ARBITRATION NOTICE: YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. BELOW, WE EXPLAIN SOME EXCEPTIONS AND HOW YOU CAN OPT OUT OF ARBITRATION.
EXPORT CONTROLS NOTICE: BY PARTICIPATING IN THIS PROJECT, YOU REPRESENT THAT YOU ARE NOT A “SANCTIONED PERSON,” AS DEFINED BELOW, UNDER UNITED STATES LAW.
Saatchi Online, Inc. (“Saatchi Art” “we”, “us”) is selling a collection (the “Collection”) of digital art, represented in the form of Non-Fungible Tokens (each, an “NFT”, collectively, the “NFTs”), each associated with an underlying piece of existing digital artwork (each an “Underlying Digital Work”, collectively, “Underlying Digital Works”) as part of The Other Avatars project (the “Project”). For more information on The Other Avatars’ project, visit www.saatchiart.com/nft.
If you do not agree with these Terms, you may not participate in the Project.
Here are the basic facts and terms surrounding the Project:
ALL SALES ARE FINAL. ONCE AN NFT HAS BEEN SUCCESSFULLY SOLD AND TRANSFERRED, IT MAY NOT BE RETURNED AND THE PAYMENT AND ANY ASSOCIATED TRANSACTION (I.E., GAS) COSTS WILL NOT BE REFUNDED.
Once you successfully purchase and receive an NFT, you will own that NFT. Such owners of NFTs shall be referred to herein as “NFT Owners.”
WHILE AN NFT MAY BE ASSOCIATED WITH AN UNDERLYING DIGITAL WORK, IT IS IMPORTANT TO UNDERSTAND THAT NFT OWNERS DO NOT OWN THE UNDERLYING DIGITAL WORK (UNLESS IT HAS BEEN SEPARATELY PURCHASED BY THE NFT OWNER) OR THE COPYRIGHT IN THE UNDERLYING DIGITAL WORK.
However, by purchasing an NFT, including through a primary or secondary sale, the current owner of the NFT will receive a limited, worldwide, non-exclusive, non-assignable, non-sublicensable, royalty-free license to download, access, and use one or more copies of the Underlying Digital Work associated with the NFT to: (i) publicly and privately display the Underlying Digital Work at any size; and (ii) market, promote, advertise and sell the NFT associated with the Underlying Digital Work. This license belongs only to the current owner of the NFT but automatically terminates when they no longer own it. We do not monitor or control any marketplace or any other activity beyond that of the Project, including, without limitation, purchases or sales on the secondary market.
To the extent a physical piece associated with an Underlying Digital Work is offered by Saatchi Art, such physical piece will be offered and sold in accordance with the Saatchi Terms.
NFT Owners may not do (nor permit any third party to do or attempt to do) any of the following:
By participating in the Project, you grant to Saatchi Parties an irrevocable, perpetual, unlimited, royalty-free, fully paid-up license and right to reproduce, distribute, display, exhibit, exploit, perform, edit, create derivatives of, and otherwise use all elements of your participation and, to the extent made publicly available, your alias, name, avatar, social media handle/username, city and state of residence, voice, image and/or likeness, together with any other material, in any manner, in any and all media (now known or hereafter devised), in whole or in part, edited or altered as Saatchi Parties see fit, worldwide, without compensation or notification to, or permission from, you or any third party, for any lawful purpose whatsoever, including without limitation, for purposes of advertising or trade.
You acknowledge and understand that the Project and items identified herein, including Underlying Digital Works and NFTs, are subject to U.S. export control and sanctions laws and regulations, including, without limitation, the Export Administration Regulations and the regulations, rules, and executive orders administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) (collectively, the “Export Controls and Sanctions Laws”). You represent that you are not a Sanctioned Person and agree not to take any action that will cause anyone, including, without limitation, the Saatchi Parties, to be in violation of any Export Controls and Sanctions Laws.
For purposes of these Terms, “Sanctioned Person” means any government, country, corporation, or other entity, group, or individual with whom or which Export Controls and Sanctions Laws prohibit or restrict a U.S. person from engaging in transactions, and includes, without limitation, any individual, corporation, or other entity that appears on OFAC’s Specially Designated Nationals and Blocked Persons List or other lists maintained by OFAC or the U.S. Department of Commerce, as each such list may be amended from time to time.
Persons who tamper with or abuse any aspect of the Project or any Saatchi Art site, who act in a disruptive manner or who are in violation of these Terms, as solely determined by Saatchi Art, may be banned from participating in the Project.
Should the Project be, in Saatchi Art’s sole opinion, compromised by virus, worms, bugs, non-authorized human intervention or other causes which, in the sole opinion of Saatchi Art, corrupt or impair the administration, security, or fairness of the distribution of the NFTs, Saatchi Art reserves the right in its sole discretion to suspend, modify or terminate the Project and, if terminated, at its discretion, either refund any proceeds provided by prospective buyers (in the same currency received or as otherwise determined at Saatchi Art’s sole discretion) or provide NFTs in the manner set forth herein to individuals who were legitimate, non-suspect buyers prior to the action taken or as otherwise deemed fair and appropriate by Saatchi Art.
