Terms of Use Agreement
Last Updated Date: April 26, 2023
PLEASE READ THIS TERMS OF USE AGREEMENT (THE “TERMS OF USE”) CAREFULLY. THIS WEBSITE AND ANY OTHER WEBSITES OF COMPANY, ITS
AFFILIATES OR AGENTS (COLLECTIVELY, THE “WEBSITE”) AND THE INFORMATION ON IT ARE CONTROLLED BY SOHO TECHNOLOGIES, INC.
(THE “COMPANY”). THESE TERMS OF USE GOVERN THE USE OF THE WEBSITE AND
APPLY TO ALL INTERNET USERS VISITING THE WEBSITE. BY ACCESSING OR
USING THE WEBSITE IN ANY WAY, INCLUDING USING THE SERVICES AND RESOURCES
AVAILABLE OR ENABLED VIA THE WEBSITE (EACH A “SERVICE” AND COLLECTIVELY, THE “SERVICES”). BY CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE
REGISTRATION PROCESS, AND/OR BROWSING THE WEBSITE OR DOWNLOADING
COMPANY’S MOBILE APPLICATION (THE “APPLICATION”), YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE
BOUND BY THE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING
CONTRACT WITH COMPANY, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE
TERMS OF USE PERSONALLY OR ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE
USER, AND TO BIND THAT ENTITY TO THE TERMS OF USE. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE,
IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE WEBSITE. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS
OR USE THIS WEBSITE OR THE SERVICES.
PLEASE BE AWARE THAT SECTION 16 CONTAINS PROVISIONS GOVERNING HOW TO
RESOLVE DISPUTES BETWEEN YOU AND COMPANY. AMONG OTHER THINGS, SECTION 16
INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED
EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US SHALL BE RESOLVED BY
BINDING AND FINAL ARBITRATION. SECTION 16 ALSO CONTAINS A CLASS
ACTION AND JURY TRIAL WAIVER. PLEASE READ SECTION 16
CAREFULLY.
UNLESS YOU OPT OUT OF THE AGREEMENT TO ARBITRATE WITHIN 30 DAYS: (1)
YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF
AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN
ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND YOU WAIVE YOUR
RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE
ARBITRATION; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR
CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
Your use of, and participation in, certain Services may be subject to
additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Use
or will be presented to you for your acceptance when you sign up to use
the supplemental Service. If the Terms of Use are inconsistent
with the Supplemental Terms, the Supplemental Terms shall control with
respect to such Service. The Terms of Use and any applicable
Supplemental Terms are referred to herein as the “Agreement.”
PLEASE NOTE THAT THE AGREEMENT IS SUBJECT TO CHANGE BY COMPANY IN ITS SOLE DISCRETION AT
ANY TIME. When changes are made, Company will make a new copy of the
Terms of Use Agreement available at the Website and within the
Application and any new Supplemental Terms will be made available from
within, or through, the affected Service on the Website or within the
Application. We will also update the “Last Updated”
date at the top of the Terms of Use Agreement. Company may require
you to provide consent to the updated Agreement in a specified manner
before further use of the Website, the Application and/ or the Services
is permitted. If you do not agree to any change(s) after receiving
a notice of such change(s), you shall stop using the Website, the
Application and/or the Services. Otherwise, your continued use of
the Website, the Application and/or Services constitutes your acceptance
of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE
THEN-CURRENT TERMS.
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USE OF THE SERVICES AND COMPANY PROPERTIES. The Company’s Services enable users to, among other things,
browse, search and follow participants in, and events and transactions
taking place in, NFT marketplaces. The Application, the Website and the Services, (as these terms are
defined herein) (each, a “Company Property” and collectively, the “Company Properties”) are protected by copyright laws throughout the world.
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Application License. Subject to your compliance with the Agreement, Company grants
you a limited non-exclusive, non-transferable, non-sublicensable,
revocable license to download, install and use a copy of the
Application on a single mobile device or computer that you own or
control and to run such copy of the Application solely for your own
personal or internal business purposes. Furthermore, with
respect to any Application accessed through or downloaded from the
Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (a) on an
Apple-branded product that runs the iOS (Apple’s proprietary
operating system) and (b) as permitted by the “Usage
Rules” set forth in the Apple App Store Terms of Service.
Notwithstanding the first sentence in this section, with respect to
any Application accessed through or downloaded from the Google Play
store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of the
Application on a shared basis within your designated family group.
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Updates. You understand that Company Properties are evolving. As
a result, Company may require you to accept updates to Company
Properties that you have installed on your computer or mobile device.
You acknowledge and agree that Company may update Company
Properties with or without notifying you. You may need to update
third-party software from time to time in order to use Company
Properties.
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Certain Restrictions. The rights granted to you in the Agreement are subject to the
following restrictions: (a) you shall not license, sell, rent, lease,
transfer, assign, reproduce, distribute, host or otherwise
commercially exploit Company Properties or any portion of Company
Properties, including the Website; (b) you shall not frame or utilize
framing techniques to enclose any trademark, logo, or other Company
Properties (including images, text, page layout or form) of Company;
(c) you shall not use any metatags or other “hidden text”
using Company’s name or trademarks; (d) you shall not modify,
translate, adapt, merge, make derivative works of, disassemble,
decompile, reverse compile or reverse engineer any part of Company
Properties except to the extent the foregoing restrictions are
expressly prohibited by applicable law; (e) you shall not use any
manual or automated software, devices or other processes (including
but not limited to spiders, robots, scrapers, crawlers, avatars, data
mining tools or the like) to “scrape” or download data
from any web pages contained in the Website (except that we grant the
operators of public search engines revocable permission to use spiders
to copy materials from the Website for the sole purpose of and solely
to the extent necessary for creating publicly available searchable
indices of the materials, but not caches or archives of such
materials); (f) except as expressly stated herein, no part of Company
Properties may be copied, reproduced, distributed, republished,
downloaded, displayed, posted or transmitted in any form or by any
means; and (h) you shall not remove or destroy any copyright notices
or other proprietary markings contained on or in Company Properties.
Any future release, update or other addition to Company Properties
shall be subject to the Agreement. Company, its suppliers and
service providers reserve all rights not granted in the Agreement.
