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Unseen Club Terms of Service
Effective Date: November 14, 2023
Welcome to the Unseen Club, hosted by Hume, Inc. Please read these Terms of Service (“TOS”) carefully, as they constitute a legally binding agreement between you (“you”, “your”, or “Buyer”) and Hume, Inc. (“Hume”, “Unseen Club”, “we”, “us” or “our”).
These TOS, together with any Modifications, as well as all information posted on our website and incorporated by reference herein, set out the terms on which Hume offers you access to and use of (a) the website located at www.unseenclub.xyz and all relevant sub-pages associated with the foregoing URL (“Site”) and (b) any other applications (e.g., mobile apps, web applications, etc.), add-ons, tools, services and offerings provided by us that make reference to these TOS, including without limitation, smart contracts (collectively, the “Platform”). These TOS apply whether you are accessing the Platform via a personal computer, a wireless or mobile device or any other technology or devices now known or hereafter developed or discovered (each, a “Device”).
THIS DOCUMENT CONTAINS IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT APPLY TO YOU. PLEASE READ IT CAREFULLY.
BY USING OR ACCESSING THE PLATFORM IN ANY MANNER, YOU AFFIRM, REPRESENT AND WARRANT (A) THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS SET FORTH IN THESE TOS (ALONG WITH ANY MODIFICATIONS AND/OR ADDITIONAL TERMS, POLICIES AND AGREEMENTS REFERENCED HEREIN), INCLUDING THE ARBITRATION AGREEMENT AND CLASS ACTION WAIVER, (B) THAT YOU HAVE THE RIGHT, AUTHORITY AND CAPACITY TO ENTER INTO THESE TOS (ON BEHALF OF YOURSELF OR ANY ENTITY THAT YOU REPRESENT) AND MEET ALL OF THE ELIGIBILITY AND OTHER REQUIREMENTS, (C) THAT YOUR ACCESS AND USE OF THE PLATFORM IS PERMITTED BY, AND SHALL NOT VIOLATE, ANY APPLICABLE LAWS, INCLUDING THOSE IN YOUR JURISDICTION.
IF YOU DO NOT AGREE TO THE CURRENT VERSION OF THE TOS AND/OR ANY MODIFICATIONS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO REFRAIN FROM ACCESSING OR OTHERWISE USING THE PLATFORM.
1. Modifications. We reserve the right to revise these TOS, at any time and from time to time, for any reason, in our sole discretion, by any written announcement or notice or by posting an updated TOS without advance notice to you (“Modifications”). These changes become effective immediately and, if you use or access the Platform after they become effective, it will signify your agreement to be bound by the Modifications. It is your responsibility to monitor and periodically check for changes to these TOS by clicking the applicable link on the Site and consulting the “Last Modified” date at the bottom of this page.
2. What is the Unseen Club and How Does it Work? The Unseen Club is a music, technology, merchandise and apparel project with a mission to reimagine artist interaction and community engagement. We believe the merchandise is the music. The Club’s Platform allows artists to promote their music in a gated ecosystem whereby fans purchase merchandise (“Product”) containing a cryptographic chip (“Chip”) allowing access to the Unseen Club – your ticket to the future of music and fashion. Upon purchase and receipt of a Product, each Buyer will use their Device to scan the Chip and claim a non-fungible Hoodie Token on the Ethereum blockchain “Digital Collectible”). The Digital Collectible functions as an on-chain certificate of authenticity, allowing access to exclusive versions of the Unseen Club song t, along with rewards and other content associated with the Product, unlocking the full Unseen Club experience. In addition, the Product Chip can be scanned by other fans and community members to purchase and mint a “forever edition” of the Unseen Club song on Sound.xyz. Revenue from those third-party mints will be collected via smart contract on TokenBound.org and all Buyers will share in a royalty-split, paid in Ethereum, from sales of the forever edition songs associated with that specific Product release. Essentially, the Unseen Club functions as a modern street marketing team whereby each Buyer propels the growth and popularity of their favorite artist while simultaneously earning the ability to claim real world rewards. In order to earn these benefits, Buyer must connect a Non-Custodial Wallet holding the Digital Collectible to Tokenbound.org.
