Terms of Service

Effective Date: September 10, 2021

Date Last Updated: April 13, 2022 

These Terms of Use (“Terms”) govern your use of our website at https://poa-studios.com/ and other sites and pages to which these terms are applied (the “Sites”), and all related features of the Sites, including any smart contracts, APIs, and applications (collectively, our “Platform”). These Terms are entered into by and between you and Proof of Art Inc. (“Proof of Art,” the “Company,” “we,” “us,” or “our”). 

1. Legally Binding Terms

Please read these Terms carefully! You are bound by these terms when you engage in services on our Platform, such as registering an account, uploading Digital Media, or clicking “I Agree” where relevant. If you do not agree to these Terms, you must not use the Platform. 

YOU UNDERSTAND THAT THESE TERMS CONTAIN AN ARBITRATION PROVISION CONTAINING A CLASS ACTION WAIVER, WHICH SHALL BE ENFORCEABLE AGAINST YOU UNLESS CONTRARY TO APPLICABLE LAW.

The Platform is offered and available to users who are 18 years of age or older. If you are under the age of 18, you must not access or use the Platform. Features of the Platform and Sites may be limited based on geography.

2. How these Terms Apply

The Platform is simply an administrative platform that provides the technical means to facilitate transactions between Artists or the Representatives and Buyers. This does not make us a party to any such transactions.

These Terms apply to “you” as someone just browsing the Platform (a “User”). Some different or additional provisions of these Terms may apply depending on whether you are also:

• An “Artist” selling Digital Media using the Platform (see Section 8 for additional terms specific to Artists);
• A “Representative” of an Artist, like an agent or curator (see Section 9 for additional terms specific to Representatives); or,
• A “Buyer” purchasing or trading NFTs on the Platform (see Section 10 for additional terms specific to Buyers).

Other supplemental terms may apply to our relationship or certain features. If so, such supplemental terms are incorporated into and form a part of these Terms. 

3. Your Acceptance

By accepting these Terms or by accessing the Sites and Platform, you acknowledge and agree that you: 

• are at least 18 years of age; 
• have read and understand the Terms; 
• agree to be legally bound to the Terms and any other agreements or policies incorporated herein by reference; 
• have the authority to accept the Terms on behalf of yourself in an individual capacity or, if applicable, on behalf of a company, curator, or other business entity that you represent; and, 
• that your use of the Platform does not violate any law, rule or regulation, terms and conditions, or other legally or contractually binding requirements to which you are subject.

THESE TERMS SET FORTH THE LEGALLY BINDING TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SITES OR PLATFORM. BY ACCESSING OR USING THE SITES, PLATFORM, SERVICES, SMART CONTRACTS, APIS, OR APPLICATIONS YOU ARE ACCEPTING THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT), AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT). 

IF YOU DO NOT AGREE WITH THE TERMS OR DO NOT HAVE THE RIGHT, AUTHORITY OR CAPACITY TO ENTER INTO THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT), YOU ARE PROHIBITED FROM ACCESSING, USING, OR TRANSACTING ON THE SITES OR PLATFORM. 

YOU FURTHER REPRESENT AND WARRANT THAT YOU ARE OTHERWISE LEGALLY PERMITTED TO USE THE SITES, SERVICES, AND PLATFORM IN YOUR JURISDICTION AND THAT PROOF OF ART IS NOT LIABLE FOR YOUR COMPLIANCE WITH SUCH APPLICABLE LAWS. YOU AGREE TO INDEMNIFY THE COMPANY FOR ANY BREACH OF THESE OR OTHER APPLICABLE TERMS.

4. Changes to these Terms 

We reserve the right to modify our Platform. Proof of Art may introduce new features, change existing features, or remove features from the Platform at any time and without prior notice. Unless explicitly stated otherwise, the Terms will govern the use of any new features that augment or enhance the current Platform, including Proof of Art’s release of new resources and/or new related websites or applications. If changes to the Terms are material, we will take reasonable measures to notify you and, if necessary, obtain your consent. Please check this page frequently so you are aware of any changes, as they are binding on you.

