Last Modified: May 9, 2022
Accessing the Service and Account Security
We reserve the right to withdraw, amend, suspend, discontinue or modify this Service, and any service, feature or material we provide on the Service, in our sole discretion at any time without notice. We will not be liable if for any reason all or any part of the Service is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Service, or the entire Service, to users, including registered users.
If you choose, or are provided with, a user name, password, or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your Account is personal to you and agree not to provide any other person with access to this Service or portions of it using your user name, password, or other security information. You are solely responsible for your Account and SmartMedia is not liable for any acts or omissions by you in connection with your Account or as a result of your Account being compromised. You agree to notify us immediately of any unauthorized access to or use of your user name or password, Account, the wallet functions of the SmartMedia App, or any other breach of security. You also agree to ensure that you exit from your Account at the end of each session, as applicable. You should use particular caution when accessing your Account from a public or shared computer so that others are not able to view or record your password or other personal information. SmartMedia will not be liable for any loss or damage arising from your failure to comply with this Section.
You further represent and warrant that you: (a) if you are an individual, you agree that you are not and (b) if you are an entity, you agree that neither you nor any of your owners or investors or any of their directors, officers, employees, agents or affiliates acting on your behalf is: (i) related in any way to, the governments of, or any persons within, any country or jurisdiction under a U.S. embargo enforced by the Office of Foreign Assets Control (OFAC), or any persons who are named on any list of sanctioned individuals or entities, including without limitation, the “Specially Designated National” list or the Commerce Department’s Denied Persons List; (ii) (or has ever been) prohibited from the transaction pursuant to U.S. anti-money laundering, anti-terrorist, economic sanctions and asset control laws; and (iii) resident in a country or jurisdiction under a U.S. embargo enforced by OFAC, including the Crimea Region of Ukraine, Donbas, Cuba, Iran, North Korea, and Syria. These representations will be true and accurate each time you use the Services.
You represent and warrant that you will comply with all applicable laws (e.g., local, state, federal, and other laws) when using the Service. If you access or use the Service outside the United States, you are solely responsible for ensuring that your access and use of the Service in such country, territory, or jurisdiction does not violate any applicable laws.
Further, your access and use of the Service may be interrupted from time to time for a variety of reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance, or repair of the Service or other actions that SmartMedia, in its sole discretion, may elect to take.
You must provide all equipment and software necessary to connect to the Service and services. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Service or services.
By creating an Account, you also consent to receive electronic communications from SmartMedia (e.g., via email, push notifications, text messages, other types of messages, or by posting notices to the Service). These communications may include notices about your Account, including password changes, notifications about the status of a purchase or sale, or other transactional information, and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy. We may also send you promotional communications via email, including, but not limited to, newsletters, special offers, surveys and other news and information we think will be of interest to you. You understand you are not required to provide this consent as a condition of using the Service. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided therein.
Intellectual Property Rights
The Service and its entire contents, features, and functionality (including but not limited to its “look and feel”, all information, software, text, data, displays, graphics, images, page headers, icons, video, and audio, scripts, and the design, selection, and arrangement thereof), but not including the Acquired NFTs (collectively, “Content”) are owned by SmartMedia, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws, and you agree not to take any action(s) inconsistent with such ownership interests. Other than the licenses granted hereunder, we and our affiliates, licensors, and other providers reserve all rights in connection with the Service and its Content, including, without limitation, the exclusive right to create derivative works. The SmartMedia logo and any SmartMedia product or service names, logos, or slogans that may appear on the Service or elsewhere are trademarks of SmartMedia or our affiliates, and may not be copied, imitated or used, in whole or in part, without our prior written permission. In addition, the “look and feel” of the Service constitutes the service mark, trademark or trade dress of SmartMedia and may not be copied, imitated or used, in whole or in part, without our prior written permission. Further, you are not permitted to use any metatags or other “hidden text” utilizing “SmartMedia” or any other name, trademark, product or service name of SmartMedia or our affiliates or licensors without our prior written permission.
All other third party trademarks, registered trademarks, and product or service names mentioned on the Service or contained in the Art associated with any NFTs displayed on the Service are the property of their respective owners and may not be copied, imitated or used, in whole or in part, without the prior written permission of the applicable intellectual property rights holder. Reference to any products, services, processes, materials, or other information by name, trademark, manufacturer, provider, supplier or otherwise does not constitute or imply recommendation, sponsorship or endorsement by SmartMedia.