Any unauthorized use of any Company Property terminates the
licenses granted by Company pursuant to the Agreement.
- REGISTRATION.
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Registering Your Account. In order to access certain features of Company Properties you
may be required to become a Registered User. For purposes of the
Agreement, a “Registered User” is a user who has registered an account on the Website (“Account”).
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Linked Third Party Social Media Accounts. You may link your Account with the accounts you have governing
your use certain third party social networking services that we
support (each, a “Third Party Account”), by allowing Company to access your Third-Party Account, as
is permitted under the applicable terms and conditions that govern
your use of each Third-Party Account. You represent that you are
entitled to disclose your Third-Party Account login information to
Company and/or grant Company access to your Third-Party Account
(including, but not limited to, for use for the purposes described
herein) without breach by you of any of the terms and conditions that
govern your use of the applicable Third-Party Account and without
obligating Company to pay any fees or making Company subject to any
usage limitations imposed by such third-party service providers.
By granting Company access to any Third-Party Accounts, you
understand that Company may access, make available and store (if
applicable) any information, data, text, software, music, sound,
photographs, graphics, video, messages, tags and/or other materials
accessible through Company Properties (collectively, “Content”) that you have provided to and stored in your Third-Party Account
(“Third Party Account Content”) so that it is available on and through Company Properties via your
Account. Unless otherwise specified in the Agreement, all Third
Party Account Content shall be considered to be Your Content (as
defined in Section 3.1 (Types of Content)) for all purposes of the
Agreement. Depending on the Third-Party Accounts you choose and
subject to the privacy settings that you have set in such Third-Party
Accounts, personally identifiable information that you post to your
Third-Party Accounts may be available on and through your Account on
Company Properties. Please note that if a Third-Party Account or
associated service becomes unavailable, or Company’s access to
such Third-Party Account is terminated by the third-party service
provider, then Third Party Account Content will no longer be available
on and through Company Properties. PLEASE NOTE THAT YOUR
RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH
YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH
SUCH THIRD-PARTY SERVICE PROVIDERS, AND COMPANY DISCLAIMS ANY
LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED
TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE
PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS.
Company makes no effort to review any Third Party Account
Content for any purpose, including but not limited to, for accuracy,
legality or noninfringement, and Company is not responsible for any
Third Party Account Content.
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Crypto Wallets. In order to access many of the features and functions of the
Services, you will need to link or connect your cryptowallet with the
Services to create a “Linked Cryptowallet”. By granting the Company access to any Linked
Cryptowallet (i) you represent and warrant that you are entitled to
link the Services with to such Linked Cryptowallet(s); and (ii) you
represent and warrant that you are in good standing with respect to
such Linked Cryptowallets, including with respect to any account you
have with the provider(s) of such Linked Cryptowallets. You
acknowledge and agree that each Linked Cryptowallet, including access
to and use thereof and uptimes related thereto, is solely determined
by the applicable provider of the relevant Linked Cryptowallet.
The Company will have no liability for any unavailability of any
Linked Cryptowallet, or any third-party provider’s decision to
discontinue, suspend or terminate any Linked Cryptowallet.
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Registration Data. In registering an account on the Website, you agree to (a)
provide true, accurate, current and complete information about
yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep
it true, accurate, current and complete. You represent that you
are (i) of legal age to form a binding contract; and (ii) not a person
barred from using Company Properties under the laws of the United
States, your place of residence or any other applicable jurisdiction.
You are responsible for all activities that occur under your
Account. You may not share your Account or password with anyone,
and you agree to (y) notify Company immediately of any unauthorized
use of your password or any other breach of security; and (z) exit
from your Account at the end of each session. If you provide any
information that is untrue, inaccurate, not current or incomplete, or
Company has reasonable grounds to suspect that any information you
provide is untrue, inaccurate, not current or incomplete, Company has
the right to suspend or terminate your Account and refuse any and all
current or future use of Company Properties (or any portion thereof).
You agree not to create an Account using a false identity or
information, or on behalf of someone other than yourself.
Company reserves the right to remove or reclaim any usernames at
any time and for any reason, including but not limited to, claims by a
third party that a username violates the third party’s rights.
You agree not to create an Account or use Company Properties if
you have been previously removed by Company, or if you have been
previously banned from any of Company Properties.
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Your Account. Notwithstanding anything to the contrary herein, you
acknowledge and agree that you shall have no ownership or other
property interest in your Account, and you further acknowledge and
agree that all rights in and to your Account are and shall forever be
owned by and inure to the benefit of Company.
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RESPONSIBILITY FOR CONTENT.
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Types of Content. You acknowledge that all Content, including Company
Properties, is the sole responsibility of the party from whom such
Content originated. This means that you, and not Company, are
entirely responsible for all Content that you upload, post, e-mail,
transmit or otherwise make available (“Make Available”) through Company Properties (“Your Content”), and that you and other Registered Users of Company Properties, and
not Company, are similarly responsible for all Content that you and
they Make Available through Company Properties (“User Content”).
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No Obligation to Pre-Screen Content. You acknowledge that Company has no obligation to pre-screen
Content (including, but not limited to, User Content), although
Company reserves the right in its sole discretion to pre-screen,
refuse or remove any Content. By entering into the Agreement,
you hereby provide your irrevocable consent to such monitoring.
You acknowledge and agree that you have no expectation of
privacy concerning the transmission of Your Content, including without
limitation chat, text, or voice communications. In the event
that Company pre-screens, refuses or removes any Content, you
acknowledge that Company will do so for Company’s benefit, not
yours. Without limiting the foregoing, Company shall have the
right to remove any Content that violates the Agreement or is
otherwise objectionable.
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Storage. Unless expressly agreed to by Company in writing elsewhere,
Company has no obligation to store any of Your Content that you Make
Available on Company Properties. Company has no responsibility
or liability for the deletion or accuracy of any Content, including
Your Content; the failure to store, transmit or receive transmission
of Content; or the security, privacy, storage, or transmission of
other communications originating with or involving use of Company
Properties.
- OWNERSHIP.
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Company Properties. Except with respect to Your Content and User Content, you
agree that Company and its suppliers own all rights, title and
interest in Company Properties. You will not remove, alter or
obscure any copyright, trademark, service mark or other proprietary
rights notices incorporated in or accompanying any Company
Properties.
