Terms of Service
Last updated: March 27, 2023
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 OR A TRIAL BY JURY. BELOW, WE EXPLAIN SOME EXCEPTIONS AND HOW YOU CAN OPT OUT OF ARBITRATION.
EXPORT CONTROLS NOTICE: BY PARTICIPATING IN THIS SERVICE, YOU REPRESENT THAT YOU ARE NOT IN A SANCTIONED COUNTRY OR A “SANCTIONED PERSON,” AS DEFINED BELOW, UNDER APPLICABLE LAW.
DRAUP, Inc. (“DRAUP,” “we,” “us”) operates an online service that, among other things, allows users to mint, buy, and sell non-fungible tokens (“NFTs”), each associated with a piece of digital fashion (a “Garment”), through our website, accessible at www.draup.xyz (“Website”), together with other services, smart contracts, software, tools, features, and functionality made available by DRAUP (collectively, the “Services”).
We may modify these ToS. We reserve the right to clarify or amend these terms by publishing an updated version of them to the Website. You acknowledge and agree that, in the event we publish a clarification or amendment of these ToS, your continued use of the Services will be contingent upon your acceptance of the updated ToS.
We may modify the Services. We reserve the right, at our sole discretion, to change the URL of the Website or modify all or part of the Services without notice to you.
NFT ownership may grant you certain rights, benefits, privileges, opportunities, or other utility (collectively, “Utility”) but, except as expressly provided herein: (i) these ToS do not confer any Utility in connection with NFT ownership; (ii) DRAUP makes no assurances or guarantees of any Utility; (iii) all Utility offered by DRAUP, if any, shall be in DRAUP’s sole and absolute discretion; and (iv) DRAUP may stop providing any Utility at any time and without notice (though, in such event, DRAUP will make good faith efforts to provide advance notice). Any Utility offered by DRAUP in connection with a particular NFT or collection of NFTs must be expressly provided for in a separate agreement (“Additional DRAUP Terms”), and in the event of a conflict between Additional DRAUP Terms and these ToS, the Additional DRAUP Terms shall prevail.
PURPOSE AND PARTICIPATION
Our Services are for adults only. The Services are intended solely for persons who are 18 years or older. Any access to or use of the Services by anyone under 18 is expressly prohibited. By accessing or using the Services, you represent and warrant that you are 18 or older.
If you wish to acquire NFTs using our Services, you must own or establish a compatible digital wallet that allows you to purchase, store, and engage in transactions using cryptocurrency (including ETH) and NFTs (“Wallet”), and you must connect and unlock your Wallet through the Services. Once you submit an order to mint or purchase an NFT, your order is passed on to the applicable Extension (defined below), which completes the transaction on your behalf. Each NFT will be transferred to the Wallet of the acquirer of the NFT, and the transaction will be completed in accordance with these ToS. You are solely responsible for the security of your Wallet, including, without limitation, safekeeping the seed phrase, private keys, and password associated with your Wallet.
You are responsible for paying any necessary transaction fees and applicable taxes, duties, and/or assessments, if any, that may be payable as the result of your purchase, ownership, sale, transfer, use, and/or exploitation of any NFT or Garment. You must have enough funds in your Wallet to cover the total cost of your intended acquisition, including “gas” and any other applicable fees. All pricing and payment terms for our Services are as indicated at point of sale, otherwise on the Services, or in the Third-Party Terms (defined below), and any payment obligations you incur are binding at the time of purchase. You may not substitute any other currency, whether cryptocurrency or fiat currency, for the currency in which you have contracted to pay at the time of purchase. For clarity, no fluctuation in the value of any currency, whether cryptocurrency or otherwise, or applicable gas or other fees shall impact or excuse your obligations with respect to any purchase.
Except with respect to the transfer of an NFT to the initial purchaser through the Website, DRAUP has no responsibility with respect to any transfer of any NFT, and DRAUP will not be liable for the acts or omissions of any third parties, nor will DRAUP be liable for any damages you may suffer as a result of your transactions or any other interaction with any third parties.
All transactions and sales are final, and all costs are non-refundable. Once an NFT has been successfully sold and/or transferred, it may not be returned and the payment and any associated transaction (i.e., gas) costs will not be refunded. Unless expressly stated otherwise, DRAUP has no control over the transfer, storage, ownership, or maintenance of any NFT.
USER REPRESENTATIONS AND WARRANTIES
By accessing or using our Services, you represent, warrant, and agree that:
You are sophisticated, experienced, and knowledgeable in the minting, bidding on, buying, or selling of NFTs and any Utility, as applicable. Additionally, you have conducted an independent investigation of the Services and the matters contemplated by these ToS, have formed your own independent judgment regarding the benefits and risks of and necessary and desirable practices regarding the foregoing, and, in making the determination to mint, bid on, buy, or sell any NFTs and any Utility using the Services, you have relied solely on the results of such investigation and such independent judgment. Without limiting the generality of the foregoing, you understand, acknowledge, and agree that the legal requirements pertaining to blockchain technologies and digital assets generally, including, without limitation, the NFTs, are uncertain, and you have conducted an independent investigation of such potentially applicable legal requirements and the resulting risks and uncertainties, including the risk that one or more governmental entities or other persons may assert that any digital assets or cryptographic tokens (including the NFTs) may constitute securities under applicable legal requirements. You hereby irrevocably disclaim and disavow reliance upon any statements or representations made by or on behalf of, or information made available by, DRAUP, in determining to enter into these ToS, mint, bid on, buy, or sell any NFTs or Utility or use the Services.
