MetaFactory Terms and Conditions
Last Amended: April 13, 2020
PLEASE READ THE BELOW TERMS AND CONDITIONS VERY CAREFULLY .
THEY CONSTITUTE A LEGALLY BINDING CONTRACT BETWEEN YOU AND METAFACTORY DETERMINING, AMONG OTHER THINGS, YOUR LEGAL RIGHTS AND REMEDIES IN CONNECTION WITH:
- AUCTIONS AND PRICING FOR METAFACTORY WEARABLES
- THE USE OF THE DESIGNS / INTELLECTUAL PROPERTY EMBODIED IN METAFACTORY WEARABLES
- THE PRODUCTION AND DELIVERY OF PHYSICAL METAFACTORY WEARABLES
- BRAND FACTORY MEMBERSHIP, GOVERNANCE AND FUNDING
- CERTAIN REPRESENTATIONS AND WARRANTIES THAT YOU ARE BEING ASKED TO MAKE TO METAFACTORY, WHICH METAFACTORY WILL RELY UPON IN PROVIDING YOU THE OFFERINGS
- CERTAIN LIMITATIONS ON AND EXCLUSIONS OF THE LIABILITIES AND OBLIGATIONS THAT METAFACTORY OWES OR MAY OTHERWISE HAVE OWED TO YOU UNDER APPLICABLE LAW
- CERTAIN LIMITATIONS ON AND WAIVERS OF LEGAL RIGHTS AND REMEDIES THAT YOU HAVE OR MAY OTHERWISE HAVE HAD UNDER APPLICABLE LAW
- WAIVER OF JURY TRIALS AND CLASS ACTIONS AND MANDATORY ARBITRATION OF, DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT
Please contact us at firstname.lastname@example.org for any questions or issues.
METAFACTORY TERMS AND CONDITIONS
PARTIES & BINDING EFFECT
Parties. These Terms and Conditions, as they may be amended, modified or supplemented from time to time in accordance with Section 7.7, constitute an agreement (this " Agreement ") being entered into between you (" you ") and MetaFactory. " MetaFactory " means: (a) MetaFactory LLC., a Wyoming limited liability company(" MetaFactory LLC "); (b) all legal persons, natural persons, individuals, entities, groups, partnerships and associations who contributed or will in the future in whole or in part develop or contribute to or provide the MetaFactory Offerings, including the persons responsible for creating or contributing to the Designs; (c) each Brand Factory in which MetaFactory is a Member or of which MetaFactory is a service provider, for so long as MetaFactory is a Member or providing such services; (d) the past, current and future subsidiaries, affiliates, representatives, agents, employees, independent contractors, directors, officers, managers, stockholders, creditors and other investors of the foregoing; and (e) the past, current and future successors, assigns, heirs and delegates of the foregoing.
Effectiveness. This Agreement will, automatically and without further action of any person, become binding upon you when you purchase or offer to purchase, bid upon, use, receive or participate in or receive any benefit of any MetaFactory Offering.
PRODUCTS & SERVICES
Products and Services. The " MetaFactory Offerings " are:
- the apparel, clothing, accessories, hats, shoes, jewelry, Physical Wearables, Digital Wearables and other tangible and intangible merchandise or products designed, marketed, promoted, offered, sold, licensed, developed, manufactured, distributed, shipped or produced, in whole or in part, by or on behalf of MetaFactory (the " Merchandise "), and all such activities of MetaFactory with respect thereto;
- the website at www.metafactory.ai and the content and links published thereon and the functions and services provided therein or thereunder (the " Site ") and the design, development, operation, maintenance, publication and making available of the Site;
- the articles, newsletters, instructions, tutorials, tweets, posts, research and documentation published, distributed or made available by or on behalf of MetaFactory, whether on the Site, on third-party platforms, through mailing lists or otherwise and the writing, research and preparation thereof;
- the Auctions and other offers and sales of Merchandise;
- the Brand Factory Memberships sold by Brand Factories and the services provided by MetaFactory to Brand Factories;
- the software, scripts, "smart contracts", blockchain tokens, algorithms, models, source code, object code, databases, data and other technologies developed, deployed or made available by or on behalf of MetaFactory; and
- all other products and services designed, marketed, promoted, offered, sold, licensed, developed, manufactured, distributed, shipped or produced, in whole or in part, by or on behalf of MetaFactory.
- Wearables. Merchandise may include tangible wearable items (" Physical Wearables ") or uniquely identifiable digital tokens intended to represent intangible articles of clothing in virtual reality or gaming environments (such tokens, " Digital Wearables " and such environments, " Virtual Worlds "). MetaFactory may (but shall not be required to) sell a paired Physical Wearable and Digital Wearable bearing the same Design in a single transaction. Physical Wearables are pre-purchased and are subject to certain risks of production and delivery, including those indicated in Sections 2.7-2.8 and the applicable Auction Rules. MetaFactory does not represent, warrant or guarantee that descriptions, pictures or depictions of Wearables on the Site or in the Auction Rules are accurate, completely reliable, current or error-free, and because Wearables are pre-ordered before manufacturing, production and fulfilment, and the actual Wearables may differ as a result of errors, defects or changes made in the process of manufacturing, production and fulfillment. MetaFactory reserves the right to limit the sales of Wearables and other Merchandise to any person, geographic region or jurisdiction, in its sole and absolute discretion.