5. Prohibited Uses Applicable to all Users 

You must use the Platform only for lawful purposes and in accordance with these Terms of Use. You agree not to use the Platform:

• In any way that violates any applicable U.S. or foreign 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). 
• To engage in transactions for the purpose of concealing economic activity, laundering money, financing terrorism or any other illegal purpose.
• To engage in any attack, hack, or exploit or to otherwise interfere with Proof of Art’s Platform, the technology, or smart contracts. 
• To transmit, or procure the sending of, any advertising or promotional material, without our prior written consent, including any “junk mail”, “chain letter,” or “spam” or any other similar solicitation. 
• 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. 
• To impersonate or attempt to impersonate the Company, a Company employee, or any other person or entity (including, without limitation, by using email addresses or screen names associated with any of the foregoing). 
• In any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Platform. 
• By targeting it with any robot, spider, or other automatic device, process, or means to access the Platform for any purpose, including monitoring or copying any of the Digital Media or other content on the Platform. 
• To monitor or copy any of the Digital Media or NFTs on the Platform for any other unauthorized purpose without our prior written consent. 
• By targeting it with any device, software, or routine that interferes with the proper working of the Platform. 
• To introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful. 
• To actually or attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Platform or any server, computer or database connected to the Platform.

6. Your Privacy 

The privacy of your personal information is important to us. Our Privacy Policy explains how we use and share the information we collect. In addition to these Terms, you also acknowledge and agree to the collection, use, and disclosure of your personal information in accordance with our Privacy Policy which is incorporated into these Terms by reference.

You acknowledge that all NFT transactions initiated through the Platform are made on the Palm,  Polygon, or other carbon neutral blockchain. This means your public wallet address and related information about the transaction may be made visible on the blockchain. 

7. Access to Our Platform  

Proof of Art is a Platform that enables Artists to upload “Digital Media”, including but not limited to, visual works, audiovisual works, narrations, animations, audio works, photographs, and 3D works, and Mint them into NFTs. Buyers may then purchase or trade these NFTs, which represent the underlying Digital Media. 

Our Platform operates on the Palm, Polygon, or other carbon neutral blockchain, meaning all NFT transactions initiated through our Platform are confirmed and managed on one of these blockchains. 

To access and use the Platform, you are responsible for making all arrangements necessary for you to have access to the Platform, including by installing a compatible web browser.

We reserve the right to withdraw or amend access to the Platform, at any time in our sole discretion. Proof of Art will not be liable if for any reason all or any part of the Platform is unavailable at any time for any period.

7.1. Registered Accounts 

To buy, sell, or trade NFTs and access parts of our Platform you must register for an account (“Registered Account”). During the registration process, you may be asked to provide certain registration details and other information. Before any Artists or their Representative may list NFTs for sale on our Platform, and before any Buyer may offer to purchase an NFT, you may be asked to  download and link your Registered Account to a supported digital wallet or payment method. You acknowledge that Proof of Art has no ownership or control over the Digital Wallet, and we are not responsible for the security of your Digital Wallet. We may require you, in our sole discretion, to provide additional information and/or documents as reasonably necessary to enable you to use the Platform or for us to provide services. The information you provide us is governed by our Privacy Policy.  

If you are making a Registered Account in your capacity as an Artist’s Representative or the employee, representative, or agent of a Representative, you represent and warrant that you have all necessary authority to agree to these Terms and legally bind the entity and/or Artist on whose behalf you are registering an account.

Creating a Registered Account does not entitle you to any additional rights or ownership interests that are not otherwise expressly granted under these Terms.

7.2. Registered Account Acceptable Use Requirements

You are solely responsible for all activity conducted through your Registered Account. You must abide by these acceptable use requirements at all times:

• You understand and agree that access to your Registered Account is limited solely to you. You agree that you will not sell, rent, lease, or grant access to your Registered Account .
• As a condition of your use of the Platform, you agree to only provide information that is correct, current, and complete. If your information changes, you must update it. If you provide any information that is, or we have reasonable grounds to suspect that the information is, untrue, inaccurate, not current, or incomplete we may freeze, block, or terminate your Registered Account.
• You are solely responsible for maintaining the security of your account. This means you must keep your password and user credentials confidential and secure. Do not share your username, password, or other security information with any other person to access the Platform. Any unauthorized access to your Registered Account could result in the loss or theft of NFTs and/or funds held in your Registered Account and any associated accounts, including your linked bank account(s) and credit card(s). You agree to notify us immediately of any unauthorized access to or use of your username or password, or any other breach of security at info@proof-of-art.io.
• You must not use your Registered Account for any illegal, illicit, or unethical activity, including money laundering, fraud, hacking, or any other misuse.
• If you would like to close or terminate your Registered Account, you may do so at any time by contacting us at info@proof-of-art.io.
• If we have no record of you using or accessing your account for a period of more than two years we may be required to report any unclaimed property or funds associated with the account to authorities in accordance with applicable abandoned property and escheat laws. We will first use reasonable efforts to give you notice. If you fail to respond within seven business days or as required by law, we may be required to deliver any such property or funds to the applicable authority as unclaimed property. We reserve the right to deduct a dormancy fee or administrative fee, as permitted by applicable law.

