Last Updated: April 27, 2024
PictoCripto.Net. (“PictoCripto,” “we,” “us,” or “our”) provides its marketplace and services (described below) to you (“you” or “User”) through its website, platform, and marketplace located at www.pictocripto.net (the “Platform”), subject to the following Terms of Service (as amended from time to time, the “Terms”). By signing up for an account on the Platform or otherwise using or accessing the Platform, you acknowledge that you have read and agree to these Terms. The Privacy Policy and all such additional terms, guidelines, and rules as set forth on the Platform are hereby incorporated by reference into these Terms and expressly agreed to and acknowledged by the User.
PLEASE READ THESE TERMS CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST PICTOCRIPTO ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.
We reserve the right, at our sole discretion, to change or modify portions of these Terms at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these Terms were last revised. We will also notify you, either through the Platform user interface, in an email notification, or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Platform will be effective immediately. Your continued use of the Platform after the date any such changes become effective constitutes your acceptance of the new Terms of Service.
PictoCripto provides a platform for Users, including artists (“Creators”), collectors (“Collectors”), and curators (“Curators”) to sell, purchase, list for auction, make offers on, and bid on (each a “Transaction”) Digital Artwork (as defined below).
“Digital Artwork” on the Platform refers to a non-fungible blockchain-based token that uses smart contracts on the applicable blockchain (“Smart Contracts”). Such blockchains provide an immutable ledger of all transactions that occur on the blockchain. This means that all Digital Artwork is outside of the control of any one party, including PictoCripto, and is subject to many risks and uncertainties. We neither own nor control MetaMask, Coinbase, the blockchain networks, the smart contracts on which Collections (as defined below) are based (“Collection Smart Contracts”), your browser, or any other third-party site, product, or service that you might access, visit, or use for the purpose of enabling you to use the various features of the Platform. We will not be liable for the acts or omissions of any such third parties, nor will we be liable for any damage that you may suffer as a result of your Transactions or any other interaction with any such third parties. You understand that your blockchain public address will be made publicly visible whenever you engage in a Transaction on the Platform.
While PictoCripto offers a marketplace for Digital Artwork, it does not buy, sell, or ever take custody or possession of any Digital Artwork. The Platform facilitates User collection of Digital Artwork, but neither PictoCripto nor the Platform are custodians of any Digital Artwork. The User understands and acknowledges that the Smart Contracts do not give PictoCripto custody, possession, or control of any Digital Artwork or cryptocurrency at any time for the purpose of facilitating Transactions on the Platform. You affirm that you are aware and acknowledge that PictoCripto is a non-custodial service provider and has designed the Platform to be directly accessible by the Users without any involvement or actions taken by PictoCripto or any third-party. PictoCripto facilitates Transactions between the Users on the Platform but is not a party to any agreement between any sellers, buyers, Creators, Collectors, and other Users. As a marketplace, PictoCripto cannot make any representation or guarantee that Creators or Users will achieve any particular outcome as the result of listing their Digital Artwork or engaging in any other Transaction on the Platform.
The digital assets about which information is provided on the Platform and any information provided in connection with the Platform provided to you are not viewed by the issuer or sponsor of any such digital assets, or those buying or selling the digital asset, as securities under U.S. laws or relevant applicable laws. As a result, it is unlikely that fulsome disclosures from the issuer or sponsor, or any executive officer associated with the digital asset or related protocol have been provided, and others may have better or more information than the information made available to you via the Platform or any information provided in connection with the Platform provided to you, or to which you may independently have access.
Anyone can browse the Platform without registering for an account. You may be required to register with PictoCripto in order to access and use certain features on the Platform, such as participating as a Creator or Collector. If you choose to register for the Platform, you agree to provide and maintain true, accurate, current, and complete information about yourself as prompted by our registration form. Registration data and certain other information about you are governed by our Privacy Policy. You must be at least 13 years old to register for an account as a Creator, and at least 18 years old to place a bid on any Digital Artwork. If you are between 13 and 18 years old, you must have the expressed permission of a parent or legal guardian who can accept these Terms on your behalf. You are responsible for anything that occurs when anyone is signed in to your account, as well as the security of the account.
You are responsible for maintaining the confidentiality of your account and password, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify PictoCripto of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Platform. PictoCripto will not be liable for any loss or damage arising from your failure to comply with this Section.