Your use of the Services does not violate the rights of any third party or any applicable agreement or law. These ToS do not, and the performance of your obligations under these ToS and your minting, bidding on, buying, or selling of any NFTs or Utility, as applicable to your use of the Services, will not: (i) if you are an entity, conflict with or violate any of the charter documents of such entity or any resolution adopted by its equity holders or other persons having governance authority over the entity; (ii) contravene, conflict with, or violate any right of any third party or any applicable legal requirement to which you or any of the assets owned or used by you, is subject; or (iii) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under any material contract or agreement to which you are a party, permit held by you or legal requirement applicable to you.
You have not failed to comply with, and have not violated, any applicable legal requirement relating to any blockchain technologies, token trading activities, or minting of NFTs. No investigation or review by any governmental entity is pending or, to your knowledge, has been threatened against or with respect to you, nor does any government order or action prohibit you or any of your representatives from engaging in or continuing any conduct, activity, or practice relating to the Services.
You have all requisite capacity, power, and authority to enter into and be bound by these ToS. If you accept these ToS on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these ToS and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
NFT OWNERSHIP, RIGHTS, AND RESTRICTIONS
Smart contracts determine the owner of each NFT. Once you lawfully and successfully acquire an NFT offered by DRAUP, you will own that NFT. At all relevant times, DRAUP will recognize the NFT owner as the one lawfully able to authorize transactions through the digital wallet associated with the applicable NFT as identified by the NFT's verified smart contract.
Upon lawfully acquiring an NFT offered by DRAUP, and for as long as you own that NFT, you shall receive the following rights and benefits: a limited, personal, worldwide, non-exclusive, non-assignable, non-sublicensable, royalty-free license to download, access, and use one or more copies of the Garment associated with that NFT to: (i) publicly and privately display the Garment at any size; and (ii) market, promote, advertise, and sell the NFT associated with the Garment. This license belongs only to the current NFT owner but automatically terminates when they cease to be the owner for any reason. In the absence of any Third-Party Terms attached to an NFT, these ToS shall apply. In the event of a conflict between the license granted herein and the license granted as part of any Third-Party Terms attached to an NFT, the Third-Party Terms shall prevail unless they expressly state otherwise.
Certain restrictions apply to the rights you have. For the sake of clarity, you may NOT do (nor permit any third party to do or attempt to do) any of the following, unless expressly stated otherwise in the applicable Third-Party Terms or Additional DRAUP Terms:
- Make “commercial use” of any Garment, including any Garment associated with their NFT(s), including, for example, by creating and selling copies of the Garment, licensing the Garment for commercial purposes (e.g., to sell merchandise, products, or services), or otherwise commercially exploiting the Garment.
- Use any Garment or NFT in any way that: (a) violates the rights of any third party, any applicable law, rule, or regulation, or these ToS; (b) is obscene, profane, pornographic, vulgar, or offensive; (c) incites or promotes violence or violent or dangerous behavior, or depicts violence (either towards others or oneself); (d) involves hate speech, endorses any form of hate, or harasses, abuses, insults, harms, defames, slanders, disparages, intimidates, threatens, or discriminates against others based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (e) spreads false, deceptive, misleading, otherwise unsubstantiated or unfair information or material or promotes any particular political agenda or message.
NOT AN INVESTMENT
You acknowledge and understand that the value of digital assets and artwork is subjective. NFTs and artwork including the Garments have no inherent value, and their prices can therefore be volatile. By purchasing or otherwise using any NFT or Garment, you agree to assume all risks associated therewith, including the risk that they lose any or all of their value. Neither DRAUP nor any of its related entities nor anyone working on their behalf, including their respective officers, directors, employees, representatives, agents, affiliates, licensees, successors and assigns (collectively, the “DRAUP Parties”) makes any representation regarding the likelihood of appreciation of any NFT or Garment associated therewith, and has no control whatsoever on the value of any NFT, including on any secondary markets, which are completely outside of the control of any of the DRAUP Parties.
DRAUP reserves all rights not expressly granted herein. Unless otherwise indicated in writing by us, the Services and all content and other materials contained therein, including, without limitation, the DRAUP logo and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, “DRAUP Content”) are the proprietary property of DRAUP or our respective affiliates or licensors, as applicable. Notwithstanding anything to the contrary in these ToS, the Services and DRAUP Content may include software components provided by DRAUP or its affiliates or a third party that are subject to separate terms, in which case those terms shall govern such software components. All other trademarks, registered trademarks, product names, and other names or logos mentioned on the Services are the property of their respective owners and may not be copied, imitated, or used, in whole or in part, without the permission of the applicable trademark holder. Except as allowed under these ToS, you agree not to use any DRAUP Content or any of DRAUP’s intellectual property rights (such as trademarks, copyright, and design rights) whether registered or unregistered. All rights therein and goodwill associated therewith shall inure to the benefit of DRAUP. Reference 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 DRAUP.
