Please read these Terms of Service (the “Terms”) and our Privacy Policy carefully because they govern your use of the ClubStubs, LLC (“we,” “our,” “us,” or “ClubStubs”) digital marketplace at https://app.ClubStubs.com/ (“Marketplace,” “App”) and the ClubStubs content website located at https://www.ClubStubs.com/ (“Website”). A “User” (“you”) of ClubStubs is a person that successfully connects a third party Solana blockchain wallet (“Wallet”) to the App. A “Visitor” (“you”) of ClubStubs is a person that visits the App or the Website, but does not necessarily connect a Solana blockchain wallet to the App. All of the Marketplace and Website features and provided functionality are herein referred to collectively as “Services.”
IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND CLUBSTUBS THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. HOWEVER, IF YOU ARE A RESIDENT OF A JURISDICTION WHERE APPLICABLE LAW PROHIBITS ARBITRATION OF DISPUTES, THE AGREEMENT TO ARBITRATE IN SECTION 17 WILL NOT APPLY TO YOU BUT THE PROVISIONS OF SECTION 16 (GOVERNING LAW) WILL APPLY INSTEAD.
1.
Agreement to Terms. By using or accessing the Services, you agree to be bound by these Terms. If you do not agree to be bound by these Terms, you are not authorized to access or use the Services. If you are accessing or using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that entity to these Terms. In that case, “you” and “your” will also refer to that entity.
2.
Privacy Policy. Please review our
Privacy Policy, which also governs your use of the Services, for information on how we collect, use, retain and share your information.
3.
Changes to these Terms or the Services. We may update these Terms and the Services, from time to time, at our sole discretion. If we do, we will let you know by posting the updated Terms on the Site. If you continue to use the Services after we have posted updated Terms, it means that you accept and agree to the changes. If you do not agree to be bound by the changes, you may not access or use the Services anymore, and your sole and exclusive remedy is to terminate use of the Services. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
4.
Who May Use the Services? You may use the Services only if you are 18 years or older and capable of forming a binding contract with ClubStubs, and not otherwise barred from accessing or using the Services under applicable law. We reserve the right, at any time, at our sole discretion, to block, suspend, restrict or terminate access to some or all of the Services from certain users, IP addresses and unique device identifiers. By using or accessing the Services, you represent and warrant to us that you are: (a) not subject to sanctions, embargoes, export restrictions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the United Nations Security Council, the U.S. Government (e.g., the Specially Designated Nationals List and Foreign Sanctions Evaders List of the U.S. Department of Treasury and the Entity List of the U.S. Department of Commerce), the European Union or its Member States, or other applicable government authority; (b) not located in (or a citizen of) any jurisdiction to which the United States has embargoed goods or has otherwise applied any sanctions; (c) are otherwise authorized to access the Services under applicable law; and (d) will only use the Services for lawful purposes in compliance with applicable law.
5.
To use the Services. You must use your digital asset wallet and Solana address to access and use the Services. The App facilitates interactions between your digital asset wallet and certain Protocols by providing tools for users to transact with NFTs in a direct-to-consumer as well as a peer-to-peer fashion on a Protocol; and access to other features, tools, software or functionalities in connection with the Site, including, but not limited to, displaying, listing, delisting, searching and viewing NFTs. We will not access or store your private keys associated with your digital asset wallet. You are solely responsible for your private keys. You understand that you are solely responsible for your use of the Services, regardless of if the use is authorized or done by you. We are not responsible for your unauthorized access or use of the Services. Also, we are not responsible for unauthorized access or use of your digital asset wallet. You are solely responsible for keeping your digital asset wallet secure and letting us know about any unauthorized use of your digital asset wallet on the App. Also, all information provided by or on behalf of ClubStubs (as defined below) in connection with the Site and Marketplace is for informational purposes only and should not be construed as professional, accounting, financial, legal or regulatory advice. We encourage you to seek independent professional advice from persons licensed and qualified in the area for which such advice would be appropriate before accessing and using our Site and Services.