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Your Content. Company does not claim ownership of Your Content.
However, when you as a Registered User post or publish Your
Content on or in Company Properties, you represent that you own and/or
have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive
right (including any moral rights) and license to use, license,
reproduce, modify, adapt, publish, translate, create derivative works
from, distribute, derive revenue or other remuneration from, and
communicate to the public, perform and display Your Content (in whole
or in part) worldwide and/or to incorporate it in other works in any
form, media or technology now known or later developed, for the full
term of any worldwide intellectual property right that may exist in
Your Content.
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License to Your Content. Subject to any applicable account settings that you select,
you grant Company a fully paid, royalty-free, perpetual, irrevocable,
worldwide, royalty-free, non-exclusive and fully sublicensable right
(including any moral rights) and license to use, license, distribute,
reproduce, modify, adapt, publicly perform, and publicly display Your
Content (in whole or in part) for the purposes of operating and
providing Company Properties to you and to our other Registered Users.
Please remember that other Registered Users may search for, see,
use, modify and reproduce any of Your Content that you submit to any
“public” area of Company Properties. You warrant
that the holder of any worldwide intellectual property right,
including moral rights, in Your Content, has completely and
effectively waived all such rights and validly and irrevocably granted
to you the right to grant the license stated above. You agree that you, not Company, are responsible for all of Your
Content that you Make Available on or in Company Properties. Any
Content posted by you in your profile may not contain nudity,
violence, sexually explicit, or offensive subject matter as determined
by Company in its sole discretion. You may not post or submit for
print services a photograph of another person without that
person’s permission.
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Username. Notwithstanding anything contained herein to the contrary, by
submitting Your Content to any forums, comments, or any other area on
Company Properties, you hereby expressly permit Company to identify
you by your username (which may be a pseudonym) as the contributor of
Your Content in any publication in any form, media or technology now
known or later developed in connection with Your Content.
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Feedback. You agree that submission of any ideas, suggestions,
documents, and/or proposals to Company through its suggestion,
feedback, wiki, forum, or similar pages (“Feedback”) is at your own risk and that Company has no obligations (including
without limitation obligations of confidentiality) with respect to
such Feedback. You represent and warrant that you have all
rights necessary to submit the Feedback. You hereby grant to
Company a fully paid, royalty-free, perpetual, irrevocable, worldwide,
non-exclusive, and fully sublicensable right and license to use,
reproduce, perform, display, distribute, adapt, modify, re-format,
create derivative works of, and otherwise commercially or
non-commercially exploit in any manner, any and all Feedback, and to
sublicense the foregoing rights, in connection with the operation and
maintenance of Company Properties and/or Company’s
business.
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USER CONDUCT. As a condition of use, you agree not to use Company Properties for
any purpose that is prohibited by this Agreement or by applicable law.
You shall not (and shall not permit any third party) either (a) take
any action or (b) Make Available any Content on or through Company
Properties that: (i) infringes any patent, trademark, trade secret,
copyright, right of publicity or other right of any person or entity;
(ii) is unlawful, threatening, abusive, harassing, defamatory,
libelous, deceptive, fraudulent, invasive of another’s privacy,
tortious, obscene, offensive, or profane; (iii) constitutes
unauthorized or unsolicited advertising, junk or bulk e-mail; (iv)
involves commercial activities and/or sales, such as contests,
sweepstakes, barter, advertising, or pyramid schemes without
Company’s prior written consent; (v) impersonates any person or
entity, including any employee or representative of Company; (vi)
interferes with or attempt to interfere with the proper functioning of
Company Properties or uses Company Properties in any way not expressly
permitted by this Agreement; or (vii) attempts to engage in or engage
in, any potentially harmful acts that are directed against Company
Properties, including but not limited to violating or attempting to
violate any security features of Company Properties, using manual or
automated software or other means to access, “scrape,”
“crawl” or “spider” any pages contained in
Company Properties, introducing viruses, worms, or similar harmful
code into Company Properties, or interfering or attempting to
interfere with use of Company Properties by any other user, host or
network, including by means of overloading, “flooding,”
“spamming,” “mail bombing,” or
“crashing” Company Properties.
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INVESTIGATIONS. Company may, but is not obligated to, monitor or review
Company Properties and Content at any time. Without limiting the
foregoing, Company shall have the right, in its sole discretion, to
remove any of Your Content for any reason (or no reason), including if
such Content violates the Agreement or any applicable law.
Although Company does not generally monitor user activity
occurring in connection with Company Properties or Content, if Company
becomes aware of any possible violations by you of any provision of
the Agreement, Company reserves the right to investigate such
violations, and Company may, at its sole discretion, immediately
terminate your license to use Company Properties, or change, alter or
remove Your Content, in whole or in part, without prior notice to
you.
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INTERACTIONS WITH OTHER USERS.
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User Responsibility. You are solely responsible for your interactions with other
Registered Users and any other parties with whom you interact;
provided, however, that Company reserves the right, but has no
obligation, to intercede in such disputes. You agree that
Company will not be responsible for any liability incurred as the
result of such interactions.
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Content Provided by Other Users. Company Properties may contain User Content provided by other
Registered Users. Company is not responsible for and does not
control User Content. Company has no obligation to review or
monitor, and does not approve, endorse or make any representations or
warranties with respect to, User Content. You use all User
Content and interact with other Registered Users at your own risk.
Without limiting the foregoing, the Company does not endorse,
sponsor, approve or make any representations or warranties with
respect to any NFTs, any buyers or sellers of NFTs or the opinions,
endorsements, reviews, advice or suggestions of any Registered
Users.
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NO FEES CURRENTLY. Access to and use of the Services is currently free of charge. The
Company may, in the future, change its billing and payment practices
and methods.