PROHIBITIONS AND RESTRICTIONS
You agree that you will NOT do any of the following:
- Use, display, mirror, or frame the Services, or any individual element within the Services, or the layout and design of any page or form contained on a page, without DRAUP’s express written consent;
- Access, tamper with, or use non-public areas of the Services, DRAUP’s computer systems or network, or the smart contracts and technical delivery systems of DRAUP and its providers;
- Attempt to probe, scan, or test the vulnerability of any DRAUP system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by DRAUP or any of DRAUP’s providers or any other third party (including another user) to protect the Services;
- Use any meta tags or other hidden text or metadata utilizing a DRAUP or DRAUP Partner trademark, logo, URL, or product name without DRAUP or DRAUP Partner’s express written consent, as applicable;
- Use the Services for any commercial purpose or the benefit of any third party in any manner not otherwise permitted by these ToS;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services to send altered, deceptive, or false source-identifying information;
- Attempt to decipher, decompile, disassemble, or reverse engineer any of the software used to provide the Services;
- Interfere with, or attempt to interfere with, the access of any user, host, or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
- Collect, scrape, harvest, or store any data or personally identifiable information from the Services from other users of the Services;
- Impersonate or misrepresent your affiliation with any person or entity;
- Use the Services for any illegal or unauthorized purpose, or engage in, encourage, or promote any activity that violates any applicable law or these ToS;
- Provide false or misleading information to DRAUP or any DRAUP Partner;
- Use or attempt to use or access a digital wallet you do not own without authorization from the owner;
- Take or attempt to take any action that in any way that could prevent, disrupt, negatively affect, or inhibit others from fully enjoying the Services, or that could alter, damage, disable, overburden, or impair the functioning of the Services in any manner;
- Engage in or knowingly facilitate any “front-running,” “wash trading,” “pump and dump trading,” “ramping,” “cornering,” or fraudulent, deceptive, or manipulative trading activities, including, for the purpose of creating or inducing a false, misleading, or artificial appearance of activity or value in any NFT: (i) facilitate the trading of such NFT at successively lower or higher prices or executing or causing the execution of any transaction involving the NFT which causes no material change in the beneficial ownership thereof; (ii) participating in, facilitating, assisting, or knowingly transacting with any person or persons for the purpose of artificially, unfairly, or deceptively influencing the market price of an NFT; or (iii) otherwise artificially, unduly, or improperly influencing the market price for any NFT available through the Services in any manner, including without limitation, on or through social media;
- Encourage or enable any other individual or entity to do any of the foregoing.
DRAUP PROVIDES THE SERVICES “AS IS.” EXCEPT AS EXPRESSLY SET FORTH IN THESE TOS, DRAUP MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND IN CONNECTION WITH THE SERVICES, NFTS, GARMENTS, ANY THIRD-PARTY SERVICES, OR ANY INFORMATION OR MATERIALS PROVIDED OR MADE AVAILABLE BY DRAUP. THE DRAUP PARTIES DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF ANY OF THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA, (B) ANY STORED DATA WILL BE ACCURATE, SECURE, OR RELIABLE, OR (C) ERRORS OR DEFECTS WILL BE CORRECTED. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DRAUP PARTIES DISCLAIM ALL REPRESENTATIONS, WARRANTIES, PROMISES, OR GUARANTEES OF ANY KIND WHATSOEVER AS TO THE SERVICES AND THIRD-PARTY SERVICES, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE.
THIRD-PARTY SERVICES, TERMS, AGREEMENTS, AND UTILITY
DRAUP is not responsible for your use of third-party services. The Services may provide access (paid or unpaid) to content, software, products, platforms, and services operated by companies or entities other than DRAUP (“Third-Party Services”). For example, transactions initiated through our Website may be executed using third-party digital wallet extensions. If you choose to access, transact with, or otherwise interact with any Third-Party Services through the Services, you acknowledge and agree that you do so at your own risk, and you understand that by using the Services, you are directing the applicable company or entity to make Third-Party Services available to you. You are solely responsible for your dealings with third parties. When you use the Services to access Third-Party Services, these ToS and any applicable usage terms associated with the Third-Party Services will govern your use thereof. For MetaMask, those are available at https://metamask.io/terms.html and https://metamask.io/privacy.html. DRAUP does not endorse any Third-Party Services made available or marketed on or through the Services. DRAUP is not responsible or liable to you or others for information or services provided by any Third-Party Services for the results obtained from using them. DRAUP expressly disclaims all liability related to, or arising from, or in connection therewith.
DRAUP is not responsible for, nor a party to, any agreement or interaction between you and any third party. This means that: (i) to the extent any third party offers any Utility in connection with an NFT or Garment, or subjects the same to additional terms and conditions (“Third-Party Terms”), you understand and agree that DRAUP shall not be a party to or have any responsibility or liability whatsoever for, arising out of, relating to, or in connection with such Utility or Third-Party Terms; and (ii) if you decide to purchase or sell an NFT acquired through our Services other than as the initial recipient through the Website, then DRAUP is not a party to any agreement between the applicable buyer, seller, or facilitator of the secondary sale, nor will DRAUP be liable for any damages you may suffer as a result of your transactions or any other interaction with any third parties.