By participating in the Project:
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ANY SAATCHI PARTY BE LIABLE TO YOU FOR ANY LOSS, DAMAGE, OR INJURY OF ANY KIND INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE LOSSES OR DAMAGES, OR DAMAGES FOR SYSTEM FAILURE OR MALFUNCTION OR LOSS OF PROFITS, DATA, USE, BUSINESS OR GOOD-WILL OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PROJECT. IN NO EVENT WILL THE SAATCHI PARTIES’ CUMULATIVE LIABILITY TO YOU OR ANY OTHER USER, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, EXCEED THE TOTAL AMOUNTS PAID BY YOU TO THE SAATCHI PARTIES IN CONNECTION WITH THE SERVICES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE SAATCHI PARTIES EXCEED THE GREATER OF ONE HUNDRED U.S. DOLLARS (U.S. $100.00) OR THE AMOUNT YOU PAID US, IF ANY, IN THE PAST TWELVE MONTHS FOR THE SERVICES GIVING RISE TO THE CLAIM.
UNDER NO CIRCUMSTANCES SHALL ANY SAATCHI PARTY BE REQUIRED TO DELIVER TO YOU ANY VIRTUAL CURRENCY AS DAMAGES, MAKE SPECIFIC PERFORMANCE OR ANY OTHER REMEDY. IF YOU WOULD BASE YOUR CALCULATIONS OF DAMAGES IN ANY WAY ON THE VALUE OF VIRTUAL CURRENCY, YOU AND WE AGREE THAT THE CALCULATION SHALL BE BASED ON THE LOWEST VALUE OF THE VIRTUAL CURRENCY DURING THE PERIOD BETWEEN THE INITIAL INCIDENT RESULTING IN THE ACCRUAL OF THE CLAIM AND THE AWARD OF DAMAGES.
THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THESE TERMS HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER THE ASSERTED LIABILITY OR DAMAGES ARE BASED ON CONTRACT, INDEMNIFICATION, TORT, STRICT LIABILITY, STATUTE, OR ANY OTHER LEGAL OR EQUITABLE THEORY AND WHETHER OR NOT THE SAATCHI PARTIES HAVE BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES AND LIABILITIES PROVIDED IN THIS SECTION, SO SOME OF THE ABOVE LIMITATIONS AND DISCLAIMERS MAY NOT APPLY TO YOU. TO THE EXTENT APPLICABLE LAW DOES NOT PERMIT SAATCHI PARTIES TO DISCLAIM CERTAIN WARRANTIES OR LIMIT CERTAIN LIABILITIES, THE EXTENT OF SAATCHI PARTIES’ LIABILITY AND THE SCOPE OF ANY SUCH WARRANTIES WILL BE AS PERMITTED UNDER APPLICABLE LAW.
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
Prior to commencing any legal proceeding against us of any kind, including an arbitration as set forth below, you and we agree that we will attempt to resolve any dispute, claim, or controversy between us arising out of or relating to these Terms or the Project (each, a “Dispute” and, collectively, “Disputes”) by engaging in good faith negotiations. Such good faith negotiations require, at a minimum, that the aggrieved party provide a written notice to the other party specifying the nature and details of the Dispute. The party receiving such notice shall have (30) days to respond to the notice. Within sixty (60) days after the aggrieved party sent the initial notice, the parties shall meet and confer in good faith by videoconference or by telephone to try to resolve the Dispute. If the parties are unable to resolve the Dispute within ninety (90) days after the aggrieved party sent the initial notice, the parties may agree to mediate their Dispute, or either party may submit the Dispute to arbitration as set forth below.
These Terms will be governed by the laws of the State of California, without regard to conflict of law provisions. You and we expressly agree that any claim or dispute must be resolved exclusively by a state or federal court or arbitration located in Los Angeles County, California, except as described in the agreement to arbitrate below or as otherwise mutually agreed by the parties.
Except as provided below, you and we agree that any Dispute that cannot be resolved through the procedures set forth above will be resolved through binding arbitration on an individual basis. Class actions and class arbitrations are not allowed. You may bring a claim only on behalf of yourself and cannot seek relief that would affect other users of our services. If there is a final judicial ruling that any particular claim (or a request for particular relief) cannot be arbitrated in accordance with these Terms, then only that particular claim or request for relief may be brought in court. All other claims (or requests for relief) remain subject to this provision. Questions of arbitrability—i.e., whether a particular claim is subject to arbitration—shall be resolved in arbitration.
Instead of commencing an arbitration, you or we may also bring claims in your local “small claims” court if the rules applicable to that court allow it. Otherwise, the claims must be resolved by binding, individual arbitration.
If you are in the United States, the arbitration will be conducted by the American Arbitration Association (AAA) under its Consumer Arbitration Rules. If you are outside of the United States, the arbitration will be conducted by the International Centre for Dispute Resolution in accordance with its International Expedited Procedures. The arbitration will be decided by a sole arbitrator. The arbitrator will have experience adjudicating matters involving Internet technology, software applications, financial transactions and, ideally, blockchain technology. The costs and fees of arbitration shall be allocated in accordance with the arbitration provider’s rules, including rules regarding frivolous or improper claims.
The arbitration will be governed by the Federal Arbitration Act.
The prevailing party will be entitled to an award of their reasonable attorney’s fees and costs. Except as may be required by law, neither a party nor its representatives may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of (all/both) parties.
You can opt out of this arbitration agreement within 30 days of the date you agreed to these Term. To opt out, you must send us written notice (including by email to email@example.com) with your full name and email address and a clear statement that you want to opt out of this arbitration agreement (such notice, an “Arbitration Opt-out Notice”). If you do not provide us with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any dispute.
You and we agree that regardless of any statute or law to the contrary, any claim or cause of action arising from or relating to this Agreement must be filed within one (1) year after such claim or cause of action arose, or will be forever barred.
The Project is subject to all applicable federal, state, and local laws. Void where prohibited.