- Use and Ownership of Designs. Each Wearable embodies a design, including the cut, style, coloring, texture and graphics embodied in the Wearable (the " Design "). The lawful holder of a Digital Wearable has a single, personal, non-commercial, fully paid-up, personal, revocable, non-exclusive, worldwide license to display the Design for such Digital Wearable or cause the Design for such Digital Wearable to be displayed, in each case, solely on the holder's personal avatar or character in one Virtual World at a time, provided that the software system on which such Virtual World requires reasonable proof of the holder's current ownership and control of the Digital Wearable (which proof may include the signing of a transaction with a private key corresponding to the public blockchain address at which such Digital Wearable is verifiably held). This license to the Design shall be deemed to be transferred to any Person to whom the Digital Wearable is lawfully transferred, and in no event shall the license be transferred, assigned or encumbered separately from the Digital Wearable. The license may be sub-licensed to the provider of a Virtual World in which the Design will be displayed, solely for purposes of enabling the holder of the Digital Wearable to cause the corresponding Design to be displayed on such holder's avatar in that Virtual World, provided that such provider requires reasonable proof of the ownership of such Digital Wearable by such holder on each occasion the Design is displayed in such Virtual World. Subject to the preceding licenses: (a) all Designs (including all copyrights, trademarks, intellectual property rights and other proprietary rights therein and thereto) shall remain solely owned by MetaFactory, the applicable Brand Factory or the persons who have created such Designs, as applicable; (b) you are not acquiring any ownership or other rights in or to any Designs; and (c) the copying, redistribution or publication by you or on your behalf of all or any part of the Designs is strictly prohibited.
- Wearables Auctions.
- The amount and price of any Wearable sold by MetaFactory may be determined through an auction (" Auction ") governed by such rules and processes as may be determined by MetaFactory from time to time in its sole and absolute discretion and published in advance of the sale (" Auction Rules "). All Auctions are conducted "with reserve" (i.e., the right of MetaFactory to withdraw the Wearables from the Auction).
- Wearables embodying the same Design may be sold to all Auction winners at a single price or to different Auction winners at different prices, in each case, as determined by the Auction Rules. Without limiting the generality of the foregoing, the Auction Rules may determine pricing of Wearables through a "bonding curve" or similar algorithmic pricing method, through "Vickrey auction" rules or by any other method specified in the Auction Rules. Bids may be sealed or unsealed, as specified in the Auction Rules. MetaFactory may conduct Auctions, in whole or in part, by means of "smart contracts" (software scripts) deployed to the Ethereum blockchain, and may accept payment in DAI tokens or other Ethereum-based tokens, in each case, as determined by the Auction Rules.
- Each bid submitted to or for the benefit of MetaFactory constitutes an irrevocable, binding offer by the bidder, which, in the event that the bidder is deemed by MetaFactory to win a Wearable in accordance with the Auction Rules, shall automatically and without further action of any person be deemed to have been accepted by MetaFactory and to give rise to an enforceable, binding obligation of the bidder to purchase the applicable Wearable for the price determined by the Auction Rules. In the event that you bid via credit card or another payment method rather than depositing tokens with MetaFactory, you consent to MetaFactory and its payments partners authorizing or reserving a charge on your payment card or other payment method for any amount up to your full bid, and you agree to have sufficient funds or credit available throughout the Auction to ensure that the bid amount will be collectible by or on behalf of MetaFactory.
- All determinations regarding the conduct and outcome of Auctions shall be made by MetaFactory LLC, in its sole and absolute discretion, based on a good faith and reasonable interpretation of the applicable Auction Rules.
- Membership Auctions; Brand Factories.
- Certain Auctions (" Membership Auctions ") may entitle all or a subset of winning bidders to receive Brand Factory Memberships in a Brand Factory, as set forth in the applicable Auction Rules. A " Brand Factory " is a club or similar unincorporated association of persons which includes MetaFactory, the relevant winning bidders in the Membership Auction and potentially other persons as set forth in the Auction Rules or the applicable bylaws, charter or other membership or governance agreements governing the Brand Factory (the " Factory Governance Rules "). Brand Factories own the intellectual property rights to certain Designs that have been assigned to them by MetaFactory LLC or one or more designer. Brand Factories are responsible for the production and sale of Merchandise bearing such Designs. " Brand Factory Memberships " are memberships in a Brand Factory represented by tokens or other units of account, which confer certain governance rights, economic rights and/or customer rights on the holders thereof, as set forth hereinafter or in the applicable Auction Rules or Factory Governance Rules. The provisions set forth above for sales of Wearables through Auctions also apply to sales of Brand Factory Memberships through Auctions, mutatis mutandis.