You acknowledge and agree that any contribution by you of feedback, ideas, comments, and suggestions for improvements to the Service (“Feedback”) does not and will not give or grant you any right, title, or interest in the Service or in any such Feedback. You agree that SmartMedia may use and disclose Feedback in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby grant and will grant SmartMedia and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, perpetual, irrevocable license, with the right to sublicense through multiple tiers of sublicensees, to copy, display, perform, distribute, make, use, sell modify and otherwise use your Feedback in connection with the operation of the Service, our current or future business purposes, or the promotion, advertising or marketing thereof in any form, medium or technology now known or later developed.
Ownership, License and Ownership Restrictions.
The Acquired NFTs are subject to acquisition terms between you and SmartMedia governing the use of the Acquired NFT (and the relevant Art), the Art and the benefits associated with a given Acquired NFT (“Acquisition Terms”) which are listed in the relevant Acquisition Terms for such Acquired NFT. You are solely responsible for reviewing such Acquisition Terms.
NFTs may be purchased by fixed price or by auction. When bidding in an auction for NFTs (“Auction”), you agree that: (a) you are making an irrevocable binding offer to purchase the Acquired NFT (which may only be retracted in limited circumstances set out below in the paragraph on bid cancellation or if otherwise permitted by law) and if you are the winning bidder, your bid is a legally binding contract to purchase the Acquired NFT except in certain limited circumstances set out below; (b) you are responsible for reading and understanding the entire Acquired NFT listing and your rights under any Acquisition Terms that accompanies the listing; (c) you will not take any actions that directly or indirectly manipulate the bid or the bidding process and that no shill bidding is permitted; and (d) you will not bid on any Acquired NFT which violates any law, rule or regulation to which you are subject and that if you do so your bid is considered null and void. The winning bid will be the bid that is the highest amount in the declared currency (which could be dollars or a particular cryptocurrency) designated in the Auction at the time the Auction closes. Auction closing times are approximate, and SmartMedia reserves the right to close an Auction early or later (including, without limitation, if we receive a bid prior to closing time for any Auction) than the scheduled time or to cancel an Auction in its entirety for any reason.
Each bid is a legally binding offer and you may not cancel or retract your bid once placed. However, in the event (a) you accidently entered the wrong bid amount due to a typographical error (e.g., decimal point in the wrong place) and you realize your error before bidding closes or (b) if the listing description of the Acquired NFT materially changes after you have placed your bid, then in each case you may make a request to us to retract your bid. If this occurs, you must contact us immediately upon realization of your error or the material modification, and in all cases if your bid was placed within the last twelve (12) hours of the Auction, you must contact us within one (1) hour of placing the erroneous bid. We cannot guarantee that you will be able to retract your bid and any retraction is granted in SmartMedia’s sole discretion.
In the event an Acquired NFT is listed at an incorrect price due to typographical error or with an error in pricing, availability or other information, SmartMedia will have the right to cancel the Auction (and corresponding order), whether or not the order has been confirmed or you have been identified as the winning bidder and payment has been made. If you have already made the payment for the Acquired NFT and the Auction is cancelled as provided in this paragraph, your sole and exclusive remedy is to have SmartMedia refund any such charges within a commercially reasonable period of time after cancellation.
In addition, we may make changes to information about price, availability or other attributes of the Acquired NFT without notice. We also may require additional verifications or other information prior to the acceptance and/or fulfillment of any winning bid. Your receipt of any acknowledgement of a winning bid from us does not signify our acceptance of your bid, nor does it constitute confirmation of our offer to sell. It also is your responsibility to ascertain and obey all applicable local, state, federal and international laws (including minimum age requirements) in regard to the possession, use and sale of any item purchased from any auction. By placing a bid you represent that the Acquired NFTs ordered are legal to possess and use where you intend to possess and use them and will be possessed or used only in a lawful manner, in accordance with all applicable laws, rules and regulations, including copyright law.
· In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
· For any illegal or unauthorized purpose or for the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
· For money laundering, terrorist financing, or other illicit finance.
· From a country sanctioned by the government of the United States or to facilitate transactions involving individuals sanctioned by the government of the United States or located in sanctioned countries.
· To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail”, “chain letter”, “spam”, or any other similar solicitation.
· To engage in wash trading or other deceptive or manipulative trading activities.
· To place misleading bids or offers.
· To engage in any lottery, bidding fee auctions, contests, sweepstakes, or other games of chance except those expressly permitted by SmartMedia.