7.3 Termination of Platform Access

We reserve the right to suspend, discontinue, or terminate access to any Registered Account, without notice, or refuse any and all future use of the Sites and Platform if you fail to comply with these acceptable use requirements, Terms, or in our sole discretion for any or no reason. You understand and agree that we shall have no liability or obligation to you in such an event. 

In the event of any termination or discontinuation of your account/profile, your ability to access, visit and/or use the Platform and Sites or any portion thereof, we reserve the right, in addition to our other remedies, to reassign, and/or allow another user to use, your username.

8. Artist Terms

The following Artist Terms describe the responsibilities of Artists in regard to their Digital Media, NFTs, and use of the Platform.

Artists offer for sale a Minted NFT of their Digital Media on our Platform, and not the Digital Media itself. Proof of Art does not create, own, or control any Digital Media on or off the Platform, but retains the right to remove Digital Media or NFTs that infringes these Terms. 

You agree to defend, indemnify, and hold harmless the Company consistent with Section 18 for any violation of these or other applicable Terms.

8.1 Artist’s Access to the Platform 

Artists who wish to list an NFT of their Digital Media for sale on our Platform must coordinate with the Company and/or submit an application for approval. We may, in our sole discretion, decline to grant Artists the ability to submit Digital Media and/or trade NFTs. In the event of any violation of these Terms, other Proof of Art policies, or any other applicable terms and conditions, the Company may, at its sole discretion and without notice, suspend or terminate access to our Platform and bar all future use of our Platform (or any portion thereof). 

Artist’s Responsibilities 

Artists are solely responsible for the NFTs they Mint and offer for sale on the Platform. 

• To make a sale on the Platform, Artists must first Mint or tokenize their Digital Media by uploading it to the Platform and requesting that the Digital Media be cryptographically tokenized on the Palm, Polygon, or other carbon neutral  blockchain (“Mint,” “Minted,” or “Minting”). 
• You represent and warrant that you own or have all legal rights necessary in the Digital Media to Mint, display, and offer for sale an NFT of the Digital Media through the Platform, including but not limited to any applicable intellectual property rights and ownership interests in the Digital Media and components thereof. 
• You represent and warrant that the Digital Media you Mint as an NFT is an original creation. You are prohibited from Minting Digital Media that is duplicated, copied, or otherwise unoriginal unless doing so as a limited series on our Platform. 
• Artists are solely responsible for incorporating any credits or acknowledgements in a clear and conspicuous manner, or as otherwise required by applicable law or contractual requirements.
• Artists are solely responsible for structuring the sale and setting any reserved or fixed prices and bid amounts.
• You agree not to bid on, purchase, or make offers on your own listed or offered NFTs.
• Artists are responsible for paying for and/or addressing all applicable income, sales, use, value-added, and other taxes, duties, levies, and assessments now or hereafter claimed or imposed by any U.S. or foreign government authority (“Taxes”), as a result of the Artists use of our Platform.
• You authorize the Company to automatically deduct any service fees  and/or Taxes directly from payments made or transferred as part of a transaction. The service fee is generally 15% of the proceeds (the “Fee”) from the sale of digital artwork listed on the Platform. Such Fee shall be retained by the Company as payment, and the remainder amount (85% of the proceedings) shall be remitted to the Artist via a commercially reasonable method. We may offer a reduced Fee of 10% to non-profit organizations. Please contact us here if you would like to request the reduced Fee.  

• By Minting and selling an NFT of your Digital Media to a Buyer, displaying, and/or offering for sale Digital Media on the our Platform, you affirmatively grant the Buyer, and any subsequent Buyer(s), a limited, worldwide, irrevocable, non-assignable (except to a subsequent Buyer(s)), non-sublicensable, royalty-free license to display the Digital Media underlying the NFT legally owned and properly obtained by the Buyer (“NFT Limited License”), unless you otherwise expressly define the scope of the rights granted to the Buyer upon purchase in the terms of sale. You reserve all exclusive copyrights to the creative work underlying the Digital Media, including, but not limited to, the right to reproduce, to prepare derivative works, to display, to perform, and to distribute the creative work.
• You grant Proof of Art, its affiliates, successors, and partners a perpetual, worldwide, non-exclusive, royalty-free right to: copy, transmit, perform, display, modify (solely for formatting purposes), translate, host, distribute, make available and use the Digital Media solely in connection with the provision of the services offered through the Platform, including the right to use your Digital Media on our Sites and Platform, and social media, and display, reproduce, or otherwise distribute the Digital Media for the purpose of operating, promoting, sharing, marketing, advertising, and maintaining the Platform.