- Brand Factory Memberships shall confer upon the holders such rights, powers, preferences and obligations as are specified in the applicable Auction Rules or Factory Governance Rules. Without limiting the generality of the foregoing, Brand Factory Memberships may be transferable or non-transferable, redeemable or non-redeemable, and may entitle the holder to vote upon the production and offering of Merchandise by the Brand Factory, to receive exclusive, early or preferential access to Merchandise offered by the Brand Factory, or other similar perquisites. Except to the extent specified in the applicable Auction Rules or Factory Governance Rules, Brand Factories shall be under no duty or obligation to treat all Members equally, to sell all Brand Factory Memberships at the same price or upon the same terms and conditions or to confer identical rights upon all Members. MetaFactory and certain other Members may be entitled to transfer or redeem their Brand Factory Memberships, and other Members may not be entitled to transfer or redeem their Brand Factory Memberships.
- Auction Proceeds. The funds (including tokens, if applicable) raised in each Auction (the " Auction Proceeds ") shall be deemed revenues of MetaFactoryapplied by MetaFactory to offset the fees and costs associated with creating the Design and the Auction and fund the fees and costs of production and delivery of the Wearables sold in that Auction (the " Production Costs "). MetaFactory shall determine the amount of the Production Costs, in its sole and absolute discretion. Any surplus of the Auction Proceeds over the Production Costs (the " Auction Surplus ") shall be allocated and managed in accordance with Section 2.10. MetaFactory makes no guarantee or assurance regarding the existence or amount of any Auction Surplus.
- Fulfillment. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, if the Auction Proceeds are less than the minimum funding amount specified by MetaFactory to be raised in the Auctionfor production and delivery of the applicable Wearables (as determined by MetaFactory in its sole and absolute discretion) (the " Minimum Auction Proceeds "), MetaFactory may cancel the Auction and use commercially reasonable efforts refund the Auction Proceeds, minus any costs, fees and liabilities incurred by or on behalf of MetaFactory in connection with the Auction, to the winning bidders. MetaFactory will use commercially reasonable efforts to deliver the Wearables, Brand Factory Memberships or other Merchandise purchased in an Auction that raised at least the Minimum Auction Proceeds; provided, however, that in no event will MetaFactory be required to expend or incur costs, fees or liabilities in excess of the Auction Proceeds. Any amounts deducted from the Auction Proceeds to cover the costs, fees and liabilities of the Auction or fulfillment of the Wearables shall be deemed revenues of MetaFactory and shall not be subject to refund or clawback. The estimated delivery date for Wearables, Brand Factory Memberships or other Merchandise provided by MetaFactory is not a promise to fulfill or deliver the Wearables by that date, but is merely an estimate made at the time the Auction commences of when MetaFactory hopes to deliver the Wearables, assuming successful completion of the Auction.
- No Returns. The Wearables and other Merchandise are limited-edition products made to order in accordance with the specifications of the winning bidders of an Auction. Accordingly, all sales of Wearables are final and non-refundable, and no returns of Wearables will be accepted. MetaFactory shall not be required to provide any substitute Wearables for any reason, including sizing issues or dissatisfaction with the Design.
- Auction Surplus. MetaFactory may allocate all or any portion of the Auction Surplus to MetaFactory (the " MetaFactory Surplus Allocation "), and the MetaFactory Surplus Allocation shall be deemed the sole and exclusive property of MetaFactory, free and clear of any claim or encumbrance. Any portion of the Auction Surplus not included in the MetaFactory Surplus Allocation (the " Brand Factory Allocation ") shall be allocated to the Brand Factory and may be sub-allocated by the Brand Factory to other persons in accordance with the Auction Rules and Factory Governance Rules. Any portion of the Auction Proceeds allocated to the Brand Factory may initially be deposited into the smart contracts or otherwise escrowed or invested by the Brand Factory; for example, the Brand Factory Allocation may be held in the form of DAI and directly or indirectly deposited into the MakerDAO DSR smart contract to accrue interest at the applicable DAI savings rate. Any interest or other earnings on the Brand Factory Allocation shall be added to the Brand Factory Allocation and allocated pro rata in the same manner as the Brand Factory Allocation.
- Redemption of Brand Factory Memberships. To the extent provided in the applicable Auction Rules or Brand Factory Governance Rules, Brand Factory Memberships or Digital Wearables acquired in a Membership Auction may represent a claim for a pro rata portion of the Brand Factory Allocation (the " Cash-Out Claim "). The Cash-Out Claim may be tied to one or more other tokens by using the "Charged Particles" standard at https://github.com/robsecord/ChargedParticlesEth or by any other reasonable method determined by MetaFactory. For the avoidance of doubt, Cash-Out Claims may only be available to MetaFactory, the relevant artist for the Brand Factory and other active contributors to the Brand Factory and will not necessarily be available to all winning bidders in the Membership Auction. To exercise the Cash-Out Claim, the holder of the applicable token may be required to irrevocably forfeit the token through a "burn" or other redemption method specified by the Brand Factory Governance Rules, reducing the supply of the token. Please review the Auction Rules and Brand Factory Governance Rules very carefully to determine your rights.