a. Purchase and Sale of NFTs (“Stubs”) on the Site: You understand that you are purchasing an NFT directly from ClubStubs when you are “Minting” an NFT on the ClubStubs app ("Stub"), and that you are purchasing an NFT from another user when you purchase a Stub on the Marketplace after Minting has concluded. Such statuses are made obvious to Users on the App. If a person does not understand this difference, the person should not access our Services. Transactions of all kinds on ClubStubs occur on Solana, a public blockchain. We do not have control over Solana or related Protocols that may be integral to your ability to complete transactions on this public blockchain, and hence, we are not responsible for activities occurring on Solana or related Protocols, including, but not limited to, faulty recordation or non-recordation of a transaction on the public blockchains; “gas” fees or other fees imposed by public blockchains or third party services and tools that ClubStubs utilizes to offer its Services; network congestion, technical upgrades or changes to the blockchain (which includes soft and hard forks on the public blockchains); and/or technical problems on the blockchain or Protocols. Also, blockchain transactions are irreversible and we do not have the ability to reverse any such transactions or related fees. Accordingly, we will have no liability to you or to any third party for any claims or damages that may arise as a result of the actions of any User, one or more Protocols and/or public blockchains and/or any third-party.
b. Transactions Conducted by Third Parties: Solana cryptocurrency is required to transact on the ClubStubs Marketplace, but ClubStubs does not offer the ability to procure Solana directly. Therefore, Users must purchase or receive Solana using third party services, such as a browser Wallet or cryptocurrency exchange. Even if the intent for such transactions is to become a User of ClubStubs, such transactions are conducted solely through such third party services. We have no control over these purchases or transactions, nor will we have any liability to you or to any third party for any claims or damages that may arise as a direct result of any purchase or transactions in which you engage through these third party services.
c. Costs and Fees: Services on the App may be subject to platform fees, and you acknowledge that we may earn a portion of those fees from your use of, or access to, the Services. Third parties may also charge fees for third party services that they provide to you when you elect to use such services in connection with the App. In addition, interactions with the relevant blockchain network(s) may also result in transaction fees and/or “gas” fees imposed by such network(s), which are also solely your responsibility and may increase at any time. Before you pay any fees, you will have the opportunity to review and accept the fees that you will be charged. You will be solely responsible for paying all fees. You acknowledge and understand that we may at any time, and at our sole discretion, change (e.g., increase or decrease), add or remove one or more fees in connection with any Service, with or without advance notice to you. Further, we may at any time, and at our sole discretion, make, change or remove promotional offers in connection with some or all of the Services. These promotional offers, unless made to you for the relevant Service, shall not apply to you or your transaction.
d. Taxes: You are solely responsible for all costs incurred by you in using the Services and determining, collecting, reporting and paying all applicable Taxes. As used herein, “Taxes” means the taxes, duties, levies, tariffs, and other governmental charges that you may be required by law to collect and remit to governmental agencies, and other similar municipal, state, federal and national indirect or other withholding and personal or corporate income taxes. You are solely responsible for maintaining all relevant Tax records and complying with any reporting requirements you may have related to our Services. You are further solely responsible for independently maintaining the accuracy of any record submitted to any tax authority including any information derived from the Services. We reserve the right to report any activity occurring using the Services to relevant tax authorities as required under applicable law.
e. Limited License to Access Services: If you comply with these Terms, ClubStubs hereby grants to you a limited, revocable, non-exclusive, non-transferable, non-sublicensable, non-assignable and personal license to access and use the Services solely in accordance with these Terms. If any software, content or other material owned by, controlled by or licensed to ClubStubs are distributed or made available to you as part of your use of the Services, we hereby grant you a limited, revocable, non-commercial, non-exclusive, non-transferrable, non-sublicensable, non-assignable and personal right and license to access and display such software, content and materials for the sole purpose of enabling you to use the Services as permitted by these Terms. Further, if any content, such as Stub artwork, owned by, controlled by or licensed to ClubStubs is available for download on the App, ClubStubs hereby grants to you a limited, revocable, non-exclusive, nontransferable, non-sublicensable, non-assignable and personal license to download and use the content solely in accordance with these Terms and for personal and non-commercial use only. You are not allowed to copy, modify, publish, transmit, distribute, perform, use, sell or exploit any such content for commercial use. Also, you are not allowed to make derivative works or NFTs based on such content. We and our licensors own and retain all proprietary rights in the Services.
f. Suspension or Termination: Without limitation of anything else in these Terms, we may suspend or terminate the limited licenses in Section 5(e) (and anywhere else in these Terms) and your access to the Services at any time without notice, including in connection with any transaction as required by applicable law, any governmental authority, or if we in our sole and reasonable discretion determine you are violating these Terms or the terms of any third party service provider. Such suspension or termination shall not be considered a breach of these Terms by ClubStubs. We may impose reasonable limitations and controls on your ability to access or use the Services. Such limitations may include where good cause exists and we have the ability to do so, rejecting transaction requests or otherwise restricting you from accessing or using the Services.
