fanOP Entertainment Inc. ® is the operator of Fanaply.com, a distributed application that runs on the Ethereum network using custom-built Smart Contracts to allow Users to purchase, own and sell ERC-721 non-fungible-tokens that the User can view and interact with on the Fanaply website. Using the fanOP App, Users may also acquire, upgrade, and sell NFTs to other Tech users and/or upgrade their NFTs through the purchase of upgrades, each of which is also an ERC-721 token on the Ethereum blockchain. The Upgrades are also created using specially developed Smart Contracts to enable users to add borders, skins, and other enhancements to their tokens as they wish and to own and purchase as they would an NFT. Some Upgrades may also make users eligible to receive goods and services directly from our Partners, as discussed below.
You may access our Incorporated Policies by clicking on the following links:
IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS OR ANY INCORPORATED POLICY, PLEASE DO NOT ACCESS OR USE THE TECH, INCLUDING FANAPLY.COM, OR ANY RELATED PRODUCTS AND SERVICES, AND EXIT THEM IMMEDIATELY. BY ACCESSING OR USING THE TECH, RELATED PRODUCTS AND SERVICES, OR ANY PART OF THEM, OR BY CLICKING “I ACCEPT” BELOW OR INDICATING YOUR ACCEPTANCE IN AN ADJOINING BOX, YOU ARE CONFIRMING THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS.
If you are accepting these Terms on behalf of a company or other legal entity, You represent that You have the legal authority to accept these Terms on that entity’s behalf. If You do not have such authority, or if You do not accept all of these terms, then we are unwilling to make the Tech, Related Products and Services or any part thereof available to You of the entity that You represent.
3. MODIFICATION OF TERMS
We reserve the right, at our sole discretion, to modify, amend or update these Terms of from time to time, by posting the modified, amended or updated Terms on the Tech thirty (30) days before the modification, amendment or update becomes effective. You acknowledge and agree that it is Your responsibility to periodically review the Tech and these Terms and that Your continued use of the Tech or related Products and Services thirty (30) days after the modifications, amendments or updates are posted by Us will constitute acknowledgement and acceptance of the modified, amended or updated Terms. If at any time, You do not agree to the most recent version of our Terms, You must immediately terminate your access to and use of the Tech and related Products and/or Services.
4. DEFINITIONS AND TERMS
a. “fanOP”, ‘Us”, “We” or “Our” refers to fanOP Entertainment Inc., its subsidiaries, officers, directors, divisions, agents, employees, licensors, representative and affiliates.
b. “User”, “You” or “Your” and collectively “Users” refers to individuals or entities that access and use The Tech, or purchase, sell, view, interact with an NFT, Upgrade, or Upgraged NFT, or Digital Collectible Token using The Tech.
c. The “Parties” refer to fanOP and You collectively and “Party” refers to fanOP or You individually.
e.“Site” refers to the website operated by fanOP at www.fanaply.com
f. “Smart Contracts” refer to the custom built smart contracts that are used to create, sell, and manage each NFT or Upgrade;
g. “Application” refers to mobile device applications offered by fanOP for download by Users pursuant to the terms offered by the User’s mobile device’s operating system;
h. “The Tech”” refers to Smart Contracts, the Site and Application collectively
i. “Ethereum” refers to the Ethereum BlockChain Platform offered by the Etherium Foundation.
j. “NFT(s)” refers to a limited edition, collectible ERC-721 non-fungible token that is made and may be viewed using the Tech on the Ethereum blockchain,.
k. “Upgrade(s)” refers to limited edition, collectable ERC-721 borders, skins, expansion packs and other enhancements hat may be added-on to an NFT and be viewed using the Tech on the Ethereum blockchain.
l. “Upgraded NFT(s)” refers to the combined and NFT and Upgrade which may be created using the App.
m. “Collectible Digital Tokens” may sometimes be used to refer to NFTs, Upgrades and Upgraded NFTs collectively.
o. “Related Products and Services” refers to any product or service that may, on occasion, be offered and provided by fanOP on The Tech, but does not include any product or service that is offered on t The Tech by any third party.
p. “Third Party Provider” refers to a network, site or product, as selected by the User, for purpose of using the Tech.
q. “Partners” refer to musicians/artists, festivals, venues and others with whom have contracted to make NFTs and Upgrades available pursuant to licensing terms between the Partners and Us.
r. “Upgrade Accommodations” refer to offers that may be made by Partners to certain Users who have acquired certain Upgrades.
s. “External Sites” refers to hyperlinks to other websites or resources that are provides solely as convenience to Users.
t. “User Content” refers to any content that is offered, contributed, or posted by a User of the App.