· To carry out any financial activities subject to registration or licensing, including but not limited to creating, listing, or buying securities, commodities, options, real estate, or debt instruments.
· To use Acquired NFTs as a medium of exchange.
· To use Acquired NFTs as a means of making payments having Fiat value.
· To participate in fundraising for a business, protocol, or platform, including, but not limited, to creating, selling, listing, or buying assets, Acquired NFTs or other items that are redeemable for financial instruments, assets that give owners rights to participate in an ICO or any securities offering, or assets that entitle owners to financial rewards, including, but not limited to, DeFi yield bonuses, staking bonuses, and burn discounts; provided that this restriction shall not apply to fundraising for nonprofits with charitable exemptions under the IRS or for political campaigns.
· To impersonate or attempt to impersonate SmartMedia, a SmartMedia employee, another user, or any other person or entity (including, without limitation, by using email addresses or screen names associated with any of the foregoing).
· To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Service, or which, as determined by us, may harm SmartMedia or users of the Service or expose them to liability.
Additionally, you agree not to:
· Use or attempt to use another user’s account.
· Engage in any activity which operates to defraud SmartMedia, others users, or any other person; or to provide any false, inaccurate, or misleading information to SmartMedia.
· Access the Service from a different blockchain address if we have blocked any of your other blockchain addresses from accessing the Service, unless you have our written permission first.
· Distribute spam, including sending unwanted Acquired NFTs to other users.
· Use the Service in any manner that could disable, overburden, damage, or impair the Service or interfere with any other party’s use of the Service, including their ability to engage in real time activities through the Service.
· Use any robot, spider, or other automatic device, process, or means to access the Service for any purpose, including monitoring or copying any of the material on the Service.
· Use any manual process to monitor or copy any of the material on the Service or for any other unauthorized purpose without our prior written consent.
· Use any device, software, or routine that interferes with the proper working of the Service.
· Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
· Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Service, other user accounts, the server on which the Service is stored, or any server, computer, or database connected to the Service.
· Attack the Service via a denial-of-service attack or a distributed denial-of-service attack.
· Otherwise attempt to interfere with the proper working of the Service.
With respect to the content, digital artwork, images, files, or other materials you create, submit, upload or display through the Service or share with other users or recipients (collectively, “User Content”), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein. By creating, submitting, uploading, posting or displaying any User Content you hereby grant and will grant SmartMedia and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, perpetual, irrevocable license, with the right to sublicense through multiple tiers of sublicensees, to copy, display, perform, distribute, make, use, sell modify and otherwise use your User Content in connection with the operation of the Service, our current or future business purposes, or the promotion, advertising or marketing thereof in any form, medium or technology now known or later developed.
You understand and acknowledge that you are solely responsible for your use of the Service and for any User Content you submit or contribute, and you, not SmartMedia, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness. You agree that such User Content will not contain material subject to copyright, trademark, publicity rights, intellectual property or other proprietary rights, unless you have necessary permission or are otherwise legally entitled to post the material and to grant SmartMedia the license described above. SmartMedia reserves the right to remove content without prior notice.
We are not responsible or liable to any third party for the content or accuracy of any User Content posted by you or any other user of the Service.
Assumption of Risks
• The Acquired NFTs are collectibles and not investments. They should be acquired for your personal use and not as an investment.
• The value of an Acquired NFT is subjective and can be extremely volatile. Fluctuations in the price of other digital assets or cryptocurrency could materially and adversely affect the Acquired NFTs, which may also be subject to significant price volatility. We cannot guarantee that any acquirers of Acquired NFTs will not lose money and we does not and cannot guarantee that any Acquired NFTs acquired will retain their original value. You acknowledge that you fully understand this subjectivity and volatility and that you may lose money. You agree to assume all risk associated with the use and value of the Acquired NFT.
• You are solely responsible for determining what, if any, taxes apply to your Acquired NFT transactions. SmartMedia is not responsible for determining the taxes that apply to Acquired NFT transactions.
• Transfer of Acquired NFTs occur in the SM Marketplace. Some transfer of NFTs occur within the Supported Blockchain and not on this Service. For those NFTs, SmartMedia does not control the Supported Blockchain with which you are interacting and SmartMedia does not control certain smart contracts and protocols that may be integral to your ability to complete transactions on these Supported Blockchains. Additionally, Supported Blockchains transactions are irreversible and SmartMedia has no ability to reverse any transactions on the Supported Blockchains.
