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Metaplex is an open Solana-based NFT protocol (“Protocol”) operated by the community. YOUR USE OF THE PROTOCOL IS ENTIRELY AT YOUR OWN RISK.
THE PROTOCOL IS AVAILABLE ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
YOU ASSUME ALL RISKS ASSOCIATED WITH USING THE PROTOCOL, AND DIGITAL ASSETS AND DECENTRALIZED SYSTEMS GENERALLY, INCLUDING BUT NOT LIMITED TO, THAT: (A) DIGITAL ASSETS ARE HIGHLY VOLATILE; (B) STAKING OR DELEGATING DIGITAL ASSETS IS INHERENTLY RISKY DUE TO BOTH FEATURES OF SUCH ASSETS AND SYSTEMS AND THE POTENTIAL UNAUTHORIZED ACTS OF THIRD PARTIES; (C) YOU MAY NOT HAVE READY ACCESS TO ASSETS; AND (D) YOU MAY LOSE SOME OR ALL OF YOUR TOKENS OR OTHER ASSETS. YOU AGREE THAT YOU WILL HAVE NO RECOURSE AGAINST ANYONE ELSE FOR ANY LOSSES DUE TO THE USE OF THE PROTOCOL. FOR EXAMPLE, THESE LOSSES MAY ARISE FROM OR RELATE TO: (I) LOST FUNDS; (II) SERVER FAILURE OR DATA LOSS; (III) CORRUPTED CRYPTOCURRENCY WALLET FILES; (IV) UNAUTHORIZED ACCESS; (V) ERRORS, MISTAKES, OR INACCURACIES; OR (VI) THIRD-PARTY ACTIVITIES.
THE PROTOCOL DOES NOT COLLECT ANY PERSONAL DATA, AND YOUR INTERACTION WITH THE PROTOCOL WILL SOLELY BE THROUGH YOUR PUBLIC DIGITAL WALLET ADDRESS. ANY PERSONAL OR OTHER DATA THAT YOU MAY MAKE AVAILABLE IN CONNECTION WITH THE PROTOCOL MAY NOT BE PRIVATE OR SECURE.
Welcome to the Metaplex Studios, Inc. website! Metaplex Studios maintains and operates www.metaplex.com as a portal for news, information, and updates about the open-source Metaplex decentralized protocol operated by the community and administered by The Metaplex Foundation (the “Protocol”). The Metaplex Protocol is the NFT standard for the Solana blockchain (the “Solana Network”) and a resource for building decentralized applications for the Metaverse.
Metaplex Studios and the Metaplex Foundation are separate legal entities and organizations. Metaplex Studios does not control the Protocol and cannot control activity and data on the Solana Network, or use of the Solana Network. Metaplex Studios does not undertake any obligations with respect to the Protocol. YOUR USE OF THE PROTOCOL IS COMPLETELY AT YOUR OWN RISK.
Please read these terms carefully and keep a copy of them for your reference. Please also note that there may be specific terms or conditions applicable to you as a user in a given jurisdiction, as detailed below.
Please refer to our Privacy Policy, available at link, for information about how we collect, use, share and otherwise process information about you.
AGREEMENT TO TERMS
This End User License Agreement and Terms of Service (“EULA” or “Terms”) is a binding contract between you, an individual user or site visitor, whether personally or on behalf of an entity (“user,” “you,” “your”) and Metaplex Studios, Inc. (“Metaplex Studios,” “we,” “us” or “our”) concerning use of the our services (the “Service”), including the www.metaplex.com website as well as any other media form, media channel, or mobile website related, linked, or otherwise connected thereto (collectively, the “Site”). The Service specifically excludes the Protocol.
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
BY ACCESSING OR USING THE SERVICE (EVEN JUST BROWSING ONE OF OUR WEBSITES), YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING OUR PRIVACY POLICY (TOGETHER, REFERRED TO AS THE “TERMS” FOR SHORT). IF YOU DON’T AGREE WITH THESE TERMS, YOU MAY NOT USE THE SERVICE INCLUDING BROWSING OUR WEBSITE. AGREE WITH US? GREAT, READ ON!
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 12, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND METAPLEX STUDIOS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING.