6.
Feedback: We appreciate feedback, comments, ideas, proposals and suggestions for improvements to the Services and/or NFTs (“Feedback”). If you choose to submit Feedback, you agree that we are free to use it without any restriction, notice or compensation to you. You hereby irrevocably assign to ClubStubs any and all right, title and interest (including, but not limited to, any patent, copyright, trademark, goodwill, trade secret, know-how, show-how, moral rights and any and all other intellectual property right) that you may have in the Feedback, and agree to provide ClubStubs any assistance required to document, perfect and maintain its rights in the Feedback. To the extent that moral rights cannot be assigned under applicable law, you hereby waive and agree not to enforce against ClubStubs any and all moral rights, including, without limitation on subsequent modification, to the extent permitted under applicable law.
7.
Acceptable Use Policy and ClubStubs’s Enforcement Rights. You agree not to do any of the following in connection with our Site or Services:
a. Use, display, mirror or frame the Services or any individual element within the Services, ClubStubs’s trademarks, service marks, logos or other proprietary information, or the layout and design of any page, view, or form contained on a page, without relevant prior written consent from ClubStubs;
b. Access, tamper with, or use non-public areas of the Services, ClubStubs’s computer systems, or the technical delivery systems of ClubStubs’s providers;
c. Attempt to probe, scan or test the vulnerability of the ClubStubs system or network or breach any security or authentication measures;
d. Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by ClubStubs or any of ClubStubs’s providers or any other third party (including another user) to protect the Services;
e. Attempt to access or search the Services or download content from the Services using any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by ClubStubs or other generally available third party web browsers;
f. Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
g. Use the Services, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
h. 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;
i. Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;
j. 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;
k. Collect or store any personally identifiable information from the Services from other users of the Services without their express written permission, or use the Services to harm or gain information from minors;
l. Impersonate or misrepresent your affiliation with any person, entity, wallet, or NFT(s);
m. Engage or assist in any activity that violates any law, statute, ordinance, regulation, or sanctions program, including, but not limited to, the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”), or that involves proceeds of any unlawful activity (including but not limited to money laundering, terrorist financing or deliberately engaging in activities designed to adversely affect the performance of the Services);
n. Promote or facilitate scams or unlawful gambling;
o. Using, employing or operating bots or other forms of automation and/or multiple accounts to engage in any activity on the Marketplace;
p. Violate any applicable law, regulation or third-party rights; or
q. Encourage or enable any other individual or entity to do any of the foregoing.
We reserve the right, but are not obligated, to remove, block or disable your access to any content, or any or all of the Services, or ban you from the Services and/or App, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider it objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
8.
Links: The Services or third parties may provide links or other forms of access (collectively, “Links”) to third party sites, applications, accounts, resources or services. Such Links may include, but not limited to, social media accounts and/or sites. Because ClubStubs has no control over such Links, sites, applications, accounts, resources or services, you acknowledge and agree that ClubStubs is not responsible for the Links, the availability of such external sites, applications, accounts, resources or services, or the software or services provided by third parties, and does not endorse and is not responsible or liable for any content, advertising, products, services or other materials on or available from such Links, sites, applications, accounts, resources or services. You acknowledge and agree that ClubStubs 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 the Links or the use of or reliance on any such content, goods or services available on or through any such Links, sites, applications, accounts, resources or services. You also understand and agree to assume full responsibility for all risks arising from your use of any Links, sites, applications, accounts, resources or services.
9.
