Terms for Purchase, Auction, and License Agreement
This MINTX, Purchase, and License Agreement (this "Agreement"), is a legally binding agreement by and between MINTX ("MINTX") and: (i) you as a purchaser or bidder of the NFT's on mintx.io auction (defined below); (ii) the selected winner(s) of the auction, and (iii) any subsequent purchaser(s) of NFT's created on mintx.io (defined below) (collectively and as applicable, "You" and "Your"). MINTX and You may be referred to throughout this Agreement collectively as the "Parties" or individually as a "Party".
1. Agreement to Terms
By participating in any Auctions or purchasing a MINTX Collectible, You acknowledge that You have carefully read and agree to the terms of this Agreement. "DIGITAL COLLECTIBLES" means a non-fungible token (NFT) that as of its genesis issuance, is linked to a display of the artwork, video, or image. Digital Collectibles are controllable electronic records recorded on the blockchain. "Brand Art" means the digital art for the Brand that is provided by, owned by, or licensed to the Brand and is linked to the Digital Collectibles. "Brand" means any company, nonprofit, celebrity, creator, artist or legal entity that owns or is authorized to use the intellectual property or licensing right to create the Digital Collectible and has partnered with MINTX to launch their Digital Collectibles on mintx.io. "Brand" and MINTX have a legal agreement and the "Brand" does not have a legal agreement with the bidder or purchaser directly. For avoidance of doubt, the Brand Art is digital in nature and does not include, is not linked to, and is not sold together with, any items or representations that have physical dimensions such as mass or volume. This Agreement governs Your participation in the Primary Transactions through mintx.io (the "Collectibles Website"), as well as Secondary Transactions between Transferors and Transferees (as defined below). The Brand is not a party to this Agreement. However, Brand may be owed revenue one primary sales and royalties on Secondary Transactions.
(a) Additional Terms. The access and use of the Collectibles Website are subject to the separate terms of the Collectibles Website. You further acknowledge that You have carefully read and have accepted the (i) Terms of Service located on the mintx.io (link to terms of use) because the website governs Your use of the Collectibles Website.
(b) Your Information. As a condition of participating in the purchase or auction, using the Collectibles Website, and any time You provide Your information (including personal information (also known as personally identifiable information or personal data) to MINTX, MINTX collects from You when using the Collectibles Website (including information collected automatically by the use of cookies or other similar technologies), You agree to the collection, use, storage, sharing, transfer, and processing of Your information by MINTX for the purposes of providing the Collectibles Websites and the services available therein, and to comply with applicable laws, rules, and regulations as more fully described in MINTX Privacy Statement. To learn more about how MINTX handles Your information, read MINTX Privacy Statement available at Privacy Policy
2. The Auction
The "Auction" means each auction hosted on the Collectibles Website during the Auction Dates (defined below).
(a) Auction Dates. The Auction will occur on the dates listed on mintx.io per campaign and auction ("Auction Dates"). MINTX reserves the right to terminate or extend all Auctions at any time.
(b) Bidding. During the Auction, You can bid on the Digital Collectibles made available on the Collectibles Website. You may be required to create an account and sign in through the Collectibles Website to participate. MINTX has the right, in its sole discretion, to cancel or reject a bid at any time. If You place a bid during the Auction, Your bid price will be removed from Your provided wallet until (i) MINTX cancels or rejects Your bid (at which time Your bid price will be restored to Your wallet); or (ii) Your bid was accepted and You are awarded the Digital Collectible. You will be responsible for the "Gas Fees" (as defined below) incurred in connection with any bids that you make or withdraw.
(c) Winning the Auction. If You are selected as a winner of a Digital Collectible in the Auction, delivery of the Digital Collectible is conditioned upon the following terms being met: (i) Your payment and MINTX's receipt of the Primary Transaction Purchase Price, (ii) Your provision to MINTX, through the Collectibles Website, of a Blockchain-compatible network wallet address ("Wallet") to which the Your Digital Collectible will be delivered; and (iii) Your successful completion (as determined by MINTX in its sole discretion) of any applicable diligence, including without limitation any Know Your Consumer, anti-money laundering, sanctions, and other processes as requested by MINTX. If You fail to meet any of the conditions above, MINTX may suspend the delivery of the purchased Digital Collectible or if such conditions have not been met within the ten calendar days following completion of the Auction, terminate the Primary Transaction (as defined in Section 3(b)).