5. THE TECH
Only some portions of the Tech are publicly avaialable to all visitors to be generally accessed, read and browsed. In order to use the Tech:
a. You must install a web browser (such as the Google Chrome web browser) to access the Site and/or download the Application on Your mobile device as permitted through Your mobile device’s Operating System.
b. You must create an account with fanOp by providing accurate and complete registration information. As part of creating Your account, You will be required to provide us with certain information about You and create a unique User Name and Password. Depending on Your choices to purchase, interact with or use NFTs, Upgrades, or other Products and Services, You may be required to provide additional identifying or financial information. YOU AGREE THAT YOU WILL NOT SHARE AND ARE EXCLUSIVELY REESPONSIBLTE TO SAFEGUARD YOUR USER NAME AND PASSWORD FOR YOU EXLUSIVE USE. By creating an account, you agree to provide accurate, current and complete account information about yourself, and to maintain and promptly update as necessary your account information. You will have the ability to maintain and periodically update your registration as necessary as You see fit. You understand that fanOp is relying on on the truth, accuracy and completeness of the information that you provide in order to offer You the Tech, and/or related Products and Services. You are responsible for the security of your account with Us and with any Third Party Provider that You use in connection with the Tech, including the accuracy of the truth and accuracy of the information including If you become aware of any unauthorized use of your password or of your account with Us, you agree to notify us immediately at email@example.com. You agree to indemnify and hold harmless the Company from any damage, claim or injury allegedly sustained by You, fanOp or any individual or entity as a result of Your deliberate or negligent disclosure of Your User Name and Password to anyone, to the fullest extent of the law permitted by law.
c. fanOp does not warrant that an Application is or will be available for use with all mobile device operating systems. fanOp neither owns nor controls any Third Party Provider that you might access, visit, or use for the purpose of enabling you to use the various features and functions offered through the Tech do we endorse any Third Party Provider over another for use with the Tech. The selection of any Third Party Provider is solely within Your discretion. We recommend that You visit the websites of Third Party Providers that offer the products and services needed to access the Tech, to determine the terms and limitations that may apply to Your use of their products and services. Under no circumstance will We be liable for the acts or omissions of any Third Party Providers or their products and services, nor will we be liable for any damage that You may suffer as a result of your transactions or any other interaction with any such Third Party Providers.
6. fanOP’s RARE, UNIQUE AND UPGRADABLE NFT AND UPGRADE COLLECTION
a. Our initial generation of NFTs and Upgrades have been created in cooperation with partners with whom we have entered into certain agreements concerning the NFTS, Upgrades, and Upgraded NFTs. We will release a defined number of each NFT and make them available for purchase on the Tech. Each NFT is defined by a Smart Contract (that is available for anyone to view) that will enforce a hard limit on the total number of each EFT or Upgrade that can be created. Once the Smart Contact and EFT is created, the total supply can never be increased.
b. Upgrades are also defined by Smart Contracts and thus can also never be increased in quantity once they are issued.
c. In some circumstances, some partners may offer Users with certain Upgrades the opportunity to obtain Upgrade Accommodations, such as products, services, discounts or VIP tickets, or other accommodations. Whether, to what extent and under what circumstances any Partner may offer Upgrade Accommodations is solely and exclusively in the discretion and control of the Partner. fanOP does not warrant that any Upgrade Accommodation will be offered in connection with any Upgrade. fanOP acts solely as an intermediary between You and the Partner in regard to the Upgrade Accommodation and will, under no circumstance have any liability relating to, arising from or in connection with any Upgrade Accommodation that is offered or purchased.
7. OWNERSHIP; LICENSE; RESTRICTIONS
For the purposes of this section, the following terms will mean:
“Art” means any expression or application of human creative skill or imagination which includes, without limitation, any designs, imagery, drawings, or pictures in any form or media.
“Own” means to possess legal right, title, and interest.
“IP” means any copyrights (including copyright applications and registrations), trademarks (including trademark applications and registrations), trade dress (including trade dress applications and registrations), trade secrets, patents (including patent applications, patent disclosures, and issued patents), inventions, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world, including, but not limited to, any Art, designs, systems, methods, information, computer code, software, services, “look and feel”, organization, compilation of content, code, and data.
“Third Party IP” means any IP owned or licensed by a third party.