Termination; Survival. We may block, suspend, restrict, discontinue or terminate your access to and use of any or all of the Services at our sole discretion, at any time and without notice to you, including in connection with any transaction as required by applicable law, any governmental authority, or if we in our sole and reasonable discretion determine you are violating these Terms or the terms and conditions of any Service Provider (defined below). Such blocking, suspension, restriction, discontinuation or termination shall not be considered a breach of these Terms by ClubStubs. You acknowledge that ClubStubs’s decision to take certain actions regarding your access and/or use of the Services for any reason, in our sole discretion, may be based on confidential criteria that are essential to ClubStubs’s risk management, compliance and security protocols. You agree that ClubStubs is under no obligation to disclose the details of its risk management, compliance or security protocols to you. All provisions of these Terms which by their nature extend beyond the expiration or termination of these Terms shall survive. Termination shall not limit any of ClubStubs’s other rights or remedies at law or in equity.
10.
Warranty disclaimers. THE SITE, SERVICES AND ANY CONTENT THEREIN ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED. CLUBSTUBS AND THEIR LICENSORS MAKE NO WARRANTY THAT THE SITE, SERVICES OR ANY CONTENT THEREIN: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, COMPLETE, LEGAL, OR SAFE. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AS TO THE SITE, SERVICES AND ANY CONTENT THEREIN. EXCEPT FOR THE EXPRESS STATEMENTS SET FORTH IN THESE TERMS, YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU HAVE NOT RELIED UPON ANY OTHER STATEMENT, MATERIAL OR INFORMATION, WHETHER ORAL OR WRITTEN, WITH RESPECT TO YOUR ACCESS AND USE OF THE SITE, SERVICES OR CONTENTS THEREIN. WITHOUT LIMITING THE FOREGOING, YOU HEREBY UNDERSTAND AND AGREE THAT CLUBSTUBS WILL NOT BE LIABLE FOR ANY LOSS OF ANY KIND FROM ANY ACTION TAKEN OR TAKEN IN RELIANCE ON STATEMENTS, MATERIAL OR INFORMATION CONTAINED ON THE SITE, SERVICES OR ANY CONTENT THEREIN. WHILE CLUBSTUBS ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF THE SITE, SERVICES AND ANY CONTENT THEREIN SAFE, CLUBSTUBS CANNOT AND DO NOT REPRESENT OR WARRANT THAT THE SITE, SERVICES AND ANY CONTENT THEREIN, OR CLUBSTUBS’S SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. CLUBSTUBS CANNOT GUARANTEE THE SECURITY OF ANY DATA THAT YOU DISCLOSE ONLINE. YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET AND WILL NOT HOLD CLUBSTUBS RESPONSIBLE FOR ANY BREACH OF SECURITY. CLUBSTUBS WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSS AND TAKES NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO YOU FOR, ANY USE OF OR INABILITY TO USE THE SITE, SERVICES OR ANY CONTENT THEREIN, OR NFTS OR ANY CONTENT ASSOCIATED OR LINKED THERETO, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (I) USER ERROR SUCH AS FORGOTTEN PASSWORDS OR SECRET RECOVERY PHRASES (ALSO KNOWN AS SEED PHRASES OR MNEMONICS), INCORRECTLY CONSTRUCTED TRANSACTIONS; (II) LOSS OF OR INABILITY TO RESTORE ACCESS OR USE FROM YOUR DIGITAL WALLET SECRET RECOVERY/BACKUP PHRASE; (III) SERVER FAILURE OR DATA LOSS; (IV) BLOCKCHAIN NETWORKS, DIGITAL ASSET WALLETS OR CORRUPT FILES; (V) INTERRUPTIONS, DELAYS, ERRORS, OMISSIONS AND/OR DEFECTS IN THE TRANSMISSION OF TRANSACTIONS OR MESSAGE TO THE RELEVANT BLOCKCHAIN NETWORK(S) (SUCH AS THE SOLANA NETWORK); (VI) UNAUTHORIZED ACCESS TO OR USE OF SERVICES; (VII) DELAY, INTERRUPTION OR FAILURE OF ANY TRANSACTION OR COMMUNICATION TO SEND OR BE RECEIVED BY THE INTENDED RECIPIENT IN THE INTENDED FORM; (VIII) DECREASED OR INCREASED VALUE OF NFTS, ETHER OR OTHER DIGITAL ASSETS ASSOCIATED WITH THE SOLANA BLOCKCHAIN OR OTHER BLOCKCHAINS; (IX) INCORRECT RECORDATION OR NON-RECORDATION OF TRANSACTION ON RELEVANT BLOCKCHAIN(S); OR (X) ANY THIRD PARTY ACTIVITIES, INCLUDING, WITHOUT LIMITATION, THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK (WHICH INCLUDES, BUT NOT LIMITED TO, DISTRIBUTED DENIAL-OF-SERVICE (“DDoS”) ATTACK). YOU BEAR FULL RESPONSIBILITY FOR VERIFYING THE IDENTITY, LEGITIMACY, AND AUTHENTICITY OF DIGITAL ASSETS (INCLUDING NFTS) YOU PURCHASE OR SELL THROUGH THE SERVICES.