(d) Transfer Timing. MINTX selection of the winning bidder for each Digital Collectible and transfer of the Digital Collectible to the applicable Wallet may take up to 10 days.
(e) Auction Conduct. As a condition to Your participation in the Auction, You agree:
(i) to avoid any anticompetitive bidding conduct, such as actions that are deceptive or would otherwise prevent competitive or fair bidding, artificially inflate or deflate the price of a Digital Collectible, or stimulate demand for a the Digital Collectible.
(ii) to report any suspicious activity during the Auction to MINTX at contact@mintx.io
(iii) that You will not attack, hack, DDOS, interfere with, or otherwise tamper with the smart contract associated with any Digital Collectible.
(iv) that you will not participate in the Auction to conceal or transfer proceeds relating to criminal activity or bid on a Digital Collectible for any reason other than to obtain the Digital Collectible.
(v) that cryptocurrency may be a volatile asset that often experiences periods of high price volatility and instability. Often a consequence of rapidly changing prices and demand, the blockchain can also experience significant periods of network congestion, slow to stagnant processing speeds, and unpredictable failures; and
(vi) that You understand and acknowledge that bids submitted during the Auction may change in market value through the duration of the Auction possibly at Your significant expense, or may never be received or processed by the Digital Collectible smart contract due to network or smart contract failures.
3. Ownership of Digital Collectible
(a) If You acquire a Digital Collectible, You own all personal property rights to that Digital Collectible (e.g., the right to freely sell, transfer, or otherwise dispose of that Digital Collectible). Such rights, however, do not include the ownership of the intellectual property rights in the Digital Collectible artwork unless otherwise noted on the NFT itself by the Brand. Such rights are licensed pursuant to Section 4 below.
(b) You represent and warrant that You will not transfer a Digital Collectible in any Secondary Transaction to a Transferee that is (i) located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; or is (ii) listed on any U.S. Government list of prohibited or restricted parties ("Prohibited Transferees"). A "Secondary Transaction" means any transaction in which a Digital Collectible is sold by one owner to another owner, or is otherwise transferred in any manner that is not a Primary Transaction; and "Primary Transaction" means a transaction facilitated through the Collectibles Website in which a Digital Collectible is first sold.
4. License of Brand Art.
If you acquire a Digital Collectible, the Brand hereby grants to You, for so long as You own the Digital Collectable (as recorded on the relevant blockchain), a non-exclusive, non-sublicensable, royalty-free license to use, copy, and display the Brand Art linked with Your purchased Digital Collectible solely for the following purposes: (i) for Your own personal, non-commercial use, including to create one back-up copy of the Digital Art and a single physical print out of the Digital Art, each to be retained only for so long as You own the associated Digital Collectible; and (ii) efforts to sell or otherwise transfer the associated Digital Collectible consistent with the ownership of it (e.g., posting the Brand Art on a sales listing on an NFT marketplace). The license in the prior sentence is non-transferrable, except that it will automatically transfer in connection with the transfer of the Digital Collectible.
5. Reservation of Rights. All rights in and to the Brand Art not expressly provided for in this Agreement are hereby reserved by the Brand.
The Brand Art is licensed, not sold. The Brand owns and will retain all title, interest, ownership rights and intellectual property rights in and to the Brand Art. Without limitation, You shall not, nor permit any third party to do or attempt to do any of the following without express prior written consent from the Brand (i) modify the Brand Art; (ii) use the Brand Art to advertise, market, or sell any product or service; (iii) use the Brand Art in connection with media that depicts hatred, intolerance, violence, cruelty, or any other subject matter that reflects negatively on the Brand or Brands; (iv) use the Brand Art in any other form of media, except solely for Your own personal, non-commercial use for so long as You owns the Digital Collectible; (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, or consists of the Brand Art; (vi) attempt to register any trademark, copyright, or otherwise acquire additional intellectual property rights in or to the Brand Art; or (vii) otherwise utilize the Brand Art for Your or any third party's commercial benefit.