We may, from time to time, change these Terms. Please check these Terms periodically for changes. Revisions will be effective immediately except that, for existing users, material revisions will be effective 30 days after posting or notice to you of the revisions unless otherwise stated. We may require that you accept modified Terms in order to continue to use the Service. If you do not agree to the modified Terms, then you should remove discontinue your use of the Service. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.
1. Eligibility.
The Service is intended for users who are at least 18 years old. You agree that by using the Site and the Service you are at least 18 years of age, or accessing the Service under the supervision of a parent or guardian, and you are legally able to enter into a contract. If you are a parent or legal guardian of a user under the age of 18 (or the age of legal majority), you agree to be fully responsible for the acts or omissions of such user in relation to the Service. If you use the Service on behalf of another person or entity, (a) all references to “you” throughout the EULA will include that person or entity, (b) you represent that you are authorized to accept these Terms on that person’s or entity’s behalf, and (c) in the event you or the person or entity violates these Terms, the person or entity agrees to be responsible to us. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
2. Consideration.
While we currently provide you with access to the Service free of charge. In return for enjoying this free access, you acknowledge and agree that we may generate revenues, increase goodwill or otherwise increase our value from your use of the Service without sharing such revenues, goodwill or value with you. We in our sole discretion may eventually charge you fees to access certain features on the Service. We will provide you with advance notice of any fee changes before they take effect. Even if we charge you a fee for the use of the Service, you will have no right to share in the revenues we charge you or other Users or to share in any goodwill or value created.
3. Licenses.
The Service is licensed, not sold, to you for use only under the terms of the EULA, subject to your complete and ongoing compliance with the terms and conditions of the EULA. Metaplex Studios hereby grants you a personal, limited, revocable, non-transferable license to access and use the Service solely for your own use.
You may not modify, alter, reproduce, or distribute the Service. You may not directly rent, lease, lend, sell, redistribute or sublicense the Service. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of any portion of the Service, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law), nor attempt to disable or circumvent any security or other technological measure designed to protect the Service or any content available through the Service. If you breach these license restrictions, or otherwise exceed the scope of the licenses granted in the EULA, then you may be subject to prosecution and damages, as well as liability for infringement of intellectual property rights, and denial of access to the Service.
WITHOUT LIMITING ANY OTHER PROVISION OF THIS EULA, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE SERVICE (INCLUDING BLOCKING CERTAIN IP ADDRESSES), TO ANY PERSON FOR ANY REASON OR FOR NO REASON, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN THIS EULA OR OF ANY APPLICABLE LAW OR REGULATION. WE MAY TERMINATE YOUR USE OR PARTICIPATION IN THE SITE AT ANY TIME, WITHOUT WARNING, IN OUR SOLE DISCRETION. If we terminate or suspend your access to the Site for any reason, you are prohibited from attempting to access the Site under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your access, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
4. Ownership; Proprietary Rights; Marks.
4.1 Ownership; Proprietary Rights. The Service is owned and operated by us. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (collectively, “Materials”) are protected by intellectual property and other laws. It’s important to note that all Materials included on the Service are our property or the property of other third-party licensors of the Service. Except as expressly authorized by us, you may not make use of the Materials. We reserve all rights to Materials not granted expressly in these Terms.
Marks. Our trademarks, service marks, and logos (collectively, the “Metaplex Studios Trademarks”) used and displayed on the Service are our registered and/or unregistered trademarks or service marks. Any other product and service names located on the Service may be trademarks or service marks owned by third parties (collectively with the Metaplex Studios Trademarks, the “Trademarks”). Except as otherwise permitted by law, you may not use the Trademarks to disparage us or the applicable third party, our or a third party’s products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. You may use the Metaplex Studios Trademarks for the limited purposes of providing links to or from our website and providing attribution to us when using the Service. You will terminate all uses of the Metaplex Studios Trademarks upon our request. All goodwill generated from the use of any Metaplex Studios Trademark will inure solely to Metaplex Studios’ benefit. All goodwill generated from the use of any other Trademark will inure solely to the benefit of the owner of such Trademark.