In order to participate as a Creator or Collector on the Platform, you must connect your account to your digital wallet supported on MetaMask, WalletConnect, or other wallet extensions or gateways as allowed on the Platform (“Digital Wallet”). Such digital wallets allow you to purchase, store, and engage in transactions using the cryptocurrency native to the applicable blockchain network with which you are engaging. All Transactions on the Platform are conducted in such native cryptocurrency.
PictoCripto reserves the right to modify or discontinue, temporarily or permanently, the Platform (or any part thereof) with or without notice. You agree that PictoCripto will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Platform.
When using the Platform, you will not directly or indirectly:
If you use the Platform to communicate or administer sweepstakes, contests, and other promotions (each, a “Promotion”), you are solely responsible for complying with, and will ensure that your Promotion, including its rules, terms, and requirements (“Promotion Rules”), complies with all applicable laws and regulations and these Terms. The Promotion Rules must contain, at a minimum, a set of official rules that are consistent with these Terms and that include:
You agree that your Promotion will be fully conducted in accordance with the Promotion Rules. PictoCripto will not assist you with the administration or operation of your Promotion, or provide you with any advice in connection therewith. You assume all risk associated with your use of the Platform to administer your Promotion. PictoCripto reserves the right, at its sole discretion, to restrict, limit, or deny any Promotions and associated sales or auctions for any reason, at any time.
If you sell, promise, administer, or otherwise provide special perks, physical artworks, discounts, coupons, experiences, or opportunities (“Perks”) in connection with your sale or auction of Digital Artwork on the Platform, you are solely responsible for complying with, and will ensure that your Perks comply with, all applicable laws and regulations and these Terms. If you make a bid or offer for, or attempt to purchase or purchase, Digital Artwork associated with any Perks, you acknowledge that PictoCripto makes no guarantee, representation, warranty, or recommendation and provides no investment or other advice in connection with any Perks or otherwise as a result of holding or owning the Digital Artwork associated with any Perks.
PictoCripto will not assist you with the administration, operation, redemption, exercise, enforcement, or other use of Perks, or provide you with any advice in connection therewith. You assume all risk associated with Perks, including your use of the Platform in connection with Perks. PictoCripto reserves the right, at its sole discretion, to restrict, limit, or deny any Digital Artwork sales or auctions associated with Perks for any reason, at any time.
The Creator owns all legal right, title, and interest in all intellectual property rights of the content underlying the Digital Artwork minted on the Platform or using Third Party Tools (as defined below) with which the Platform may integrate (such underlying content, the “Art Content”) and any content specific to a Collection that is not the Digital Artwork within a Collection (“Collection Content”), including but not limited to copyrights and trademarks in the Art Content and Collection Content, unless the Creator expressly transfers any such right, title, or interest to a Collector or other third party. As the copyright owner, the Creator has the right to reproduce, prepare derivatives of, distribute, and display or perform the Art Content and Collection Content.
The Creator hereby acknowledges, understands, and agrees that selling such Digital Artwork on the Platform constitutes an express representation, warranty, and covenant that the Creator:
By launching any Digital Artwork on the Platform, the Creator hereby expressly and affirmatively grants to the Collector and, to the extent applicable, any subsequent Collector in a secondary sale a license pursuant to Section 4(c)(ii) below, unless the Creator expressly grants different rights to the Collector.
Creator expressly represents and warrants that its Art Content underlying any Digital Artwork launched on the Platform and Collection Content contain only original content otherwise authorized for use by the Creator, and do not contain unlicensed or unauthorized copyrighted content, including any imagery, design, audio, video, human likeness, or other unoriginal content not created by the Creator, not authorized for use by the Creator, not in the public domain, or otherwise without a valid claim of fair use. The Creator further represents and warrants that it has permission to incorporate the unoriginal content, to the extent such permission is legally required.
On the Platform or using Third Party Tools with which the Platform may integrate, a Creator can create a collection of Digital Artworks (a “Collection”) using a unique smart contract (“Collection Smart Contract”). The Creator can choose between various smart contracts to use for their Collection Smart Contract, including without limitation smart contracts that allow only the Creator to mint Digital Artworks and smart contracts that allow Collectors to mint Digital Artworks. Each Collection Smart Contract is wholly owned by the applicable Creator and cannot be sold or traded. However, the individual Digital Artworks in a Collection can be sold in accordance with these Terms. The terms and mechanics of Collections are set forth here.