6. Payment and Fees.
REFUNDS AND RETURNS ARE NOT ACCEPTED WITH ALL DIGITAL COLLECTIBLE PURCHASES
(a) Purchase and Sale. You hereby agree to purchase the Digital Collectible at the winning bid price (the "Primary Transaction Purchase Price") determined at the Auction or Buy Now purchase price, if you win the Auction.
(b) Purchaser Qualification. You represent and warrant that You (i) are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; and (ii) are not listed on any U.S. Government list of prohibited or restricted parties.
(c) Form of Payment. MINTX agrees to accept payment for the Primary Transaction Purchase Price via selected currencies or credit card; provided that MINTX may elect to accept other methods or forms of payment on an as-converted to U.S. dollars basis in its sole discretion. The U.S. dollar exchange rate for any other forms of payment shall be determined solely by MINTX, or an assignee or agent in accordance with reasonable and accepted market practices and additional transaction fees may apply.
(d) Gas Fees. By buying or selling a Digital Collectible on the MINTX Platform or any other platform, You agree to pay all applicable fees and, if applicable, You authorize MINTX to automatically deduct fees (including any transaction fees, or Gas Fees, as applicable) directly from Your payments for the Primary Transaction or subsequent Secondary Transactions. "Gas Fees" fund the network of computers that run blockchain technology, meaning that You will need to pay a Gas Fee for each transaction that occurs via the relevant blockchain. Neither MINTX or Brand have any insight into or control over these payments or transactions, nor does MINTX or Brand have the ability to reverse any transactions. Accordingly, MINTX and Brand will have no liability to You or to any third party for any claims or damages that may arise as a result of any transactions of the Digital Collectibles that You engage in.
(e) Transfers. All Secondary Transactions are subject to the following terms: (i) the Digital Collectible transferee (the "Transferee") shall, by receiving an ownership interest in the Digital Collectible, be deemed to accept all of the terms of this Agreement (other than with respect to Sections 6(a) and 6(c)); (ii) the Digital Collectible transferor (the "Transferor") shall provide notice to the Transferee of this Agreement, including a link or other method by which the terms of this Agreement can be accessible by the Transferee, (iii) the Transferor shall pay 10% or higher (stated in smart contract) of the gross amounts paid by the Transferee (the "Royalty Payment"). MINTX shall be paid on the same terms and at the same time as Transferor is paid by the Transferee. You acknowledge and agree that the amounts payable MINTX under this Section herein does not include, and is not intended to cover any additional fees, including Gas Fees imposed or required by the transferring platform through which You transfer the Digital Collectible.
(i) You further acknowledge and agree that all Secondary Transactions will be effected on the specified blockchain per NFT, the blockchain network governing the Digital Collectibles, and You will be required to make or receive payments exclusively through Your cryptocurrency wallet.
(ii) Without limitation of any other termination rights, MINTX or Brand may suspend or terminate the license to the Brand Art if it has a reasonable basis for believing that You have engaged in an off-chain sale of the Digital Collectible, or otherwise engaged in any off-chain transactions for the purchase or sale of the Digital Collectible without making the applicable Royalty Payment. You, and all subsequent Transferees, shall be responsible for paying the Royalty Payment associated with the Secondary Transaction purchase price, regardless of whether such purchase price is fulfilled on-chain, off-chain, or in a combination of the foregoing.
(f) Physical Product Redemption. Within 7 calendar days after the close of the Auction winners will be notified via their MINTX registration email with instructions on how to redeem their physical reward if applicable. Winners will have 30 calendar days to redeem their physical reward. Rewards are expected to ship within 90 calendar days following the close of the auction. Physical addresses will be collected through user-supplied information in the MINTX profile or by your responses to communications with MINTX You must provide shipping and delivery information in order to receive a physical Digital Collectible. Shipping fees and restrictions may apply.