- Eligibility to Access Offerings/Conditions Precedent to MetaFactory's Obligations to Provide Offerings.
- MetaFactory shall not have any duty or obligation to perform or make available the MetaFactory Offerings for you at any time, and you shall not be eligible to receive or utilize the MetaFactory Offerings or the benefits of the MetaFactory Offerings, if any one or more of the following conditions precedent is not satisfied as of such time: (i) the representations and warranties set forth in Section 4 are not accurate as applied to you; or (ii) performance of the MetaFactory Offerings for you, or your use of the MetaFactory Offerings or the benefits thereof (including the Wearables, Brand Factory Memberships, other MerchandiseCash-Out Claims or other results of the MetaFactory Offerings), constitute, or would be reasonably expected to result in (with or without notice, lapse of time, or both) a breach, default, contravention or violation of any laws, statutes, legal requirements, ordinances, rules, rulings, regulations, judgments, injunctions, orders and decrees enacted, promulgated or issued by any Governmental Authority (" Laws ") applicable to you or MetaFactory, any infringement of intellectual property (including the Designs) or any contract or agreement to which you or MetaFactory is a party or by which you or MetaFactory is bound, including this Agreement.
- If you could reasonably expect that any of the conditions precedent described above is not satisfied, you must not make use of the MetaFactory Offerings or, if you are already using the MetaFactory Offerings, shall immediately cease using the MetaFactory Offerings and notify MetaFactory.
- You acknowledge and agree that MetaFactory shall not be deemed to have waived any of the conditions described in clause "(a)" above, or to have waived or released any claim, right, power, privilege or remedy related thereto, by virtue of providing MetaFactory Offerings to you while having no specific knowledge that such condition is not satisfied, and may terminate or suspend the MetaFactory Offerings (in whole or in part) after learning of such non-satisfaction regardless of how long such condition has not been satisfied. You may be liable to MetaFactory to monetary or other damages if you use the MetaFactory Offerings when any of the conditions described in clause "(a)" above is not satisfied.
- Intellectual Property Rights. Except as expressly set forth to the contrary in Section 2.3 or any applicable open source licenses:
- the MetaFactory Offerings are protected under applicable copyrights, trademarks and other proprietary (including, but not limited to, intellectual property) rights;
- the copying, redistribution or publication by you of any part of the MetaFactory Offerings is strictly prohibited; and
- you are not acquiring any ownership rights in or to any MetaFactory Offerings.
The MetaFactory name and logo and the term "Brand Factory" are trademarks of MetaFactory, LLC. The use of any such trademark without MetaFactory LLC's express written consent is strictly prohibited. The posting of information or material by and through the MetaFactory Offerings does not constitute a waiver of any right in or to such information and/or materials.
USE AND RISKS OF BLOCKCHAIN TECHNOLOGY
Use of Blockchain Technology. MetaFactory utilizes experimental cryptographic technologies and blockchain technologies, including tokens, cryptocurrencies, stablecoins, "smart contracts," consensus algorithms, voting systems and distributed, decentralized or peer-to-peer networks or systems in performing the MetaFactory Offerings. You acknowledge and agree that such technologies are novel, experimental, and speculative, and that therefore there is significant uncertainty regarding the operation and effects and risks thereof and the application of existing Law thereto.
- Certain Risks of Blockchain Technology.
- The technology utilized in delivering the MetaFactory Offerings depends on public peer-to-peer networks that are not under the control or influence of MetaFactory and are subject to many risks and uncertainties. You are solely responsible for the safekeeping of the private key associated with the blockchain address used to participate in auctions or manage your Digital Wearables. MetaFactory will not be able to restore or issue any refund in respect of any Digital Wearables due to lost private keys. If you are not able to spend or use your Digital Wearable, due to loss or theft of the corresponding private key or otherwise, you will be unable to exercise your Brand Factory Membership rights.
- The Auction Proceeds and the Brand Factory Allocation may be deposited in an interest-bearing smart contract; such smart contracts and the related blockchain networks have been created and deployed by independent third parties such as MakerDAO and may be subject to bugs, malfunctions, hacking and theft, or changes to the protocol rules of the relevant blockchain which adversely affect such smart contracts, and may expose you to a risk of total loss and forfeiture of your Digital Wearables, Brand Factory Memberships and other Merchandise, Brand Factory Allocation and Cash-Out Claims. MetaFactory assumes no liability or responsibility for any such smart contracts or related blockchain technologies.