User hereby acknowledges, understands, and agrees that by launching, listing, or selling any Digital Artwork (including Non-PictoCripto Artwork) on the Platform, User hereby expressly and affirmatively grants to PictoCripto, and its Affiliates (as defined below) and its and their successors, a non-exclusive, worldwide, transferable, sublicensable, perpetual, irrevocable, and royalty-free license to:
The foregoing licenses include, without limitation, the express rights to:
For purposes hereof, “Affiliate” means an entity which, directly or indirectly, owns or controls, is owned by, or is under common ownership or control with PictoCripto.
The Collector receives a cryptographic token representing the Creator’s Art Content as a piece of property, but does not own the Art Content itself or any intellectual property rights therein. The Collector may display and share the Art Content, but the Collector does not have any legal ownership, right, or title to any copyrights, trademarks, or other intellectual property rights to the Art Content, except the limited license to the Art Content granted by these Terms.
Upon legally collecting and obtaining ownership of any Digital Artwork launched on the Platform, unless the Creator expressly grants different rights to the Collector, the Collector receives from the seller of such Digital Artwork a limited, worldwide, non-assignable and non-transferable (except as expressly set forth below), non-sublicensable, royalty-free license to display the Art Content underlying such Digital Artwork solely for the Collector’s non-commercial purposes, including the right to display such Art Content privately or publicly:
Upon any sale or transfer of the Digital Artwork to another Collector:
While the Collector has the right to sell, trade, transfer, or use their Digital Artwork, the Collector may not make commercial use of the Digital Artwork or its underlying Art Content, unless the Creator expressly grants such rights separately to the Collector.
If a Collector sells, trades, or transfers its Digital Artwork to a subsequent Collector, regardless of whether on or off the Platform, such Collector represents and warrants that it will:
The Collector agrees that it will not, and will not permit any third party to, do or attempt to do any of the following without the Creator’s express prior written consent:
The Collector agrees that it receives no rights to any Collection Content and will not use, copy, distribute, or otherwise exploit the Collection Content in any manner.
Collector irrevocably releases, acquits, and forever discharges PictoCripto and its Affiliates and their officers and successors of any liability for direct or indirect copyright or trademark infringement for PictoCripto’s use of any Digital Artwork or underlying Art Content, or any Collection Content, in accordance with these Terms.
Digital Artwork on the Platform that was minted on or by a third-party platform or service (“Non-PictoCripto Artwork”) and the intellectual property rights of the content underlying such Non-PictoCripto Artwork (“Non-PictoCripto Content”) may be subject to separate licenses or other terms granted in connection with the initial sale of such Non-PictoCripto Artwork (“Non-PictoCripto Artwork Terms”), in which case those Non-PictoCripto Artwork Terms will govern in connection with such content and materials, provided that in the event of any conflict between the Non-PictoCripto Artwork Terms and these Terms that are not specific to a Collector’s rights to use or otherwise exploit the Non-PictoCripto Content, these Terms shall govern and control as between you and PictoCripto. Subject to the foregoing, if you purchase any Non-PictoCripto Artwork, you agree to comply with the Non-PictoCripto Artwork Terms.
A Curator may create an exhibition of Digital Artwork (a “World”) and designate a certain number of sellers of Digital Artwork who may list Digital Artwork for sale or auction as part of such World (“Worlds Sellers”). For each World, Worlds Sellers may only list Digital Artwork that are stored in their Digital Wallet(s). The Curator does not acquire any rights, title, or interest in or to the Digital Artwork listed for sale or auction in a World by virtue of creating a World. The Curator sets the Fee it will receive for each sale or completed auction of Digital Artwork for each World (“Curator Fee”). The sales of Digital Artwork in Worlds are also subject to the Fees set forth in Section 5 below.
You acknowledge and agree that the Platform may contain content or features (“Platform Content”) that are protected by copyright, patent, trademark, trade secret, or other proprietary rights and laws. Except as expressly authorized by PictoCripto, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute, or create derivative works based on the Platform or the Platform Content, in whole or in part. In connection with your use of the Platform you will not engage in or use any data mining, robots, scraping, or similar data gathering or extraction methods. If you are blocked by PictoCripto from accessing the Platform (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Platform or the Platform Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Platform or distributed in connection therewith are the property of PictoCripto, our Affiliates, and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble, or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by PictoCripto.