3. The Unseen Club Platform. The Unseen Club Platform includes the underlying infrastructure and related smart contracts that power the Platform as well as the Unseen Club Site whereupon a person or entity can purchase Product offered for sale. The Product made available on the Platform will be displayed on a listing page (“Listing Page”) containing Product information and any additional terms specifically relating to the sale of, or conditions to claiming the Product (“Listing Terms”). In relation to any Digital Collectible included with a Product that is offered to be purchased or claimed through the Platform, the metadata, content, song, digital asset and/or physical item, if any, to which such Digital Collectible relates is referred to as the “Referenced Content.” In a transaction for the purchase of Product where you are or become the buyer of record, you are considered a “Buyer” under these TOS, responsible for the payment of the Purchase Price in accordance with the Listing Terms (“Purchase Price”). While you may use a credit/debit card to purchase the Unseen Club Hoodie, you must associate a Non-Custodial Wallet in order to claim, transfer and/or store Digital Collectibles.
4. Product Fulfillment and Wallet Requirement.
(a) Product Fulfillment. In order to participate in certain aspects of the Platform, including purchasing Product, you must provide us with an email address to identify your account (your “Account”), and provide certain additional information, as prompted by our payment or shipping process, including but not limited to credit card information and a shipping address. All information you submit must be truthful and accurate, and you agree to maintain, keep current and promptly update the accuracy of such information as necessary. We may require you to provide additional information and/or documentation, including as may be required under any laws, statutes, ordinance, rules, regulations, code, or any requirements of a government entity (collectively, “Law”). If you do not provide complete and accurate information and/or documents in response to such a request, we may suspend, terminate, lock or otherwise restrict your Account or refuse to permit you access to or use of the Platform. You agree and understand that we will communicate with you via electronic means. To ensure that you receive all of our communications, you agree to keep your email address current and notify us if there are any changes. You agree that any notices, agreements, disclosures or other communications sent to your email address on record with us is considered valid.
(b) Non-Custodial Wallet. You may need to associate a non-custodial wallet (a “Non-Custodial Wallet”) with your Account or use a Non-Custodial Wallet on the Platform. Non-Custodial Wallets allow you to a claim, mint, purchase and store Digital Collectibles and/or engage in similar blockchain transactions. Associating a Non-Custodial Wallet, or a specific type thereof is required as a condition of minting, claiming or receiving Digital Collectibles after scanning the Product Chip. We reserve the right to refuse to engage with any Non-Custodial Wallet in our sole and exclusive discretion. We accept no responsibility or liability to you in connection with your use of a Non-Custodial Wallet and make no representations or warranties regarding how the Platform will operate with any specific Non-Custodial Wallet.
5. Sale of Hoodies. All Product is offered for sale in the condition that it is in at the time of the sale. Illustrations are for identification purposes only and may not convey full information as to the actual condition of the Product or Referenced Content. You accept responsibility for inspecting the Product’s Listing Page and the smart contract, if available, prior to your purchase. You acknowledge that our knowledge of Product may be partially dependent on information provided by the artist. You acknowledge and agree that shipping times may range depending on location and factors outside our control, but that should generally occur within four weeks for both U.S. and international customers. You acknowledge and agree that by acquiring a Digital Collectible, you accept that Digital Collectibles are subject to inherent technological risks which may affect their performance now or in the future. You further acknowledge and agree that the characterization and regulatory scheme governing Digital Collectibles, cryptocurrencies, and blockchain technology is uncertain and undetermined, that your purchase and/or receipt of any Product or Digital Collectible complies with applicable laws and regulations in your jurisdiction, and that new regulations or policies may materially adversely affect the sale or resale thereof. You acknowledge and agree that Digital Collectibles may be subject to resale royalties, through application of the smart contract or other technical solution, on any subsequent resales.
6. Fees. By buying a Product on the Platform, you agree to pay the Purchase Price, and all applicable fees, if any, and you authorize us to automatically deduct fees directly from all relevant payments. The Purchase Price is the price posted on the Listing Page at the time of the sale, in addition to any applicable VAT and/or sales or use tax, and any applicable artist resale royalty payable by the Buyer.