- The prices of assets such as Ether and non-fungible tokens such as the Digital Wearables have historically been subject to dramatic fluctuations and are highly volatile. Although MetaFactory may utilize "stablecoins" such as DAI in providing the MetaFactory Offerings, the stability of such assets also cannot be guaranteed or assured. As relatively new products and technologies, blockchain-based assets are not widely accepted as a means of payment for goods and services. A significant portion of demand for these assets is generated by speculators and investors seeking to profit from the short- or long-term holding of blockchain assets. The market value of any Digital Wearable or Brand Factory Membership may decline below the price you paid for in an Auction. You acknowledge that the cost and speed of transacting with cryptographic and blockchain-based systems such as Ethereum are variable and may increase dramatically at any time, resulting in prolonged inability to access or use the Digital Wearable or Brand Factory Membership or exercise the Cash-Out Claims.
- Blockchain technologies and digital assets are subject to many legal and regulatory uncertainties, and the MetaFactory Offerings could be impacted by one or more regulatory inquiries or regulatory action, which could impede or limit the ability of MetaFactory to provide the MetaFactory Offerings or your ability to utilize the MetaFactory Offerings, including the Digital Wearables and Brand Factory Memberships and the exercise of the Cash-Out Claims.
- Cryptography is a progressing field. Advances in code cracking or technical advances such as the development of quantum computers may present risks to the MetaFactory Offerings, including the Digital Wearables or Cash-Out Claims, which could result in the theft, loss or inaccessibility thereof.
Fork Handling. The blockchain networks utilized by MetaFactory in connection with the MetaFactory Offerings may be subject to "forks." Forks occur when some or all individuals or entities (" Persons ") running the software clients for a particular blockchain adopt a new client or a new version of an existing client that: (a) changes the protocol rules in backwards-compatible or backwards-incompatible manner that affects which transactions can be added into later blocks, how later blocks are added to the blockchain, or other matters relating to the future operation of the protocol; or (b) reorganizes or changes past blocks to alter the history of the blockchain. Some forks are "contentious" and thus may result in two or more persistent alternative versions of the protocol or blockchain, either of which may be viewed as or claimed to be the legitimate or genuine continuation of the original. MetaFactory may not be able to anticipate, control or influence the occurrence or outcome of forks, and does not assume any risk, liability or obligation in connection therewith. Without limiting the generality of the foregoing, MetaFactory does not assume any responsibility to notify you of pending, threatened or completed forks. MetaFactory will respond to any forks as MetaFactory determines in its sole and absolute discretion, and MetaFactory shall not have any duty or obligation or liability to you if such response (or lack of such response) acts to your detriment. Without limiting the generality of the foregoing, MetaFactory's possible and permissible responses to a fork may include: (i) honoring the MetaFactory Offerings on both chains; (ii) honoring MetaFactory Offerings on only one of the chains; (iii) honoring the MetaFactory Offerings in different respects or to a different extent on both chains; or (iv) any other response or policy or procedure, as determined by MetaFactory in its sole and absolute discretion. MetaFactory and each Brand Factory reserves the right to only allow one Digital Wearable to be associated with the Design, notwithstanding that Digital Wearables may exist on both chains following a fork. You assume full responsibility to independently remain apprised of and informed about possible forks, and to manage your own interests in connection therewith.
REPRESENTATIONS MADE BY USERS
You hereby represent and warrant to MetaFactory, as of the date of entering into this Agreement and as of each date that you use or benefit from the Service, as follows:
- Status. If you are an individual, you are of legal age of majority in the jurisdiction in which you reside (and in any event are over 18 years of age), and are of sound mind. If you are a business entity, you are duly organized, validly existing and in good standing under the laws of the jurisdiction in which the business entity is organized, and have all requisite power and authority for a business entity of that type to carry on its business as currently conducted and planned to be conducted.
- Power and Authority. You have all requisite capacity, power and authority to accept the terms and conditions of this Agreement and to carry out and perform your obligations under this Agreement. This Agreement constitutes a legal, valid and binding obligation enforceable against you in accordance with its terms.
- No Conflict; Compliance with Law. You entering into this Agreement and receiving the MetaFactory Offerings and the benefits of the MetaFactory Offerings does not constitute, and will not constitute or result in (with or without notice, lapse of time, or both) a breach, default, contravention or violation of any Law, or contract or agreement to which you are a party or by which you are bound.
- Persons Subject to Sanctions. You are not, (and, if you are an entity you are not owned or controlled by any other Person who is), and are not acting on behalf of any other Person who is, identified on any list of prohibited parties under any Law or by any nation or government, state or other political subdivision thereof, any entity exercising legislative, judicial or administrative functions of or pertaining to government (" Governmental Authorities "), such as the lists maintained by the United Nations Security Council, the U.S. government (including the U.S. Treasury Department's Specially Designated Nationals list and Foreign Sanctions Evaders list), the European Union (EU) or its member states, and the government of your home country. You are not (and, if you are an entity you are not owned or controlled by any other Person who is), and are not acting on behalf of any other Person who is, located, ordinarily resident, organized, established, or domiciled in Cuba, Iran, North Korea, Sudan, Syria, the Crimea region (including Sevastopol) or any other country or jurisdiction against which the U.S. maintains economic sanctions or an arms embargo. The tokens or other funds you use to participate in the Auction or purchase any Wearables or other Offerings are not derived from, and do not otherwise represent the proceeds of, any activities done in violation or contravention of any Law.