The PictoCripto name and logos are trademarks and service marks of PictoCripto, Inc. (collectively the “PictoCripto Trademarks”). Other company, product, and service names and logos used and displayed via the Platform may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to PictoCripto. Nothing in these Terms or the Platform should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of PictoCripto Trademarks displayed on the Platform, without our prior written permission in each instance. All goodwill generated from the use of PictoCripto Trademarks will inure to our exclusive benefit.
Under no circumstances will PictoCripto be liable in any way for any Digital Artwork, Art Content, Collection Content, Non-PictoCripto Artwork, Non-PictoCripto Content, Collection, or any other content or materials of any third parties (including Users), including, but not limited to:
You acknowledge that PictoCripto does not pre-screen content, but that PictoCripto has the right (but not the obligation) in our sole discretion to refuse or remove any content that is available via the Platform. Without limiting the foregoing, PictoCripto has the right to remove any content (and to terminate any licenses granted with respect thereto) that is deemed by PictoCripto, in our sole discretion, to violate these Terms or otherwise be objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content and the purchase of any Digital Artwork (including Non-PictoCripto Artwork), including any reliance on the accuracy, completeness, or usefulness of such content.
With respect to the Digital Artwork, Art Content, Collection Content, Non-PictoCripto Artwork, Non-PictoCripto Content, Collection, or any other content or materials you upload through the Platform or share with other Users or recipients (collectively, “User Content”), you represent and warrant that you own all rights, title, and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein, or otherwise have all necessary rights under applicable law to all materials incorporated in the User Content to engage in Transactions. Excluding Art Content and Collection Content (which are licensed in Section 4(b) above), by uploading any User Content you hereby grant PictoCripto and its Affiliates its and their successors a nonexclusive, worldwide, royalty-free, fully paid-up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify, transmit, and otherwise use your User Content in connection with the operation of the Platform or the promotion, advertising, or marketing thereof in any form, medium, or technology now known or later developed.
Any questions, comments, suggestions, ideas, feedback, or other information about the Platform (“Submissions”), provided by you to PictoCripto are non-confidential and PictoCripto will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
PictoCripto may preserve User Content and may also disclose such content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to:
You understand that the technical processing and transmission of the Platform, including User Content, may involve:
PictoCripto respects the intellectual property of others, and we ask our Users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify PictoCripto of your infringement claim in accordance with the procedure set forth below.
PictoCripto will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to PictoCripto’s Copyright Agent at copyright@pictocripto.net (Subject line: “DMCA Takedown Request”).
To be effective, the notification must be in writing and contain the following information:
If you believe your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent:
If a counter-notice is received by the Copyright Agent, PictoCripto will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member, or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
In accordance with the DMCA and other applicable law, PictoCripto has adopted a policy of terminating, in appropriate circumstances and at PictoCripto's sole discretion, Users who are deemed to be repeat infringers. PictoCripto may also at its sole discretion:
Creator expressly agrees to refund to the Collector and/or PictoCripto, at PictoCripto’s direction, the entire portion of Fees (as defined below) received from the sale of any Digital Artwork that was subsequently removed from the Platform pursuant to an effective DMCA request to which the Creator failed to timely submit an effective DMCA Counter-notification. PictoCripto will not be held liable to any User for removing allegedly infringing works from the Platform or otherwise fulfilling its legal obligations under the DMCA.
Creators, Collectors, and all Users expressly agree to cooperate and timely respond to PictoCripto’s investigations, requests, and inquiries related to DMCA disputes or allegations of infringement.
You agree and understand that all fees, commissions, royalties, and other compensation (“Fees”) are in consideration of PictoCripto's provision of the Platform hereunder (including facilitating the minting and/or listing of NFTs) and such Fees will be transferred, processed, or initiated directly through one or more of the smart contracts on the applicable blockchain network.
PictoCripto reserves the right to collect fees for sales on the Platform (including Worlds sales), which fee may be based on the total sales price (up to a maximum of 15% of the total sales price) or a set fixed fee. PictoCripto may, in its sole discretion, consequently distribute its portion of the total sales price at its discretion. PictoCripto will notify you of the applicable Fees at the time of minting or sale, or through other reasonable means, including here, as may be updated from time to time. Please note that certain third-party creator tools and other tools with which the Platform integrates (“Third Party Tools”) may charge fees for your use of such Third Party Tools.