• There are risks associated with using an Internet and blockchain based products, 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 SmartMedia App or Account. You accept and acknowledge that SmartMedia will not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience when using the Service, any blockchain network, or the Acquired NFTs.
• There are risks associated with purchasing items associated with content created by third parties through peer-to-peer transactions, including but not limited to, the risks of purchasing counterfeit items, mislabeled items, items that are vulnerable to metadata decay, items on smart contracts with bugs, and items that may become untransferable. You represent and warrant that you have done sufficient research and investigation before making any decisions to purchase, sell, obtain, transfer, or otherwise interact with any Acquired NFTs or accounts.
• A lack of use or public interest in the creation and development of distributed ecosystems could negatively impact the development of those ecosystems and related applications, and could therefore also negatively impact the potential utility or value of Acquired NFTs.
• The regulatory regime governing blockchain technologies, non-fungible tokens, cryptocurrencies, tokens and other crypto-based items is uncertain, and new regulations or policies may materially adversely affect the development of the Service and the utility of Acquired NFTs.
• The Service may rely on third-party platforms to perform the transactions for the Acquired NFTs. If we are unable to maintain a good relationship with such platform providers; if the terms and conditions or pricing of such platform providers change; if we violate or cannot comply with the terms and conditions of such platforms; or if any of such platforms loses market share or falls out of favor or is unavailable for a prolonged period of time, access to and use of the Service may suffer.
SmartMedia will process and investigate notices of alleged infringement and will take appropriate actions in response to formal infringement claims, including taking down content in response to Digital Millennium Copyright Act (“DMCA”) takedown notices, and will terminate a user’s access to the Service if the user is determined to be a repeat infringer.
If you believe that your content has been copied in a way that constitutes copyright infringement, please report this by contacting our designated copyright agent at:
SMT Designated Copyright Agent
SmartMedia Technologies, Inc.
201 Main Street, Suite 102
Carbondale, CO 81623
To process your infringement claim regarding content on the Service, you must be the rightsholder or someone authorized to act on behalf of the rightsholder. Formal infringement claims regarding content on the Service must include:
• A written communication delivered to the agent designated above;
• A physical or electronic signature of someone authorized to act on behalf of the copyright owner;
• Identification of the copyrighted work(s) allegedly infringed;
• Identification of material claimed to be infringing, including a description of the specific location (i.e., urls) on the Service of the material claimed to be infringing, reasonably sufficient to permit SmartMedia to locate the material;
• Information reasonably sufficient to permit SmartMedia to contact the complaining party, including at minimum your full legal name (not pseudonym) and email address. This can also include an address, phone number, or other suitable method of contact;
• A statement that the “complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and”
• A statement that the information in the notice is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of copyright owner.
YOU WAIVE AND HOLD US AND OUR AFFILIATES AND OUR AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, CONTRACTORS, LICENSORS, LICENSEES, SUPPLIERS, AND SUCCESSORS HARMLESS FROM ANY AND ALL CLAIMS RESULTING FROM ANY ACTION TAKEN BY US AND ANY OF THE FOREGOING PARTIES RELATING TO ANY INVESTIGATIONS BY EITHER US OR SUCH PARTIES OR BY LAW ENFORCEMENT AUTHORITIES.
Links from the Service
If the Service contains links or functionality to access or use other sites, applications and resources provided by third parties (“Third Party Websites and Applications”), or otherwise displays, includes, or makes available content, data, information, services, or materials (“Third Party Materials”), links to these Third Party Websites and Applications and Third Party Materials are provided for your convenience only and SmartMedia does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Websites and Applications or Third Party Materials. You use all links in and to Third Party Websites and Applications and Third Party Materials at your own risk. This includes links contained in advertisements, including banner advertisements and sponsored links. When you click a link to, or access and use, any Third Party Websites and Applications or Third Party Materials, you are subject to the terms and conditions (and privacy policies) of such third party. We neither own nor control the third party blockchain networks, your browser, or any other third party site, product, or service that you might access, visit, or use for the purpose of enabling you to use the various features of the Service. We will not be liable for the acts or omissions of any such third parties, 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 parties. You understand that your public address on a Supported Blockchain will be made publicly visible whenever you engage in a transaction on the Service. If you decide to access any of the third-party websites linked to this Service, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
Disclaimer of Warranties
Transactions using the Service, including but not limited to primary sales, peer to peer transactions on the SM Marketplace, secondary market sales, listings, offers, bids, acceptances, and other operations may utilize smart contract and blockchain technology, including non-fungible tokens, cryptocurrencies, consensus algorithms, and decentralized or peer-to-peer networks and systems. You acknowledge and agree that such technologies are experimental, speculative, and inherently risky and may be subject to bugs, malfunctions, timing errors, hacking and theft, or changes to the protocol rules of the relevant blockchain (i.e., “forks”), which can adversely affect the smart contracts and may expose you to a risk of total loss, forfeiture of your digital currency or Acquired NFTs, or lost opportunities to buy or sell Acquired NFTs.
TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SERVICE, ACQUIRED NFTS OR ITEMS OBTAINED THROUGH THE SERVICE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY SERVICE LINKED TO IT. FURTHER, SMARTMEDIA IS NOT RESPONSIBLE OR LIABLE FOR ANY SUSTAINED LOSSES OR INJURY DUE TO VULNERABILITY OR ANY KIND OF FAILURE, ABNORMAL BEHAVIOR OR SOFTWARE (E.G., SMARTMEDIA APP, SMART CONTRACT), BLOCKCHAINS OR ANY OTHER FEATURES OF THE ACQUIRED NFTS. SMARTMEDIA IS NOT RESPONSIBLE FOR LOSSES OR INJURY DUE TO LATE REPORTS (OR NO REPORT AT ALL) BY DEVELOPERS OR REPRESENTATIVES OF ANY ISSUES WITH THE SUPPORTED BLOCKCHAIN FOR THE ACQUIRED NFTS, INCLUDING FORKS, TECHNICAL NODE ISSUES OR ANY OTHER ISSUES.
YOUR ACCESS TO AND USE OF THE SERVICE, ITS CONTENT, AND ANY SERVICES, ACQUIRED NFTS OR ITEMS OBTAINED THROUGH THE SERVICE IS AT YOUR OWN RISK. YOU UNDERSTAND AND AGREE THAT THE SERVICE, ITS CONTENT, AND ANY SERVICES, ACQUIRED NFTS OR ITEMS OBTAINED THROUGH THE SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER SMARTMEDIA NOR ANY PERSON ASSOCIATED WITH SMARTMEDIA MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO, AND SMARTMEDIA DISCLAIMS ALL RESPONSIBILITY FOR, THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, LEGALITY, SAFETY, OR AVAILABILITY OF THE SERVICE. WITHOUT LIMITING THE FOREGOING, NEITHER SMARTMEDIA NOR ANYONE ASSOCIATED WITH SMARTMEDIA REPRESENTS OR WARRANTS THAT THE SERVICE, ITS CONTENT, OR ACQUIRED NFTS OR ITEMS OBTAINED THROUGH THE SERVICE WILL BE ACCURATE, RELIABLE, ERROR-FREE, SECURE, TIMELY, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE SERVICE, CONTENT, OR ANY ACQUIRED NFTS YOU INTERACT WITH USING THE SERVICE, OR THE SERVER OR, IF RELEVANT, BLOCKCHAIN THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SERVICE OR ACQUIRED NFTS OR ITEMS OBTAINED THROUGH THE SERVICE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. WE CANNOT GUARANTEE THE SECURITY OF ANY DATA YOU DISCLOSE ONLINE.
TO THE FULLEST EXTENT PROVIDED BY LAW, SMARTMEDIA HEREBY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, AND FITNESS FOR PARTICULAR PURPOSE. WE WILL NOT BE LIABLE FOR ANY LOSS OF ANY KIND FROM ANY ACTION TAKEN OR TAKEN IN RELIANCE ON MATERIAL OR INFORMATION, CONTAINED ON THE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR OBTAINED FROM SMARTMEDIA OR THROUGH THE SERVICE, WILL CREATE ANY WARRANTY OR REPRESENTATION NOT EXPRESSLY MADE HEREIN.
WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSS AND TAKE NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO YOU FOR, ANY USE OF THE SERVICE OR ACQUIRED NFTS, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (A) USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED ADDRESSES; (B) SERVER FAILURE OR DATA LOSS; (C) CORRUPTED WALLET FILES IN THE SMARTMEDIA APP; (D) UNAUTHORIZED ACCESS OR USE; (E) ANY UNAUTHORIZED THIRD PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK AGAINST THE SERVICE OR ACQUIRED NFTS.