- No Claim, Loan, Ownership Interest or Investment Purpose. You understand and agree that, except to the extent otherwise expressly set forth in the applicable Auction Rules or Factory Governance Rules, the Wearables, the Brand Factory Memberships and the other Offerings do not: (a) represent or constitute a loan or a contribution of capital to, or other investment in, MetaFactory or Brand Factory; (b) provide you with any ownership interest, equity, security, or right to or interest in the assets, rights, properties, revenues or profits of, or voting rights whatsoever in, MetaFactory or any Brand Factory; or (c) create or imply any fiduciary or other agency relationship between MetaFactory and You or entitle You to any fiduciary duty or similar duty on the part of MetaFactory or any Brand Factory. You are not entering into this Agreement or utilizing the MetaFactory Offerings or acquiring Wearables for the purpose of making an investment with respect to MetaFactory or any Brand Factory, but solely wish to receive the MetaFactory Offerings from MetaFactory. You understand and agree MetaFactory's sole obligation under this Agreement is to provide the MetaFactory Offerings, upon the terms and conditions set forth in this Agreement.
Non-Reliance. You are knowledgeable, experienced and sophisticated in using and evaluating the technologies involved in the Offerings, including blockchain technology. You have conducted your own thorough independent investigation and analysis of the matters contemplated by this Agreement in determining to participate in any Auction, acquire any Wearables or otherwise purchase, acquire or utilize the MetaFactory Offerings, and have not relied upon any information, statement, omission, representation or warranty, express or implied, written or oral, made by or on behalf of MetaFactory in connection therewith, including any representations or warranties of title, non-infringement, merchantability, usage, security, suitability or fitness for any particular purpose, workmanship or technical quality of any code or software.
DISCLAIMERS AND LIMITATIONS OF LIABILITY
No Consequential, Incidental or Punitive Damages. Notwithstanding anything to the contrary contained herein, MetaFactory shall not be liable to you, whether in contract, tort (including pursuant to any cause of action alleging negligence or strict liability) or otherwise, for indirect, special, incidental, consequential, indirect, punitive or exemplary damages (including lost data, lost profits or savings, loss of business or other economic loss) arising out of or related to this Agreement or the MetaFactory Offerings, whether or not MetaFactory has been advised or knew of the possibility of such damages, and regardless of the nature of the cause of action or theory asserted.
- Limitation of Liability. MetaFactory's liability for damages under this Agreement shall in all cases be limited to, and under no circumstances shall exceed, the amount of Auction Proceeds actually received by MetaFactory as profit after deducting all costs, fees and liabilities incurred by or on behalf of MetaFactoryProduction Costs and Brand Factory Allocation.
- Disclaimer of Representations. The MetaFactory Offerings and the benefits of the MetaFactory Offerings, including the Digital Wearables, the Auctions and the Cash Out Claims, are being provided on an "AS IS" and "AS AVAILABLE" basis. To the fullest extent permitted by law, MetaFactory is not making, and hereby disclaims, any and all information, statements, omissions, representations and warranties, express or implied, written or oral, in connection with the MetaFactory Offerings and the other matters contemplated by this Agreement, including any representations or warranties of title, non-infringement, merchantability, usage, security, suitability or fitness for any particular purpose, workmanship or technical quality of any code or software used in or relating to the MetaFactory Offerings, including the Digital Wearables, Brand Factories and Brand Factory Memberships You acknowledge and agree that your use of the Interface is at your own risk.
- Legal Limitations on Disclaimers. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of certain liabilities and damages. Accordingly, some of the disclaimers and limitations set forth in this Agreement may not apply to you. This limitation of liability shall apply to the fullest extent permitted by law.
- No Professional Advice or Liability. All information provided by or on behalf of MetaFactory is for informational purposes only and should not be construed as professional, accounting or legal advice. You should not take, or refrain from taking, any action based on any information contained provided by or on behalf of MetaFactory. Before you make any financial, legal, or other decisions involving the MetaFactory Offerings, you should seek independent professional advice from an individual who is licensed and qualified in the area for which such advice would be appropriate.
- Limited Survival Period for Claims. Any claim or cause of action you may have or acquire in connection with the MetaFactory Offerings or any of the other matters contemplated by this Agreement shall survive for the shorter of, and may be brought against MetaFactory solely prior to: (a) the expiration of the statute of limitations applicable thereto; and (b) the date that is 365 days after the date on which the facts and circumstances giving rise to such claim or cause of action first arose.
- Third-Party Offerings and Content.