EXPORT CONTROLS AND SANCTIONS
You acknowledge and understand that this Offer may be subject to U.S. and other export control and sanctions laws and regulations, including, without limitation, the Export Administration Regulations and other regulations, rules, and executive orders administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) the United Nations Security Council (“UNSC”), Her Majesty’s Treasury (“HMT”), the European Union or any of its member states, or other relevant sanctions authority, as applicable (collectively, the “Export Controls and Sanctions Laws”). You represent that you are not a Sanctioned Person (as defined below) and agree not to take any action that will cause anyone, including, without limitation, Creator Parties, to be in violation of any applicable Export Controls and Sanctions Laws. For purposes of these ToS, “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 person or entity in the U.S. or your jurisdiction of residence from engaging in transactions, and includes, without limitation, any individual, corporation, or other entity that (a) appears on OFAC’s Specially Designated Nationals and Blocked Persons List or other lists maintained by OFAC, UNSC, HMT, the European Union or any of its member states, or other relevant sanctions authority or the U.S. Department of Commerce or similar entity, as each such list may be amended from time to time, or (b) is currently the subject or the target of any comprehensive sanctions laws and regulations.
If DRAUP becomes aware of any possible violations by you of these ToS, DRAUP reserves the right to investigate such violations. If, as a result of the investigation, DRAUP believes that criminal activity may have occurred, DRAUP reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. DRAUP is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Services in DRAUP’s possession in connection with your use of the Services, to (i) comply with applicable laws, legal process, or governmental request; (ii) enforce these ToS, or (iii) protect the rights, property, or personal safety of DRAUP, its affiliates, its users, the public, and all law enforcement or other government officials, as DRAUP in its sole discretion believes to be necessary or appropriate.
DRAUP may require you to provide additional information and documents at the request of any competent authority or in order to help DRAUP comply with applicable law, regulation, or policy, including laws related to anti-laundering (legalization) of incomes obtained by criminal means, or for counteracting financing of terrorism. DRAUP may also require you to provide additional information and documents in cases where it has reasons to believe that:
- Your Wallet or other access to the Services is being used for money laundering or for any other illegal activity;
- You have concealed or reported false identification information and other details; or
- Transactions effected via your Wallet were effected in breach of these ToS or other applicable terms, laws, rules, covenants, orders, or regulations.
In such cases, DRAUP, in its sole discretion, may pause or cancel your transactions through our Services until such requested additional information and documents have been reviewed by DRAUP and accepted as satisfying the requirements of applicable law, regulation, or policy. If you do not provide complete and accurate information and documents in response to such a request, DRAUP may refuse to provide any Content, product, service and/or further access to the Services to you.
ASSUMPTION OF RISK; LIABILITY WAIVER
You understand, acknowledge, and knowingly and voluntarily assume all blockchain-related risks. By participating in the Services:
- You acknowledge and accept that transacting on a blockchain, including, without limitation, signing or effectuating transactions using a Wallet, contains inherent risk. Such risks include but are not limited to: (a) risk of sudden asset price changes; (b) risk of smart contract failure or exploit; (c) risk of hardware, software, or connectivity failure; (d) risk of malicious software; (e) risks of unauthorized access to your digital wallet; (f) risk that you will no longer successfully retain ownership of or access to the NFT(s); (g) risk that any data or any Artwork becomes unavailable or decoupled from the NFT, including, without limitation, because of an outage, data loss or pursuant to a valid Digital Millennium Copyright Act takedown procedure; (h) risk from regulatory inquiries, regulatory actions, legislation, or court rulings; and/or (i) risks, bugs, malfunctions, cyberattacks, or changes to a blockchain network (e.g., forks) or related technologies that disrupt or result in a total loss of NFTs, their market value, or digital funds.
- You acknowledge and accept these and all associated risks and responsibilities and agree that your participation in the Services is at your own risk. You should not participate in the Services, including to engage in blockchain-based transactions, unless it is suitable given your circumstances and financial resources.
- You agree that DRAUP shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with any of these risks.
- You acknowledge and accept that the sale of NFTs as part of the Services is facilitated and run by numerous third parties including, without limitation, your digital wallet provider and one or more public peer-to-peer networks including, without limitation, the Ethereum network or other blockchain network and the Interplanetary File System (“IPFS”) or other distributed system for storing and accessing files or other data. None of these are under the control or influence of DRAUP. DRAUP shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with any third party, including, without limitation, lost, late, incomplete, damaged, delayed, inaccurate, stolen, misdirected, undelivered, or garbled NFTs, or for errors or difficulties of any kind related thereto, whether human, mechanical, electronic, computer, network, typographical, or otherwise.
- You acknowledge and accept that transactions are publicly visible on the Ethereum or other applicable blockchain when made.
- You acknowledge and agree that DRAUP is not a fiduciary and owes no duties to you, including the duty to ensure fair pricing of any NFT(s).