B. Ownership of NFTs, Upgraded NFTs, and fanOp Materials
You Own any NFTs and Upgraded NFTs that you purchased or otherwise rightfully acquired from a legitimate source, where proof of such purchase or acquisition is recorded on the relevant blockchain. This means that you have the right to sell, trade, donate, give away, transfer, or otherwise dispose of any such NFT or Upgraded NFT that you Own. Ownership of the NFT or Upgraded NFT is mediated entirely by the Smart Contract and the Ethereum Network. At no point will we seize, freeze, or otherwise modify the ownership of any NFT or Upgraded NFT. You hereby grant to fanOp a paid-in-full, royalty-free, worldwide, sub-licensable, perpetual license, to use and display any NFT, or Upgraded NFT, owned by you to advertise, market, or otherwise promote: (i) the fanOp Materials (defined below); and (ii) any other goods or services provided by fanOp or fanOp’s licensors, artists, or other partners.
Notwithstanding the forgoing, you acknowledge and agree that fanOp (or, as applicable, fanOp’s licensors) Owns: (i) the Tech; (ii) all elements of the Tech; (iii) all domains and websites affiliated with the Tech; (iv) all elements of the domains and websites affiliated with the Tech; and (v) all IP rights arising out of points (i) through (iv) above. Points (i) through (v) are collectively referred to as the “fanOp Materials.” You acknowledge that the fanOp Materials are protected by certain laws affecting intellectual property and other proprietary rights. All fanOp Materials are the copyrighted property of fanOp, or its licensors, artists, or other partners, and all trademarks, service marks, and trade names associated with the fanOp Materials are proprietary to fanOp or its licensors, artists, or other partners.
Except as expressly set forth herein, your use of the fanOp Materials does not grant you any ownership of, or any other rights in, the fanOp Materials. We reserve all rights in the fanOp Materials that are not expressly granted to you in these Terms. For the sake of clarity, except as expressly set forth herein, you understand and agree that: (a) your purchase of any NFT or Upgraded NFT does not give you any rights or licenses in the fanOp Materials (including, without limitation, any copyrights in the Art associated with, or embodied in, any NFT or Upgraded NFT); (b) you do not have the right to reproduce, distribute, or otherwise commercialize any elements of the fanOp Materials (including, without limitation, the Art associated with, or embodied in, any NFT or Upgraded NFT) without our prior written consent which we may withhold in our sole discretion; and (c) you will not apply for, register, or otherwise use, or attempt to use, any IP associated with the fanOp Materials anywhere in the world without our prior written consent which we may withhold at our sole discretion.
C. Limited License to Art Associated With, or Embodied in, any NFT or Upgraded NFT
You acknowledge and agree that you do not Own any Art associated with, or embodied in, any NFT or Upgraded NFT. All such Art is owned by fanOp or fanOp’s licensors, artists, or other partners, including, but not limited to, certain third-party artists. Subject to your compliance with these Terms, fanOp grants you a limited worldwide, non-exclusive, non-transferable, non-sublicensable, revocable, royalty-free license to use and display Art associated with, or embodied in, any NFT or Upgraded NFT that you Own solely for the following purposes:
(i) for your own personal, non-commercial use;
(ii) as part of a marketplace that permits the purchase, sale, donation, trade, give-away, transfer, or disposal of your NFT or Upgraded NFT, provided that the marketplace cryptographically verifies each NFT or Upgraded NFT owner’s rights to display the Art for their NFT or Upgraded NFT to ensure that only the actual owner can display such Art; or
(iii) as part of a third party website or application that permits the inclusion, involvement, or participation of your NFT or Upgraded NFT, provided that the website or application cryptographically verifies each NFT or Upgraded NFT owner’s rights to display the Art for their NFT or Upgraded NFT to ensure that only the actual owner can display such Art, and provided that the Art is no longer visible once the owner of the NFT or Upgraded NFT leaves the website or application.