References, links or referrals to or connections with or reliance on third-party resources, products, services or content, including smart contracts developed or operated by third parties, may be provided to you in connection with the MetaFactory Offerings. In addition, third parties may offer promotions related to the MetaFactory Offerings. MetaFactory does not endorse or assume any responsibility for any activities of or resources, products, services, content or promotions owned, controlled, operated or sponsored by third parties. If you access any such resources, products, services or content or participate in any such promotions, you do so solely at your own risk, and you acknowledge and agree that this Agreement does not apply to your dealings or relationships with any persons other than MetaFactory. You expressly relieve MetaFactory of all liability arising from your use of any such resources, products, services or content or participation in any such promotions. You further acknowledge and agree that MetaFactory shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such resources, products, services, content or promotions from third parties.
Settlement Negotiations. If you have a potential legal dispute, claim or cause of action against MetaFactory, you must contact MetaFactory by sending an email to email@example.com, describing the nature of the potential dispute, claim or cause of action and providing all relevant documentation and evidence thereof. MetaFactory and you shall use commercially reasonable efforts to negotiate a settlement of any such legal dispute, claim or cause of action within 30 days of the delivery of such email. Any such dispute, claim or cause of action which is not finally resolved by a binding, written settlement agreement within such 30 days shall be brought and resolved exclusively in accordance with the following provisions of this Section 6.
- Agreement to Binding, Exclusive Arbitration. Except as set forth in Section 6.1, all claims, disputes and controversies directly or indirectly arising out of or in connection with or directly or indirectly relating to this Agreement or any of the matters or transactions contemplated by this Agreement (for the avoidance of doubt, including any claim seeking to invalidate, or alleging that, all or any part of this Agreement is unenforceable, void or voidable) (such claims, disputes and controversies, collectively, " Disputes ") shall be finally settled by binding arbitration, rather than in court. The arbitrator, and not any federal, state or local court, agency or other Governmental Authority, shall have exclusive authority to resolve all Disputes. The parties hereby acknowledge, represent and warrant that they understand that: (a) there is no judge or jury in arbitration, and, absent this mandatory provision, the parties would have the right to sue in court and have a jury trial concerning Disputes; (b) in some instances, the costs of arbitration could exceed the costs of litigation; (c) the right to discovery may be more limited in arbitration than in court; and (d) court review of an arbitration award is limited. The Federal Arbitration Act and federal arbitration law apply to this Agreement.
- Arbitration Procedures. Either party may initiate an arbitration proceeding by delivering written notice to the other party, whereupon the parties shall reasonably cooperate to select an arbitrator and submit the relevant Dispute to such arbitrator. In the event the parties are unable to agree on the selection of an arbitrator within 15 days from the filing of a demand for arbitration, the AAA shall appoint the arbitrator. Any such arbitration shall be administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules and the supplementary procedures for consumer related disputes of the American Arbitration Association (the " AAA "), excluding any rules or procedures governing or permitting class actions. MetaFactory will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator's award shall be written and reasoned, and binding on the parties, and may be entered by any party as a judgment in any court of competent jurisdiction.
- Seat of Arbitration. The seat of arbitration shall be Los Angeles, California. The arbitrator may choose to have the arbitration of any Dispute conducted by telephone, based on written submissions, or at a mutually agreed location; provided, however, that MetaFactory may opt to transfer the venue of any arbitration hearing to Los Angeles, California in the event that it agrees to pay any additional fees or costs you may reasonably incur as a result of the change in venue, as determined by the arbitrator, and, subject to the foregoing, you hereby agree to submit to the personal jurisdiction of any federal or state court in Los Angeles, California, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
- Confidentiality of Arbitration. Except to the extent necessary to enforce their respective rights under this Agreement or as otherwise required by applicable Law, the parties undertake to maintain confidentiality as to the existence and events of the arbitration proceedings and as to all submissions, correspondence and evidence relating to the arbitration proceedings. This provision shall survive the termination of the arbitral proceedings.
- Class Action Waiver.
- The parties agree that any arbitration or other permitted action with respect to any Dispute shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. EACH PARTY AGREES THAT SUCH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN SUCH PARTY'S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
- If any court or arbitrator makes a final, binding and non-appealable determination that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void with respect to any Dispute that would thus be required to be resolved by arbitration on a class basis, and the parties shall be deemed to have not agreed to arbitrate such Dispute. In the event that, as a result of the application of the immediately preceding sentence or otherwise, any Dispute is not subject to arbitration, the parties hereby agree to submit to the personal and exclusive jurisdiction of and venue in the federal and state courts located in Los Angeles, California and to accept service of process by mail with respect to such Dispute, and hereby waive any and all jurisdictional and venue defenses otherwise available with respect to such Dispute.