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INDEMNIFICATION. You agree to indemnify and hold Company, its parents, subsidiaries,
affiliates, officers, employees, agents, partners, suppliers, and
licensors (each, a “Company Party” and collectively, the “Company Parties”) harmless from any losses, costs, liabilities and expenses
(including reasonable attorneys’ fees) relating to or arising
out of any and all of the following: (a) Your Content; (b) your use of
any Company Property; (c) your violation of the Agreement; (d) your
violation of any rights of another party, including any Registered
Users; or (e) your violation of any applicable laws, rules or
regulations. Company reserves the right, at its own cost, to
assume the exclusive defense and control of any matter otherwise
subject to indemnification by you, in which event you will fully
cooperate with Company in asserting any available defenses. This
provision does not require you to indemnify any of the Company Parties
for any unconscionable commercial practice by such party or for such
party’s fraud, deception, false promise, misrepresentation or
concealment, or suppression or omission of any material fact in
connection with the Website or any Services provided hereunder.
You agree that the provisions in this section will survive any
termination of your Account, the Agreement and/or your access to
Company Properties.
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DISCLAIMER OF WARRANTIES AND CONDITIONS.
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As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED
BY APPLICABLE LAW, YOUR USE OF COMPANY PROPERTIES IS AT YOUR SOLE
RISK, AND COMPANY PROPERTIES ARE PROVIDED ON AN “AS IS”
AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. COMPANY
PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND
CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE
OF THE WEBSITE.
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COMPANY PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT:
(1) COMPANY PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF
COMPANY PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR
ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF
COMPANY PROPERTIES WILL BE ACCURATE OR RELIABLE.
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ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH COMPANY
PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY
RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT
LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS
COMPANY PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH
CONTENT.
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THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER
DISRUPTIONS. COMPANY MAKES NO WARRANTY, REPRESENTATION OR
CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE
QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF
SERVICES.
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NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM
COMPANY OR THROUGH COMPANY PROPERTIES WILL CREATE ANY WARRANTY NOT
EXPRESSLY MADE HEREIN. WITHOUT LIMITING THE FOREGOING, THE COMPANY
DOES NOT ENDORSE, SUPPORT, OR SPONSOR ANY INFORMATION, ADVICE, OR
RECOMMENDATIONS MADE BY ANY OTHER USERS OF THE COMPANY
PROPERTIES.
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FROM TIME TO TIME, COMPANY MAY OFFER NEW “BETA” FEATURES
OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR
TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY
WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT
COMPANY’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION
APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
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No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT COMPANY PARTIES ARE NOT LIABLE,
AND YOU AGREE NOT TO SEEK TO HOLD COMPANY PARTIES LIABLE, FOR THE
CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND
THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH
YOU.
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No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND
INTERACTIONS WITH OTHER USERS OF COMPANY PROPERTIES. YOU UNDERSTAND
THAT COMPANY DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF
USERS OF COMPANY PROPERTIES. COMPANY MAKES NO WARRANTY THAT THE
GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR
REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR
ERROR-FREE BASIS. COMPANY MAKES NO WARRANTY REGARDING THE
QUALITY OF ANY SUCH GOODS OR SERVICES, OR THE ACCURACY, TIMELINESS,
TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER CONTENT OBTAINED
THROUGH COMPANY PROPERTIES.
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Third-Party Materials. As a part of Company Properties, you may have access to
materials that are hosted by another party. You agree that it is
impossible for Company to monitor such materials and that you access
these materials at your own risk.
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LIMITATION OF LIABILITY.
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Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED
BY LAW, IN NO EVENT SHALL COMPANY PARTIES BE LIABLE FOR ANY LOSS OF
PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR
CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION
OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR
SERVICES, IN EACH CASE WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE
AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER
USERS OF COMPANY PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING
FROM: (a) THE USE OR INABILITY TO USE COMPANY PROPERTIES; (b) THE COST
OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY
GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED; OR
MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH COMPANY
PROPERTIES; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR
TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON
COMPANY PROPERTIES; OR (e) ANY OTHER MATTER RELATED TO COMPANY
PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT
(INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO
LIABILITY OF A COMPANY PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED
BY A COMPANY PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED
BY A COMPANY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
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Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, COMPANY PARTIES WILL
NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a) THE TOTAL AMOUNT
PAID TO COMPANY BY YOU DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION
OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; (b) $100; OR (c) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM
ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF
A COMPANY PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A COMPANY
PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A COMPANY
PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
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User Content. EXCEPT FOR COMPANY’S OBLIGATIONS TO PROTECT YOUR
PERSONAL DATA AS SET FORTH IN THE COMPANY’S PRIVACY POLICY,
COMPANY ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION,
MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT
LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR
PERSONALIZATION SETTINGS.
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Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION
OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF
THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU
MIGHT HAVE ADDITIONAL RIGHTS.
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Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL
ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.
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PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT. It is Company’s policy to terminate membership
privileges of any Registered User who repeatedly infringes copyright
upon prompt notification to Company by the copyright owner or the
copyright owner’s legal agent. Without limiting the
foregoing, if you believe that your work has been copied and posted on
Company Properties in a way that constitutes copyright infringement,
please provide our Copyright Agent with the following information: (a)
an electronic or physical signature of the person authorized to act on
behalf of the owner of the copyright interest; (b) a description of
the copyrighted work that you claim has been infringed; (c) a
description of the location on Company Properties of the material that
you claim is infringing; (d) your address, telephone number and e-mail
address; (e) a written statement by you that you have a good faith
belief that the disputed use is not authorized by the copyright owner,
its agent or the law; and (f) a statement by you, made under penalty
of perjury, that the above information in your notice is accurate and
that you are the copyright owner or authorized to act on the copyright
owner’s behalf.
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MONITORING AND ENFORCEMENT. Company reserves the right to: (a) remove or refuse
to post any of your Content for any or no reason in our sole
discretion; (b) take any action with respect to any of your Content
that we deem necessary or appropriate in our sole discretion,
including if we believe that such Content violates this Agreement,
infringes any intellectual property right or other right of any person
or entity, threatens the personal safety of users of the Company
Properties or the public, or could create liability for the Company;
(c) disclose your identity or other information about you to any third
party who claims that material posted by you violates their rights,
including their intellectual property rights or their right to
privacy; (d) take appropriate legal action, including without
limitation, referral to law enforcement, for any illegal or
unauthorized use of the Company Properties; and/or (e) terminate or
suspend your access to all or part of the Company Properties for any
or no reason, including without limitation, any violation of this
Agreement.