PictoCripto cannot guarantee any royalty for a secondary sale outside the Platform of Digital Artwork launched on the Platform.
PictoCripto does not generally collect any fees, commissions, or royalties for transactions occurring outside of the Platform. With respect to any Fees which are to be received by a Creator with respect to any NFTs, PictoCripto is not responsible for the Creator's ability to collect any Fees for transactions occurring outside of the Platform. Users irrevocably release, acquit, and forever discharge PictoCripto and its Affiliates and its and their officers and successors of any liability for royalties, fines, or fees not received from any transaction outside of the Platform.
All Transactions on the Platform, including without limitation minting, tokenizing, bidding, listing, offering, purchasing, or confirming, are facilitated by smart contracts existing on the applicable blockchain network. All blockchain networks require the payment of a transaction fee (a “Gas fee”) for every transaction that occurs on such blockchain networks, and thus every Transaction occurring on the Platform. The value of the Gas Fee changes, often unpredictably, and is entirely outside of the control of PictoCripto. You acknowledge that under no circumstances will a contract, agreement, offer, sale, bid, or other Transaction on the Platform be invalidated, revocable, retractable, or otherwise unenforceable on the basis that the Gas Fee for the given transaction was unknown, too high, or otherwise unacceptable.
Creators can share earnings from the sale of Digital Artwork launched on the Platform. The terms and mechanics of how to split earnings are set forth here.
Users are responsible for paying any and all sales, use, value-added, and other taxes, duties, and assessments now or hereafter claimed or imposed by any governmental authority, associated with your use of the Platform (including, without limitation, any taxes that may become payable as the result of Promotions, Perks, or your ownership, transfer, purchase, sale, or creation of any artworks).
Our Privacy Policy is a part of these Terms. Please review the PictoCripto Privacy Policy, which also governs the Platform and informs Users of our data collection practices.
To the extent permitted under applicable law, you agree to release, indemnify, and hold PictoCripto and its Affiliates and their officers, employees, directors, and agents (collectively, “Indemnitees”) harmless from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind, and injury (including death) arising out of or relating to:
You further agree that PictoCripto shall have control of the defense or settlement of any third-party claims. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
Transactions, including but not limited to all sales of Digital Artwork on the Platform, listings, offers, bids, acceptances, and other operations utilize experimental smart contract and blockchain technology, including non-fungible tokens, cryptocurrencies, consensus algorithms, and decentralized or peer-to-peer networks and systems. Users acknowledge and agree that such technologies are experimental, speculative, and inherently risky and may be subject to bugs, malfunctions, timing errors, hacking and theft, or changes to the protocol rules of the applicable blockchain (i.e., "forks"), which can adversely affect the smart contracts and may expose you to a risk of total loss, forfeiture of your digital currency or Digital Artwork, or lost opportunities to buy or sell Digital Artwork. YOUR USE OF THE PLATFORM IS AT YOUR SOLE RISK. THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. YOU AGREE THAT PICTOCRIPTO AND ALL INDEMNITEES WILL HAVE NO RESPONSIBILITY OR LIABILITY TO YOU IF:
PICTOCRIPTO EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT PICTOCRIPTO WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, LOSS IN VALUE OF ANY DIGITAL ARTWORK, DAMAGES FOR LOSS OF GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF PICTOCRIPTO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, RESULTING FROM:
IN NO EVENT WILL PICTOCRIPTO’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID PICTOCRIPTO IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
Certain features on the Platform may be offered while still in “beta” form (“Beta Platforms”). PictoCripto will utilize best efforts to identify the Beta Platforms by labeling on its Platform. By accepting these Terms or using the Beta Platforms, you understand and acknowledge that the Beta Platforms are being provided as a “beta” version and made available on an “as is” or “as available” basis. The Beta Platforms may contain bugs, errors, and other problems. YOU ASSUME ALL RISKS AND ALL COSTS ASSOCIATED WITH YOUR USE OF THE BETA PLATFORMS, INCLUDING, WITHOUT LIMITATION, ANY INTERNET ACCESS FEES, BACK-UP EXPENSES, COSTS INCURRED FOR THE USE OF YOUR DEVICE AND PERIPHERALS, AND ANY DAMAGE TO ANY EQUIPMENT, SOFTWARE, INFORMATION, OR DATA. In addition, we are not obligated to provide any maintenance, technical, or other support for the Beta Platforms.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE PLATFORM OR WITH THESE TERMS OF PLATFORM, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE PLATFORM.