California End-User Consumer Rights. In accordance with Cal. Civ. Code Sec. 1789.3, if you are a California State resident, you may file grievances and complaints regarding the MetaFactory Offerings with the California Department of Consumer Affairs, Consumer Information Division; 1625 North Market Blvd., Suite N 112, 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834 or by phone at 800-952-5210; or by email to: firstname.lastname@example.org
Governing Law. This Agreement shall be governed in all respects, including as to validity, interpretation and effect, by the laws of the State of California, without giving effect to its principles or rules of conflict of laws, to the extent such principles or rules are not mandatorily applicable by statute and would permit or require the application of the laws of another jurisdiction.Although the MetaFactory Offerings may be available in other jurisdictions, you acknowledge and agree that such availability shall not be deemed to give rise to general or specific personal jurisdiction over MetaFactory in any forum outside the State of California.
- Successors and Assigns. This Agreement shall inure to the benefit of the parties, and their respective permitted successors, permitted assigns, permitted transferees and permitted delegates and shall be binding upon all of the foregoing persons and any Person who may otherwise succeed to any right, obligation or liability under this Agreement by operation of law or otherwise. You shall not share or provide a copy of, or transfer to, any Person any Digital Wearable or the private key associated with any Digital Wearable without notifying such Person that such Person shall be bound by and become a party to this Agreement by virtue of thereof. Except for transfers of the license to the Designs set forth in Section 2.3 (which shall be deemed to be assigned in connection with a lawful transfer of a Digital Wearable), you shall not assign any of your rights or delegate any of your liabilities or obligations under this Agreement to any other Person without MetaFactory's consent. MetaFactory may freely assign, transfer or delegate its rights, obligations and liabilities under this Agreement to the maximum extent permitted by applicable Law.
- No Third-Party Beneficiaries. There shall be no third-party beneficiaries to this Agreement, other than the persons included in the definition of "MetaFactory" and any Virtual World provider receiving a sublicense to display the Design pursuant to Section 2.3.
- Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, inoperative or unenforceable for any reason, MetaFactory shall have the right to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby be consumed as originally contemplated to the fullest extent possible.
- Publications and Notifications, Fees and Expenses. The parties shall agree to any press release or publication that jointly involves the names, brands or officers of both parties. Written correspondence and notifications between the parties, whether as a result of a dispute or otherwise intended to be official correspondence, may be email or common forms of social media (Skype, Slack, WhatsApp) at any applicable address or username provided by such party through MetaFactory's website. Each party shall be solely liable for all its own fees, costs and otherwise in connection with this Agreement and any future dealings between the parties and/or future publications regarding the parties.
- Force Majeure. MetaFactory shall not incur any liability or penalty for not performing any act or fulfilling any duty or obligation hereunder or in connection with the matters contemplated hereby by reason of any occurrence that is not within its control (including any provision of any present or future law or regulation or any act of any Governmental Authority, any act of God or war or terrorism, any epidemic or pandemic, or the unavailability, disruption or malfunction of the Internet, the World Wide Web or any other electronic network, the Ethereum network or blockchain or any aspect thereof, MakerDAO, DAI, SAI, MKR or any other smart contract or token associated with the MakerDAO Protocol, or any consensus attack, or hack, or denial-of-service or other attack on the foregoing or any aspect thereof, or on the other software, networks and infrastructure that enables MetaFactory to provide the MetaFactory Offerings.), it being understood that MetaFactory shall use commercially reasonable efforts, consistent with accepted practices in the industries in which MetaFactory operates, as applicable, to resume performance as soon as reasonably practicable under the circumstances.
- Amendments and Modifications. This Agreement may only be amended, modified, altered or supplemented by or with the consent of MetaFactory. MetaFactory reserves, the right, in its sole and absolute discretion, to amend, modify, alter or supplement this Agreement from time to time. The most current version of this Agreement will be posted on MetaFactory's website with the "Last Revised" date changed. Any changes or modifications will be effective immediately upon the modified Agreement being posted to MetaFactory's website. You shall be responsible for reviewing and becoming familiar with any such modifications. You hereby waive any right you may have to receive specific notice of such changes or modifications. Use of the MetaFactory Offerings by you after any modification of this Agreement constitutes your acceptance of the modified terms and conditions. If you do not agree to any such modifications, you must immediately stop using the MetaFactory Offerings.
- No Waiver. No failure on the part of any Person to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of any Person in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy. No Person shall be deemed to have waived any claim arising out of this Agreement, or any power, right, privilege or remedy under this Agreement, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of such Person; and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given.
- Entire Agreement. This Agreement constitutes the entire agreement between the parties relating to the subject matter hereof and supersedes all prior or contemporaneous agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof.
- Rules of Interpretation.
- " hereof ," " herein ," " hereunder ," " hereby " and words of similar import will, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular provision of this Agreement.
- "include(s)" and " including " shall be construed to be followed by the words "without limitation".
- " or " shall be construed to be the "inclusive or" rather than "exclusive or" unless the context requires otherwise.
- Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of this Agreement.
- Section titles, captions and headings are for convenience of reference only and have no legal or contractual effect.