(g) Credit Card Transactions. You may purchase a digital asset or NFT (Non Fungible Token) using a credit card. If you use a credit card to purchase an NFT, you expressly authorize us (and any payment processor) to charge your payment card for all purchases you make. For credit card payments, charge your credit card when you purchase your NFT. The bank issuing your credit or card may control when to release funds in the case of an order cancellation or refund. We may ask you to supply additional information relevant to your transaction, including your credit card number, the expiration date of your credit card and your email and postal addresses for billing and notification (such information, "Payment Information"). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. You may need to provide additional information to verify your identity before completing your transaction (such information is included within the definition of Payment Information). We reserve the right to use the Payment Information you provide us in connection with any payments to provide better service to you should you wish to use our service again in the future and to protect us from fraud and other losses. For all credit card purchases, you will not be able to transfer or resell the digital asset or NFT for a minimum of 30 days due to credit card confirmation period.
(h) Completion of a payment transaction is contingent upon: you providing complete personal, account, transaction and any other information needed, authorization of the payment by your credit or debit card company, and acceptance of your payment.
(i) Payment and Refund Processing. Payments and refunds facilitated by the Services may be processed by a third-party payment processor ("Payment Processor"). You may be required to create an account with such Payment Processor, and by doing so, you are agreeing to comply with the Payment Processor's terms of service. You may need to provide additional information to verify your identity, business and tax information and your bank information when you register with the Payment Processor. If, and to the extent, we accept, hold or transmit funds in connection with your purchase, you agree that we do so, on your behalf, as your limited agent and you hereby appoint Royal as your limited agent solely for the purpose of accepting payments from, and refunding payments to, Service Recipients on your behalf. In accepting appointment as your limited agent, we assume no liability for any of your acts or omissions.
(j) Chargebacks and Payment Holdback. We further reserve the right to implement Payment Holdbacks to you if payments are deemed suspicious or fraudulent, at our sole discretion. We will notify you that you are subject to a Payment Holdback and we may require that you provide supporting documentation or information related to the relevant payment(s) and corresponding purchase(s). If you do not provide such supporting evidence within the requested timeframe, we reserve the right to refund the payment and transfer any available funds from your wallet to your identified bank account or otherwise take any action we feel is reasonably necessary to comply with our compliance standards, including those imposed by any relevant financial institution, our Payment Processor, or the credit card network rules, as well as any applicable law.
(k) Failure to Process Payments, Refunds or Chargebacks. You are solely responsible for the information you provide in connection with payments and refunds processed via the Services. Subject to applicable law, we reserve the right to send any delinquent, past due, or any other MINTX account that is in default to collections agencies to recover such past due amount.
(l) Costs and Taxes. You are solely responsible for all costs incurred by you in using the Services and determining, collecting, reporting and paying all applicable Taxes. As used herein, "Taxes" means the taxes, duties, levies, tariffs, and other governmental charges that you may be required by law to collect and remit to governmental agencies, and other similar municipal, state, federal and national indirect or other withholding and personal or corporate income taxes.
7. MINTX Rights and Obligations to the Brand Art
MINTX is not responsible for repairing, supporting, replacing, or maintaining the website hosting the Brand Art, nor does MINTX have the obligation to maintain any connection or link between a Digital Collectible and the corresponding Brand Art.
8. Warranty Disclaimers and Assumption of Risk.
You represent and warrant that You: (a) are at least the age of majority in Your place of residence (which is typically 18 years of age in most U.S. states) and has the legal capacity to enter into this Agreement, (b) will use and interact with the Digital Collectibles and Brand Art only for lawful purposes and in accordance with this Agreement, and (c) will not use the Digital Collectibles or Brand Art to violate any law, regulation or ordinance or any right of MINTX OR Brand its licensors or any third party, including without limitation, any right of privacy, publicity, copyright, trademark, or patent. You further agree that You will comply with all applicable laws.
THE DIGITAL COLLECTIBLES ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, MINTX EXPLICITLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. MINTX AND BRAND MAKES NO WARRANTY THAT THE DIGITAL COLLECTIBLES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. MINTX AND BRAND MAKES NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY INFORMATION OR CONTENT ON THE DIGITAL COLLECTIBLES.
