserted against Brand Kit or against you by the same or coordinated counsel or are otherwise coordinated. In addition to the application of the AAA Supplementary Rules for Multiple Case Filings and the AAA Multiple Consumer Case Filing Fee Schedule, you and Brand Kit understand and agree that, when twenty-five (25) or more similar claims are asserted against Brand Kit or you by the same or coordinated counsel or are otherwise coordinated, resolution of your or Brand Kit's Claim might be delayed. For such coordinated actions, you and Brand Kit also agree to the following coordinated bellwether process: Counsel for the claimants and counsel for Brand Kit shall each select ten (10) cases (per side) to proceed first in individual arbitration proceedings. The remaining cases shall be deemed filed for purposes of the statute of limitations but not for the purpose of assessing AAA fees. No AAA fees shall be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of a bellwether process. If the parties are unable to resolve the remaining cases after the conclusion of the initial twenty (20) proceedings, each side shall select another ten (10) cases (per side) to proceed to individual arbitration proceedings. A single arbitrator shall preside over each case. Only one case may be assigned to each arbitrator as part of a bellwether process unless the parties agree otherwise. This bellwether process shall continue, consistent with the parameters identified above, until all the claims included in these coordinated filings, including your case, are adjudicated or otherwise resolved. The statute of limitations and any filing fee deadlines shall be tolled for claims subject to this bellwether process from the time the first cases are selected for a bellwether process until the time your or Brand Kit’s case is selected for a bellwether process, withdrawn, or otherwise resolved. A court shall have authority to enforce this paragraph and, if necessary, to enjoin the mass filing or prosecution of arbitration demands against Brand Kit or you. (e) One Year to Assert Claims. To the extent permitted by law, any Claim or dispute by you or Brand Kit arising out of or related to these Terms or the Sites, or any aspect of the relationship between you and Brand Kit as relates to your use of the Sites, in each case other than IP Claims, must be filed within one year after such Claim or dispute arose; otherwise, the claim is permanently barred, which means that you and Brand Kit will not have the right to assert the Claim. (f) Opting Out of Arbitration. You have the right to opt out of binding arbitration within 30 days of the date you first accepted these Terms by providing us notice of your opt-out via email at Hello@billypitch.com or by certified mail addressed to 7710 North FM 620, Building 13-D, Suite 111, Austin, Texas 78726 . In order to be effective, the opt-out notice must include your full name, and mailing address, and email address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 17. (g) Rejection of Future Arbitration Changes. You may reject any change we make to Section 15 (except address changes) by personally signing and sending us notice within 30 days of the change via email at Hello@billypitch.com or by certified mail addressed to 7710 North FM 620, Building 13-D, Suite 111, Austin, Texas 78726. If you do, the most recent version of Section 15 before the change you rejected will apply. (h) Severability. If any portion of this Section 15 is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (i) the unenforceable or unlawful provision will be severed from these Terms; (ii) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of this Section 15 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 15; and (iii) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration. The litigation of those claims will be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 15 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 15 will be enforceable.
In making our Services available, Brand Kit (a) uses third-party hosting infrastructures and other technology or services and (b) may provide information about or links to third-party products or services ((a) and (b), “Third-Party Services” and the vendors that provide the Third-Party Services, the “Third-Party Vendors”). Brand Kit does not endorse or make any representations or warranties regarding any Third-Party Services or any Third-Party Vendors, including, without limitation, as to their effectiveness, reliability, accuracy, safety, or appropriateness, or your results. Your use of any Third-Party Services and interactions or communications with Third-Party Vendors is solely between you and the applicable Third-Party Vendor (including, without limitation, being subject to any terms of service or terms of use governing those Third-Party Services). Brand Kit is not responsible or liable in any manner for any Third-Party Services or your interactions or communications with Third-Party Vendors, or for any loss, damage or harm of any sort incurred as the result of any of the foregoing. You access and use such Third-Party Services, and interact with and communicate with such Third-Party Vendors, at your own risk.
Any dispute arising from these Terms and your use of our Services will be governed by and construed and enforced in accordance with the laws of the State of Delaware, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. With respect to any dispute that you raise and that is not subject to arbitration or cannot be heard in small claims court, you agree that such dispute may be heard, at Brand Kit’s sole election, in the state or federal courts of the State of Delaware and the United States, respectively.
We reserve the right to modify our Services or to suspend or stop providing all or portions of our Services at any time. You also have the right to stop using our Services at any time. We are not responsible for any loss or harm related to your inability to access or use our Services.
If any portion of these Terms (other than Section 15) is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (a) the unenforceable or unlawful provision will be severed from these Terms; (b) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of these Terms; and (c) the unenforceable or unlawful provision may be revised to the extent required to render the Terms enforceable or valid, and the rights and responsibilities of the parties will be interpreted and enforced accordingly, so as to preserve these Terms and the intent of these Terms to the fullest possible extent.
These Terms, including any terms referenced in these Terms, constitute the entire agreement between you and Brand Kit relating to your access to and use of our Services. Notwithstanding any other provisions of these Terms, all sections of these Terms that by their nature extend beyond the discontinuation of our Services or other termination of your access to our Services, including, without limitation, Sections 3 through 20, will survive termination or discontinuation. The failure of Brand Kit to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. You agree that communications and transactions between us may be conducted electronically. These Terms may not be transferred, assigned or delegated by you, by operation of law or otherwise, without our prior written consent, and any attempted transfer, assignment or delegation without such consent will be void and without effect. We may freely transfer, assign or delegate these Terms or our Services, in whole or in part, without your prior written consent.
Creator Content Policy You may not post to our Services, and represent and warrant that none of your Digital Content will contain, any images, music, videos, or other content or materials that: • Depicts, promotes, encourages, suggests, or otherwise furthers any hatred, bigotry or racism, terrorism, credible threats, or cruel, discriminatory, abusive, harassing, exploitative, or injurious acts against any person or animal, including, without limitation, self-injurious acts and human trafficking; • Infringes, misappropriates, or otherwise violates any laws or third-party intellectual property, publicity, or privacy rights, including, without limitation, any counterfeit images, music, videos, or other content or materials or otherwise without appropriate authorization; • Contains personal information of a third party; • Is obscene or libelous; • Constitutes disinformation or misinformation or is fraudulent; or • Otherwise could be considered harmful or objectionable (including, without limitation, anything that could harm or reasonably be likely to harm our (or any of our licensors’) names, brands, or reputations or contravenes applicable laws or our or our licensors’ policies or guidelines).