- You expressly agree that the release and waiver of liability contained herein is intended to be as broad and as inclusive as is permitted by applicable law and that if any portion hereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full legal force and effect.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ANY DRAUP PARTY BE LIABLE TO YOU FOR ANY LOSS, DAMAGE, OR INJURY OF ANY KIND INCLUDING, WITHOUT LIMITATION, ANY 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 THESE TOS OR THE SERVICES. IN NO EVENT WILL THE DRAUP PARTIES’ CUMULATIVE LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, EXCEED ONE DOLLAR ($1.00).
UNDER NO CIRCUMSTANCES SHALL ANY DRAUP 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 TOS 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 DRAUP 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 DRAUP PARTIES TO DISCLAIM CERTAIN WARRANTIES OR LIMIT CERTAIN LIABILITIES, THE EXTENT OF DRAUP PARTIES’ LIABILITY AND THE SCOPE OF ANY SUCH WARRANTIES WILL BE AS PERMITTED UNDER APPLICABLE LAW.
You agree to defend, indemnify, and hold the DRAUP Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, expenses, and other similar results or occurrences (including attorneys’ fees) that directly or indirectly arise from or are related to or in connection with any claim, suit, action, dispute, demand, proceeding, occurrence, process, or other similar activity, that is initiated, made, brought, or financed by a third party against any of the DRAUP Parties, or on account of the investigation, defense, or settlement thereof, arising out of, related to, or in connection with: (a) your use or misuse of the Services, (b) your violation of these ToS or applicable law; (c) your violation of the rights of any third party, including another user of any digital wallet; (d) any breach or non-performance of any representation, warranty, covenant, or agreement made by you; (e) your buying, selling, or trading of any NFTs; and (f) your access to or use of any NFT marketplace or third-party or decentralized services or products. Counsel to be used in the defense of such claim must be approved by DRAUP in writing prior to retention of such counsel and, upon our request, you will allow us to participate in the defense of any such claims. You will not enter into any settlement or compromise of any claim or litigation that includes an admission of liability without our prior written consent.
LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT SHALL ANY DRAUP PARTY BE LIABLE TO YOU, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE, FOR ANY LOST PROFITS, BUSINESS INTERRUPTION, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITY. IN ANY EVENT, THE DRAUP PARTIES’ TOTAL CUMULATIVE LIABILITY UNDER THIS AGREEMENT FROM ANY AND ALL SUCH CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY SHALL NOT EXCEED ONE DOLLAR ($1.00).
LIMITATION OF ACTIONS AND REMEDIES
You may only initiate a cause of action against DRAUP within one year of the occurrence giving rise to such claim. Regardless of any statute or law to the contrary, any dispute, claim, controversy, or cause of action arising out of or relating, either directly or Dispute must be filed in the applicable tribunal within one (1) year after such Dispute arose, or will be forever barred.
You may not seek injunctive relief against DRAUP. You agree that your exclusive remedy for any alleged breach of these ToS by DRAUP is the right to bring an action for monetary damages, and that you shall not have the right to terminate this agreement or to restrain or enjoin DRAUP or any sublicensees from exercising the rights granted to DRAUP under these ToS.
RESOLUTION OF DISPUTES; AGREEMENT TO ARBITRATE
PLEASE READ THIS SECTION CAREFULLY — IT SIGNIFICANTLY AFFECTS 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.
We will attempt to resolve any and all Disputes in good faith. Prior to commencing any legal proceeding of any kind against DRAUP, including an arbitration as set forth below, you agree that you will attempt to resolve any dispute, claim, controversy, or cause of action between us arising out of or relating to these ToS, the Services, or any NFTs made available through the Services (each, a “Dispute”) 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 ToS are governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of New York. In the event a Dispute is for any reason not subject to arbitration, any legal suit, action, or proceeding arising out of or related, either directly or indirectly, to these ToS or the Services will be instituted exclusively in the federal courts of the United States or the courts of the State of New York in each case located in the city and County of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
You and we expressly waive a trial by jury. 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, as set forth herein, 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 Dispute (or a request for particular relief) cannot be arbitrated in accordance with these ToS, then only that particular Dispute or request for relief may be brought in court. All other Disputes (or requests for relief) remain subject to this provision. Questions of arbitrability—i.e., whether a particular claim is subject to arbitration—shall be treated as any other Dispute as set forth herein. 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 as set forth herein.
All Disputes between the parties arising hereunder shall be resolved by arbitration conducted by JAMS in New York, New York before a single retired judge or professional arbitrator with relevant subject-matter experience in accordance with the then-current JAMS Streamlined Arbitration Rules and Procedures. Judgment upon any arbitral award may be entered in any court of competent jurisdiction. The arbitration hearing shall be within ninety (90) days, which time period can be modified by the tribunal in its discretion are at the request of any party. The tribunal is under no obligation to modify this time period. Notwithstanding anything to the contrary, 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.