11.
Assumption of Risk. You accept and acknowledge:
a. The prices and liquidity of digital assets (including, not limited to, NFTs, cryptocurrencies, digital tokens, digital coins, stablecoins) are extremely volatile due to many factors including, but not limited to, adoption, speculation, technology, legislative, regulatory and case law risks, security risks, litigation, and bankruptcy filings and proceedings of one or more entities involved in digital assets and transactions or custody thereof. Fluctuations in the price of other digital assets could materially and adversely affect the digital assets made available through the Services, which may also be subject to significant price volatility. We cannot guarantee that any purchasers of digital assets will not lose money. You also acknowledge that the cost of transacting on blockchain networks is variable and may increase at any time causing impact to any activities taking place on the Services or blockchain networks. By using or accessing the Services, you acknowledge these risks and agree that ClubStubs will not be held liable for any losses or damages associated with these risks including, without limitation, losses associated with your use of the Services, digital assets or blockchain networks.
b. You are solely responsible for determining what, if any, Taxes apply to your transactions through the Services. ClubStubs is not responsible for determining the Taxes that apply to such transactions.
c. Our Services do not store, send, or receive digital assets. This is because digital assets exist only by virtue of the ownership record maintained on its supporting blockchain (“Blockchain”). Any transfer of digital assets occurs within the supporting Blockchain and not on the Services. Transactions in digital assets (including NFTs) may be irreversible, and, accordingly, losses due to fraudulent or accidental transactions may not be recoverable. Some transactions in digital assets shall be deemed to be made when recorded on a public ledger, which is not necessarily the date or time that you initiated the transaction. By accessing or using the Services, you represent that you understand the inherent risks associated with cryptographic systems; and warrant that you understand the usage and intricacies of blockchain, digital assets, decentralized networks, decentralized apps, decentralized exchanges or platforms and blockchain-based software systems. ClubStubs is not responsible for any issues with the Blockchains, including forks, technical node issues or any other issues having fund losses as a result. You acknowledge that the cost and speed of transacting with cryptographic and blockchain-based systems, such as Solana, are variable and may increase at any time. You further acknowledge the risk that your digital assets may lose some or all of their value while they are supplied to or from the Services. You further acknowledge that we are not responsible for any of these variables or risks and cannot be held liable for any resulting losses that you experience while accessing Services. Accordingly, you understand and agree to assume full responsibility for all of the risks of accessing and using and interacting with the Services.
d. 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 asset wallet. Our Services rely on emerging technologies, such as Solana and related blockchain programs, which may change or become non-operational due to third party activity (including, without limitation, technical upgrades or non-upgrades; service or technical disruption or failure; retiring or decommissioning software or system; and close of business) and without prior notice to you or ClubStubs. You accept and acknowledge that ClubStubs will not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience when using the Services, however caused.
e. ClubStubs, digital assets, digital asset wallets, blockchain networks and digital asset-related exchanges and marketplaces could be impacted by one or more legislative actions, regulatory actions (such as regulatory investigations or enforcement actions) or judiciary actions (such as court orders and decisions) that could impede or limit the ability of ClubStubs to continue to develop, or which could impede or limit your ability to access or use the Services, the Solana blockchain network, and any other blockchain networks and/or digital wallets. The legal and regulatory regimes and case law governing blockchain technologies, digital assets, including, but not limited to, NFTs, are uncertain and evolving, and new or revised laws, regulations or policies may materially adversely affect one or more digital assets and/or the Services. By using or accessing the Services, you acknowledge these risks and agree that the ClubStubs will not be held liable for any losses or damages associated with these risks including, without limitation, losses associated with your use of Services, digital assets or blockchain networks.
12.