5. Third-Party Terms.
5.1. External Sites. The Service may contain links toor embed content in other websites, apps or other online properties that are not owned or controlled by the Service (collectively, “External Sites”). The content of External Sites is not developed or provided by us. We are not responsible for the content of any External Sites and do not make any representations regarding the content or accuracy of any materials on External Sites. You should contact the site administrator or webmaster for External Sites if you have any concerns regarding content located on those External Sites. You should take precautions when downloading files from all websites to protect your devices from viruses and other destructive programs. If you decide to access any External Sites, then you do so at your own risk. Further, you will be solely responsible for compliance with any terms of service or similar terms imposed by any External Site in connection with your use of External Sites.
5.2 Third-Party Software. The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
6. Prohibited Conduct. BY USING THE SERVICE, YOU AGREE NOT TO:
6.1 use the Service for any illegal purpose or in violation of any local, state, national, or international law;
6. 2 harass, threaten, demean, embarrass, bully or otherwise harm any other User of the Service;
6.3 violate, or encourage others to violate, or provide instructions on how to violate any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
6.4 interfere with security-related features of the Service, including disabling or circumventing features that prevent or limit use or copying of any content;
6.5 make unauthorized recordings or screen captures of any content, including User Content, transmitted on or through the Service;
6.6 interfere with the operation of the Service or any User’s enjoyment of the Service, including by: (a)uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b)making any unsolicited offer or advertisement to another User of the Service; (c)collecting personal information about another User or third party without consent; or (d)interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
6.7 attempt to access or search the Service or content available on the Service or download content from the Service through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining, gathering, or extraction tools and the like) other than the software and/or search agents provided by us or other generally available third-party web browsers;
6.8 perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, or accessing any other account on the Service without permission, or provide any false, inaccurate, or misleading information to us;
6.9 encourage or engage in speculative behavior in connection with the transfer or sale of any NFTs on the Protocol;
6.10 sell or otherwise transfer the access granted under these Terms or any Materials or any right or ability to view, access, or use any Materials; or
6.11 attempt to do any of the acts described in this Section 6 or assist or permit any person in engaging in any of the acts described in this Section 6.
7. If you wish to report Users that violates these Terms, you may do so at legal@metaplex.com.
Notice and Procedure for Making Claims of Copyright or Other Intellectual Property Infringements.
7.1. Respect of Third-Party Rights. We respect the intellectual property of others and take the protection of intellectual property very seriously, and we ask our Users to do the same. Infringing activity will not be tolerated on the Service.
7.2. Intellectual Property Policy. Our intellectual property policy is to remove or disable access to material that we believe in good faith, upon notice from an intellectual property owner or his or her agent, is infringing the intellectual property of a third party by being made available on the Service We have discretion to terminate the account of any User after receipt of a single notification of claimed infringement or upon our own determination.
7.3. Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to the Designated Agent identified below. Your Notification of Claimed Infringement may be shared by us with the User alleged to have infringed a right you own or control, and you hereby consent to us making such disclosure. Your communication must include substantially the following:
7.4. A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
7.4.1 Identification of works or materials being infringed, or, if multiple works are covered by a single notification, then a representative list of such works;
7.4.2 Identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
7.4.3 Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
7.4.4 A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
7.4.5 A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
7.4.6 You should consult with your own lawyer and/or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
7. 5 Designated Agent Contact Information. Our designated agent for receipt of Notifications of Claimed Infringement (“Designated Agent”) can be contacted at:
Via Email: copyright@metaplex.com
Via U.S. Mail:
Copyright Agent
Metaplex Studios, Inc.
2093 Philadelphia Pike #6382
Claymont, Delaware 19703
Via Phone: 415-234-3876
8. Term, Termination, and Modification of the Service
8.1. Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 8.2.
8.2. Termination. If you violate any provision of these Terms, then your authorization to access the Service and these Terms automatically terminate. In addition, we may, in our sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice, and without any liability to you arising from such termination. You may terminate your use of the Service and these Terms at any time.
8.3. Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; and (c) Sections 4, 8.3, 9, 10, 11, 12, and 13 will survive. You are solely responsible for retaining copies of any User Content you Post to the Service since upon termination of your account, you may lose access rights to any User Content you Posted to the Service.
8.4. Modification of the Service. We reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. We will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service.