In all cases, there shall be one (1) arbitrator, who will be agreed to by the parties within thirty (30) days of receipt by respondent of a copy of the demand for arbitration. The arbitrator will have experience adjudicating matters involving Internet technology, software applications, financial transactions and, ideally, blockchain technology. If no single arbitrator can be agreed upon by the parties, the arbitrator shall be selected in accordance with the rules of JAMS. The arbitrator's decision in any such arbitration shall be final and binding upon the parties, and the arbitrator shall be empowered to order specific performance and injunctive relief. 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 prevailing party, as determined by the tribunal, shall be entitled to recover its reasonable costs and, attorneys' fees and costs from the non-prevailing party. The location of the arbitration shall be New York, New York, but the arbitration may be conducted virtually. Judgment thereon may be entered in any court of competent jurisdiction.
Arbitration proceedings are confidential. Except as may be required by law, the parties shall preserve the confidentiality of all aspects of the arbitration, and shall not disclose to a third party (other than disclosure to the affiliates of a party on a need-to-know basis and such affiliates are informed of the confidential nature of such information and are instructed to keep such information confidential), all information made known and documents produced in the arbitration not otherwise in the public domain, all evidence and materials created for the purpose of the arbitration, and all awards arising from the arbitration, except, and to the extent that disclosure is required by law or regulation, is required to protect or pursue a legal right or is required to enforce or challenge an award in legal proceedings before a court or other competent judicial authority.
You can opt out of arbitration. You may opt out of this arbitration agreement within thirty (30) days of the date you agreed to these ToS. To opt out, you must send an email to us at firstname.lastname@example.org 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.
MISCELLANEOUS TERMS AND CONDITIONS
These ToS are severable. Should any portion of these ToS be rendered void, invalid, or unenforceable by any court of competent jurisdiction, the remaining provisions shall nevertheless be binding upon the parties.
These ToS survive expiration or termination of this agreement. Any provision of these ToS that by its nature would extend beyond its expiration or termination shall remain in effect in perpetuity or until fulfilled.
This is the entire agreement between the parties. These ToS constitute the sole and entire agreement of the parties with respect to the subject matter of these ToS and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
Only DRAUP may assign this agreement. These ToS will be binding on and inure to the benefit of the parties and (as applicable) their respective successors, heirs, executors, legal representatives, affiliates, and authorized assigns. You may not, directly or indirectly, assign all or part of your rights or obligations under these ToS to any other person or entity without first obtaining the written permission of DRAUP. Any purported assignment without DRAUP’s prior written approval shall be null and void.
You may contact us at any time. If you have any questions, would like to provide feedback, or would like more information about DRAUP, please feel free to email us at email@example.com.
Effective Date: March 27, 2023.
Introduction and Overview.
If you have any questions or wish to exercise your rights and choices, please contact us as set out in the “Contact Us” section.
Information You Provide.
We collect information about you when you use the Service, including information you provide when you access our content. The categories of information we collect include:
- Transaction Data relating to the minting, purchase, sale, and transfer of non-fungible tokens (“NFTs”), including information regarding your digital or cryptocurrency wallet and the purchase price, date, and location of the transactions.
- Contact Data, including your email address.
You may choose to voluntarily provide other information to us that we do not request, and, in such instances, you are solely responsible for such information.
Information Collected Automatically.
In addition, we automatically collect information when you use the Service. The categories of information we automatically collect include:
- Service Use Data, including data about features you use, pages you visit, the time of day you browse, and your referring and exiting pages.
- Device Data, including data about the type of device or browser you use, your device's operating software, your internet service provider, your device's regional and language settings, and device identifiers such as IP address.
- Location Data, including non-precise location data (such as location derived from an IP address or data that indicates a city or postal code level).
The types of tracking technologies we use to automatically collect this information include:
- Cookies, which are small data files stored on your browser that save data about your visit. Cookies often include a unique identifier (e.g., cookie #123). We use two types of cookies: session cookies and persistent cookies. Session cookies make it easier for you to navigate our website and expire when you close your browser. Persistent cookies help with personalizing your experience, remembering your preferences, and supporting security features. Persistent cookies may remain on your device for extended periods of time, and expire on a set expiration date or when they are deleted manually.
For further information on how we use tracking technologies for analytics, and your rights and choices regarding them, see the “Analytics” and “Your Rights and Choices” sections below.
Information From Other Sources.
We also collect information from other sources. The categories of sources from which we collect information include:
- Social media platforms with which you interact, including our Twitter profile and Discord server.
- Publicly-available sources, including data in the public domain.
Information on the Blockchain.
As part of the Service, we process certain personal data in a blockchain data record. This means that such personal data is stored in an immutable blockchain as part of a database called a distributed ledger. Anything stored in a ledger as part of the blockchain may not be changed or deleted. We use pseudonymization to reduce the risk to individuals whose personal data is processed in the blockchain. Please carefully review how the use of blockchain with our Service may limit the exercise of certain of your rights regarding personal data in the “California” section below.
Use of Information.
- Providing the Service to you.
- Preventing and addressing fraud, breach of policies or terms, or threats or harm.
- Understanding trends, usage, and activities, including through tracking technologies or surveys, to make business and marketing decisions.
- Communicating with you about updates, security alerts, changes to policies, and other transactional messages.
- Personalizing your experience to show you content we believe you will find interesting.
- Engaging in direct marketing, promotional communications, and non-personalized advertising.