You agree that you may not, nor permit, assist, or enable, any third party to do, or attempt to do, any of the foregoing without fanOp’s express prior written consent:
(i) apart from your right to use Upgrades, modify the Art embodied in your NFTs or Upgraded NFTs in any way, including, without limitation, the shapes, designs, drawings, attributes, or color schemes;
(ii) use the Art embodied in your NFTs or Upgraded NFTs to advertise, market, promote, or sell any product or service;
(iii) use the Art embodied in your NFTs or Upgraded NFTs in connection with images, videos, or other forms of media that depict hatred, intolerance, violence, cruelty, or anything else that could reasonably be found to constitute hate speech or otherwise infringe upon the rights of others;
(iv)use the Art embodied in your NFTs or Upgraded NFTs in movies, videos, or any other forms of media, except to the limited extent that such use is expressly permitted in these Terms or solely for your own personal, non-commercial use;
(v) sell, distribute for commercial gain (including, without limitation, giving away in the hopes of eventual commercial gain), or otherwise commercialize merchandise that includes, contains, displays, features, or consists of the Art embodied in your NFTs or Upgraded NFTs, except as expressly permitted in these Terms;
(vi) attempt to trademark, copyright, or otherwise acquire any IP rights in the Art embodied in your NFTs or Upgraded NFTs; and
(vii) otherwise utilize the Art embodied in your NFTs or Upgraded NFTs for your, or any third party’s, commercial benefit.
You acknowledge that certain Art embodied in your NFTs or Upgraded NFTs may be licensed to fanOp by fanOp’s licensors, artists, or other partners, including, but not limited to, third-party artists. Depending on the nature of the license granted by fanOp’s licensors, artists, or other partners, fanOp may implement additional restrictions on your ability to use or display the Art. To the extent that fanOP informs you of such additional restrictions in writing (e-mail is permissible), you will be responsible for complying with all such additional restrictions from the date that notice is transmitted to you and failure to do so will be deemed a breach of these Terms.
All restrictions in this section will survive the expiration or termination of these Terms.
E. Other Terms of License.
The license granted in section 6.C above applies only to the extent that you continue to Own the applicable NFTs or Upgraded NFTs. If at any time you sell, trade, donate, give away, transfer, or otherwise dispose of your NFTs or Upgraded NFTs, you have no rights in or to the NFTs or Upgraded NFTs, including, but not limited to, the Art embodied therein.
Your failure to comply with the Terms, including, without limitation, your failure to comply with the above restrictions will result in the termination of any license provided by these Terms.
F. Your Feedback.
You may choose to submit Feedback, such as comments, bug reports, ideas or other comments about the App, including without limitation about how to improve the App. By submitting any Feedback, you agree that we are free to use such Feedback at our discretion and without additional compensation to you, and to disclose such Feedback to third parties (whether on a non-confidential basis, or otherwise). You hereby grant us a perpetual, irrevocable, nonexclusive, worldwide license under all rights necessary for us to incorporate and use your Feedback for any purpose.
8. YOUR OBLIGATIONS
You agree that You are responsible for your own conduct while accessing or using the App, the conduct of any individual who accesses or uses the Tech using your account for any purpose with Your permission, and for any consequences thereof. You agree to use the Tech only for purposes that are legal, proper and in accordance with these Terms and any applicable laws or regulations. By way of example, and not as a limitation, You may not, and may not allow any third party to:
(i) send, upload, distribute or disseminate content that is unlawful, defamatory, harassing, abusive, fraudulent, obscene, that We, in our sole discretion, deem to be objectionable;
(ii) distribute viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or any other items of a destructive or deceptive nature;
(iii) impersonate another person (via the use of an email address or otherwise);
(iv) upload, post, use, transmit or otherwise make available through the Tech any content that infringes the intellectual proprietary rights of any party;
(v) use the Tech to violate any legal rights (such as rights of privacy and publicity) of others;
(vi) engage in, promote, or encourage illegal activity (including, without limitation, money laundering);
(vii) interfere with other users' enjoyment of the Tech; (viii) exploit the Tech for any unauthorized commercial purpose;
(ix) modify, adapt, translate, or reverse engineer any portion of the Tech;
(x) remove any copyright, trademark or other proprietary rights notices contained in or on the Tech or any part of it;
(xi) reformat or frame any portion of the Tech;
(xii) display any content on the Tech that contains any hate-related or violent content or contains any other material, products or services that violate or encourage conduct that would violate any criminal laws, any other applicable laws, or any third party rights;
(xiii) use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Tech or the content posted on the Tech, or to collect information about its users for any unauthorized purpose;
(xiv) create user accounts by automated means or under false or fraudulent pretenses; or
(xv) access or use the Tech for the purpose of creating a product or service that is competitive with any of our products or services.
If fanOP determines or has reason to suspect, in its sole and exclusive discretion, that You have engaged in any of the activity prohibited by this Section, or any other objectionable conduct, we may, at our sole and exclusive discretion, without notice to you, and without limiting any of our other rights or remedies at law or in equity, immediately suspend or terminate your user account and/or delete your Fanaply’ images and descriptions from the Tech and the Site. If we delete your Fanaply’ images and descriptions from the Tech and/or the Site, such deletion will not affect your ownership rights in any Collectible Digital Tokens that you already Own.