IF YOU ARE A USER FROM [SPECIFIC STATE, e.g., NEW YORK], THE FOREGOING SECTIONS TITLED “INDemnity and Release”, “Disclaimer of Warranties” AND “Limitation of Liability” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF [SPECIFIC STATE]. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF [SPECIFIC STATE], THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
The Platform may provide links or other access to, or integrations with, products, services, sites, technology, and resources, including Third Party Tools, that are provided or otherwise made available by third parties (the “Third Party Services”). Your access and use of the Third Party Services is subject to the terms and conditions, privacy policies, or other agreements with such third parties, and you may be required to authenticate to or create separate accounts to use Third Party Services on the websites or via the technology platforms of their respective providers. Some Third Party Services will provide us with access to certain information that you have provided to third parties, including through such Third Party Services, and we will use, store, and disclose such information in accordance with our Privacy Policy. PictoCripto has no control over and is not responsible for such Third Party Services, including for the accuracy, availability, reliability, or completeness of such Third Party Services or information shared by or available through Third Party Services, or the privacy practices of Third Party Services. We encourage you to review the privacy policies of the third parties providing Third Party Services prior to using such Third Party Services. You, and not PictoCripto, will be responsible for any and all costs and charges associated with your use of any Third Party Services. PictoCripto enables these Third Party Services merely as a convenience and the integration or inclusion of such Third Party Services does not imply an endorsement or recommendation. Any dealings you have with third parties while using the Platform are between you and the third party. PictoCripto will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any Third Party Services.
You agree that PictoCripto, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Platform and remove and discard any content within the Platform, for any reason, including, without limitation, for lack of use or if PictoCripto believes that you have violated or acted inconsistently with the letter or spirit of these Terms. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the Platform may be referred to appropriate law enforcement authorities. PictoCripto may also in its sole discretion and at any time discontinue providing the Platform, or any part thereof, with or without notice. You agree that any termination of your access to the Platform under any provision of these Terms may be effected without prior notice, and acknowledge and agree that PictoCripto may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Platform. Further, you agree that PictoCripto will not be liable to you or any third party for any termination of your access to the Platform.
You agree that you are solely responsible for your interactions with any other Users (including Creators, Collectors, and Curators) in connection with the Platform and PictoCripto will have no liability or responsibility with respect thereto. Without limiting the foregoing, as a Collector, you agree that PictoCripto has no responsibility for the nature, quality, or method of any NFT sale, NFT auction, Promotion, or Perk that a Creator or Curator may implement. PictoCripto reserves the right, but has no obligation, to become involved in any way with disputes between you and any other User of the Platform.
These Terms constitute the entire agreement between you and PictoCripto and govern your use of the Platform, superseding any prior agreements between you and PictoCripto with respect to the Platform. You also may be subject to additional terms and conditions that may apply when you use affiliate or third-party services, third-party content, or third-party software. These Terms will be governed by the laws of the State of [Your State, e.g., California] without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and PictoCripto agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within [Your County, e.g., San Francisco County], [Your State, e.g., California]. The failure of PictoCripto to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Platform or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign the Terms without the prior written consent of PictoCripto, but PictoCripto may assign or transfer these Terms, in whole or in part, without restriction. The section titles in these Terms are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. PictoCripto may also provide notices to you of changes to these Terms or other matters by displaying notices or links to notices generally on the Platform.
At PictoCripto, we respect the privacy of our Users. For details, please see our Privacy Policy. By using the Platform, you consent to our collection and use of personal data as outlined therein.
Under California Civil Code Section 1789.3, users of the Platform from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Platforms of the California Department of Consumer Affairs may be contacted in writing at [Your Address, e.g., 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834], or by telephone at (800) 952-5210. You may contact us at PictoCripto, Inc., [Your Address, e.g., 11420 Santa Monica Blvd, PO Box 252111, Los Angeles, CA 90025], or at [Your Contact Number].