MINTX AND BRAND WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSS AND TAKES NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO YOU FOR, ANY USE OF THE DIGITAL COLLECTIBLE, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (I) USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED WALLET ADDRESSES; (II) SERVER FAILURE OR DATA LOSS; (III) CORRUPTED CRYPTOCURRENCY WALLET FILES; (IV) UNAUTHORIZED ACCESS TO DIGITAL COLLECTIBLE; OR (V) ANY UNAUTHORIZED THIRD PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK AGAINST BLOCKCHAIN NETWORK UNDERLYING THE DIGITAL COLLECTIBLES.
THE DIGITAL COLLECTIBLES ARE INTANGIBLE DIGITAL ASSETS. THEY EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE APPLICABLE BLOCKCHAIN NETWORK. ANY TRANSFER OF TITLE THAT MIGHT OCCUR IN ANY UNIQUE DIGITAL ASSET OCCURS ON THE DECENTRALIZED LEDGER WITHIN SUCH BLOCKCHAIN NETWORK, WHICH MINTX AND BRAND DOES NOT CONTROL. MINTX DOES NOT GUARANTEE THAT BRAND AND MINTX CAN EFFECT THE TRANSFER OF TITLE OR RIGHT IN ANY DIGITAL COLLECTIBLE. YOU BEAR FULL RESPONSIBILITY FOR VERIFYING THE IDENTITY, LEGITIMACY, AND AUTHENTICITY OF ASSETS YOU PURCHASE THROUGH THE COLLECTIBLES WEBSITE. NOTWITHSTANDING INDICATORS AND MESSAGES THAT SUGGEST VERIFICATION, MINTX AND BRAND MAKES NO CLAIMS ABOUT THE IDENTITY, LEGITIMACY, OR AUTHENTICITY OF ASSETS ON THE COLLECTIBLES WEBSITE OR ANY PURPORTED SECONDARY TRANSACTIONS.
MINTX IS NOT RESPONSIBLE FOR ANY KIND OF FAILURE, ABNORMAL BEHAVIOR OF SOFTWARE (E.G., WALLET, SMART CONTRACT), BLOCKCHAINS OR ANY OTHER FEATURES OF THE DIGITAL COLLECTIBLES. MINTX IS NOT RESPONSIBLE FOR CASUALTIES DUE TO LATE REPORT BY DEVELOPERS OR REPRESENTATIVES (OR NO REPORT AT ALL) OF ANY ISSUES WITH THE BLOCKCHAIN SUPPORTING THE DIGITAL COLLECTIBLES, INCLUDING FORKS, TECHNICAL NODE ISSUES OR ANY OTHER ISSUES HAVING FUND LOSSES AS A RESULT.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN CONTRACTS WITH CONSUMERS, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
9. Assumption of Risk
You accept and acknowledge all risks associated with the following:
(a) You are solely responsible for determining what, if any, taxes apply to Your purchase, sale, or transfer of Digital Collectibles. Neither Brand nor MINTX are responsible for determining or paying the taxes that apply to such transactions.
(b) There are risks associated with using an Internet based digital asset, 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. MINTX will not be responsible for any communication failures, disruptions, errors, distortions or delays You may experience when effecting Digital Collectible transactions, however caused.
(c) Digital assets, including blockchain based assets such as the Digital Collectibles, are subject to developing laws and regulations throughout the world.
(d) Transactions involving the Digital Collectibles may rely on third-party platforms to perform transactions which are outside of MINTX control. Therefore access to and interactions for the Digital Collectibles may be limited or unavailable.
10. Links to Third Party Websites or Resources
Use and interaction of the Digital Collectibles and Brand Art may allow You to access third-party websites (including websites that host the Brand Art) or other resources. MINTX provides access only as a convenience and is not responsible for the content, products or services on or available from those resources or links displayed on such websites. You acknowledge sole responsibility for and assumes all risk arising from Your use of any third-party resources. Under no circumstances shall Your inability to view the Brand Art on a third-party website serve as grounds for a claim against MINTX.