- Fulfilling any purpose at your direction.
- With notice to you and your consent.
Notwithstanding the above, we may use publicly available information (as that term is defined by applicable law) or information that does not identify you (including information that has been aggregated or de-identified as those terms are defined by applicable law) for any purpose to the extent permitted by applicable law. For information on your rights and choices regarding how we use information about you, please see the “Your Rights and Choices” section below.
Disclosure of Information.
- Service Providers and Contractors. We disclose information to service providers and contractors that process information on our behalf. Service providers and contractors assist us with services such as payment processing, data analytics, marketing and advertising, website hosting, and technical support. To the extent required by law, we contractually prohibit our service providers and contractors from retaining, using, or disclosing information about you for any purpose other than performing the services for us, although we may permit them to use publicly available information (as that term is defined by applicable law) or information that does not identify you (including information that has been aggregated or de-identified as those terms are defined by applicable law) to the extent permitted by applicable law.
- Analytics. We disclose information for analytics related purposes. The receiving persons may act as our service providers, or in certain contexts, independently decide how to process your information. For more information on analytics, see the “Analytics” section below.
- Affiliates We disclose information to our affiliates and related entities, including where they act as our service providers or for their own internal purposes.
- Partners. We disclose information to our partners in connection with offering co-branded services, selling or distributing our products, or engaging in joint marketing activities.
- Public Forums. We disclose information you make public through the Service, such as information that you post on Twitter or in our Discord server. Please think carefully before making information public as you are solely responsible for any information you make public. Once you have posted information, you may not be able to edit or delete such information, subject to additional rights set out in the “Your Rights and Choices” section below.
- Merger or Acquisition. We disclose information in connection with, or during negotiations of, any proposed or actual merger, purchase, sale or any other type of acquisition or business combination of all or any portion of our assets, or transfer of all or a portion of our business to another business.
- Security and Compelled Disclosure. We disclose information to comply with the law or other legal process, and where required, in response to lawful requests by public authorities, including to meet national security or law enforcement requirements. We also disclose information to protect the rights, property, life, health, security and safety of us, the Service or anyone else.
- Facilitating Requests. We disclose information where you direct us to disclose the information. Facilitating Requests. We disclose information where you direct us to disclose the information.
- Consent. We disclose information with notice to you and your consent.
Notwithstanding the above, we may disclose publicly available information (as that term is defined by applicable law) or information that does not identify you (including information that has been aggregated or de-identified as those terms are defined by applicable law) to the extent permitted by applicable law. For information on your rights and choices regarding how we disclose information about you, please see the “Your Rights and Choices” section below.
We offer parts of our Service through websites, platforms, and services operated or controlled by other parties. In addition, we integrate technologies operated or controlled by other parties into parts of our Service.
Some examples include:
- Links. Our Service includes links that hyperlink to websites, platforms, and other services not operated or controlled by us.
We use analytics services, such as Google Analytics, to help us understand how users access and use the Service.
For further information on the types of tracking technologies we use on the Service and your rights and choices regarding analytics, please see the “Information Collected Automatically” and “Your Rights and Choices” sections.
Your Rights and Choices.
Tracking Technology Management.
Cookies. Most browsers accept cookies by default. You can instruct your browser, by changing its settings, to decline or delete cookies. If you use multiple browsers on your device, you will need to instruct each browser separately. Your ability to limit cookies is subject to your browser settings and limitations.
Do Not Track. Your browser settings may allow you to automatically transmit a “Do Not Track” signal to online services you visit. Note, however, there is no industry consensus as to what site and app operators should do with regard to these signals. Accordingly, unless and until the law is interpreted to require us to do so, we do not monitor or take action with respect to “Do Not Track” signals. For more information on “Do Not Track,” visit http://www.allaboutdnt.com.
Please be aware that if you disable or remove tracking technologies some parts of the Service may not function correctly.
Google provides tools to allow you to opt out of the use of certain information collected by Google Analytics at https://tools.google.com/dlpage/gaoptout.
Please note that the above opt out only applies to the specific browser from which you opt out. We are not responsible for the effectiveness of any opt outs offered by other entities.
E-mails.You can unsubscribe from receiving promotional emails by following the unsubscribe instructions at the bottom of the email, or emailing us at firstname.lastname@example.org with the word UNSUBSCRIBE in the subject field of the email. Please note that you cannot opt out of transactional messages.
Please note that your opt out is limited to the email address used and will not affect subsequent subscriptions.
The Service is not directed toward children under 13 years old, and we do not knowingly collect personal information (as that term is defined by the U.S. Children’s Privacy Protection Act, or “COPPA”) from children. If you are a parent or guardian and believe we have collected personal information from children, please contact us at email@example.com. We will delete the personal information in accordance with COPPA.
We implement and maintain reasonable administrative, physical, and technical security safeguards to help protect information about you from loss, theft, misuse, and unauthorized access, disclosure, alteration, and destruction. Nevertheless, transmission via the internet is not completely secure and we cannot guarantee the security of information about you.
1209 Orange Street
Wilmington, DE 19801
The California Consumer Privacy Act (“CCPA”), and its replacement the California Privacy Rights Act (“CPRA”), provide additional rights to California residents. This section addresses those rights and applies only to California residents.