9. Representative Terms

If you are a Representative using the Platform, providing Digital Media, listing an NFT, or otherwise acting on behalf of an Artist, you agree to be bound to the Artist Terms above in Section 6. You also agree to the following Representative Terms. 

You agree to defend, indemnify, and hold harmless the Company consistent with Section 18 for any violation of these or other applicable Terms.

9.1 Representatives’ Access to the Platform

Representatives who wish to submit Digital Media or list an NFT on behalf of an Artist must coordinate with the Company and/or submit an application for approval. We may, in our sole discretion, decline to grant Representatives the ability to submit Digital Media and/or trade NFTs.

9.2 Representatives’ Responsibilities

You represent and warrant that you have:

• Been granted all necessary authority to act as an agent, curator, employee, or other legal representative of the Artist on whose behalf you are acting. 
• All rights, titles, and interests necessary to provide Digital Media pursuant to these Terms and any additional terms set on the listing, Minting, selling, or transferring an NFT rendering of such Digital Media.
• All necessary capacity and authority to legally bind the Artist on whose behalf you are acting to these Terms and any additional terms set on the listing, Minting, selling, or transferring of Digital Media and NFTs.

10. Buyer Terms

The following Artists Terms describe the responsibilities of Artists in regard to their Digital Media and use of the Platform.

10.1 Buyer’s Responsibilities

Buyers are responsible for paying all applicable purchase prices, taxes, and fees for NFTs they purchase as described in the applicable NFT listing. They are also responsible for any applicable gas fees to transfer the NFT off the Platform after making a purchase. Artists or their Representatives may set additional or different terms and conditions on the sale or transfers of their NFTs.

10.2 No Ownership of Digital Media 

When you purchase an NFT, you receive a limited, worldwide, irrevocable, non-assignable (except to a subsequent Buyer(s)), non-sublicensable, royalty-free license to display the Digital Media underlying the NFT (“NFT Limited License”), unless otherwise expressly stated in the applicable NFT listing. 

10.3 No Returns or Refunds 

You acknowledge that all transactions conducted through our Platform are managed and confirmed on the Palm, Polygon, or other carbon neutral blockchains and are irreversible. Accordingly, all sales are final. No returns or refunds will be permitted except with respect to any statutory warranties or guaranties that cannot be excluded or limited by law. To the extent you may have questions or concerns about a specific NFT or purchase, you must contact the Artist or their Representative. 

We do not control and are not responsible for the terms and conditions of sale or the quality and fitness or any NFT listed on or purchased through the Platform.

11. Infringing Content

At Proof of Art, we respect the intellectual property rights of others, including Artists who use our Platform. We have no obligation to and do not screen or monitor the Digital Media submitted or NFTs minted and posted for sale on our Platform. However, we reserve the right to, at our sole discretion, to refuse to post or remove any Digital Media or NFTs if by doing so would negatively impact a third party’s intellectual property rights or otherwise cause a violation of these Terms.

11.1 The Digital Millennium Copyright Act 

Proof of Art will respond to proper notices of alleged copyright infringement under the Digital Millennium Copyright Act (“DMCA”). If we receive a proper DMCA notice we will endeavor to remove all allegedly infringing content from the areas of our Platform and Sites under our control. 

11.1.1 DMCA Notice

If you believe Digital Media on our Platform violates your copyright, please notify us immediately in writing by using the following contact information: 

• Mail: 1507 7th Street, #038, Santa Monica, CA 90401
• Email: info@proof-of-art.io

So that we can respond to your notification, please include all of the following information: 

• A physical or electronic signature of the copyright owner or of a person authorized to act on behalf of the copyright owner;
• A clear identification of the copyrighted Digital Media that is claimed to be infringed, if multiple Digital Media are implicated, a representative list of such works;
• Identification of the Digital Media online, including, if possible, a URL link to the Digital Media on the Proof of Art Platform;
• Information reasonably sufficient to permit Proof of Art to contact you (the complainant), such as your email address, physical address, and/or telephone number;
• A statement that you (the complainant) have a good faith belief that the relevant Digital Media is being used in a way that is not authorized by the copyright owner, its agent, or under the law; and 
• A statement, made under penalty of perjury, that the above information is accurate, and that you (the complainant) are the copyright owner or are authorized to act on behalf of the copyright owner.