11. Termination of License to Brand Art
Your license to the Brand Art shall automatically and immediately terminate without notice, and all rights shall revert to MINTX and/or Brand if at any time: (i) You breach any portion of this Agreement; (ii) You engage in any unlawful activity related to the Digital Collectible (including transferring the Digital Collectible to a Prohibited Transferee); (iii) You initiate any legal actions, except an arbitration as specifically provided herein, against MINTX, Brand, or their parent, subsidiary, and affiliate companies, and each of their respective officers, directors, members, affiliates, agents, attorneys, and employees (collectively, the NFT Parties"); or (iv) at MINTX's sole determination and discretion, You disparage any of the MINTX Parties, or their Brands or products. Upon any termination, discontinuation or cancellation of Your license to Brand Art, MINTX or Brand may disable Your access to the Brand Art and You must delete, remove, or otherwise destroy any back up or single digital or physical copy of the Brand Art. Upon any termination, discontinuation, or cancellation of the license in this Agreement, the following Sections will survive: 3 and 5-17.
12. Indemnity
You shall defend, indemnify, and hold the MINTX Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys' fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought by a third party (including any person who accesses or transacts using the Digital Collectibles whether or not such person personally purchased the Digital Collectibles) against any MINTX Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with (A) Your purchase, ownership, use and interaction with the Digital Collectibles or license to the Brand Art, (B) Your breach or anticipatory breach of this Agreement, (C) Your violation or anticipatory violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental and quasi-governmental authorities in connection with Your use or interaction with the Digital Collectibles, and (D) any misrepresentation made by You (all of the foregoing, "Claims and Losses"). You will cooperate as fully required by MINTX in the defense of any Claim and Losses. Notwithstanding the foregoing, MINTX retains the exclusive right to settle, compromise, and pay any and all Claims and Losses. MINTX reserves the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of MINTX.
13. Limitation of Liability
(a) TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER MINTX NOR ITS SERVICE PROVIDERS INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE DIGITAL COLLECTIBLES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE DIGITAL COLLECTIBLES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE OR INTERACT WITH THE DIGITAL COLLECTIBLES OR ACCESS THE BRAND ART, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT MINTX OR ITS SERVICE PROVIDERS HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
(b) TO THE MAXIMUM EXTENT PERMITTED BY THE LAW OF THE APPLICABLE JURISDICTION, IN NO EVENT WILL MINT NNFT'S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE USE OF OR INABILITY TO USE OR INTERACT WITH THE DIGITAL COLLECTIBLES OR ACCESS THE BRAND ART EXCEED THE PRIMARY TRANSACTION PURCHASE PRICE.
(c) THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN MINTX AND YOU.
14. Governing Law and Forum Choice
This Agreement and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of California, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 15 "Dispute Resolution," the exclusive jurisdiction for all Disputes (defined below) that You and MINTX are not required to arbitrate will be the state and federal courts located in the LOS ANGELES, CALIFORNIA, and You and MINTX each waive any objection to jurisdiction and venue in such courts.
15. Dispute Resolution
Certain portions of this Section 15 are deemed to be a "written agreement to arbitrate" pursuant to the Federal Arbitration Act. You and MINTX agree that they intend that this Section 15 satisfies the "writing" requirement of the Federal Arbitration Act.
(a) First -- Try to Resolve Disputes and Excluded Disputes. If any controversy, allegation, or claim arises out of or relates to the Digital Collectibles or this Agreement (collectively, "Dispute"), or to any of MINTX actual or alleged intellectual property rights (an "Excluded Dispute", which includes those actions set forth in Section 1 below), then You and MINTX agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. MINTX notice to You will be sent to You based on Your contact information provided to MINTX. But if no such information exists or if such information is not current, then MINTX has no obligation under this Section 15. Your notice to MINTX must be sent to: MINTX, Inc., 1539 SAWTELLE BLVD SUITE 3, LOS ANGELES, California, 90025, U.S.A., Attention: General Counsel. For a period of 60 days from the date of receipt of notice from the other party, the Parties will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either Party to resolve the Dispute or Excluded Dispute on terms with respect to which You and MINTX in each Party's sole discretion, are not comfortable. MINTX's decision to pursue amicable resolution, however, shall not be weighed against a finding of irreparable harm to MINTX in any subsequent legal action.
(b) Forums for Alternative Dispute Resolution.