If You choose to purchase one or more Collectible Digital Token or any Related Products and Services, You agree to pay all associated fees. All fees are due and must be paid prior to receiving the Products and Services that You select. If You sign up for any Related Products and Services that are ongoing and incur reoccurring charges (e.g., subscription fees), then such charges will be billed in advance.
We do not process credit cards or take other payment processing information at this time. Payment processing is handled through third-party services, such as Paypal .com. Please note that Your use of a third-party payment service is subject to the terms and conditions of that third-party payment service. Fanop will have no obligations and liabilities in connection with, related to or arising out of Your use of the third payment services. Notwithstanding the foregoing, You will remain liable for all amounts owed to Us unless and until payment is made by the third-party payment service.
10. OVERDUE AMOUNTS
If for any reason, You do not make timely payment of all amounts owed by You to Us, such as because Your credit card company declines or otherwise refuses to pay the amount owed for the Products and Services You have purchased, You agree that We may, at our sole discretion, suspend or terminate performance or delivery of Products and Services, and may require You to pay any overdue amounts incurred (including any third-party chargeback fees or penalties) by other means acceptable to Us. In the event legal action is necessary to collect on balances due, You agree to reimburse Us for all expenses incurred to recover sums due, including, but not limited to, reasonable attorney’s fees and other legal expenses.
a. You may terminate Your Account at any time by canceling Your account on the Tech and discontinuing Your access to and use of the Tech.. You will not receive any refunds if you cancel Your account nor will Your any fees that You incurred by prior to Your cancellation.
b. You agree that We, in Our sole discretion and for any or no reason, may terminate the Tech and Related Products and Services and/or suspend and/or terminate Your account(s) for the App. You agree that any suspension or termination of the Tech or Your access to it may be without prior notice, and that We will not be liable to You or to any third party for any such suspension or termination. Termination of the Tech, Related Products or Services or suspension or termination Your access to or use of the Tech, or Related Products and Services due to Your breach of these Terms or any suspected fraudulent, abusive, or illegal activity, is without waiver and in addition to any other remedies we may have at law or in equity.
c. Upon any termination of the Tech or Your Account, whether by You or Us, You may no longer have access to information that You have posted on the Tech or that is related to Your account. You acknowledge that We will have no obligation to maintain any such information in Our databases or to forward any such information to You or to any third party . However, Your Collectible Digital Tokens will remain available for viewing and/or trade in Your wallet .
Sections 1.C and 3 through 16 will survive the termination or expiration of these Terms for any reason .
A. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR ACCESS TO AND USE OF THE TECH IS AT YOUR SOLE RISK, AND THAT THE TECH IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WE, OUR SUBSIDIARIES, AFFILIATES, AND LICENSORS MAKE NO EXPRESS WARRANTIES AND HEREBY DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE TECH AND ANY PART OF IT INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, CORRECTNESS, ACCURACY, OR RELIABILITY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE, OUR SUBSIDIARIES, AFFILIATES, AND LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (I) YOUR ACCESS TO OR USE OF THE TECH WILL MEET YOUR REQUIREMENTS, (II) YOUR ACCESS TO OR USE OF THE TECH WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, (III) USAGE DATA PROVIDED THROUGH THE TECH WILL BE ACCURATE, (III) THE TECH OR ANY CONTENT, SERVICES, OR FEATURES MADE AVAILABLE ON OR THROUGH THE TECH ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (IV) THAT ANY DATA THAT YOU DISCLOSE WHEN YOU USE THE TECH WILL BE SECURE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN CONTRACTS WITH CONSUMERS, SO SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
B. YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET, AND AGREE THAT WE HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY BREACH OF SECURITY UNLESS IT IS DUE TO OUR GROSS NEGLIGENCE.
C. WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSSES YOU INCUR AS THE RESULT OF YOUR ACCESS TO OR USE OF THE ANY THIRD PARTY PROVIDERS, (SUCH AS, FOR EXAMPLE, THE ETHEREUM NETWORK, OR AN ELECTRONIC WALLET), INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (i) USER ERROR, SUCH AS FORGOTTEN PASSWORDS OR INCORRECTLY CONSTRUED SMART CONTRACTS OR OTHER TRANSACTIONS; (ii) SERVER FAILURE OR DATA LOSS; (iii) CORRUPTED WALLET FILES; OR (iv) UNAUTHORIZED ACCESS OR ACTIVITIES BY THIRD PARTIES, INCLUDING BUT NOT LIMITED TO THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK AGAINST THE TECH, ETHEREUM NETWORK, AN ELECTRONIC WALLET OR OTHER THIRD PARTY PROVIDER.