11.1.2 DMCA Counter Notice 

If you receive notice from us that your Digital Media has been taken down (a “DMCA Take-Down Notice”) and you believe that the Digital Media removed is not infringing, or that you have authorization to post the Digital Media from the copyright owner, their agent, or pursuant to the law, you may send us a Counter Notification under the DMCA. You may submit this notice to us, in writing, within 10 business days from receipt of the DMCA Take-Down Notice, using the following contact information: 

• Mail: 1507 7th Street, #038, Santa Monica, CA 90401
• Email: info@proof-of-art.io

So that we can respond to your notification, please include all of the following information: 

• Your physical or electronic signature; 
• A clear identification of the Digital Media that has been removed and the location of the Digital Media before it was removed; 
• A statement that you have a good faith belief that the Digital Media was removed as a result of misidentification or mistake; 
• Your name, telephone number, and email address; and 
• A statement that you consent to the jurisdiction of the U.S. District Court in the state which you reside, and a statement that you will accept service of process from the person who provided the DMCA notification of the alleged infringement to us. 

11.2 Trademark Infringement Notice

11.3 Consequences for Infringement 

We reserve the right to your terminate access to the Platform and your Registered Account if we are notified and/or discover you have intentionally or negligently engaged in any conduct infringes anyone’s intellectual property rights. We also reserve the right to remove or take down any Digital Media or NFTs that infringe anyone’s intellectual property rights. You are responsible for indemnifying us for any infringement Claims arising from your conduct consistent with Section 18. 

12. Our Intellectual Property Rights to Site and Platform Content 

You acknowledge that the Platform and its entire contents, features, and functionality (including but not limited to all information, technology, software, text, displays, images, video, audio, name, logo, service names, designs, slogans, and trademarks, and the design, selection, and arrangement thereof) (the “Site and Platform Content”) are owned or licensed by the Company, its affiliates, 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. You are only permitted to use the Site and Platform Content as expressly authorized by Proof of Art.

These Terms do not transfer any right, title, or interest in the Sites and Platform Content to you. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the Site and Platform Content. 

EXCEPT AS SPECIFICALLY PERMITTED HEREIN, NO PORTION OF THE SITES AND PLATFORM CONTENT MAY BE REPRODUCED IN ANY FORM, OR BY ANY MEANS, WITHOUT PRIOR WRITTEN PERMISSION FROM THE COMPANY. YOU ARE PROHIBITED FROM MODIFYING, DISTRIBUTING, PUBLISHING, TRANSMITTING, OR CREATING DERIVATIVE WORKS OF ANY SITE AND PLATFORM CONTENT FOR ANY PURPOSES. 

13. Reliance on Information Provided by Proof of Art

The information presented on or through the Sites and Platform is made available solely for general information purposes. Occasionally there may be information on the Sites and Platform that contains typographical errors, inaccuracies, or omissions that may relate to service descriptions, availability, or our business. Proof of Art reserves the right to correct any errors, inaccuracies, or omissions and to change or update information if any information on the Platform is inaccurate at any time, in our sole discretion, with or without notice.

Additionally, we do not warrant the accuracy or completeness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such information by anyone. 

14. Third Party Links and Content

The Sites and Platform may include links to content provided by third parties. Proof of Art does not maintain or own this content and we do not imply approval, sponsorship, or endorsement of these other sites and we have not reviewed these other sites. If you decide to leave our Platform to access third-party sites, you do so at your own risk. You agree that Proof of Art does not assume responsibility for any products, content, services, websites, advertisements, offers, or information that is provided by third parties and made available through the Platform. 

15. Mobile Application Terms 

To the extent you may access the Sites or Platform through a mobile application, you acknowledge and agree that the availability of our mobile application (“Mobile App”) is dependent on the third party from which you download the application (e.g., the Apple App Store or Google Play). In addition to these Terms, there may be additional terms and conditions associated with your use of the Mobile App, including applicable third-party App Store terms. 