Indemnity; Release. You will indemnify, defend, and hold ClubStubs and their respective officers, directors, agents, joint venturers, employees and representatives harmless from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (a) your access to or use or misuse of the Services or content therein, (b) your NFTs, or (c) your violation of these Terms. You may not settle or otherwise compromise any claim subject to this Section 12 without the relevant prior written approval from ClubStubs. ClubStubs reserves the right, at its own expense, to assume exclusive defense and control of any matter otherwise subject to indemnification by you and, in such case, you agree to cooperate with ClubStubs in the defense of such matter. Also, if you have a dispute with one or more users of the Services, you release ClubStubs and its respective officers, directors, agents, joint venturers, employees and representatives from any and all claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with such dispute.
13.
Limitation of Liability.
a. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CLUBSTUBS AND ITS RESPECTIVE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, EMPLOYEES, REPRESENTATIVES AND SERVICE PROVIDERS WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SITE, SERVICES, NFTS, OR ANY CONTENT THEREIN, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT CLUBSTUBS OR THEIR SERVICE PROVIDERS HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
b. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL CLUBSTUBS AND ITS RESPECTIVE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, EMPLOYEES, AND REPRESENTATIVES’ TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SITE, SERVICES, NFTS, OR ANY CONTENT THEREIN EXCEED THE AMOUNTS YOU HAVE PAID OR ARE PAYABLE BY YOU TO CLUBSTUBS FOR USE OF THE SERVICES, OR ONE HUNDRED U.S. DOLLARS (US$100) IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO CLUBSTUBS, AS APPLICABLE.
c. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF CLUBSTUBS’S OFFER TO PROVIDE SERVICES AND CONTENT THEREIN TO YOU.
14.
No License to ClubStubs Brand Features.
a. All ClubStubs trademarks, service marks, trade names, logos, domain names, and any other features of the ClubStubs brand (“ClubStubs Brand Features”) are the sole property of ClubStubs or its respective licensors. These Terms do not grant you any rights to use any ClubStubs Brand Features whether for commercial or non-commercial use.
b. Unless explicitly stated otherwise, you obtain no rights from ClubStubs or its licensors, including, without limitation, intellectual property rights. You will not use ClubStubs’s or its licensors’ trademarks, service marks or logos for any reason or purpose unless you obtain prior written consent from ClubStubs or its licensors, respectively. ClubStubs and its licensors retain ownership of all copies of the Services, or any part thereof.
c. You agree to abide by our user guidelines and not to use the Services or any part thereof in any manner not expressly permitted by these Terms. Except for the rights expressly granted to you in these Terms, ClubStubs grants no right, title, or interest to you in the App, Website, or the Services.
d. If applicable, third party software (for example, open source software libraries) included in the Services are made available to you under the relevant third party software library’s license terms.
15.
No Third Party Beneficiaries. You agree that, except as otherwise expressly provided in these Terms, there shall be no third party beneficiaries to these Terms.
16.
Governing Law and Forum Choice. You and ClubStubs agree that these Terms and any Dispute you may have with ClubStubs, will be governed by federal law and the Federal Arbitration Act as to arbitration issues and the law of the State of Wyoming for all other issues, without reference to the principles of conflicts of laws thereof. You agree that the United Nations Convention on Contracts for the International Sale of Goods (1980) and Uniform Computer Information Transactions Act (UCITA), as adopted by any state, are specifically excluded from application to these Terms.
17.
Dispute Resolution.
a. INFORMAL RESOLUTION: You and ClubStubs will first attempt to resolve any claim informally. Accordingly, neither you nor ClubStubs may start a formal arbitration proceeding for at least sixty (60) days after one party notifies the other party of a claim in writing. As part of this informal resolution process, you must deliver your written notices via hand or first-class mail to us at ClubStubs, 7511 Greenwood Avenue North, #222, Seattle, Washington 98103.
b. WE BOTH AGREE TO ARBITRATE: You and ClubStubs agree to resolve any dispute between you and ClubStubs (“Dispute”) through final and binding arbitration, with two exceptions. First, to the extent you have in any manner violated or threatened to violate our intellectual property rights (for example, trademark, trade secret, copyright, or patent rights) or to the extent that you believe we have violated or threatened to violate your intellectual property rights, under such circumstances we or you may bring a lawsuit solely for injunctive relief to stop intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above. Second, you may bring any matter within the jurisdiction of a small claims court or similar court in which you seek less than $10,000 in a small claims court or similar court on an individual basis without a class action.