If Company becomes aware of any possible violations by you of the
Agreement, Company reserves the right to investigate such violations.
If, as a result of the investigation, Company believes that
criminal activity has occurred, Company reserves the right to refer the
matter to, and to cooperate with, any and all applicable legal
authorities. Company is entitled, except to the extent prohibited
by applicable law, to disclose any information or materials on or in
Company Properties, including Your Content, in Company’s
possession in connection with your use of Company Properties, to (i)
comply with applicable laws, legal process or governmental request, (ii)
enforce the Agreement, (iii) respond to any claims that Your Content
violates the rights of third parties, (iv) respond to your requests for
customer service, or (v) protect the rights, property or personal safety
of Company, its Registered Users or the public, and all enforcement or
other government officials, as Company in its sole discretion believes
to be necessary or appropriate.
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TERM AND TERMINATION.
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Term. The Agreement commences on the date when you accept them (as
described in the preamble above) and remain in full force and effect
while you use Company Properties, unless terminated earlier in
accordance with the Agreement.
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Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree
that the Agreement commenced on the earlier to occur of (a) the date
you first used Company Properties or (b) the date you accepted the
Agreement, and will remain in full force and effect while you use any
Company Properties, unless earlier terminated in accordance with the
Agreement.
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Termination of Services by Company. The Company may terminate these Terms at any time upon notice to you,
including, without limitation, if you have materially breached any
provision of the Agreement, or if Company is required to do so by law
(e.g., where the provision of the Website, the Application, the
Software or the Services is, or becomes, unlawful), Company has the
right to, immediately and without notice, suspend or terminate any
Services provided to you. You agree that all terminations for cause
shall be made in Company’s sole discretion and that Company
shall not be liable to you or any third party for any termination of
your Account.
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Termination of Services by You. If you want to terminate the Services provided by Company, you may do
so by (a) notifying Company at any time and (b) closing your Account
for all of the Services that you use. Your notice should be sent, in
writing, to Company’s address set forth below.
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Effect of Termination. Termination of any Service includes removal of access to such
Service and barring of further use of the Service. Termination
of all Services also includes deletion of your password and all
related information, files and Content associated with or inside your
Account (or any part thereof), including Your Content. Upon
termination of any Service, your right to use such Service will
automatically terminate immediately. You understand that any
termination of Services may involve deletion of Your Content
associated therewith from our live databases. Company will not
have any liability whatsoever to you for any suspension or
termination, including for deletion of Your Content. All
provisions of the Agreement which by their nature should survive,
shall survive termination of Services, including without limitation,
ownership provisions, warranty disclaimers, and limitation of
liability.
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No Subsequent Registration. If your registration(s) with, or ability to access, Company
Properties or any other Company community, is discontinued by Company
due to your violation of any portion of the Agreement or for conduct
otherwise inappropriate for the community, then you agree that you
shall not attempt to re-register with or access Company Properties or
any Company community through use of a different member name or
otherwise, and you acknowledge that you will not be entitled to
receive a refund for fees related to those Company Properties to which
your access has been terminated. In the event that you violate
the immediately preceding sentence, Company reserves the right, in its
sole discretion, to immediately take any or all of the actions set
forth herein without any notice or warning to you.
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INTERNATIONAL USERS. Company Properties can be accessed from countries around the world
and may contain references to Services and Content that are not
available in your country. These references do not imply that
Company intends to announce such Services or Content in your country.
Company Properties are controlled and offered by Company from
its facilities in the United States of America. Company makes no
representations that Company Properties are appropriate or available
for use in other locations. Those who access or use Company
Properties from other countries do so at their own volition and are
responsible for compliance with local law.
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Dispute Resolution. Please read the following arbitration agreement in this Section
(“Arbitration Agreement”) carefully. It requires you
to arbitrate disputes with Company, its parent companies,
subsidiaries, affiliates, successors and assigns and all of their
respective officers, directors, employees, agents, and representatives
(collectively, the “Company Parties”) and limits the
manner in which you can seek relief from the Company Parties.
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Applicability of Arbitration Agreement. You agree that any dispute between you and any of the Company
Parties relating in any way to the Services or this Agreement, will be
resolved by binding arbitration, rather than in court, except that (1)
you and the Company Parties may assert individualized claims in small
claims court if the claims qualify, remain in such court and advance
solely on an individual, non-class basis; and (2) you or the Company
Parties may seek equitable relief in court for infringement or other
misuse of intellectual property rights (such as trademarks, trade
dress, domain names, trade secrets, copyrights, and
patents). This Arbitration Agreement shall survive the expiration or
termination of this Agreement and shall apply, without limitation, to
all claims that arose or were asserted before the Effective Date of
this Agreement or any prior version of this Agreement. This Arbitration Agreement does not preclude you from bringing
issues to the attention of federal, state or local agencies.
Such agencies can, if the law allows, seek relief against the
Company Parties on your behalf. For purposes of this Arbitration
Agreement, “Dispute” will also include disputes that arose or involve facts
occurring before the existence of this or any prior versions of the
Agreement as well as claims that may arise after the termination of
this Agreement.
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Informal Dispute Resolution. There might be instances when a Dispute arises between you and
Company. If that occurs, Company is committed to working with you to
reach a reasonable resolution. You and Company agree that good faith
informal efforts to resolve Disputes can result in a prompt,
low‐cost and mutually beneficial outcome. You and Company
therefore agree that before either party commences arbitration against
the other (or initiates an action in small claims court if a party so
elects), we will personally meet and confer telephonically or via
videoconference, in a good faith effort to resolve informally any
Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may
participate in the conference, but you will also participate in the
conference.
The party initiating a Dispute must give notice to the other party in
writing of its intent to initiate an Informal Dispute Resolution
Conference (“Notice”), which shall occur within 45 days after the other party
receives such Notice, unless an extension is mutually agreed upon by the
parties. Notice to Company that you intend to initiate an Informal
Dispute Resolution Conference should be sent by email to: support@soho.xyz or by regular mail to our offices located at 379 West Broadway, 2nd Floor, New York, NY 10012. The Notice must include: (1) your name, telephone number, mailing
address, e‐mail address associated with your account (if you have
one); (2) the name, telephone number, mailing address and e‐mail
address of your counsel, if any; and (3) a description of your
Dispute.