(i) Arbitration. If the Parties cannot resolve a Dispute as set forth in Section 15(a) above within 60 days of receipt of the notice, then either Party may submit the Dispute to formal arbitration in accordance with this Section 15(b). If we cannot resolve an Excluded Dispute as set forth in Section 15(a) above within 60 days of receipt of the notice, then either Party may submit the Excluded Dispute to formal arbitration only if both Parties consent, in a writing signed by You and MINTX Vice President of Legal and Business Affairs, to have that Excluded Dispute subject to arbitration. In such a case (and only in such a case), that Excluded Dispute will be deemed a "Dispute" for the remainder of this Section 15(b).
(ii) Upon expiration of the applicable 60-day period and to the fullest extent permitted by applicable law, a Dispute will be resolved solely by binding arbitration in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association ("AAA"). If the Dispute has a claimed value of not more than $250,000, then the arbitration will be heard and determined by a single neutral arbitrator who is a retired judge or a lawyer with not less than 15 years' experience as a practicing member of the bar in the substantive practice area related to the Dispute, who will administer the proceedings in accordance with the AAA's Supplementary Procedures for Consumer Related Disputes. If the Dispute has a claimed value of more than $250,000, or if MINTX elects in its sole discretion to bear the costs of arbitration in excess of those that would occur for a proceeding before a single neutral arbitrator, then the arbitration will be heard and determined by a three member panel, with one member to be selected by each party and the third (who will be chair of the panel) selected by the two party appointed members or by the AAA in accordance with the Commercial Arbitration Rules. The arbitrator or arbitration panel, as the case may be, will apply applicable law and the provisions of this Agreement and any other applicable terms, will determine any Dispute according to the applicable law and facts based upon the record and no other basis, and will issue a reasoned award. If the Parties do not both consent to the arbitration of an Excluded Dispute as set forth in the immediately preceding paragraph of this Section 15(a), then this paragraph and the remainder of this Section 15(b) will not apply to the Excluded Dispute.
(iii) If a Party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling or unable to set a hearing date within 60 days of the filing of a "demand for arbitration," then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. ("JAMS") using JAMS' streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that You and a legal officer of MINTX consents to in writing. The substantive practice area requirements for the arbitrator and the $250,000 threshold for the number of arbitrators assigned to the Dispute set forth in the paragraph above for the AAA arbitration will also apply to any such arbitration under JAMS or another arbitration service.
(iv) You can obtain AAA and JAMS procedures, rules, and fee information as follows:
(1) AAA: (800)778-7879; http://www.adr.org
(2) JAMS: (949)224-1810; http://www.jamsadr.com
16. Nature, Limitations, and Location of Alternative Dispute Resolution
In arbitration, as with a court, the arbitrator must honor the terms of this Agreement and can award the prevailing party damages and other relief (including attorneys' fees). However, WITH ARBITRATION (A) THERE IS NO JUDGE OR JURY, (B) THE ARBITRATION PROCEEDINGS AND ARBITRATION OUTCOME ARE SUBJECT TO CERTAIN CONFIDENTIALITY RULES, AND (C) JUDICIAL REVIEW OF THE ARBITRATION OUTCOME IS LIMITED. All parties to the arbitration will have the right, at their own expense, to be represented by an attorney or other advocate of their choosing. If an in-person arbitration hearing is required, then it will be conducted in Los Angeles, California. You and MINTX will pay the administrative and arbitrator's fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require MINTX to pay a greater portion or all of such fees and costs in order for this Section 16 to be enforceable, then MINTX will have the right to elect to pay the fees and costs and proceed to arbitration. Discovery will be permitted pursuant to the applicable arbitration rules. The arbitrator's decision must consist of a written statement stating the disposition of each claim of the Dispute, and must provide a statement of the essential findings and conclusions on which the decision and any award (if any) is based. Judgment on the arbitration decision and award (if any) may be entered in or by any court that has jurisdiction over the parties pursuant to Section 9 of the Federal Arbitration Act.
(a) Limited Time to File Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF EITHER PARTY WANTS TO ASSERT A DISPUTE (BUT NOT AN EXCLUDED DISPUTE) AGAINST THE OTHER, THEN MINTX OR YOU MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 16(a) ABOVE) WITHIN 1 YEAR AFTER THE DISPUTE ARISES -- OR IT WILL BE FOREVER BARRED.