c. WHAT IS ARBITRATION: You and ClubStubs mutually agree to forego the delay and expense of using a court of law and choose instead to benefit from the speedy, economical, and impartial dispute resolution procedure of using binding arbitration for Disputes that arise between you and ClubStubs, its related and affiliated companies, successors, and assigns; and/or any current or former employee, officer, or director of ClubStubs or any related or affiliated company. Arbitration is more informal than a lawsuit in court and seeks to resolve disputes more quickly. Instead of a judge or a jury, the case will be decided by a neutral arbitrator who has the power to award the same damages and relief that a court can. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced. You and ClubStubs agree that this Section 17 (Dispute Resolution) is governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq., and will survive even if these Terms terminate. Any revision to or termination of these Terms that modify or terminate this Section 17 (Dispute Resolution) shall not apply to a pending arbitration, to any claim that accrued prior to the modification or termination, or to any claim that the asserting party knew about prior to the modification or termination, except as may be required by applicable law.
d. WAIVER OF JURY TRIAL: EXCEPT AS SET FORTH IN SECTION 17(b) ABOVE, THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and us in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND CLUBSTUBS WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING TO ACCEPT THIS AGREEMENT TO ARBITRATE.
e. NO CLASS ACTIONS: Except as otherwise required under applicable law, You and ClubStubs agree to arbitrate any Dispute only on an individual basis and hereby waive any right to bring, participate in, or receive money or any other relief from any representative, class, consolidated, or collective proceeding (“Class Action Waiver”). No party may bring a claim on behalf of other individuals, and no arbitrator hearing any claim under these Terms may: (a) without the consent of all parties, combine more than one individual’s claim or claims into a single case; (b) order, require, participate in, or facilitate production of class-wide contact information or notification of others of potential claims; or (c) arbitrate any form of a class, collective, consolidated, representative, or private attorney general proceeding.
f. WHO DECIDES WHAT CAN BE ARBITRATED: The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
g. WHAT ARE THE ARBITRATION RULES, PROCEDURES, AND COSTS: To initiate arbitration, the party desiring to pursue a legal dispute must prepare a written demand setting forth the claim(s) and deliver the written demand within the applicable statute of limitations period by hand or first class mail to the AAA and us at ClubStubs, 7511 Greenwood Avenue North, #222, Seattle, Washington 98103. You and ClubStubs agree that the arbitration shall be administered by the American Arbitration Association (“AAA”) before a single arbitrator mutually agreed upon by the parties, and if the parties cannot agree within thirty (30) days after names of potential arbitrators have been proposed, then by a single arbitrator who is chosen by AAA. Except to the extent that they are modified by the rules below, if you are an individual person, the AAA Consumer Arbitration Rules that are in effect at the time of the filing of the demand (and that are available at https://www.adr.org/sites/default/files/Consumer_Rules_Web_2.pdf) will apply.
h. The parties agree that the applicable AAA rules are modified as follows:
i. Any arbitrator must be neutral as to all parties. Standards for the recusal of an arbitrator shall be the same standards under which trial judges are recused under Wyoming law. Unless you prefer otherwise and ClubStubs agrees, the arbitration shall be conducted in the county in which you reside. Or if that is not practicable, in an adjacent county as determined by AAA.
ii. All discovery shall be subject to any and all objections available under FRCP 26(b). Each party shall avoid broad or widespread collection, search, and production of documents, including electronically stored information (“ESI”). If a compelling need is demonstrated by the requesting party, the production shall: (i) be narrowly tailored in scope; (ii) only come from sources that are reasonably accessible without undue burden or cost; and (iii) be produced in a searchable format, if possible without undue burden or cost, and which is usable by the receiving party and convenient and economical for the producing party. Where the costs and burdens of the requested discovery outweigh its likely benefit, considering the needs of the case, the amount in controversy, and the importance of the discovery in resolving the issues, the arbitrator shall deny such requests or order production on condition that the requesting party advance to the producing party the reasonable costs involved in making the production, subject to the allocation of costs in the final award.
iii. The arbitrator shall have the authority to award the same damages and other relief that would have been available in court pursuant to the law governing the Dispute(s).
iv. Either party shall have the right to file motions to dismiss and motions for summary judgment/adjudication.