The Informal Dispute Resolution Conference shall be individualized such
that a separate conference must be held each time either party initiates
a Dispute, even if the same law firm or group of law firms represents
multiple users in similar cases, unless all parties agree; multiple
individuals initiating a Dispute cannot participate in the same Informal
Dispute Resolution Conference unless all parties agree. In the time
between a party receiving the Notice and the Informal Dispute Resolution
Conference, nothing in this Arbitration Agreement shall prohibit the
parties from engaging in informal communications to resolve the
initiating party’s Dispute. Engaging in the Informal Dispute
Resolution Conference is a condition precedent and requirement that must
be fulfilled before commencing arbitration. The statute of limitations
and any filing fee deadlines shall be tolled while the parties engage in
the Informal Dispute Resolution Conference process required by this
section.
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Arbitration Rules and Forum. This Agreement evidences a transaction involving interstate
commerce; and notwithstanding any other provision herein with respect
to the applicable substantive law, the Federal Arbitration Act, 9
U.S.C. § 1 et seq., will govern the interpretation and
enforcement of this Arbitration Agreement and any arbitration
proceedings. If the Informal Dispute Resolution Process described
above does not resolve satisfactorily within sixty (60) days after
receipt of your Notice, you and Company agree that either party shall
have the right to finally resolve the Dispute through binding
arbitration. The Federal Arbitration Act governs the interpretation
and enforcement of this Arbitration Agreement. The arbitration will be
conducted by JAMS, an established alternative dispute resolution
provider. Disputes involving claims and counterclaims with an amount
in controversy under $250,000, not inclusive of attorneys’ fees
and interest, shall be subject to JAMS’ most current version of
the Streamlined Arbitration Rules and procedures available
at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current
version of the Comprehensive Arbitration Rules and Procedures,
available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. A party who wishes to
initiate arbitration must provide the other party with a request for
arbitration (the “Request”). The Request must include: (1) the name, telephone number,
mailing address, e‐mail address of the party seeking arbitration
and the account username (if applicable) as well as the email address
associated with any applicable account; (2) a statement of the legal
claims being asserted and the factual bases of those claims; (3) a
description of the remedy sought and an accurate, good‐faith
calculation of the amount in controversy in United States Dollars; (4)
a statement certifying completion of the Informal Dispute Resolution
process as described above; and (5) evidence that the requesting party
has paid any necessary filing fees in connection with such
arbitration.
If the party requesting arbitration is represented by
counsel, the Request shall also include counsel’s name,
telephone number, mailing address, and email address. Such counsel
must also sign the Request. By signing the Request, counsel certifies
to the best of counsel’s knowledge, information, and belief,
formed after an inquiry reasonable under the circumstances, that: (1)
the Request is not being presented for any improper purpose, such as
to harass, cause unnecessary delay, or needlessly increase the cost of
dispute resolution; (2) the claims, defenses and other legal
contentions are warranted by existing law or by a nonfrivolous
argument for extending, modifying, or reversing existing law or for
establishing new law; and (3) the factual and damages contentions have
evidentiary support or, if specifically so identified, will likely
have evidentiary support after a reasonable opportunity for further
investigation or discovery.
Unless you and Company otherwise agree, or the Batch Arbitration
process discussed in Subsection 16.8 is triggered, the arbitration will
be conducted in the county where you reside. Subject to the JAMS Rules,
the arbitrator may direct a limited and reasonable exchange of
information between the parties, consistent with the expedited nature of
the arbitration. If the JAMS is not available to arbitrate, the parties
will select an alternative arbitral forum. Your responsibility to pay
any JAMS fees and costs will be solely as set forth in the applicable
JAMS Rules.
You and Company agree that all materials and documents exchanged during
the arbitration proceedings shall be kept confidential and shall not be
shared with anyone except the parties’ attorneys, accountants, or
business advisors, and then subject to the condition that they agree to
keep all materials and documents exchanged during the arbitration
proceedings confidential.
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Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve all
disputes subject to arbitration hereunder including, without
limitation, any dispute related to the interpretation, applicability,
enforceability or formation of this Arbitration Agreement or any
portion of the Arbitration Agreement, except for the following: (1)
all Disputes arising out of or relating to the subsection entitled
“Waiver of Class and Other Non-Individualized Relief,”
including any claim that all or part of the subsection entitled
“Waiver of Class and Other Non-Individualized Relief” is
unenforceable, illegal, void or voidable, or that such subsection
entitled “Waiver of Class and Other Non-Individualized
Relief” has been breached, shall be decided by a court of
competent jurisdiction and not by an arbitrator; (2) except as
expressly contemplated in the subsection entitled “Batch
Arbitration,” all Disputes about the payment of arbitration fees
shall be decided only by a court of competent jurisdiction and not by
an arbitrator; (3) all Disputes about whether either party has
satisfied any condition precedent to arbitration shall be decided only
by a court of competent jurisdiction and not by an arbitrator; and (4)
all Disputes about which version of the Arbitration Agreement applies
shall be decided only by a court of competent jurisdiction and not by
an arbitrator. The arbitration proceeding will not be consolidated with any other
matters or joined with any other cases or parties, except as expressly
provided in the subsection entitled “Batch Arbitration.”
The arbitrator shall have the authority to grant motions dispositive
of all or part of any claim or dispute. The arbitrator shall have the
authority to award monetary damages and to grant any non-monetary
remedy or relief available to an individual party under applicable
law, the arbitral forum’s rules, and this Agreement (including
the Arbitration Agreement). The arbitrator shall issue a written award
and statement of decision describing the essential findings and
conclusions on which any award (or decision not to render an award) is
based, including the calculation of any damages awarded. The
arbitrator shall follow the applicable law. The award of the
arbitrator is final and binding upon you and us. Judgment on the
arbitration award may be entered in any court having
jurisdiction.
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Waiver of Jury Trial. EXCEPT AS SPECIFIED IN SECTION 16.1, YOU AND THE COMPANY PARTIES 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 the Company
Parties are instead electing that all covered claims and disputes
shall be resolved exclusively by arbitration under this Arbitration
Agreement, except as specified in Section 16.1 above. An arbitrator
can award on an individual basis the same damages and relief as a
court and must follow this Agreement 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.