ACQUIRED NFTS ARE INTANGIBLE DIGITAL ASSETS. THEY EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE SM MARKETPLACE FOR CERTAIN ACQUIRED NFTS OR, IN CERTAIN CIRCUMSTANCES THE SUPPORTED BLOCKCHAIN. ANY TRANSFER OF TITLE OR SALES OF NFTS LINKED TO A SUPPORTED BLOCKCHAIN OCCUR ON SUCH SUPPORTED BLOCKCHAIN. WE DO NOT GUARANTEE THAT SMARTMEDIA CAN EFFECT THE TRANSFER OF TITLE OR RIGHT IN ANY NFTS OR UNDERLYING OR ASSOCIATED CONTENT OR ITEMS.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Limitation on Liability
Governing Law and Jurisdiction
Arbitration Agreement and Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
This section does not govern disputes between users or between users and third parties. SmartMedia does not provide dispute resolution services for such disputes or disagreements and the parties must resolve those disputes directly.
Prohibition of Class and Representative Actions. YOU AND WE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
Pre-Arbitration Dispute Resolution. You and SmartMedia both agree to engage in good-faith efforts to resolve disputes prior to either party initiating an arbitration, small claims court proceeding, or equitable relief for intellectual property infringement. You must initiate this dispute resolution process by sending a letter describing the nature of your claim and desired resolution to: SmartMedia Labs, Inc., Attn: Legal Department, 201 Main Street, Suite 102, Carbondale, CO 81623. If the parties do not resolve the dispute within thirty (30) calendar days after the letter is received by us, you or we may commence an arbitration proceeding. A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to us should be sent to SmartMedia Labs, Inc., Attn: Legal Department, 201 Main Street, Suite 102, Carbondale, CO 81623 (the “Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. During the arbitration, the amount of any settlement offer made by us or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or we are entitled.
Location of Arbitration. Unless we and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for US$10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds US$10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules.
Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
30-Day Right to Opt Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt-out via email at email@example.com with subject line LEGAL OPT OUT. The notice must be sent within 30 days of your first use of the Service, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt-out of these arbitration provisions, we will also not be bound by them.
Limitation on Time to File Claims
Waiver of Rights
If you are a California resident, in accordance with Cal. Civ. Code 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834 or by telephone at (800) 952-5210.
Access to SmartMedia App. As part of your Account, SmartMedia will provide you access to a SmartMedia App which will include wallet functionality which will host your Acquired NFTs available through the Service. Your copy of the SmartMedia App allows you to store, track, display, transfer, and manage your balances of Acquired NFTs. As used throughout, Acquired NFTs refers only to those NFTs listed as available through the Service. SmartMedia securely stores the relevant private keys, which are used to process transactions, in a combination of online and offline storage. As a result of SmartMedia security protocols, it may be necessary for SmartMedia to retrieve private keys or related information from offline storage in order to facilitate transfers of Acquired NFTs in accordance with your instructions, and you acknowledge that this may delay the initiation or crediting of such transfer of Acquired NFTs.
Limitations on Use of SmartMedia App. Under no circumstances should you attempt to use the your copy of the SmartMedia App to store, send, request, or receive any assets other than Acquired NFTs. SmartMedia assumes no responsibility in connection with any attempt to use your copy of the SmartMedia App with digital assets that SmartMedia does not support. You acknowledge and agree that SmartMedia is not liable for any unsupported digital asset that is sent to your copy of the SmartMedia App associated with your Account.
Support Termination. SmartMedia may in its sole discretion terminate support for any particular Acquired NFTs. If you do not sell or send such Acquired NFT off platform before SmartMedia terminates its support for such Acquired NFT, then SmartMedia may, in its discretion, remove such Acquired NFT from your Account.
All Acquired NFTs held in your copy of the SmartMedia App are custodial assets held by SmartMedia for your benefit, as described in further detail below.
Custody Obligations. You control the Acquired NFT held in your copy of the SmartMedia App. At any time, subject to outages, downtime, and other applicable policies, you may withdraw your Acquired NFT by sending it to a different blockchain address provided such transfer functionality has been enabled. As long as you continue to custody your Acquired NFT with SmartMedia, SmartMedia shall retain control over electronic private keys associated with blockchain addresses operated by SmartMedia, including, if the NFT is linked to a Supported Blockchain, the blockchain addresses that hold your Acquired NFT.
Ethereum Blockchain is the mainnet of the Layer 1 blockchain as described by the Ethereum Foundation and, if applicable, after a hard fork, any successor to such blockchain network commonly recognized by the blockchain industry as legitimate successor to the Ethereum mainnet.
Binance Smart Chain
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