D. COLLECTIBLE DIGITAL TOKENS ARE INTANGIBLE DIGITAL ASSETS THAT EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE ETHEREUM NETWORK. ALL SMART CONTRACTS ARE CONDUCTED AND OCCUR ON THE DECENTRALIZED LEDGER WITHIN THE ETHEREUM PLATFORM. WE HAVE NO CONTROL OVER AND MAKE NO GUARANTEES OR PROMISES WITH RESPECT TO SMART CONTRACTS.
E. FANOP IS NOT RESPONSIBLE FOR LOSSES DUE TO BLOCKCHAINS OR ANY OTHER FEATURES OF THE ETHEREUM NETWORK OR ANY ELECTRONIC WALLET, INCLUDING BUT NOT LIMITED TO LATE REPORT BY DEVELOPERS OR REPRESENTATIVES (OR NO REPORT AT ALL) OF ANY ISSUES OF ANY DESCRIPTION IN REGARD TO THE BLOCKCHAIN SUPPORTING THE ETHEREUM NETWORK.
13. LIMITATION OF LIABILITY
A. YOU UNDERSTAND AND AGREE THAT WE, OUR SUBSIDIARIES, AFFILIATES, AND LICENSORS WILL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES WHICH YOU MAY INCUR, HOWSOEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, ANY LOST EARNINGS, LOSS OF PROFITS (WHETHER INCURRED DIRECTLY OR INDIRECTLY), LOSS OF GOODWILL OR BUSINESS REPUTATION, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR ANY OTHER INTANGIBLE LOSS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
B. YOU AGREE THAT OUR TOTAL, AGGREGATE LIABILITY TO YOU FOR ANY AND ALL CLAIMS IN CONNECTION WITH, ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR ACCESS TO OR USE OF (OR YOUR INABILITY TO ACCESS OR USE) ANY PORTION OF THE TECH, OR ANY OF ITS PARTS, OR ANY RELATED PRODUCT AND SERVICE, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, IS LIMITED TO THE GREATER OF (A) THE AMOUNTS YOU ACTUALLY PAID US UNDER THESE TERMS IN THE 12 MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE, OR (B) $100.
C. YOU ACKNOWLEDGE AND AGREE THAT WE HAVE MADE THE TECH AVAILABLE TO YOU AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN, WHICH REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN THE PARTIES AND FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN US. WE WOULD NOT BE ABLE TO PROVIDE THE TECH TO YOU WITHOUT THESE LIMITATIONS.
D. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, AND SOME JURISDICTIONS ALSO LIMIT DISCLAIMERS OR LIMITATIONS OF LIABILITY FOR PERSONAL INJURY FROM CONSUMER PRODUCTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO PERSONAL INJURY CLAIMS.
14. REPRESENTATIONS AND WARRANTIES BY YOU
As a condition of fanOPs’ offer of Collectible Digital Tokens, the Tech and its parts, and Related Products and Services, You have made and fanOP has relied on the following representations and warranties by You:
a. You understand that Collectible Digital Tokens are blockchain assets whose prices are extremely volatile. Fluctuations in the price of these and other digital assets could materially and adversely affect the value of your Collectible Digital Tokens, which may also be subject to significant price volatility. We cannot and do not guarantee that You will not lose money as a result of Your purchase of Collectible Digital Tokens or that the value of any Collectible Token will increase after it is purchased.
b. You acknowledge that You are solely responsible for determining what, if any, taxes apply to Your transactions concerning Collectible Digital Tokens, Related Products and Services or any other transaction conducted in connection with The Tech. fanOP is not responsible for determining the taxes that may apply to your transactions on the Application, the Site, or the Smart Contracts or in any other matter.
c. You acknowledge that Your Collectible Digital Tokens will be stored in the fanOp Ethereum wallet. You understand that Collectible Digital Tokens exist only by virtue of the ownership record maintained on the Tech’s Ethereum wallet, as contained blockchain in the Ethereum network and that transfer of Collectible Digital Tokens occurs within the fanOp’s Tech. Under certain circumstances, You may have the option of transferring Your Collectible Digital Tokens to Your own wallet in the supporting blockchain in the Ethereum Network. In the event that You transfer Your Collectible Digital Tokens to Your Ethereum Wallet, the Collectible Digital Toekns will solely be available and supported by and available through Ethereum and the wallet You have selected and will no longer be available or supported on the Tech.