(b) Injunctive Relief. The foregoing provisions of Section 16 will not apply to any legal action taken by MINTX to seek an injunction or other equitable relief in connection with any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Digital Collectibles and/or MINTX's intellectual property rights, MINTX's operations, and/or MINTX's products or services. To the extent that You or MINTX prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
(c) Small Claims Matters Are Excluded from Arbitration Requirement. Notwithstanding the foregoing, either Party may bring a qualifying claim of Disputes (but not Excluded Disputes) in small claims court.
(d) No Class Action Matters. YOU AND MINTX AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN EACH PARTY'S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the Parties' Dispute is resolved through arbitration, the arbitrator may not consolidate another person's claims with Your claims, and may not otherwise preside over any form of a representative or class proceeding. Disputes will be arbitrated only on an individual basis and will not be consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. But if, for any reason, any court with competent jurisdiction or any arbitrator selected pursuant to Section 16(b) above holds that this restriction is unconscionable or unenforceable, then the Parties' agreement in Section 16(b) above to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 16(e) below.
(e) Federal and State Courts in Los Angeles. Except to the extent that arbitration is required in Section 16(b) above, and except as to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute may only be instituted in state or federal court in Los Angeles County, California. Accordingly, the Parties consent to the exclusive personal jurisdiction and venue of such courts for such matters.
(f) Severability. With the exception of any of the provisions in Section 16(d) of this Agreement ("Class Action Waiver"), if an arbitrator or court of competent jurisdiction decides that any part of the Agreement is invalid or unenforceable, the other parts of this Agreement will still apply.
17. General Terms
This Agreement will transfer and be binding upon and will inure to the benefit of the parties and their permitted successors and assigns, in particular any Transferee. This Agreement constitutes the entire agreement, and supersedes any and all prior or contemporaneous representations, understandings and agreements, between the Parties with respect to the subject matter of this Agreement, all of which are hereby merged into this Agreement. Without limitation, the terms of any other document, course of dealing, or course of trade will not modify this Agreement, except as expressly provided in this Agreement or as the Parties may agree in writing. No amendment to this Agreement or waiver of any provision hereof will be valid or binding unless reduced to writing and duly executed by the Party or Parties to be bound thereby. Failure to promptly enforce a provision of this Agreement will not be construed as a waiver of such provision. Nothing contained in this Agreement will be deemed to create, or be construed as creating, a joint venture or partnership between the parties. Neither Party is, by virtue of this Agreement or otherwise, authorized as an agent or legal representative of the other Party. Neither Party to this Agreement is granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf or in the name of the other party, or to bind such other Party in any manner. The Parties hereby designate MINTX as a third-party beneficiary of Section 6(e), having the right to enforce Section 6(e) of this Agreement. Except as set forth in Section 6(e) of this Agreement with regards to MINTX, nothing contained in this Agreement will be deemed to create any third-party beneficiary right upon any third party whatsoever. Each of the Parties acknowledges that it has had the opportunity to have this Agreement reviewed or not by independent legal counsel of its choice. If any one or more of the provisions of this Agreement should be ruled wholly or partly invalid or unenforceable, then the provisions held invalid or unenforceable will be deemed amended, and the court or other government body is authorized to reform the provision(s) to the minimum extent necessary to render them valid and enforceable in conformity with the parties' intent as manifested herein. The headings to Sections of this Agreement are for convenience or reference only and do not form a part of this Agreement and will not in any way affect its interpretation. Neither Party will be afforded or denied preference in the construction of this Agreement, whether by virtue of being the drafter or otherwise. For purposes of this Agreement, the words and phrases "include," "includes", "including" and "such as" are deemed to be followed by the words "without limitation". Any notices or other communications provided by MINTX under this Agreement be given by posting to the Collectibles Website or other website elected by MINTX. You may give notice to MINTX by mail per the below, effective upon receipt. The Parties have agreed to contract electronically, and accordingly, electronic signatures will be given the same effect and weight as originals.
April 6, 2022