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Waiver of Class or Other Non-Individualized Relief. YOU AND COMPANY AGREE THAT, EXCEPT AS SPECIFIED IN SUBSECTION
16.8, EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN
INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE
BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE
BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS,
COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL
RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER
CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER
OR USER. Subject to this Arbitration Agreement, the arbitrator may
award declaratory or injunctive relief only in favor of the individual
party seeking relief and only to the extent necessary to provide
relief warranted by the party’s individual claim. Nothing in
this paragraph is intended to, nor shall it, affect the terms and
conditions under the Subsection 16.8 entitled “Batch
Arbitration.” Notwithstanding anything to the contrary in this
Arbitration Agreement, if a court decides by means of a final
decision, not subject to any further appeal or recourse, that the
limitations of this subsection, “Waiver of Class and Other
Non-Individualized Relief,” are invalid or unenforceable as to a
particular claim or request for relief (such as a request for public
injunctive relief), you and Company agree that that particular claim
or request for relief (and only that particular claim or request for
relief) shall be severed from the arbitration and may be litigated in
the state or federal courts located in the State of New York. All
other Disputes shall be arbitrated or litigated in small claims court.
This subsection does not prevent you or Company from participating in
a class-wide settlement of claims.
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Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and
costs in arbitration unless the arbitrator finds that either the
substance of the Dispute or the relief sought in the Request was
frivolous or was brought for an improper purpose (as measured by the
standards set forth in Federal Rule of Civil Procedure 11(b)). If you
or Company need to invoke the authority of a court of competent
jurisdiction to compel arbitration, then the party that obtains an
order compelling arbitration in such action shall have the right to
collect from the other party its reasonable costs, necessary
disbursements, and reasonable attorneys’ fees incurred in
securing an order compelling arbitration. The prevailing party in any
court action relating to whether either party has satisfied any
condition precedent to arbitration, including the Informal Dispute
Resolution Process, is entitled to recover their reasonable costs,
necessary disbursements, and reasonable attorneys’ fees and
costs.
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Batch Arbitration. To increase the efficiency of administration and resolution of
arbitrations, you and Company agree that in the event that there are
one hundred (100) or more individual Requests of a substantially
similar nature filed against Company by or with the assistance of the
same law firm, group of law firms, or organizations, within a thirty
(30) day period (or as soon as possible thereafter), the JAMS shall
(1) administer the arbitration demands in batches of 100 Requests per
batch (plus, to the extent there are less than 100 Requests left over
after the batching described above, a final batch consisting of the
remaining Requests); (2) appoint one arbitrator for each batch; and
(3) provide for the resolution of each batch as a single consolidated
arbitration with one set of filing and administrative fees due per
side per batch, one procedural calendar, one hearing (if any) in a
place to be determined by the arbitrator, and one final award
(“Batch Arbitration”).
All parties agree that Requests are of a “substantially similar
nature” if they arise out of or relate to the same event or
factual scenario and raise the same or similar legal issues and seek the
same or similar relief. To the extent the parties disagree on the
application of the Batch Arbitration process, the disagreeing party
shall advise the JAMS, and the JAMS shall appoint a sole standing
arbitrator to determine the applicability of the Batch Arbitration
process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by
the Administrative Arbitrator, the parties agree the Administrative
Arbitrator may set forth such procedures as are necessary to resolve any
disputes promptly. The Administrative Arbitrator’s fees shall be
paid by Company.
You and Company agree to cooperate in good faith with the JAMS to
implement the Batch Arbitration process including the payment of single
filing and administrative fees for batches of Requests, as well as any
steps to minimize the time and costs of arbitration, which may include:
(1) the appointment of a discovery special master to assist the
arbitrator in the resolution of discovery disputes; and (2) the adoption
of an expedited calendar of the arbitration proceedings.
This Batch Arbitration provision shall in no way be interpreted as
authorizing a class, collective and/or mass arbitration or action of any
kind, or arbitration involving joint or consolidated claims under any
circumstances, except as expressly set forth in this provision.
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30-Day Right to Opt Out. You have the right to opt out of the provisions of this
Arbitration Agreement by sending a timely written notice of your
decision to opt out to the following address: 379 West Broadway, 2nd Floor, New York, NY 10012 or email to support@soho.xyz, within 30 days after first becoming subject to this Arbitration
Agreement. Your notice must include your name and address and a clear
statement that you want to opt out of this Arbitration Agreement. If
you opt out of this Arbitration Agreement, all other parts of this
Agreement will continue to apply to you. Opting out of this
Arbitration Agreement has no effect on any other arbitration
agreements that you may currently have with us, or may enter into in
the future with us.
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Invalidity, Expiration. Except as provided in the subsection entitled “Waiver of
Class or Other Non-Individualized Relief”, if any part or parts
of this Arbitration Agreement are found under the law to be invalid or
unenforceable, then such specific part or parts shall be of no force
and effect and shall be severed and the remainder of the Arbitration
Agreement shall continue in full force and effect. You further agree
that any Dispute that you have with Company as detailed in this
Arbitration Agreement must be initiated via arbitration within the
applicable statute of limitation for that claim or controversy, or it
will be forever time barred. Likewise, you agree that all applicable
statutes of limitation will apply to such arbitration in the same
manner as those statutes of limitation would apply in the applicable
court of competent jurisdiction.
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Modification. Notwithstanding any provision in this Agreement to the
contrary, we agree that if Company makes any future material change to
this Arbitration Agreement, you may reject that change within thirty
(30) days of such change becoming effective by writing Company at the
following address: 379 West Broadway, 2nd Floor, New York, NY 10012. Unless you reject the change within thirty (30) days of such
change become effective by writing to Company in accordance with the
foregoing, your continued use of the Website and/or Services,
including the acceptance of products and services offered on the
Website following the posting of changes to this Arbitration Agreement
constitutes your acceptance of any such changes. Changes to this
Arbitration Agreement do not provide you with a new opportunity to opt
out of the Arbitration Agreement if you have previously agreed to a
version of this Agreement and did not validly opt out of arbitration.