16. Disclaimer of Warranties

YOUR USE OF THE PLATFORM IS AT YOUR OWN RISK. THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE PLATFORM. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE PLATFORM WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE PLATFORM WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. 

THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.

 

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

17. Limitation on Liability 

IN NO EVENT WILL THE COMPANY, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE PLATFORM, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE PLATFORM OR SUCH OTHER WEBSITES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORM OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.

THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

18. Indemnification

18.1 Obligations.  

You agree to indemnify, defend, and hold harmless the Company, our affiliates, and our respective officers, directors, members, managers, agents, employees, personnel, successors and assigns (collectively, the “Indemnified Parties”) from and against any and all claims, demands, lawsuits, losses, injuries, damages, liabilities, judgments, costs and expenses including reasonable attorneys’ fees, experts’ fees and court costs (each a “Claim”) arising out of or in connection with (i) a breach of these Terms or any other applicable terms by you, including any allegation that, if true, would constitute a breach, such as any Claim that any of the Indemnified Parties’ use of, or other exercise of their rights in, the Digital Media or any NFT infringes, misappropriates, or otherwise violates a patent, copyright, trademark, trade secret, and/or any other intellectual property right, and/or (ii) the negligent acts or omissions, errors, or intentional wrongdoing by you, your employees, subcontractors, agents, or other legal representatives.

18.2. Procedures.

We will notify you of any Claim promptly after we learn about it; provided, however, that your obligations under this Section 18 shall continue even if we do not provide you with prompt notice of any such Claim, so long as you are not materially prejudiced as a result. At our sole discretion, we shall control the proceedings relating to a Claim or allow you to do so, at your sole cost and expense. Under no circumstance may you settle any Claim without the consent of the applicable Indemnified Parties, which shall not be unreasonably withheld. To the fullest extent permitted by law, such settlement shall not admit liability on the part of any Indemnified Party or imposes any liability or obligation upon such Indemnified Party. If Licensor fails to timely undertake the defense of a Claim, each of the applicable Indemnified Parties shall have the right, but not the obligation, themselves to undertake, or to have another for them to undertake, the defense (including settlement) of such Claim, which shall be on behalf of, for the account of, at the sole cost and expense of, and at the sole risk of, Licensor.

19. Disclosure Regarding Technology

Our Platform uses blockchain technologies, including tokens, cryptocurrencies, smart contracts, and decentralized or peer-to-peer networks to operate and provide our services. All Users, Buyers, and Artists using the Sites and Platform acknowledge and agree that such technologies are novel and speculative, and that there is uncertainty regarding the operation, effects, and application of existing law.

20. Governing Law and Jurisdiction 

All matters relating to the Sites and Platform and these Terms of Use, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction).

Any legal suit, action or proceeding arising out of, or related to, these Terms of Use or the Sites Platform shall be instituted exclusively in the federal courts of the United States or the courts of the State of California, in each case located in the County of Los Angeles, although we retain the right to bring any suit, action or proceeding against you for breach of these Terms of Use in your country of residence or any other relevant country. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

21. Dispute Resolution 

If you have any issue or dispute with Proof of Art, you agree to first contact us at info@proof-of-art.io and attempt to resolve the dispute with us informally. If we are not able to resolve the dispute with you informally, both parties agree to resolve any claim, dispute, or controversy (excluding claims for injunctive or other equitable relief) arising out of or in connection with or relating to these Terms by binding arbitration by the American Arbitration Association (“AAA”) under the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes then in effect for the AAA, except as provided herein. 

Unless both parties agree otherwise, the arbitration will be conducted in the County of Los Angeles, California. Each party will be responsible for paying their respective AAA filing, administrative and arbitrator fees in accordance with AAA rules. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees, and reasonable costs for experts and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall prevent either party from seeking injunctive or other equitable relief from the courts for matters related to data security, intellectual property, or unauthorized access to the Platform. 

ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND THE COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

22. Waiver and Severability 

Proof of Art’s failure to monitor or enforce a provision of these Terms does not constitute a waiver of its right to do so in the future with respect to that provision, any other provision, or these Terms as a whole. 

If any provision of these Terms of Use is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Use will continue in full force and effect.

23. Entire Agreement 

These Terms and our Privacy Policy, subject to any amendments, modifications, or additional agreements you enter into with Proof of Art, shall constitute the entire agreement between you and the Company with respect to the Platform and any use of the Platform. 

24. Contact Us 

If you have any questions or comments about these Terms please contact us at: 

• Email: info@proof-of-art.io