7. Proprietary Rights. As between you and Hume, Hume owns, solely and exclusively, all right, title and interest in and to the Platform and all elements thereof, including without limitation, the Unseen Club logo, any and all graphics, images, text, files, designs, systems, methods, information, computer code, software, scripts, services, marks and branding, the selection and arrangement thereof, including all intellectual property and proprietary rights (whether registered or unregistered in any jurisdiction) related to any of the foregoing (collectively, the “Platform Content”). All rights in and to the Platform, Platform Content and Referenced Content, including any music, not expressly granted to you under these TOS are expressly reserved. Your use of the Platform does not grant to you any right, title or interest in any element thereof, and Hume (or our applicable licensors, partners, or affiliates) owns and retains all right, title and interest (including all intellectual property and proprietary rights) therein and thereto. You agree that you may not, nor permit any third party to do or attempt to do any of the following without our (or, as applicable, our licensors, partners or affiliates) express prior written consent in each case: (a) modify the Referenced Content for Digital Collectibles in any way; (b) use the Referenced Content for your Digital Collectible to advertise, market, or sell any third party product or service; (c) use the Referenced Content for your Digital Collectible for any derogatory or defamatory purpose, hate speech or which otherwise infringes upon the rights of others; (d) sell, distribute for commercial gain, or otherwise commercialize merchandise that includes, contains, or consists of the Referenced Content for your Digital Collectible; or (e) attempt to trademark, copyright, or otherwise acquire additional intellectual property rights in or to the Referenced Content for your Digital Collectible. Any copyright(s) in and to the Digital Collectible, Referenced Content or the songs included with your purchase, including but not limited to, any reproduction rights therein, remain with the creator(s) thereof, and the purchase of the Digital Collectible does not constitute an assignment of the Referenced Content, included songs, any copyright(s) or other intellectual property or any Digital Collectible.
8. Limited License. Subject to the restrictions and limitations set forth in these TOS, we grant you a limited license to (a) access and view the content on the Platform on your Device, (b) place orders for Products offered for sale on the Platform, and (c) display your Digital Collectibles associated with a Purchased Product.
9. Prohibited Use. Any commercial distribution, publishing, use or exploitation of the Platform or any element thereof (including any content, software, code, data or materials used in or available on the Platform) is prohibited. As a condition of your access to and use of the Platform, you agree that you will not use the Platform or any element thereof for any purpose that is unlawful, commercial in nature or prohibited by these TOS, or any other purpose not permitted under these TOS. You agree to abide by all applicable local, state, national and international laws, regulations and rules and not to access or use the Platform from a jurisdiction where such access or use illegal or unauthorized. By way of example, and not limitation, you agree that while using the Platform, you shall not: (a) impersonate any person or entity, whether actual or fictitious, or misrepresent your affiliation with any other person or entity; (b) reveal any personal information about another individual, including another person’s name, address, phone number, electronic mail address, or any other information that could be used to track, contact or impersonate that person; (c) obtain or attempt to obtain unauthorized access to computer systems, materials or information that is not intentionally made publicly available by Hume through any means; (d) use the Platform or any services, content, functions, information, materials or Products available through the Platform in violation of Hume’s or any third party’s intellectual property or other proprietary or legal rights; (e) use the Platform or any services, content, functions, information, materials or Products available through the Platform for purposes of money laundering, price fixing or other unlawful collusion, price signaling or exchange of competitively sensitive data or information; (f) engage in activities, or use the Platform or any services, content, functions, information, materials or Products available through the Platform, in a manner that could damage, disable, overburden, or impair the Platform; or (g) use or access the Platform (i) from a country sanctioned by the government of the United States; or (ii) for the purpose of concealing economic activity, laundering money, or financing terrorism.
10. Restriction of Access. We reserve the right to deny access and use privileges to anyone (and to suspend, restrict or terminate an existing Account and/or Non-Custodial Wallet) at our sole and absolute discretion, including without limitation if we suspect that the Account and/or Non-Custodial Wallet has or will be used for any fraudulent, illegal, or other unauthorized purposes. We reserve the right to refuse or revoke permission to place orders and to remove such privileges at any time and for any reason. In the event that your Account and/or Non-Custodial Wallet is suspended, restricted, revoked or terminated by us for any reason, you agree that you will not create another Account or connect with another Non-Custodial Wallet following the termination, suspension, or restriction of access (unless expressly directed by us to do so).
11. Third Party Websites. The Platform may contain links or connections to Third-Party Websites, and Third-Party Websites may link to the Platform. For purposes of this Section, “Third-Party Websites” include all websites, mobile websites, mobile and web applications, and services owned, operated or provided by any third party, including any such website, application or service operated or provided by a third party under license from Hume or any of our affiliates. The inclusion in the Platform of any link to a Third-Party Website does not constitute an endorsement or sponsorship by Hume of such Third-Party Website, or the information, content, products, services, advertising, code or other materials presented on or through such Third-Party Website. Any reliance on the contents of a Third-Party Website is done at your own risk.
12. User Information. In the course of your use of the Platform, you may be asked to provide certain personal information to us (“User Information”). Our information collection and use policies with respect to the privacy of such User Information are set forth in the relevant Hume Privacy Policy, which is incorporated herein by reference. We will not knowingly collect personally identifiable information from any person that is actually known to us to be under the age of 18. IF YOU ARE UNDER 18 YEARS OF AGE, PLEASE DO NOT USE OR ACCESS THE PLATFORM AT ANY TIME OR IN ANY MANNER.
13. Infringing Content.
(a) Infringing Content. It is Hume’s policy to promptly respond to any claim that Product or Referenced Content infringes on the copyright or other intellectual property, personality, or likeness rights of any person. Upon receiving notice of a relevant claim, Hume will use reasonable efforts to investigate such notices of alleged infringement and will take appropriate action as further set forth herein.
(b) Removal of Infringing Content. Hume reserves the right to remove any Product or Referenced Content that allegedly infringes upon another person’s intellectual property rights, thereby restricting access to or visibility of such Product or Referenced Content (including to the extent contained in any or related to any Digital Collectible on the Platform) and/or restricting the ability to access, or view such Product or Referenced Content on the Platform. Hume will not, under any circumstance, be held liable for removing allegedly infringing works from the Platform or otherwise fulfilling its obligations under the DMCA.
14. Copyright Agent. If you believe that your work has been copied in a way that constitutes copyright infringement, please forward the following information to our Copyright Agent, designated as such pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(2), named in Section 25 below: (a) Your address, telephone number, and email address; (b) A description of the copyrighted work that you claim has been infringed; (c) A description of where the alleged infringing material is located; (d) A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (e) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and (f) A statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
15. Representations and Warranties. In addition to any representations and/or warranties set forth elsewhere in these TOS, you represent and warrant that at all relevant times: (a) neither your performance under these TOS, nor your purchase or receipt of Product or any Digital Collectibles in accordance with the terms herein, has violated or will violate any applicable Law; (b) you are of legal age, in the jurisdiction in which you reside, to enter into a binding contract (and in any event are older than eighteen (18) years of age); (c) have full legal authority without any further action or other party’s consent to enter into and perform this agreement and to give these representations and warranties; if you are an entity, the individual transacting on your behalf is authorized to do so and the entity is duly incorporated or formed, validly existing and in good standing in the jurisdiction where it is incorporated or formed; and (d) you acknowledge and affirm that you are purchasing or receiving Product with a Digital Collectible for purposes of acquiring digital collectibles that contain Product or artist centered information and not for any investment or speculative purposes and that any economic benefit that may be derived from appreciation in the value of a Digital Collectible is incidental to obtaining it for its collectible and/or informational purpose. You also represent and warrant to us that at all relevant times: (i) your purchase of orders for Product are genuine and are not the product of any collusive or other anti-competitive agreement and are otherwise consistent with any applicable antitrust laws; (ii) you have no knowledge or reason to suspect that the funds used to purchase Product are connected with the proceeds of criminal activity; (iii) you (and your principal, if applicable) are not, nor are you (or your principal, if applicable) owned (in whole or in part), controlled, or acting on behalf of, an entity or individual that is the subject of economic sanctions, embargoes or other trade restrictions in any jurisdiction, including those administered and enforced by the United States, European Union or any of its member states, United Kingdom, United Nations Security Council, or other applicable sanctions authority (collectively, “Sanctions”), or located, organized, or resident in a country or territory that is the subject of Sanctions (including Crimea, Cuba, Iran, North Korea, Syria, the Russian Federation and Belarus) (collectively, “Sanctioned Jurisdictions”); (iv) the Purchase Price will not be funded directly or indirectly by or from anyone that is the subject of Sanctions or located, organized, or resident in a Sanctioned Jurisdiction; and (v) no party directly or indirectly involved in the transaction is the subject of Sanctions or is owned (in whole or in part) or controlled by any individual or entity that is the subject of Sanctions or otherwise located, organized, or resident in a Sanctioned Jurisdiction, except as expressly authorized in writing by the government authority having jurisdiction over the purchase and with our prior express written consent.
16. Indemnification. You agree to defend, indemnify on demand and keep Hume and our affiliates, parents, subsidiaries and each of our and their respective officers, employees, agents, partners, members, content providers, service providers, suppliers and licensors (collectively, the “Released Parties”) indemnified, and hold the Released Parties harmless from any and all claims, liabilities, costs, losses (including without limitation consequential and indirect losses) and expenses, including reasonable attorneys’ fees, arising in any way from (a) your use of or reliance on the Platform or any services, content, functions, information, materials, Products, or any Digital Collectibles available through the Platform, (b) your purchase or use of any Products or receipt of the Digital Collectibles through the Platform, (c) your placement or transmission of any message, content, information, software or other materials through the Platform, or (d) your fraudulent or deceptive acts or omissions, or breach or violation of the law (including infringement of any intellectual property or other right of any person or entity) or of these TOS. We will provide notice to you promptly of any such claim, suit, or proceeding. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to assist and cooperate with our defense of such claim.
17. Disclaimer of Warranties. All Product and any associated Digital Collectibles are offered “AS IS,” without any guarantee, representations or warranties by us. We disclaim all implied warranties, including but not limited to merchantability and fitness for a particular purpose, except in so far as such obligations cannot be excluded by law. Neither we nor the artist give you any guarantee, representation or warranty as to the correctness of images or descriptions of the condition, completeness, size, quality, rarity, value, importance, medium, frame, provenance, exhibition history, or historical relevance of any Product or any Digital Collectible, and no statement anywhere, whether oral or written, will be deemed such a warranty, representation or assumption of liability.
In the case of any Digital Collectible, in addition to the above, we do not make any representations or warranties as to the following: (a) the nature, character, contents, condition, behavior, operation, performance, security, integrity, metadata, persistence, quality, technical details or terms of the smart contract, Digital Collectible or any Referenced Content, including without limitation any further iterations of the same; (c) that the smart contract, Digital Collectible or any Referenced Content or the delivery mechanism does not contain vulnerabilities, viruses or malware or other harmful components, or that either will function as any Buyer expects or without error or mistake; (d) the uniqueness of the Referenced Content; (e) that any Digital Collectible is reliable, correctly programmed, compatible with your or others’ computer systems, up-to-date, error-free, compatible with your Non-Custodial Wallet or meeting your requirements, or that defects can or will be corrected; or (f) the accuracy or reliability of any simulation or videos depicting the intended performance of any Digital Collectible or any Referenced Content, whether displayed on our Site, Platform or any other platform.
We offer the Platform as a convenience. Broadband or other internet capacity constraints, corporate firewalls and other technical problems beyond our reasonable control may create difficulties for some users including, for example, in relation to accessing the Platform and in maintaining continuity of such access. Neither we nor the artist, as applicable, will be liable to you for any failure to execute orders, or errors or omissions in connection therewith, including, without limitation, errors or failures caused by (i) any loss of connection between you and the Platform; (ii) a breakdown on or problem with the Platform or other technical services; or (iii) a breakdown or problem with your internet connection, Device or system.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR ACCESS TO AND USE OF THE PLATFORM IS AT YOUR SOLE RISK, AND THE PLATFORM AND ALL SERVICES, CONTENT, FUNCTIONS, INFORMATION, MATERIALS, PRODUCTS AND DIGITAL COLLECTIBLES AVAILABLE THROUGH THE PLATFORM ARE PROVIDED ON AN “ AS IS ” AND “AS AVAILABLE ” BASIS WITHOUT WARRANTY OF ANY KIND, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, INTEGRATION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
WITHOUT LIMITING THE FOREGOING, THE RELEASED PARTIES (I) MAKE NO WARRANTIES OR REPRESENTATIONS REGARDING ANY PRODUCTS, DIGITAL COLLECTIBLES OR SERVICES ORDERED OR PROVIDED VIA THE PLATFORM, AND (II) HEREBY DISCLAIM, AND YOU HEREBY WAIVE, ANY AND ALL WARRANTIES AND REPRESENTATIONS WITH RESPECT THERETO, INCLUDING WITHOUT LIMITATION ANY AND ALL WARRANTIES AND REPRESENTATIONS MADE IN PRODUCT OR SERVICES LITERATURE, DOCUMENTS OR OTHERWISE ON THE PLATFORM OR IN CORRESPONDENCE WITH HUME OR ITS AGENTS. YOU ARE SOLELY RESPONSIBLE FOR, AND ASSUME ALL RISKS RELATED TO, THE HANDLING, STORAGE, AND USE OF ANY PRODUCTS OR DIGITAL COLLECTIBLES MADE AVAILABLE TO YOU VIA THE PLATFORM.
THE RELEASED PARTIES FURTHER DO NOT WARRANT OR GUARANTEE THAT:
(A) THE PLATFORM OR ANY SERVICES, CONTENT, FUNCTIONS, INFORMATION, MATERIALS, PRODUCTS OR DIGITAL COLLECTIBLES AVAILABLE THROUGH THE PLATFORM WILL MEET YOUR REQUIREMENTS OR THAT THE QUALITY OF ANY GOODS, PRODUCTS, DIGITAL COLLECTIBLES OR SERVICES AVAILABLE ON THE PLATFORM WILL MEET YOUR EXPECTATIONS;
(B) ANY INFORMATION PROVIDED WILL BE TIMELY, ACCURATE, RELIABLE, PRECISE, THOROUGH, CORRECT OR COMPLETE;
(C) THE PLATFORM OR ANY SERVICES, CONTENT, FUNCTIONS, MATERIALS, PRODUCTS OR DIGITAL COLLECTIBLES AVAILABLE THROUGH THE PLATFORM WILL BE AVAILABLE AT ANY PARTICULAR TIME OR PLACE, UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE;
(D) ANY DEFECTS OR ERRORS IN THE PLATFORM WILL BE CORRECTED; OR
(E) THE PLATFORM WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
18. LIMITATION OF LIABILITY.
IN NO EVENT SHALL ANY RELEASED PARTY BE LIABLE, WHETHER IN AN ACTION BASED ON A CONTRACT INDEMNIFICATION, OBLIGATION, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), COLLATERALLY OR ARISING FROM ANY STATUTORY DUTY, PRE-CONTRACT OR OTHER REPRESENTATIONS, OR OTHERWISE, HOWEVER ARISING, FOR ANY ECONOMIC LOSSES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUES, PROFITS, CONTRACTS, BUSINESS, GOODWILL OR ANTICIPATED SAVINGS) OR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM, OR DIRECTLY OR INDIRECTLY RELATED TO (A) ANY BREACH OF THIS AGREEMENT, (B) THE USE OF, OR THE INABILITY TO USE, THE PLATFORM OR THE CONTENT, MATERIALS, INFORMATION, FUNCTIONS, PRODUCTS OR DIGITAL COLLECTIBLES AVAILABLE THROUGH THE PLATFORM, (C) YOUR PROVISION OF INFORMATION VIA THE PLATFORM; (D) ANY INACCURACY OR OMISSION CONCERNING ANY OF THE INFORMATION PROVIDED ON THE PLATFORM; (E) ANY CONTENT POSTED, TRANSMITTED, EXCHANGED OR RECEIVED BY OR ON BEHALF OF ANY USER OR OTHER PERSON ON OR THROUGH THE PLATFORM, OR (F) LOST BUSINESS OR LOST SALES, EVEN IF SUCH RELEASED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
WITHOUT LIMITING THE FOREGOING, ANY MATERIALS, DATA, TEXT, IMAGES, VIDEO, AUDIO OR SOFTWARE DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE PLATFORM ARE ACCESSED, DOWNLOADED OR OBTAINED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR OTHER PROPERTY THAT RESULTS THEREFROM OR FROM YOUR USE OF ANY SUCH MATERIALS.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CERTAIN USERS.
IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF THE RELEASED PARTIES FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM THESE TOS OR YOUR USE OF THE DIGITAL PLATFORMS OR THE CONTENT, MATERIALS, INFORMATION, FUNCTIONS, PRODUCTS OR DIGITAL COLLECTIBLES AVAILABLE THROUGH THE DIGITAL PLATFORMS EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNT PAID FOR THE ORIGINAL PRODUCT GIVING RISE TO THE CLAIM.
19. Acknowledgement and Acceptance of Risk.
(a) Inherent Risks of Smart Contracts and Blockchain Technology. Where the purchase or receipt of a Product or Digital Collectible in a given transaction involves assets and activities memorialized on the blockchain, certain related activities (which may extend to, in relation to the Platform, purchases, sales, listings, transfers and other functionalities) utilize experimental smart contract and blockchain technology. You represent and warrant that you are knowledgeable, experienced and sophisticated in using blockchain technology and that you acknowledge, understand and are willing to accept the risks associated with related technological and cryptographic systems such as blockchains, Digital Collectibles, smart contracts, consensus algorithms, cryptocurrencies, decentralized or peer-to-peer networks and systems. You further acknowledge and agree that such technological and cryptographic systems (inclusive of the examples listed in the preceding sentence) may be subject to malfunctions, bugs, timing errors, hacking and theft, changes to the protocol rules of the blockchain (i.e., “forks”), hardware, software and/or Internet connectivity failures, unauthorized third party data access, and other technological risks, any of which can adversely affect the relevant smart contracts and may expose you to a risk of loss, forfeiture of your digital currency or Digital Collectible, or lost opportunities to buy Product. You accept the inherent security risks of providing information and conducting business over the Internet and acknowledge that Hume assumes no liability or responsibility for any such failures, risks, or uncertainties, nor for any communication failures, disruptions, errors, distortions or delays you may experience when using the Platform or any Product or Digital Collectible, however so caused. You acknowledge that the Platform is subject to flaws and acknowledge that you are solely responsible for evaluating any code provided by the Platform. The Platform may experience or be the target of sophisticated cyber-attacks, unexpected surges in activity or other operational or technical difficulties that may cause interruptions to or delays on the Platform.
(b) Acknowledgement of the Volatility of the Valuation of Blockchain Assets. You acknowledge and agree that the prices of blockchain assets (including Digital Collectibles) are extremely volatile and unpredictable, that such assets may have no or little inherent or intrinsic value and that fluctuations in the price or markets of those or other digital assets could materially and adversely affect the value thereof. We do not make any representations of any kind that the value of any Product (including any Digital Collectibles which may be included therewith) bought or sold on the Platform will retain the value of its original purchase price or attain any future value. You acknowledge that the value and/or utility can be based on both subjective factors and market forces (e.g., the market(s) for cryptocurrencies, the issuance of new regulations, etc.), and any fluctuations in value are outside of the control of Hume or the Platform.
(c) Risks and Limitations of the Platform. You accept and acknowledge that (i) we do and will rely on third-party platforms in the operation of the Platform and for support in the facilitation of transactions, the recording of any transfer of title to Digital Collectibles in the decentralized ledger within the blockchain, the processing of payments, user administration and account services, and other assistance, tasks and support relating to the operation and administration of the Platform (collectively, “Platform Providers”); (ii) the applicable regulatory landscape governing blockchain technologies, cryptocurrencies, Digital Collectibles and other digital assets is uncertain, and new regulations or policies may materially adversely affect the development of the Platform and the value or utility (or both) of Product or Digital Collectibles as well as interfere with our ability to operate or improve upon the Platform (or your ability to access or use the Platform or applicable smart contracts); (c) there are risks associated with digital content (including but not limited to, the risk of counterfeit assets, mislabeled assets, assets that are vulnerable to metadata decay, assets on smart contracts with bugs, and assets that may become untransferable), that Product or Digital Collectibles may be encumbered by actual or possible copyright or trademark claims, and that we make no representations or warranties as to the quality, origin, legitimacy, authenticity, identity or ownership of any Product or Digital Collectible in the Platform or any of the Referenced Content related thereto.
(d) No Implicit Endorsements. You acknowledge that reference on the Platform to any products, services, processes or other information by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by us, and that we do 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 (including Third Party Sites).
(e) Acknowledgement of Responsibilities for Transaction Outcomes. You acknowledge and agree that that use of the Platform, including the creating, buying or utilizing of digital assets, may carry financial risk, and that the risk of loss may be substantial. All transaction decisions are made solely by you. By using the Platform, you represent that you have been, are and will be solely responsible for making your own independent appraisal and investigations into the risks of a given transaction and any underlying digital assets. You acknowledge and assume the risk of initiating, interacting with and participating in transactions via the Platform, in whatever means effectuated thereby, and take full responsibility and liability for the outcome of any transaction you initiate (regardless of whether the smart contracts, the Platform, other market participants or other users behave as expected or intended) and all other aspects of your use of and access to the Platform. Under no circumstances will the operation of all or any portion of the Platform be deemed to create a relationship that includes the provision or tendering of investment advice.
(f) Local Standards. You acknowledge that the Platform and the content, materials, information, functions, Product or Digital Collectibles available through the Platform may not be appropriate for use in all locations. Persons who choose to access the Platforms do so on their own initiative, and are responsible for compliance with local laws, if and to the extent local laws are applicable.
20. Dispute Resolution. EXCEPT AS OTHERWISE PROVIDED UNDER THESE TOS, ALL DISPUTES AND CLAIMS BETWEEN YOU AND HUME THAT ARISE OUT OF OR IN CONNECTION WITH, OR RELATE TO, THESE TOS SHALL BE RESOLVED, AT THE FILING PARTY'S ELECTION, IN EITHER A SMALL CLAIMS COURT OR BY FINAL AND BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION UNDER ITS COMMERCIAL ARBITRATION RULES AND SUPPLEMENTARY PROCEDURES FOR CONSUMER-RELATED DISPUTES, WHICH ARBITRATION SHALL TAKE PLACE IN LOS ANGELES, CALIFORNIA. ALL DISPUTES IN ARBITRATION WILL BE HANDLED SOLELY BETWEEN THE NAMED PARTIES, AND NOT ON ANY REPRESENTATIVE OR CLASS BASIS. FURTHER, UNLESS BOTH YOU AND HUME 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. THE ARBITRATOR MAY AWARD DECLARATORY OR INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM WITHOUT AFFECTING OTHER INDIVIDUALS.
YOU UNDERSTAND AND AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS BOTH YOU AND HUME SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION. THIS PROVISION IS NOT APPLICABLE TO THE EXTENT SUCH WAIVER IS PROHIBITED BY LAW. YOU UNDERSTAND THAT YOU AND HUME ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS BEFORE A JURY.
You have the right to opt-out and not be bound by the arbitration and waiver of class provisions set forth in these TOS by sending written notice of your decision to opt-out to legal@wearehume.com to the U.S. mailing address listed in the “Further Inquiries” section of these TOS. The notice must be sent to Hume within thirty (30) days of agreeing to these TOS (or if this Section pertaining to arbitration is materially amended hereafter, within 30 days of such amendment being effective), otherwise you shall be bound to arbitrate disputes in accordance with these TOS, and the notice must specify your name and mailing address.
21. Termination. Notwithstanding anything to the contrary set forth in these TOS, we may cancel any order, terminate your Account and/or access to all or any part of the Platform at any time, and/or block or prevent future access to and use of the Platform, in each case with or without cause, with or without notice and without attendant liability, effective immediately. Upon any termination, all rights and obligations of the parties hereunder shall cease and you shall immediately cease using the Platforms, except that (a) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) and all remedies for breach of these TOS shall survive and (b) the provisions of these TOS that by their nature are intended to survive termination shall so survive.
22. California Residents. If you are a California resident, in accordance with Cal. Civ. Code § 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.
23. Injunctive Relief. You agree that a breach of these TOS will cause irreparable injury to Hume for which monetary damages would not be an adequate remedy and we shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.
24. Miscellaneous. The TOS incorporate the applicable Privacy Policy and any other terms applying to your use of the Platform by reference. These TOS and the relationship between you and us shall be governed by the laws of the State of California, without regard to its conflict of law provisions. Subject to the terms of Section 20 above (Dispute Resolution), you agree to submit to the personal and exclusive jurisdiction of the courts located within Los Angeles County in the State of California. Our failure to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. Except as otherwise set forth herein, these TOS may only be amended by a written agreement executed by you and an authorized representative of Hume specifically referencing these TOS. Any waiver of any provision of these TOS by Hume must be made in writing and signed by an authorized representative of Hume and include the provision to be waived. Headings used in these TOS are for convenience only and are not to be relied upon. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect. These TOS will inure to the benefit of, and are intended to be enforceable by, Hume’s successors, assigns and licensees. These TOS are subject to any supplemental, and superseded by any conflicting, terms and conditions included in any applicable Listing Terms.
25. Further Inquiries. You may direct questions about these TOS, or other issues, to:
Hume, Inc.
legal@wearehume.com
Attn: Unseen Club Website Management
Last Modified: November 14, 2023