If you reject any change or update to this Arbitration Agreement, and
you were bound by an existing agreement to arbitrate Disputes arising
out of or relating in any way to your access to or use of the Services
or of the Website, any communications you receive, any products sold
or distributed through the Website, the Services, or this Agreement,
the provisions of this Arbitration Agreement as of the date you first
accepted this Agreement (or accepted any subsequent changes to this
Agreement) remain in full force and effect. Company will continue to
honor any valid opt outs of the Arbitration Agreement that you made to
a prior version of this Agreement.
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APP STORES. You acknowledge and agree that the availability of the
Application and the Services is dependent on the third party from whom
you received the Application license, e.g., the Apple App Store or
Google Play (each, an “App Store”). You acknowledge that the Agreement is between you and
Company and not with the App Store. Company, not the App Store,
is solely responsible for Company Properties, including the
Application, the content thereof, maintenance, support services, and
warranty therefor, and addressing any claims relating thereto (e.g.,
product liability, legal compliance or intellectual property
infringement). In order to use the Application, you must have
access to a wireless network, and you agree to pay all fees associated
with such access. You also agree to pay all fees (if any)
charged by the App Store in connection with Company Properties,
including the Application. You agree to comply with, and your
license to use the Application is conditioned upon your compliance
with all terms of agreement imposed by the applicable App Store when
using any Company Property, including the Application. You acknowledge
that the App Store (and its subsidiaries) are third-party
beneficiaries of the Agreement and will have the right to enforce
it.
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GENERAL PROVISIONS.
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Electronic Communications. The communications between you and Company may take place via
electronic means, whether you visit Company Properties or send Company
e-mails, or whether Company posts notices on Company Properties or
communicates with you via e-mail. For contractual purposes, you
(a) consent to receive communications from Company in an electronic
form; and (b) agree that all terms and conditions, agreements,
notices, disclosures, and other communications that Company provides
to you electronically satisfy any legal requirement that such
communications would satisfy if it were to be in writing. The
foregoing does not affect your statutory rights, including but not
limited to the Electronic Signatures in Global and National Commerce
Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
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Release. You hereby release Company Parties and their successors from
claims, demands, any and all losses, damages, rights, and actions of
any kind, including personal injuries, death, and property damage,
that is either directly or indirectly related to or arises from any
interactions with or conduct of other Users or third-party websites of
any kind arising in connection with or as a result of the Agreement or
your use of Company Properties. If you are a California
resident, you hereby waive California Civil Code Section 1542, which
states, “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.”
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Assignment. The Agreement, and your rights and obligations hereunder, may
not be assigned, subcontracted, delegated or otherwise transferred by
you without Company’s prior written consent, and any attempted
assignment, subcontract, delegation, or transfer in violation of the
foregoing will be null and void.
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Force Majeure. Company shall not be liable for any delay or failure to
perform resulting from causes outside its reasonable control,
including, but not limited to, acts of God, war, terrorism, riots,
embargos, acts of civil or military authorities, fire, floods,
accidents, strikes or shortages of transportation facilities, fuel,
energy, labor or materials.
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Questions, Complaints, Claims. If you have any questions, complaints or claims with respect
to Company Properties, please contact us at: support@soho.xyz. We will do our best to address your concerns. If you feel that
your concerns have been addressed incompletely, we invite you to let
us know for further investigation.
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Exclusive Venue. To the extent the parties are permitted under this Agreement
to initiate litigation in a court, both you and Company agree that all
claims and disputes arising out of or relating to the Agreement will
be litigated exclusively in the state or federal courts located in New
York City, New York.
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Governing Law. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND
INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK, CONSISTENT
WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY
PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER
JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE
INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT.
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Choice of Language. It is the express wish of the parties that the Agreement and
all related documents have been drawn up in English.
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Notice. Where Company requires that you provide an e-mail address, you
are responsible for providing Company with your most current e-mail
address. In the event that the last e-mail address you provided
to Company is not valid, or for any reason is not capable of
delivering to you any notices required/ permitted by the Agreement,
Company’s dispatch of the e-mail containing such notice will
nonetheless constitute effective notice. You may give notice to
Company at the following address: 379 West Broadway, 2nd Floor, New York, NY 10012. Such notice shall be deemed given when received by Company by
letter delivered by nationally recognized overnight delivery service
or first class postage prepaid mail at the above address.
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Waiver. Any waiver or failure to enforce any provision of the
Agreement on one occasion will not be deemed a waiver of any other
provision or of such provision on any other occasion.
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Severability. If any portion of this Agreement is held invalid or
unenforceable, that portion shall be construed in a manner to reflect,
as nearly as possible, the original intention of the parties, and the
remaining portions shall remain in full force and effect.
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Export Control. You may not use, export, import, or transfer Company
Properties except as authorized by U.S. law, the laws of the
jurisdiction in which you obtained Company Properties, and any other
applicable laws. In particular, but without limitation, Company
Properties may not be exported or re-exported (a) into any United
States embargoed countries, or (b) to anyone on the U.S. Treasury
Department’s list of Specially Designated Nationals or the U.S.
Department of Commerce’s Denied Person’s List or Entity
List. By using Company Properties, you represent and warrant that (i)
you are not located in a country that is subject to a U.S. Government
embargo, or that has been designated by the U.S. Government as a
“terrorist supporting” country and (ii) you are not listed
on any U.S. Government list of prohibited or restricted parties. You
also will not use Company Properties for any purpose prohibited by
U.S. law, including the development, design, manufacture or production
of missiles, nuclear, chemical or biological weapons. You
acknowledge and agree that products, services or technology provided
by Company are subject to the export control laws and regulations of
the United States. You shall comply with these laws and
regulations and shall not, without prior U.S. government
authorization, export, re-export, or transfer Company products,
services or technology, either directly or indirectly, to any country
in violation of such laws and regulations.
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Consumer Complaints. In accordance with California Civil Code §1789.3, you may
report complaints to the Complaint Assistance Unit of the Division of
Consumer Services of the California Department of Consumer Affairs by
contacting them in writing at 1625 North Market Blvd., Suite N 112,
Sacramento, CA 95834, or by telephone at (800) 952-5210.
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Entire Agreement. The Agreement is the final, complete and exclusive agreement
of the parties with respect to the subject matter hereof and
supersedes and merges all prior discussions between the parties with
respect to such subject matter.