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
This Dispute Resolution by Binding Arbitration section is referred to in these Terms as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and PictoCripto, whether arising out of or relating to these Terms (including any alleged breach thereof), the Platform, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into these Terms, you and PictoCripto are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
YOU AND PICTOCRIPTO AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND PICTOCRIPTO AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
PictoCripto is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at support@pictocripto.net. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to PictoCripto should be sent to [Your Address, e.g., 11420 Santa Monica Blvd, PO Box 252111, Los Angeles, CA 90025] (“Notice Address”). The Notice must:
If PictoCripto and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or PictoCripto may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by PictoCripto or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or PictoCripto is entitled.
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/ as may be updated from time to time. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. The arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under these Terms and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. Unless PictoCripto and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, PictoCripto agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, PictoCripto will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, PictoCripto will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, PictoCripto will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. In addition, if you have initiated the arbitration claim, you will still be required to pay the lesser of $250 or the maximum amount permitted under the AAA Rules for arbitration claims initiated by you. You are still responsible for all additional costs that you incur in the arbitration, including without limitation, fees for attorneys or expert witnesses. You may choose to have the arbitration conducted by telephone or videoconference, based on written submissions, in person in your hometown area (if you live in the United States), or at another mutually agreed upon location that is reasonably convenient to you. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
The arbitrator shall have exclusive authority to:
The arbitration will decide the rights and liabilities, if any, of you and PictoCripto. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and these Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
YOU AND PICTOCRIPTO HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and PictoCripto are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the second bullet of this Section above (“Prohibition of Class and Representative Actions and Non-Individualized Relief”). An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A REPRESENTATIVE (INCLUDING, WITHOUT LIMITATION, PAGA) OR COLLECTIVE CLASS BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE USER, PERSON, OR ENTITY CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER USER, PERSON, OR ENTITY. Accordingly, under the arbitration procedures outlined in this section, an arbitrator shall not combine or consolidate more than one party’s claims without the written consent of all affected parties to an arbitration proceeding. Without limiting the generality of the foregoing, you and PictoCripto agree that no dispute shall proceed by way of class arbitration without the written consent of all affected parties. If a decision is issued stating that applicable law precludes enforcement of any part of this subsection’s limitations as to a given claim for relief, then that claim must be severed from the arbitration and brought in the state or federal courts of [Your County, e.g., San Francisco County] in the State of [Your State, e.g., California]. All other claims shall be arbitrated.
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of these Terms will continue to apply.
Notwithstanding any provision in these Terms to the contrary, PictoCripto agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a User of the Platform, you may reject any such change by sending PictoCripto written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
These Terms and your access to and use of the Platform shall be governed by and construed and enforced in accordance with the laws of the State of [Your State, e.g., California] (without regard to conflict of law rules or principles of the State of [Your State], or any other jurisdiction that would cause the application of the laws of any other jurisdiction). Any dispute between the parties that is not subject to arbitration as set forth in the Arbitration Agreement or cannot be heard in small claims court shall be resolved in the state or federal courts of [Your County, e.g., San Francisco County] in the State of [Your State, e.g., California].
If any term, clause, or provision of these Terms is held invalid or unenforceable, then that term, clause, or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause, or provision, or any other term, clause, or provision of these Terms.
You agree that a breach of these Terms will cause irreparable injury to PictoCripto for which monetary damages would not be an adequate remedy and PictoCripto 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.
If you are a California resident, in accordance with Cal. Civ. Code § 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at [Your Address, e.g., 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834], or by telephone at (800) 952-5210.
You agree that you will not export or re-export, directly or indirectly, the Platform, and/or other information or materials provided by PictoCripto hereunder, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. In particular, but without limitation, the Platform may not be exported or re-exported:
By using the Platform, you represent and warrant that you are not located in any such country or on any such list. You are responsible for and hereby agree to comply at your sole expense with all applicable United States export laws and regulations.
All sections which by their nature should survive the termination of these Terms shall continue in full force and effect subsequent to and notwithstanding any termination of these Terms by PictoCripto or you. Termination will not limit any of PictoCripto’s other rights or remedies at law or in equity.
These Terms (and any other applicable terms or policies incorporated by reference in these Terms) constitute the entire agreement between you and PictoCripto relating to your access to and use of the Platform. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of PictoCripto, and PictoCripto’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for reference only and shall not be read to have any legal effect.
The Platform is operated by us in the United States. Those who choose to access the Platform from locations outside the United States do so at their own initiative and are responsible for compliance with applicable local laws. You and PictoCripto agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or construction of these Terms.
Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity.