INTRODUCTION AND DISCLAIMERS
These NFT Terms of Service (“NFT Terms”) apply to sales Cap3Collective, LLC, a Wyoming Limited Liability Company (“Issuer”), through Issuer’s websites, Third Party Sites (for example, Discord), and blockchain-based applications (all of the foregoing, together with the functionality associated therewith, collectively, the “Platform”) of non-fungible tokens (“NFTs”) and project opportunities for participation (the “Cap3 Projects”) available on the Cap3Collective website. Issuer (sometimes referred to herein simply as “we,” “us,” or “our”) may sell NFTs to initial purchasers thereof, and may provide goods and services to initial purchasers and subsequent transferees of NFTs (sometimes referred to herein simply as “you” or using similar terms), including without limitation access to the Platform, subject to your acceptance of these NFT Terms. Through the Platform and subject to your acceptance of these NFT Terms, Issuer may offer you access to other NFT content and Cap3 Projects available on the Cap3Collective website that are offered by Project Owners. Purchase of Cap3 Project NFTs from Project Owners may be subject to additional terms and conditions.
These NFT Terms, together with the Cap3Collective, LLC Terms of Service and Privacy Policy, are a binding contract between you and us. Your purchase of, acquisition of, and/or ownership of, NFTs through the Platform constitutes your full and unconditional agreement to these NFT Terms. We may update these NFT Terms by providing a new version online and your continued use of the Platform after any such update constitutes your binding acceptance of such changes. We may immediately terminate our contract with respect to you and your access to the Platform and any NFTs if you fail to comply with any of the NFT Terms.
PLEASE READ THESE NFT TERMS CAREFULLY BEFORE USING THE PLATFORM. THESE NFT TERMS GOVERN YOUR USE OF THE PLATFORM, UNLESS WE HAVE EXECUTED A SEPARATE WRITTEN AGREEMENT OR PROVIDED SPECIFIC TERMS WITH YOU FOR THAT PURPOSE. THE PLATFORM IS ONLY AVAILABLE TO YOU IF YOU ACCEPT ALL OF THESE NFT TERMS.
IF YOU ARE ACCEPTING THESE NFT TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO ACCEPT THESE NFT TERMS ON THAT ENTITY’S BEHALF, IN WHICH CASE “YOU” WILL MEAN THAT ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT ACCEPT ALL OF THESE NFT TERMS, THEN WE ARE UNABLE TO MAKE THE PLATFORM AVAILABLE TO YOU. IF YOU DO NOT AGREE TO THESE NFT TERMS, YOU MAY NOT ACCESS OR USE THE PLATFORM.
BY ENTERING, ACCESSING, BROWSING, SUBMITTING INFORMATION TO, OR OTHERWISE USING THE PLATFORM OR ANY PART OF IT, YOU ARE CONFIRMING THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY THE NFT TERMS, AND YOU REPRESENT AND WARRANT THAT YOU ARE EIGHTEEN (18) YEARS OLD OR OLDER.
Unless otherwise agreed to in writing, communications from ISSUER are intended solely for informational purposes, and should not be construed as investment advice and are not meant to be a solicitation or recommendation to buy, sell, or hold any securities. Issuer does not purport to tell or suggest which NFTs, Cap3 Projects, or securities customers should buy or sell for themselves. ISSUER is not registered as a securities broker-dealer or an investment adviser with the U.S. Securities and Exchange Commission, the Financial Industry Regulatory Authority (“FINRA”) or any state securities regulatory authority. At present, ISSUER is exempt from federal registration as an investment adviser because it does not provide "continuous and regular supervisory or management services" contemplated by the definition of "investment adviser" under the Investment Advisers Act of 1940.
YOU ARE SOLELY RESPONSIBLE FOR DETERMINING WHETHER NFT PURCHASE, INVESTMENT, INVESTMENT STRATEGY, SECURITY OR RELATED TRANSACTION IS APPROPRIATE FOR YOU BASED ON YOUR PERSONAL INVESTMENT OBJECTIVES, FINANCIAL CIRCUMSTANCES AND RISK TOLERANCE. INVESTORS AND USERS SHOULD CONDUCT THEIR OWN DILIGENCE AND CONSULT WITH LICENSED PROFESSIONALS, INVESTMENT AND LEGAL ADVISORS FOR ANY INVESTMENT, INSURANCE, TAX OR LEGAL ADVICE.
INVESTING IN START-UP COMPANIES DESCRIBED IN THESE PRESENTATIONS IS EXTREMELY SPECULATIVE AND INVOLVES A HIGH DEGREE OF RISK. EACH OF THESE COMPANIES IS IN THE START-UP, EARLY STAGE OR VENTURE PHASE. AT THIS EARLY STAGE OF THEIR OPERATIONS, THEY WILL FACE THE RISKS, UNCERTAINTIES, EXPENSES AND DIFFICULTIES FREQUENTLY ENCOUNTERED BY COMPANIES AT THE START UP STAGE OF THEIR BUSINESS DEVELOPMENT. WE CANNOT BE SURE THAT THEY WILL BE SUCCESSFUL IN ADDRESSING THESE RISKS AND UNCERTAINTIES AND THEIR FAILURE TO DO SO COULD HAVE A MATERIALLY ADVERSE EFFECT ON THEIR FINANCIAL CONDITION AND, IF YOU INVEST, COULD RESULT IN THE LOSS OF YOUR ENTIRE INVESTMENT. THERE IS NO HISTORY UPON WHICH TO BASE ANY ASSUMPTION AS TO THE LIKELIHOOD THAT THEY WILL PROVE SUCCESSFUL AND THEY CAN PROVIDE INVESTORS WITH NO ASSURANCE THAT THEY WILL GENERATE ANY OPERATING REVENUES OR EVER ACHIEVE PROFITABLE OPERATIONS.
YOU SHOULD NOT INVEST IN UNLESS YOU ARE IN A POSITION TO LOSE THE ENTIRE AMOUNT OF YOUR INVESTMENT. NO PUBLIC MARKET CURRENTLY EXISTS FOR THE COMMON STOCK OF ANY OF THESE COMPANIES AND THEIR SECURITIES AND THERE CAN BE NO ASSURANCE THAT SUCH PUBLIC MARKET WILL EVER EXIST.
1. PURCHASE AND OWNERSHIP
1.1 Our NFTs. NFTs that we provide:
1.1.1. may, where expressly stated in the description of such NFTs, include additional functionality, content, or subscription access to goods, services and/or experiences;
1.1.2 may be unique or part of a limited series, or redeemable only once;
1.1.3. may include the ability to redeem an electronic certificate for other NFTs, goods, services and experiences, which may be unique or part of a limited series, or redeemable only for a specified number or amount of other NFTs, goods, services and experiences;
1.1.4. may be subject to additional terms or qualifications as stated in the description of the NFT; and.
1.1.5. are subject to applicable laws as in effect from time to time.
1.2. Ownership of NFTs
“Own” means your rights with respect to an NFT you have purchased or otherwise rightfully acquired from a legitimate source, where proof of such purchase is recorded on the applicable blockchain. You agree, in relation to any NFT that you Own, that you Own that NFT in accordance with any description which accompanies that NFT. Issuer may, at its option, use third party platforms or wallet extensions (which may be owned or operated by third parties) to sell NFTs (“Third Party Sites”). You agree to adhere to any applicable terms of service or privacy policies applicable to the use of any Third Party Sites.
UNLESS STATED OTHERWISE IN THE DESCRIPTION OF THE APPLICABLE NFT, AN NFT THAT YOU OWN WILL BE TRANSFERABLE, BUT ANY TRANSFEREE WILL BE SUBJECT TO THESE NFT TERMS. NFTS THAT WE PROVIDE ARE UTILITY TOKENS TIED TO UNIQUE GOODS, SERVICES AND EXPERIENCES. YOU SHOULD NOT PURCHASE OUR NFTS WITH A VIEW TO INVESTMENT, RESALE OR SPECULATION. THERE CAN BE NO ASSURANCE AS TO THEIR PRESENT OR FUTURE VALUE, TRANSFERABILITY OR MARKETABILITY.
1.3. Ownership of Creative Materials.
You acknowledge and agree that Issuer (or, as applicable, its licensors or Project Owners) own all rights, title and interest in and to any artwork, designs, drawings, photographs, labels, logos, insignia, trademarks, trade dress, copyright, recipes, formulas and other creative materials that may be associated with any NFT that you Own (collectively, “Creative Materials”), and all intellectual property rights therein. The rights that you have in and to the Creative Materials are limited to those expressly stated below, under “Intellectual Property Ownership, Licenses and Restrictions.” Notwithstanding any purchase of NFTs, all right, title, and interest in the Issuer Intellectual Property (as defined below), including the Creative Materials and other Issuer Intellectual Property incorporated in any NFTs (including NFTs that you Own) and including all copyrights, trademarks, and other intellectual property rights therein, are held by Issuer or its licensors or Project Owners, and you agree not to infringe, violate or misappropriate those exclusive rights.
1.4. Risks of NFTs.
Once you Own any NFT, you are responsible for any loss or damage to, or loss of access to, the NFT and neither Issuer nor any of its licensors or Project Owners shall have any liability in such circumstances, regardless of cause. You expressly understand and agree that your use of the Platform and any NFTs is at your sole risk and that the Platform and NFTs are provided “as is” and “as available.”
1.5. Terms of Sale.
All sales of NFTs are final. Once you have made a purchase of an NFT, you should promptly take the necessary steps to complete your transaction (e.g., activate or download any content or secure any seed phrase or corresponding private key). We encourage the use of secure, offline storage measures for NFTs. You may purchase NFTs using real or virtual/cryptocurrency, where multiple payment options are made available to you. You may resell or otherwise transfer an NFT that you Own where this is permitted by these NFT Terms and applicable law. Any sale or transfer must provide for the transfer of all of your rights then outstanding with respect to such NFT. Anyone receiving such NFTs from you agrees to and is bound by these NFT Terms. You are strictly forbidden to sell, swap, donate, give away, transfer, or otherwise dispose of your purchased NFT to any person who is not eighteen (18) years or older. We expressly reserve the right to seize, freeze, or otherwise modify the ownership of any NFT in case of non-compliance with the foregoing or these Terms of Use.
1.6. NFT Offering 2.0 (November, 2022).
1.6.1. Genesis and Subscription NFTs.
Our sale of NFTs pursuant to these NFT Terms being launched in November, 2022 will be capped as shown below, as follows:
| NFT | Supply | Starting Price | Terms |
| Genesis | 500 minted /1500 allotted to holders at sell out | 2 ETH each | Weighted voting power to select Web3 projects to receive community funding. Evenly distributed 10% revenue share to all Genesis Pass members from the initial mint of funded projects. Exclusive, discounted access to Web3 projects funded by the community before they’re available to the public. Permanent membership in the Cap3 DAO community. |
| Subscription | 7,000 (per Season) | 0.2 ETH each | Subscription NFT holders can participate in vetting, selecting, and funding Web3 projects. Subscription NFT holders are entitled to at least one NFT of funded projects at a minimum of 20% discount. Subscription NFT holders will receive 15% of the mint of funded projects if they voted in the month the project was approved. Subscription holders also will receive 2.5% royalties on secondary sales of funded projects. Subscription NFT holders will have the opportunity to participate in 2 projects every month for five months. These 10 projects and the five month period will be known as a “Season” for Subscription Pass holders. |
We reserve the right to issue new NFTs and related offerings and experiences in the future.
1.6.2. Genesis and Subscription Pricing.
Each Genesis NFT identified will be priced at 2 Ethereum (ETH) as determined by us in our sole discretion and displayed on the Platform at the time of purchase, inclusive of all applicable, excise taxes and U.S. domestic shipping. Additional sales tax and minting gas may be charged excise taxes and U.S. domestic shipping. Additional sales tax and minting gas may be charged.
1.6.3. Platform Access and Experience.
Each NFT will include (a) the right to access the Cap3 Platform, and (b) pre-public information and offerings regarding Cap3 Projects.
2. REGISTRATION
The Platform and any NFTs that you Own are solely for your personal use. You agree not to use the Platform or NFTs that you Own for any other purpose. We reserve the right to require that you register with us or one of our Platform partners in order to access the NFTs. If you are required to register an account with us or any such third party, you agree to provide accurate, current and complete information about yourself as part of that process.
3. INTELLECTUAL PROPERTY OWNERSHIP, LICENSES AND RESTRICTIONS
3.1. Ownership.
Subject to the licenses expressly granted below, we (or where applicable, our licensors) own all rights, title and interest in and to
any and all other content and materials available through the NFTs, any associated application, and all intellectual property rights therein (collectively, “Issuer Intellectual Property”). Issuer Intellectual Property may be used only in connection with the NFTs, for personal purposes, as expressly permitted in these NFT Terms.
3.2. Limitations on Use.
Unless explicitly stated, you should assume that all Issuer Intellectual Property is protected by copyright, trademark and other applicable intellectual property rights and may not be used except as permitted in these NFT Terms. Issuer does not grant, by implication, estoppel, or otherwise, any license or right to use any Issuer Intellectual Property or NFTs in a manner inconsistent with these NFT Terms without the prior written permission of Issuer and/or any third party that may own additional intellectual property
3.3. Grant of License: Generally.
Issuer grants you a limited, non-exclusive, transferable, revocable license to access and use the Platform and any NFTs that you Own (including all software, Creative Materials, content, virtual items and other material associated with the NFTs) for your own personal use only. You may not use the Platform for any unlawful purpose. We reserve all rights in and to the Platform and the NFTs not expressly granted to you under these NFT Terms.
3.4. Grant of License: Creative Materials.
Without limiting the generality of the foregoing, subject to your continued compliance with these NFT Terms, Issuer grants you a limited, non-exclusive, transferable, royalty-free license to display the Creative Materials for NFTs that you Own, solely, for the following purposes:
3.5. Proprietary Notices
In addition, you agree that you shall not remove any proprietary notices or labels on or in the Issuer Intellectual Property and/or not bypass, modify, defeat or circumvent any technologies or methods to deliver or protect the NFTs or any other Issuer Intellectual Property.
3.6. Cap3 Project Limitations
If you acquire an Genesis or Subscription NFT, you are entitled to the right to sell, transfer or dispose of that NFT. Such rights, however, do not include the ownership of the property rights to the Cap3 Projects relating to such Genesis or Subscription NFT.
As between you and Cap3Collective, Cap3Collective, its licensor(s), and/or the project owner(s) own all right, title and interest in the Cap3 Projects and all intellectual property rights related thereto. The Cap3 Projects are exclusively owned or controlled by third-parties, which are separate from the associated NFTs. The third-party, project owners reserve any and all rights in and to their respective Cap3 Projects not expressly granted to you herein or by other written agreement. Purchase of any Genesis or Subscription NFT shall not transfer any ownership right in any of the Cap3 Projects to you.
3.7. Additional Benefits
Prior to the release of any Genesis or Subscription NFT or at any time thereafter, Cap3Collective or and other third parties have the right, but not obligation, to make additional content, items, or other rights or benefits available to holders of the Genesis or Subscription NFT (“Additional Benefit”). Any Additional Benefits are not guaranteed and may be subject to further terms, conditions, purchase, or application.
3.8. Modifications.
We reserve the right to modify or discontinue the NFTs or the Platform (or any parts of any associated software or applications relating thereto) with or without notice at any time; provided, however, that we will use reasonable efforts to provide advance notice of such action. Issuer (including, without limitation, our licensors) shall not be liable to you or any third party for any modification, suspension or discontinuance of the NFTs or the Platform or any associated software, applications or functionality.
4. No Obligation to Provide or Maintain Cap3 Projects
Cap3Collective may store the Cap3 Projects at a specified InterPlanetary File System (“IPFS”) or URL, but Cap3Collective has no obligation to provide or maintain such IPFS or URL, and you further acknowledge and agree that any such IPFS or URL is subject to the disclaimer and limitation of liability set forth herein. Cap3Collective may update the Cap3 Projects associated with an Genesis or Subscription NFT or stored at an IPFS or URL, and while it will make reasonable efforts to provide notice of any such update, Cap3Collective is not obligated to provide the same.
5. TERMS OF SERVICE; PRIVACY AND ACCESS CREDENTIALS
5.1. Terms of Service; Privacy.
By using Issuer’s websites and proprietary applications, it is your responsibility to know, understand and abide by the Cap3Collective Terms of Service and Privacy Policy, which are incorporated herein by reference. Any information that you may provide to Issuer during your use of the Platform is subject to the Privacy Policy. Any information that you may provide to a Third Party Site during your use of the Platform is subject to the Third Party Site’s privacy policy, and your use of any Third Party Site included in the Platform is governed by the terms of service of the applicable Third Party Site.
5.2. No Obligation to Provide or Maintain Cap3 Projects
Cap3Collective may store the Cap3 Projects at a specified InterPlanetary File System (“IPFS”) or URL, but Cap3Collective has no obligation to provide or maintain such IPFS or URL, and you further acknowledge and agree that any such IPFS or URL is subject to the disclaimer and limitation of liability set forth herein. Cap3Collective may update the Cap3 Projects associated with an Genesis or Subscription NFT or stored at an IPFS or URL, and while it will make reasonable efforts to provide notice of any such update, Cap3Collective is not obligated to provide the same.
5.3. Access Credentials.
When registering for the Platform or third party services that facilitate access to the Platform, you may be required to select a username and password, private key, or other form of secure authentication that will be used to access your account (collectively, “Access Credentials”). You are responsible for any use of your Access Credentials, whether by you or others. You agree to keep your Access Credentials confidential and not share them with anyone else. Issuer is not liable for any loss or damage arising from your failure to protect your Access Credentials or any other personal information, including but not limited to loss of access to any NFTs. You authorize Issuer to act on instructions received through use of your Access Credentials, and Issuer may, but is not obligated to, deny access or block any transaction made through use of your Access Credentials without prior notice.
5.4. Your Information
As a condition of participating in the purchase, claim and transfer of any Genesis or Subscription NFTs, any time you provide your information (including personal information or any personally identifiable information or personal data) to Cap3Collective or that Cap3Collective collects from you when accessing the Cap3 Marketplace for Cap3 Projects (including information collected automatically by the use of cookies or other similar technologies), you agree to the collection, use, storage, sharing, transfer, and processing of your information by Cap3Collective for the purposes of providing the Cap3 Projects and the services available therein to comply with applicable laws, rules and regulations.
6. TERMINATION.
We may, in our sole discretion at any time, for any reason or no reason, and without notice or liability, immediately terminate your access to all or any part of the Platform and any NFTs. Termination may include, but not be limited to (a) removal of your access to, or listing of NFTs on, the Platform, (b) the deletion of all account information related to the NFTs from the Platform, and (c) barring any further use of or access to the Platform by you.
7. ASSUMPTION OF RISK.
You acknowledge that NFTs carry the following risks among others. We expressly disclaim any responsibility for these risks.
7.1. Inherent Risks with Digital Assets.
There are risks associated with using Internet-based digital assets such as NFTs and cryptocurrency, including, but not limited to, the risk of hardware, software and Internet connections, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to information stored within your electronic wallet. You accept and acknowledge that we will not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience when using the Ethereum blockchain network, however caused.
7.2. Value/Volatility/Not An Investment
The prices of NFTs can be extremely volatile and subjective, and NFTs have no inherent or intrinsic value. To the extent there is a price or market for a blockchain asset such as an NFT, (a) those prices and markets are extremely volatile, (b) variations in the price of other digital assets could materially and adversely affect the value of any digital assets you own, including NFTs, and (c) there is no guarantee that NFTs will have or retain any value. NFTs are not securities or financial instruments and are not offered for investment purposes. The commercial or market value of NFTs may materially diminish in value as a result of a variety of things, including negative publicity associated with Issuer. You accept and acknowledge that we will not be responsible for the risks of engaging in any transactions relating to your NFTs with third parties (e.g., transferring your NFT from a third party on any so-called “secondary market”).
7.3. Use of Blockchain.
The Platform does not store, send, or receive NFTs. This is because NFTs exist only by virtue of the ownership record maintained on the Platform’s supporting blockchain in the Ethereum blockchain network. Any transfer of NFTs occurs within the supporting blockchain in the Network, and not on the Platform. We do not make any promises or guarantees about the availability of NFTs or that it will host your or any other NFTs at any specific location and/or for any specific period of time. Upgrades to the Ethereum blockchain, a hard fork or other change to the Ethereum blockchain, a failure or cessation of the Ethereum blockchain or its underlying cryptocurrency, or a change in how transactions are confirmed on the Ethereum blockchain may have unintended, adverse effects on all blockchains using those or similar technologies, including the NFTs. We do not make any promises or guarantees related to the Ethereum Foundation, the Ethereum blockchain, or any other third parties related to the NFTs or the Platform (including any of their respective applications and/or services, as well as to the continued availability of or the protection or storage of any data you provide to those parties). You accept and acknowledge that we will not be responsible for any loss of access to your NFTs due to loss of your private key(s), custodial error or purchaser error, mining attacks, hacking, security weaknesses, fraud, counterfeiting, cyberattacks and other technological difficulties.
7.4. Regulatory Uncertainty.
The regulatory regime governing blockchain technologies, cryptocurrencies and tokens is uncertain, and new regulations or policies may materially adversely affect the development of the Platform ecosystem, and therefore the potential utility or value of your NFTs. You accept and acknowledge that we will not be responsible for the risk of changes to the regulatory regime governing blockchain technologies, cryptocurrencies, and tokens and new regulations, unfavorable regulatory intervention in one or more jurisdictions or policies any of which may materially adversely affect the use and value of the NFTs.
7.5. Tax Calculations.
You are solely responsible for determining what, if any, taxes apply to your NFT-related transactions. We are not responsible for determining the taxes that apply to your transactions on the Platform or other NFT-related transactions.
7.6. General.
You also acknowledge and agree that: (a) you have obtained sufficient information to make an informed decision regarding the NFTs; (b) you are solely responsible for determining the nature, potential value, suitability and appropriateness of these risks for yourself; (c) Issuer does not represent or warrant that any NFTs, or its supporting systems or technology, are reliable, current or error-free or otherwise meets your requirements, that defects in the NFTs, or their supporting systems or technology, will be corrected, or that the delivery mechanism for NFTs will be free of viruses or other harmful components; and (d) Issuer shall not be responsible for any communication failures, disruptions, errors or delays you may experience related to the NFTs.
8. ANTI-MONEY LAUNDERING; SANCTIONS.
Issuer maintains an anti-money laundering (“AML”) program consistent with the requirements applicable to it under the USA PATRIOT Act and the Bank Secrecy Act. You agree to comply with all related compliance procedures as required by Issuer from time to time. In addition, if applicable to your own business operations, you shall maintain an AML program consistent with such requirements. You understand, acknowledge, and agree that exports, re-exports and in-country transfers of any NFT, or other Redeemable Elements, and related services (individually, an “Item” and, collectively, the “Items”) are subject to U.S. export, import, customs, antiboycott, and economic sanctions laws, regulations, rules, and orders (each, a “Trade Control Law”). You shall not export, re-export, or otherwise transfer or provide any Item in contravention of any Trade Control Law, including to anyone (a) in Cuba, Crimea, Iran, North Korea, Sudan, or Syria, or in any other embargoed destination, or (b) listed on, or owned or controlled by anyone on, a sanctioned party list published by the U.S. Departments of Commerce or Treasury, including the Specially Designated Nationals and Blocked Persons List (a “Sanctioned Party”). You certify that you are not a Sanctioned Party or located in or a resident of any embargoed destination. In addition to any other remedy that Issuer may have, Issuer may suspend and/or cancel the provision of any Item if Issuer believes, in its discretion, that such activity may violate any Trade Control Law or Issuer’s own compliance policies.
9. DISCLAIMER OF WARRANTY
THERE IS NO WARRANTY FOR THE PLATFORM OR ANY NFTS, TO THE EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT WHEN OTHERWISE STATED IN WRITING, ISSUER AND/OR OTHER PARTIES PROVIDE THE PLATFORM AND NFTS “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.
10. LIMITATION OF LIABILITY
IN NO EVENT WILL CAP3COLLECTIVE BE LIABLE, WHETHER UNDER ANY THEORY OF LIABILITY, FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, LOSS OF REVENUE OR PROFITS, LOSS OF DATA, OR OTHER LOSS OF BUSINESS, EVEN IF SUCH PARTY IS NOTIFIED IN ADVANCE OF SUCH POSSIBILITY, ARISING OUT OF THESE TERMS.
THE MAXIMUM AGGREGATE LIABILITY OF CAP3COLLECTIVE FOR ALL DAMAGES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL BE equivalent to the price you paid for your Genesis or Subscription NFT.
11. WARRANTY AND DISCLAIMER
You represent and warrant that you: (a) are at least the age of majority in you place of residence (which is 18 years of age in most U.S. states) and has the legal capacity to enter into a transaction contemplated herein, (b) will use and interact with the Cap3 Projects only for lawful purposes and in accordance with the Terms, and (c) will not use the Cap3 Projects to violate any law, regulation or ordinance or any right of Cap3Collective, its licensors, and Project Owner, or any third party, including without limitation, any right of privacy, publicity, copyright, trademark, or patent. You further agree that you will comply with all applicable laws.
CAP3COLLECTIVE DOES NOT OWN OR CONTROL ANY OF THE SOFTWARE PROTOCOLS, SERVICES, EXCHANGES OR APPLICATIONS THAT MAY BE USED IN CONNECTION WITH THE GENESIS OR SUBSCRIPTION NFT AND/OR CAP3 PROJECTS, INCLUDING ANY CRYPTOCURRENCY WALLET, THIRD-PARTY SERVER ON WHICH MEDIA RELATING TO THE CAP3 PROJECTS IS STORED OR THIRD-PARTY MARKETPLACES (“THIRD-PARTY SERVICES”). CAP3COLLECTIVE DISCLAIMS ALL LIABILITY RELATING TO THE THIRD-PARTY SERVICES, AS WELL AS ANY PRICE FLUCTUATIONS IN NFT VALUATION, AND MAKES NO GUARANTEES REGARDING THE SECURITY, FUNCTIONALITY OR AVAILABILITY OF THE THIRD-PARTY SERVICES. YOU HEREBY WAIVE AND RELEASE ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH ANY THIRD-PARTY SERVICES OR THE TRANSFER, LOSS OR THEFT OF ANY GENESIS OR SUBSCRIPTION NFT, OR LOSS OR THEFT OF ANY FUNDED CAP3 PROJECT OR ASSOCIATED NFT.
CAP3COLLECTIVE MAKES THE GENESIS OR SUBSCRIPTION NFT, CAP3 PROJECTS, LICENSE, ANY ASSOCIATED WEBSITE, AS WELL AS ANY ADDITIONAL BENEFIT PROVIDED BY CAP3COLLECTIVE OR ANY THIRD-PARTY IN CONNECTION WITH OWNING THE GENESIS OR SUBSCRIPTION NFT OR ANY FUNDED PROJECT, AVAILABLE “AS IS” AND EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE IN TRADE. YOU ASSUME THE ENTIRE RISK OF YOUR USE OF THE CAP3 PROJECTS AND GENESIS OR SUBSCRIPTION NFT OR THE FUNDING OF ANY CAP3 PROJECT. CAP3COLLECTIVE MAKES NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY INFORMATION OR CAP3 PROJECTS ACCESSIBLE BY ANY OF THE GENESIS OR SUBSCRIPTION NFTS.
CAP3COLLECTIVE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS AND TAKES NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR, ANY USE OF PURCHASE OF ANY NFT FROM A CAP3 PROJECTS, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (I) USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS OR MISTYPED WALLET ADDRESSES; (II) SERVER FAILURE OR DATA LOSS; (III) CORRUPTED CRYPTOCURRENCY WALLET FILES; (IV) UNAUTHORIZED ACCESS TO THE CAP3 PROJECTS; (V) ANY UNAUTHORIZED THIRD PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTE FORCING OR OTHER MEANS OF ATTACK AGAINST BLOCKCHAIN NETWORK UNDERLYING THE CAP3 PROJECTS OR GENESIS OR SUBSCRIPTION NFTS; OR (VI) ANY LOSS ASSOCIATED WITH THE PURCHASE OF ANY NFT FOR A CAP3 PROJECT.
THE GENESIS OR SUBSCRIPTION NFTS AND ITS RELATED CAP3 PROJECTS ARE INTANGIBLE DIGITAL ASSETS. THEY EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE APPLICABLE BLOCKCHAIN NETWORK. ANY TRANSFER OF TITLE THAT MIGHT OCCUR IN ANY UNIQUE DIGITAL ASSET OCCURS ON THE DECENTRALIZED LEDGER WITHIN SUCH BLOCKCHAIN NETWORK, WHICH CAP3COLLECTIVE DOES NOT CONTROL. CAP3COLLECTIVE DOES NOT GUARANTEE THAT IT CAN EFFECT THE TRANSFER OF TITLE OR RIGHT IN ANY OF THE GENESIS OR SUBSCRIPTION NFTS. YOU BEAR FULL RESPONSIBILITY FOR VERIFYING THE IDENTITY, LEGITIMACY, AND AUTHENTICITY OF ASSETS THAT YOU PURCHASE. NOTWITHSTANDING INDICATORS AND MESSAGES THAT SUGGEST VERIFICATION, CAP3COLLECTIVE MAKES NO CLAIMS OR REPRESENTATIONS ABOUT THE IDENTITY, LEGITIMACY OR AUTHENTICITY OF ASSETS OR ANY PURPORTED SECONDARY TRANSACTIONS.
CAP3COLLECTIVE IS NOT RESPONSIBLE FOR ANY KIND OF FAILURE, ABNORMAL BEHAVIOR OF SOFTWARE (E.G., WALLET, SMART CONTRACT), BLOCKCHAINS OR ANY OTHER FEATURES OF THE GENESIS OR SUBSCRIPTION NFTS. CAP3COLLECTIVE IS NOT RESPONSIBLE FOR CASUALTIES DUE TO LATE REPORT BY DEVELOPERS OR REPRESENTATIVES (OR NO REPORT AT ALL) OF ANY ISSUES WITH THE BLOCKCHAIN SUPPORTING THE GENESIS OR SUBSCRIPTION NFTS, INCLUDING FORKS, TECHNICAL NODE ISSUES OR ANY OTHER ISSUES HAVING FUND LOSSES AS A RESULT.
12. ASSUMPTION OF RISK
You accept and acknowledge all risks associated with the following:
• You are solely responsible for determining what, if any, taxes apply to your purchase, sale, or transfer of any Genesis or Subscription NFT, any gross proceeds received from Cap3 Projects, or any royalties received from secondary sales. Cap3Collective is not responsible for determining or paying the taxes that apply to any transactions relating to the Genesis or Subscription NFT or funded Cap3 Projects.
• Cap3Collective does not store, send or receive cryptocurrency assets. Any transfer of cryptocurrency assets occurs within the supporting blockchain that is not controlled by Cap3Collective. Transactions involving Genesis or Subscription NFTs may be irreversible, and, accordingly, losses due to fraudulent or accidental transactions may not be recoverable. Some transactions shall be deemed to be made when recorded on a public blockchain ledger, which is not necessarily the date or time that you initiated the transaction.
• There are risks associated with using an Internet based digital asset, including but not limited to, the risk of hardware, software and Internet connections, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to information stored within your digital wallet. Cap3Collective will not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience when effecting the Genesis or Subscription NFT related transactions.
• Digital assets, including blockchain based assets such as Genesis or Subscription NFTs, are subject to developing laws and regulations throughout the world.
• Transactions involving Genesis or Subscription NFTs may rely on third-party platforms to perform transactions which are outside of Cap3Collective’s control. Therefore, access to and interactions for the Genesis or Subscription NFTs may be limited or unavailable.
13. PAYMENT AND TAXES
13.1.Cryptocurrency Financial Transactions on Platform
Any cryptocurrency payments or financial transactions that you engage in via the Platform will be conducted solely through the Ethereum blockchain network. We have no control over these payments or transactions, nor do we have the ability to reverse any payments or transactions. We do not provide refunds for any purchases that you might make on or through the Platform – whether NFTs or anything else. Whether a particular cryptocurrency is accepted as a payment method by us is subject to change at any time in our sole discretion.
13.2.Fiat Currency Financial Transactions on Platform
Any fiat currency payments via credit cards or other means will be directed to our unaffiliated third-party payment processor. All bank, credit card, or other payment information is sent directly to and stored with the payment processor using its security protocols. We do not store your payment information on our systems and shall not have any responsibility for the safety or security of that information. We may add or change any payment processing services at any time. Such services may be subject to additional terms or conditions including their privacy policies.
13.3.No liability for Financial Transactions
We have no liability to you or to any third party for any claims or damages that may arise as a result of any payments or transaction that you engage in via the Platform, or any other payment or transactions that you conduct via the Ethereum blockchain network.
13.4.Responsibility for Taxes.
We will charge you, withhold and pay any and all sales, use, value-added and other taxes, duties, and assessments (except taxes on our net income) now or hereafter claimed or imposed by any governmental authority associated with your use of the Platform. To allow us to determine our tax obligations, you agree that we rely on your IP address. You are required to inform us if your IP address does not reflect your country of residence.
14. DISPUTE RESOLUTION
PLEASE READ THIS PROVISION CAREFULLY. IT INCLUDES AN AGREEMENT TO MANDATORY ARBITRATION FOR USERS IN THE UNITED STATES, WHICH MEANS THAT YOU AGREE TO SUBMIT ANY DISPUTE TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEED IN COURT. THIS PROVISION ALSO INCLUDES A CLASS ACTION WAIVER AND A JURY WAIVER, WHICH MEANS THAT YOU AGREE TO PROCEED WITH ANY DISPUTE INDIVIDUALLY AND NOT AS PART OF A CLASS ACTION, AND WITHOUT A JURY.
You may contact us by e-mail at [email protected] to address any concerns you may have. Most concerns may be resolved by contacting us in this manner. You agree to use best efforts to settle any dispute, claim, question or disagreement directly through consultation and good faith negotiations, which shall be a precondition to either party initiating a lawsuit or arbitration, without making any public display or disclosure of any such discussion or dispute.
If an agreed-upon solution is not reached within a period of thirty (30) days from the time informal dispute resolution is initiated, then either you or we may initiate a binding arbitration. All claims, the scope of this arbitration clause, the parties’ relationship with each other, t the Genesis or Subscription NFT, and/or your use of the Cap3Collective website, Cap3Collective Discord Page, review, purchase, or transfer of any Genesis or Subscription NFT or Cap3 Project or the project’s associated NFTs shall be finally settled by binding arbitration administered on a confidential basis by the American Arbitration Association ("AAA"), in accordance with the AAA Arbitration Rules and Procedures, as modified herein, and excluding any rules or procedures governing or permitting class actions. Each party will have the right to use legal counsel in connection with arbitration at its own expense. The parties shall select a single neutral arbitrator in accordance with the AAA Arbitration Rules and Procedures. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability of the Terms, including, but not limited to, any claim that all or any part of the Terms is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be in writing and provide a statement of the essential findings and conclusions. Such award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The interpretation and enforcement of these Terms shall be subject to the Federal Arbitration Act.
15. GENERAL INFORMATION
15.1.Age Restrictions.
NFTs provided by Issuer are intended for purchase and use by persons 18 years of age or older. You acknowledge and agree that you are not permitted to visit Issuer’s website or purchase the NFTs, and shall not access Issuer’s website or purchase any NFTs provided by Issuer if you are under the age of 18. By using the Platform, you certify that you are at least 18 years of age and agree to provide us with accurate information and verification concerning your age or identity if we request it. You also agree not to assist anyone under the age of 18 in accessing Issuer’s website or the NFTs or attempt to contact anyone under 18 while accessing or using the Platform.
15.2.No Third Party Beneficiaries.
You agree that, except as otherwise expressly provided in these NFT Terms, there shall be no third party beneficiaries to these NFT Terms. You acknowledge and agree that Issuer’s licensors are intended third party beneficiaries of these NFT Terms
15.3.Entire Agreement; Waiver; Severability.
These NFT Terms, together with the Cap3Collective Terms of Service and Privacy Policy, which are incorporated herein by reference, constitute the entire agreement between you and Issuer with respect to the NFTs. The failure of Issuer to exercise or enforce any right or provision of these NFT Terms shall not constitute a waiver of such right or provision. If any provision of these NFT Terms 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 that provision, and the other provisions of these NFT Terms remain in full force and effect.
15.4.Limitations Period.
You agree that regardless of any statute or law to the contrary, any claim, or cause of action you may have arising out of or related to the use of any NFTs or the Platform must be filed within one (1) year after such claim or cause of action arose or be forever barred.
15.5.Titles.
The section titles and headings in these NFT Terms are for convenience only and have no legal or contractual effect.
Last Revised: August, 2022
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