Notice of Collection.
We have collected the following categories of personal information (as described in the CCPA/CPRA) in the past 12 months. For further details on the personal information we collect and how we obtain this information, please review the “Information Collection” section above.
- Identifiers, including email address, and online identifiers (such as IP address).
- Commercial or transactions information, including records of products or services purchased, obtained, or considered.
- Internet activity, including browsing history, search history, and interactions with a website, email, application, or advertisement.
- Non-precise geolocation data, including location derived from an IP address.
- Inferences drawn from any of the information identified in this section.
We collect and use this personal information for the business purposes set out in the “Use of Information” section above.
We disclose this personal information to the categories of persons set out in the “Disclosure of Information” section above.
We do not “sell” or “share” your personal information as those terms as defined by the CCPA/CPRA.
We do not knowingly sell or share the personal information of minors under 16 years old who are California residents.
We retain each category of personal information, for the length of time that is reasonably necessary for the purpose for which it was collected, and as necessary to comply with our legal obligations, resolve disputes, prevent fraud, and enforce our agreements.
Right to Know, Correct, and Delete.
You have the right to know certain details about our data practices. In particular, you may request the following from us:
- The categories of personal information we have collected about you;
- The categories of sources from which the personal information was collected;
- The categories of personal information about you we disclosed for a business purpose or sold or shared;
- The categories of persons to whom the personal information was disclosed for a business purpose or sold or shared;
- The business or commercial purpose for collecting or selling or sharing the personal information; and
- The specific pieces of personal information we have collected about you.
In addition, you have the right to correct or delete the personal information we have collected from you.
Our Service may use blockchain technology to store certain personal data, including your digital wallet address, time of transactions, and other information that may be used to directly or indirectly identify you. In our Service, we may collect other data that enables us to identify you. We use pseudonymization in our blockchain records to reduce the risk to individuals whose personal data is processed in the blockchain. As a result, the way we respond to a request to exercise certain of your rights (i.e., access, correction, and deletion requests) will be limited. We cannot alter information stored in a blockchain, but, unless we have a legitimate interest or other valid legal basis in processing your personal data, if you request erasure, object to the processing of your personal data, or request that the processing of your personal data be limited by us, we will not include your personal data in our Service records that are added to the blockchain subsequent to such request. We may not be able to provide you the Service if you request that your personal data be deleted or you object to further processing of your personal data.
If you request that any such personal data be corrected when we validate the information as being correct, we will correct our records, including by creating a new record entry in the blockchain if appropriate. Additionally, although we cannot erase your personal data in Service records that have been added to the blockchain, we can, when appropriate (i.e., you no longer use the our Service), erase the mapping in our records and/or our service provider records pertaining to you, outside the blockchain in a manner that would render the pseudonymized data in the blockchain to be de-identified (anonymized).
To exercise any of these rights, please email us at firstname.lastname@example.org. In the request, please specify which right you are seeking to exercise and the scope of the request. We will confirm receipt of your request within 10 days. We may require specific information from you to help us verify your identity and process your request. If we are unable to verify your identity, we may deny your request.
You can designate an authorized agent to submit requests on your behalf. However, we will require written proof of the agent's permission to do so and verify your identity directly.
Right to Non-Discrimination.
You have the right not to receive discriminatory treatment by us for the exercise of any your rights.
Shine the Light.
Customers who are residents of California may request (i) a list of the categories of personal information (as that term is defined by Shine the Light) disclosed by us to third parties during the immediately preceding calendar year for those third parties’ own direct marketing purposes; and (ii) a list of the categories of third parties to whom we disclosed such information. To exercise a request, please write us at the email or postal address set out in “Contact Us” above and specify that you are making a “California Shine the Light Request.” We may require additional information from you to allow us to verify your identity and are only required to respond to requests once during any calendar year.
We do not sell and will not sell your covered information (as those terms are defined by NRS 603A.340).
These additional rights and disclosures apply only to Virginia residents. Terms have the meaning ascribed to them in the Virginia Consumer Data Protection Act (“VCDPA”).
You have the following rights under the VCDPA:
- To confirm whether or not we are processing your personal data
- To access your personal data
- To correct inaccuracies in your personal data
- To delete your personal data
- To obtain a copy of your personal data that you previously provided to us in a portable and readily usable format
- To opt out of the processing of personal data for purposes of targeted advertising, the sale of personal data, or profiling in furtherance of decisions that produce legal or similarly significant effects concerning you
To exercise any of these rights, please email us at email@example.com and specify which right you are seeking to exercise. We will respond to your request within 45 days. If you have an account with us, we may require you to use the account to submit the request. We may require specific information from you to help us confirm your identity and process your request.
If we refuse to take action on a request, you may appeal our decision within a reasonable period time by contacting us at firstname.lastname@example.org and specifying you wish to appeal. Within 60 days of our receipt of your appeal, we will inform you in writing of any action taken or not taken in response to the appeal, including a written explanation of the reasons for the decisions. If the appeal is denied, you may submit a complaint to the Virginia Attorney General at https://www.oag.state.va.us/consumercomplaintform.