v. The arbitrator shall have the authority to issue an award or partial award without conducting a hearing on the grounds that there is no claim on which relief can be granted or that there is no genuine issue of material fact to resolve at a hearing.
vi. The Federal Rules of Evidence shall apply to all arbitration proceedings.
vii. The arbitrator must issue a decision in writing, setting forth in summary form the reasons for the arbitrator’s determination and the legal basis therefor.
viii. The arbitrator’s authority shall be limited to deciding the case submitted by the parties to the arbitration. Therefore, no decision by any arbitrator shall serve as precedent in other arbitrations except to preclude the same claim from being re-arbitrated between the same parties.
ix. The parties may settle any dispute on a mutual basis without involvement of the arbitrator.
x. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules, and we won’t seek to recover the administration and arbitrator fees we are responsible for paying, unless the arbitrator finds your Dispute frivolous.
i. If any term or condition in this Section 17 (Dispute Resolution) is determined to be unenforceable or in conflict with a mandatory provision of applicable law, it shall be construed to incorporate any mandatory provision, or the unenforceable or conflicting term or condition shall be automatically severed, and the remainder of this Section 17 (Dispute Resolution) shall not be affected. Provided, however, that if the Class Action Waiver is found to be unenforceable, then any claim brought on a class, collective, or representative action basis shall be adjudicated exclusively in the state and federal courts located in the County of Sheridan, Wyoming, which shall be the exclusive forum for such claims. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
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General Terms.
a. Reservation of Rights. ClubStubs and its licensors exclusively own all right, title and interest in and to the Services, including all associated intellectual property rights. You acknowledge that the Services are protected by at least copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, design mark, service mark or other proprietary rights notices incorporated in or accompanying the Services. Subject to the limited rights expressly granted in these Terms, ClubStubs and its licensors reserve all right, title and interest, including ownership and intellectual property rights, in and to the Services.
b. Entire Agreement. These Terms constitute the entire and exclusive understanding and agreement between ClubStubs and you regarding the Services, and these Terms supersede and replace all prior oral or written understandings or agreements between ClubStubs and you regarding the Services. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible, and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise, without ClubStubs's prior written consent. Any attempt by you to assign or transfer these Terms absent our consent or your statutory right, without such consent, will be null and void. ClubStubs may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
c. Export Compliance. You agree to comply with all applicable import, re-import, export and reexport control laws and regulations when using the Services. You are solely responsible for compliance related to your use of the Services.
d. Any notices or other communications provided by ClubStubs under these Terms will be given by posting to the Site.
e. Headers. The headings and captions contained in these Terms are for convenience of reference only and will not be deemed to be a part of these Terms and will not be referred to in connection with the construction or interpretation of these Terms.
f. Injunctive Relief. You agree that a breach of these Terms will cause irreparable injury to ClubStubs for which monetary damages would not be an adequate remedy and ClubStubs shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.
g. Force Majeure. ClubStubs shall not be deemed in default of or have breached any provision of these Terms due to a delay, failure in performance or interruption of service arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including, without limitation, acts of God; earthquakes; tornados; hurricanes; fires; floods; wars; civil or military disturbances; acts of terrorism; sabotage; invasions; insurrections; strikes; pandemics; epidemics; riots; power failures; computer or data center failure; order, regulation, quarantine or restriction imposed by government or military; labor disputes; cyberattack, ransomware attack; and loss, disruption or malfunction of utility, blockchain network, Internet, computer (hardware or software) or telephone communication services (collectively, a “Force Majeure Event”). If ClubStubs is affected by a Force Majeure Event, it shall give notice to you, shall be excused from performance of its obligations hereunder on a day-to-day basis to the extent those obligations are prevented by the Force Majeure Event, and shall use reasonable efforts to remove or mitigate the Force Majeure Event.
h. Waiver of Rights. ClubStubs’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of ClubStubs. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
i. The Site is operated by us in the United States. Those who choose to access the App and Services from locations outside of the United States do so at their own initiative and are responsible for compliance with applicable local laws and regulations. You and ClubStubs agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to the interpretation or constitution of these Terms. These Terms are written in English (U.S.) only. To the extent any translated version of these Terms exists and conflicts with this English version, this English version controls.
19.
Contact information. If you have any questions about these Terms or the Services, please email support@ClubStubs.com