d. You acknowledge that there are risks associated with using an Internet-based system, such as the Ethereum network, including, but not limited to, the risk of hardware, software and Internet connections, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to information stored within your wallet. You accept and acknowledge that fanOP will not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience when using the Ethereum network, however caused.
e. You understand that lack of use or public interest in the creation and development of distributed ecosystems could negatively impact the development of the Tech, and therefore the potential utility or value of it or any Collectible Digital Tokens which it contains.
f. You understand that the regulatory regime governing blockchain technologies, cryptocurrencies, and digital tokens is uncertain, and new regulations or policies may materially adversely affect the development of The Tech, including Your ability to own, trade or sell NFTs, Upgrades or Ungraded NFTs, or Digitial Collectible Tokens in general, and/or their value and utility.
g. You acknowledge that upgrades, a revisions, or other changes to the Ethereum platform, or how transactions are confirmed on the Ethereum platform may have unintended, adverse effects on all blockchains using the ERC-721 standard, including The Tech and the Digital Collectible Tokens offered in connection therewith.
h. You have read these Terms and are agreeing to them on Your own behalf or on the behalf of an entity or individual who has expressly authorized You to act on his/her/its behalf in connection with the Terms, Tech and Related Products or Services.
You agree to defend, hold harmless and indemnify fanOP and its subsidiaries, affiliates, directors, officers, agents, employees, advertisers, licensors, suppliers or partners from and against any claim, liability, loss, damage (actual and consequential) of any kind or nature, suit, judgment, including any attorneys' fees and expenses, in connection with, arising out of, or in any way related to a claim or allegation that (i) You have or will breach these Terms or any of its incorporated Policies, (ii) Your misuse of the Tech , or (iii) Your violation of applicable laws, rules or regulations in connection with Your access to or use of the Tech, the Collectible Digital Token, any Related Product or Service and any part or portion thereof. You agree that fanOP will have control of the defense or settlement of any such claims. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
16. EXTERNAL SITES
The Tech may include hyperlink External Sites, which are provided solely as a convenience to Our users. We have no control over any External Sites. You acknowledge and agree that we are not responsible for the availability of any External Sites, and that we do not endorse any advertising, products or other materials on or made available from any External Sites. Furthermore, you acknowledge and agree that we are not liable for any loss or damage which may be incurred as a result of the availability or unavailability of the External Sites, or as a result of any reliance placed by you upon the completeness, accuracy or existence of any advertising, products or other materials on, or made available from, any External Sites.
17. CHANGES TO THE TECH
We are constantly innovating the Tech to help provide the best possible experience. You acknowledge and agree that the form and nature of the Tech , and any part of it, may change from time to time without prior notice to You, and that We may add or delete features or functions and change any part of the Tech at any time without notice.
18. OFFERS TO CHILDREN OVER THE AGE OF 13
We do not offer any products or services to children under the age of 13. By accessing and using the Tech and/or registering for an account, You affirm that you are over the age of 13.
IF YOU ARE 13 OR OLDER BUT UNDER THE AGE OF 18, OR THE LEGAL AGE OF MAJORITY WHERE YOU RESIDE IF THAT JURISDICTION HAS AN OLDER AGE OF MAJORITY, THEN YOU AGREE TO REVIEW THESE TERMS WITH YOUR PARENT OR GUARDIAN TO MAKE SURE THAT BOTH YOU AND YOUR PARENT OR GUARDIAN UNDERSTAND AND AGREE TO THESE TERMS. YOU AGREE TO HAVE YOUR PARENT OR GUARDIAN REVIEW AND ACCEPT THESE TERMS ON YOUR BEHALF. IF YOU ARE A PARENT OR GUARDIAN AGREEING TO THE TERMS FOR THE BENEFIT OF A CHILD OVER 13, THEN YOU AGREE TO AND ACCEPT FULL RESPONSIBILITY FOR THAT CHILD'S USE OF THE APP, INCLUDING ALL FINANCIAL CHARGES AND LEGAL LIABILITY THAT HE OR SHE MAY INCUR.