9. Indemnity.
To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify us, our affiliates and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the “Metaplex Studios Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (1) your unauthorized use of, or misuse of, the Service; (2) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (3) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (4) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
10. Disclaimers; No Warranties
10.1. THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. WE DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (1) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (2) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. WE DO NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND WE DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
10.2. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR THE METAPLEX STUDIOS ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE METAPLEX STUDIOS ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY PERSONAL INJURY, DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE), OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
10.3. ANY PURCHASE OR SALE YOU MAKE, ACCEPT, OR FACILITATE VIA OR OUTSIDE OF THE SERVICE OF AN NFT WILL BE ENTIRELY AT YOUR RISK. WE DO NOT CONTROL OR ENDORSE PURCHASES OR SALES OF ANY PARTICULAR NFT VIA OR OUTSIDE OF THE SERVICE. WE EXPRESSLY DENY ANY OBLIGATION TO INDEMNIFY YOU OR HOLD YOU HARMLESS FOR ANY LOSSES YOU MAY INCUR BY TRANSACTING, OR FACILITATING TRANSACTIONS VIA OR OUTSIDE OF THE SERVICE.
10.4. WE DO NOT ENDORSE, APPROVE OF, OR TAKE ANY RESPONSIBILITY IN DETERMINING ANY PARTICULAR NFT’S VALUE, AUTHENTICITY, STATUS AS A SECURITY, OR UNDERLYING TECHNOLOGY. WE WILL NOT BE LIABLE TO YOU FOR ANY LOSS OF VALUE. WE DO NOT MAKE ANY WARRANTY ABOUT THE AUTHENTICITY OR SUITABILITY OF ANY NFT FOR OWNERSHIP OR TRADING. WE RETAIN THE RIGHT, IN OUR SOLE DISCRETION, TO DETERMINE WHETHER TO SUPPORT, OR NOT SUPPORT, CERTAIN NFTS TO BE USED IN CONNECTION WITH THE SERVICE. WE MAY DISCONTINUE OR TERMINATE SUPPORT FOR ANY NFT AT ANY TIME, FOR ANY OR NO REASON, AND WITHOUT ANY LIABILITY TO YOU. WE WILL MAKE REASONABLE EFFORTS TO PROVIDE ADVANCE NOTIFICATION OF ANY TERMINATION OR DISCONTINUATION OF SUPPORT OF AN NFT. WE WILL NOT BE LIABLE TO YOU FOR ANY LOSSES, LIABILITY, OR EXPENSES RELATED TO ANY DISCONTINUATION OR TERMINATION OF SUPPORT OF ANY NFTS.
10.5. WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSSES YOU INCUR AS THE RESULT OF YOUR USE OF THE NETWORK OR A SUPPORTED ELECTRONIC WALLET, INCLUDING, BUT NOT LIMITED TO, ANY LOSSES, DAMAGES, OR CLAIMS ARISING FROM UNAUTHORIZED ACCESS OR ACTIVITIES BY THIRD PARTIES OR USER ERROR.
10.6. METAPLEX STUDIOS IS NOT AN INVESTMENT ADVISER, BROKER-DEALER, OR ANY OTHER SECURITIES INTERMEDIARY REGULATED UNDER STATE OR FEDERAL LAW, AND BY PROVIDING THE SERVICE, METAPLEX STUDIOS IS NOT PROVIDING YOU ANY INVESTMENT ADVICE FOR PURPOSES OF THE INVESTMENT ADVISERS ACT OF 1940 (“ADVISERS ACT”) OR ANY COMPARABLE STATE LAW. BY USING THE SERVICE, YOU WILL NOT RECEIVE THE PROTECTION OF THE ADVISERS ACT OR ANY OTHER FEDERAL OR STATE SECURITIES LAW.
10.7. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. We do not disclaim any warranty or other right that we are prohibited from disclaiming under applicable law.
11. Limitation of Liability
11.1 TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE METAPLEX STUDIOS ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY METAPLEX STUDIOS ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
11.2 EXCEPT AS PROVIDED IN SECTION 12.5 AND 12.6 TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE METAPLEX STUDIOS ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO $100.
11.3 EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 11 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
12. Dispute Resolution and Arbitration.
12.1. Generally. Except as described in Section 12.2 and 12.3, you and Metaplex Studios agree that every dispute arising in connection with these Terms, the Service, or communications from us will be resolved through binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, is less formal than a court proceeding, may allow for more limited discovery than in court, and is subject to very limited review by courts. This agreement to arbitrate disputes includes all claims whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. Any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement will be resolved by the arbitrator.
YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND METAPLEX STUDIOSARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
12.2 Exceptions. Although we are agreeing to arbitrate most disputes between us, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
12.3 Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 12 within 30 days after the date that you agree to these Terms by sending a letter to Metaplex Studios, Attention: Legal Department – Arbitration Opt-Out, 2093 Philadelphia Pike #6382 Claymont, Delaware 19703, that specifies: your full legal name, your Storefront name, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once we receive your Opt-Out Notice, this Section 12 will be void and any action arising out of these Terms will be resolved as set forth in Section 13.2. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
12.4 Arbitrator. This arbitration agreement, and any arbitration between us, is subject to the Federal Arbitration Act and will be administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at +1-800-778-7879, or by contacting us.
12.5 Commencing Arbitration. Before initiating arbitration, a party must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Our address for Notice of Arbitration is: Metaplex Studios, Inc., 2093 Philadelphia Pike #6382, Claymont, Delaware 19703. The Notice of Arbitration must: (a)identify the name or account number of the party making the claim; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Metaplex Studios may commence an arbitration proceeding. If you commence arbitration in accordance with these Terms, we will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000 or if we have received 25 or more similar demands for arbitration, in which case the payment of any fees will be decided by the AAA Rules. If the arbitrator finds that either the substance of the claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules and the other party may seek reimbursement for any fees paid to AAA.
12.6 Arbitration Proceedings. Any arbitration hearing will take place in the county and state of your residence unless we agree otherwise or, if the claim is for US$10,000 or less (and does not seek injunctive relief), you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a telephonic or video hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your residence. During the arbitration, the amount of any settlement offer made by you or us must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.
12.7 Arbitration Relief. Except as provided in Section 12.8, the arbitrator can award any relief that would be available if the claims had been brought in a court of competent jurisdiction. If the arbitrator awards you an amount higher than the last written settlement amount offered by us before an arbitrator was selected, we will pay to you the higher of: (a) the amount awarded by the arbitrator and (b)US$10,000. The arbitrator’s award shall be final and binding on all parties, except (1) for judicial review expressly permitted by law or (2) if the arbitrator's award includes an award of injunctive relief against a party, in which case that party shall have the right to seek judicial review of the injunctive relief in a court of competent jurisdiction that shall not be bound by the arbitrator's application or conclusions of law. Judgment on the award may be entered in any court having jurisdiction.
12.8 No Class Actions. YOU AND METAPLEX STUDIOS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Metaplex Studios agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
12.9 Modifications to this Arbitration Provision. If we make any substantive change to this arbitration provision, you may reject the change by sending us written notice within 30days of the change to our address for Notice of Arbitration, in which case your access to the Service will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
12.10 Enforceability. If Section 12.8 or the entirety of this Section 12 is found to be unenforceable, or if we receive an Opt-Out Notice from you, then the entirety of this Section12 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 13.2 will govern any action arising out of or related to these Terms.
13 Miscellaneous.
13.1 General Terms. These Terms, together with the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and Metaplex Studios regarding your use of the Service. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of Section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms, the use of the word “including” means “including but not limited to.” If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
13.2 Governing Law. These Terms are governed by the laws of the State of Delaware without regard to conflict of law principles. You and Metaplex Studios submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco County, California, for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in Illinois, and we make no representation that Materials included in Metaplex are appropriate or available for use in other locations.
13.3 Privacy Policy. Please read the Metaplex Studios Privacy Policy (the “Privacy Policy”) carefully for information relating to our collection, use, storage, and disclosure of your personal information. The Metaplex Studios Privacy Policy is incorporated by this reference into, and made a part of, these Terms.
13.4 Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
13.5 Consent to Electronic Communications. By using the Service, you consent to receive certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
13.6 Contact Information. The Service is offered by Metaplex Studios, located at 2093 Philadelphia Pike #6382, Claymont, Delaware 19703. You may contact us by sending correspondence to that address or by emailing us at hello@metaplex.com.
13.7 Notice to California Residents. If you are a California resident, under California Civil Code Section1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
13.8 No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
13.9 International Use. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
Last Updated: 9/26/22