19. DISPUTE RESOLUTION; ARBITRATION
Please read this Section carefully. It requires you to arbitrate disputes with fanOP and limits the manner in which you can seek relief from us.
a. Arbitration. All disputes arising out of, related to, or in connection with these Terms, including without limitation your access or use of the Tech, , the Site, the Application, the Smart Contracts, or to any Related Products or Service and the interpretation of these Terms, the Incorporated Policies and the scope and meaning of this Arbitration provision will be determined by arbitration to be held by and pursuant to the prevailing rules. The language of the arbitration will be English. The award of the arbitrator will be final and binding, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing, fanOP may seek and obtain injunctive relief in any jurisdiction in any court of competent jurisdiction, and you agree that these Terms are specifically enforceable by fanOP through injunctive relief and other equitable remedies without proof of monetary damages .
b. WAIVER OF TRIAL BY JURY AND CLASS ACTION.
WITH RESPECT TO ANY DISPUTE ARISING OUT OF, RELATED TO OR IN CONNECTION WITH THESE TERMS OR ITS INTERPRETATION, INCLUDING ITS INCORPORATED POLICIES, AND/OR ARISING OUT OF, RELATED TO OR IN CONNECTION WITH THE TECH, THE SITE, THE APPLICATION, THE SMART CONTRACTS, ANY NFT, UPGRADE, UPGRADED NFT, UPGRADE ACCOMMODATION OR ANY RELATED PRODUCT OR SERVICE:
(I) YOU HEREBY EXPRESSLY GIVE UP YOUR RIGHT TO HAVE A TRIAL BY JURY; AND
(II) YOU HEREBY EXPRESSLY GIVE UP YOUR RIGHT TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS IN ANY LAWSUIT, INCLUDING BUT NOT LIMITED TO CLASS ACTION LAWSUITS OR ARBITRATION INVOLVING ANY SUCH DISPUTE.
c. Jurisdiction. In the event of any legal action, You hereby agree and irrevocably submit to the sole and exclusive jurisdiction of the United States’ federal or state courts.
d. Governing Law. Any and all disputes arising out of in connection with or relating to the Terms and the Incorporated Policies, including their interpretation or the Tech, or Related Products and Services, shall be governed in accordance with the laws of the state without regard to the choice of law principles thereof.
20. MISCELLANEOUS PROVISIONS
a. Entire Agreement and Interpretation. These Terms, including the expressly Incorporated Polices, constitute the sole and entire legal agreement between the Parties and supersede and replace any prior or contemporaneous agreements between the Parties whether oral or written. There are no third party beneficiaries to these Terms. The parties are independent contractors, and nothing in these Terms create any agency, partnership, or joint venture. The language in these Terms will be interpreted as to its fair meaning, and not strictly for or against any party.
b. Assignment. You may not assign any or your rights or obligations under these Terms, whether by operation of law or otherwise, without our prior written consent which we may withhold at our sole discretion. We may assign our rights and obligations under these Terms in our sole discretion to an affiliate, or in connection with an acquisition, sale or merger.
c. Savings Clause. Should any part of these Terms be held invalid or unenforceable, that portion shall be construed consistent with applicable law to reflect, as nearly as possible, the original intention of the parties .and the remaining portions will remain in full force and effect.
d. Force Majeur. We will not be liable for any failure or delayed performance of our obligations that result from any condition beyond our reasonable control, including, but not limited to, governmental action, acts of terrorism, earthquake, fire, flood, acts of God, labor conditions, power failures, Internet disturbances, or acts or omissions of third parties.
e. Notices. You agree that we may provide you with notices (including, without limitation those regarding changes to these Terms) postings on the Tech or by email or postal address that You have provided to us. By providing us with your email address, you consent to our using the email address to send you any notices required by law in lieu of communication by postal mail. You are responsible to maintain Your email or postal address and update it as needed. Any communication sent to the email or postal address that You last provided will be deemed to provide notice to You regardless of whether You still have access to or use that email or postal address.
Notices to us must be sent to the attention of Customer Service, if by email.
Any notices or communication under these Terms will be deemed delivered to the party receiving such communication: (1) on the delivery date i f delivered personally to the party; (2) two business days after deposit with a commercial overnight carrier, with written verification of receipt; (3) five business days after the mailing date, if sent by U.S.mail, return receipt requested; (4) on the delivery date if transmitted by confirmed facsimile; or (5) on the delivery date if transmitted by confirmed email.
f. No Waiver. Any failure by us to enforce or exercise any provision of these Terms and Conditions or related rights shall not constitute a waiver of that right or provision.
g. Headings. The use of headings is for purpose of convenience and do not define or limit the provisions of the Terms.