FABULOUS FLAMINGOS TERMS OF SERVICE
Last Revised on April 7, 2022
Welcome to the Fabulous Flamingo Club! The Fabulous Flamingo Club non-fungible tokens (“NFTs”) are made available for purchase by or on behalf of Yotpo Ltd. (“Company”, “we” or “us”). Please read these Terms of Service (“Terms”) carefully, as they govern your purchase and use of the Fabulous Flamingo Club NFTs any other NFTs or similar offerings made available by Company (the “Company NFTs”), including via secondary marketplaces and the Company’s website www.fabulousflamingoclub.com (the “Website”). The Website, the Company NFTs, and any content, tools, features and functionality offered by us on or through our Website or in connection with the Company NFTs are collectively referred to as the “Services”. By purchasing Company NFTs, whether from us or from any other owner, or by otherwise accessing and/or using the Services, you are agreeing to these Terms. If you do not understand or agree to these Terms, please do not purchase Company NFTS or otherwise use the Services.
Please be advised: Section 5 contains an arbitration clause and class action waiver. By agreeing to these Terms, you agree (a) to resolve all disputes with us related to the Services through binding individual arbitration, which means that you waive any right to have those disputes decided by a judge or jury, and (b) to waive your right to participate in class actions, class arbitrations, or representative actions in connection with your use of the Services. You have the right to opt-out of arbitration as explained in Section 5.
- Company NFT
- Company NFTs. The Services allow you to purchase Company NFTs whose ownership is recorded on a blockchain, such as Ethereum. If you own a Company NFT, your ownership is limited solely to ownership of the token underlying such Company NFT. You acknowledge and agree that Company owns all right, title and interest in and to the art, graphics, designs, images, logos, drawings, media and content associated with any Company NFTs (the “NFT Art”), subject to your license in the NFT Art as specified below. For each Company NFT, the NFT as a token is separate and distinct from the NFT Art with which it may be linked or associated.
- Purchases. All purchases of Company NFTs from the Company are non-refundable unless otherwise specified. You acknowledge and agree that all payment information you provide with regards to a purchase of Company NFTs is accurate, current and complete. When you purchase Company NFTs, you agree to pay the price for such Company NFTs as set forth in the applicable listing for the Company NFTs, together with any processing fees, network fees (including blockchain gas fees) and handling charges and all applicable taxes in connection with your purchase. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable.
- Additional Features. From time to time, Company may make certain features or perks available to the community of Company NFTs owners (collectively, the “Additional Features”). For clarity, Company’s inclusion of the Additional Features does not imply or warrant that they will be available at any other time, and Company may cease providing such Additional Features at any time in its sole discretion.
- Secondary Sales and Secondary Marketplaces. You may be able to buy, sell, trade, and transact in Company NFTs on secondary marketplaces, such as OpenSea. All purchases and sales of Company NFTs on third party secondary marketplaces are subject to additional terms and conditions of those marketplaces. We may not be able to control the actions of secondary marketplaces of third party platforms, and make no promises or guarantees of any kind regarding such third party marketplaces. You acknowledge and agree that we may implement a transaction fee on any secondary sale of Company NFTs, and such transaction fees may be incorporated into the smart contracts for such Company NFTs or in our agreements with secondary marketplaces.
- Wallets. All transactions for Company NFTs initiated through our Services require you to use third party non-custodial digital wallets (“Wallets”), such as MetaMask. By using our Services you agree that you are governed by the terms of service and privacy policies of those Wallets that you choose to use and that Company has no responsibility or liability in any way from your use of such Wallet. You are solely responsible for keeping your Wallet and any private keys necessary to decrypt your Wallet secure, as we have no ability to help you access or recover your private keys for your Wallet. In certain cases, your transaction may not be successful due to an error with the blockchain or the Wallet. We accept no responsibility or liability to you for any such failed transactions, or any transaction or gas fees that may be incurred by you in connection with such failed transactions.
- Rights We Grant You
- License Grant to Use the Website. We hereby permit you to use the Website for your personal non-commercial use only, provided that you comply with these Terms in connection with all such use. Your access and use of the Website may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of the Service or other actions that Company, in its sole discretion, may elect to take.
- NFT Art License. Subject to your compliance with these Terms, for so long as you own a Company NFT, Company hereby grants a personal, worldwide, royalty-free, revocable, sublicensable (solely to the extent necessary to exercise your rights under Section 2.2.2), non-transferrable (except in connection with the sale of a Company NFT by you to another purchaser), and non-exclusive license to use, copy and display the NFT Art specifically associated with your specific Company NFT for the following purposes:
- for your personal, non-commercial use, including in connection with your sale or offer for sale of your applicable Company NFT on a secondary marketplace that verifies you have the right to display and sell such Company NFT, and
- for commercial purposes solely in connection with the promotion, manufacture and sale of physical merchandise that displays such NFT Art in unmodified form (except for such adaptations as are reasonably necessary to display such NFT Art on the physical merchandise).Company agrees that any sublicenses shall be consistent with the terms and conditions of these Terms. If you sell or transfer your Company NFT, you will no longer be granted the foregoing license in the NFT Art that is associated with such Company NFT, and such license will transfer to the new owner of the Company NFT, and you must cease all promotion, manufacture or sale of any physical merchandise contemplated above.
- Restrictions On Your Use of the Company NFTs and NFT Art. You may not nor permit any third party to do or attempt to do any of the following unless you have our written permission to do so: (a) modify the Company NFTs or NFT Art in any way (except to the extent necessary to create physical merchandise as set forth in Section 2.2.2); (b) use the Company NFTs or NFT Art to advertise, market or sell any products or services other than the physical merchandise set forth in Section 2.2.2; (c) use the Company NFTs or NFT Art in connection with images, videos or other forms of media that depict hatred, intolerance, bigotry, or anything else that could reasonably be found to constitute hate speech or that relates to drugs, death, pornography, sexually explicit activities, weapons or discriminatory acts or messages or in connection with any content that infringes the rights of others; (d) attempt to trademark, copyright or otherwise acquire additional intellectual property rights in or to the Company NFTs or NFT Art; or (e) use the Company NFTs or NFT Art in any manner that injures, harms, defames, tarnishes, disparages, damages or diminishes in any way the reputation or goodwill of the Company and its brand.
- Restrictions On Your Use of the Services. You may not do any of the following, unless applicable laws or regulations prohibit these restrictions or you have our written permission to do so: (a) duplicate, decompile, reverse engineer, disassemble, or decode the Services (including any underlying idea or algorithm), or attempt to do any of the same; (b) use, reproduce or remove any copyright, trademark, service mark, trade name, slogan, logo, image, or other proprietary notation displayed on or through the Services; (c) use automation software (bots), hacks, modifications (mods) or any other unauthorized third party software designed to modify the Services or impersonate a real-person or to engage in multiple transactions via the Services; (d) access or use the Services in any manner that could disable, overburden, damage, disrupt, or impair the Services or interfere with any other party’s access to or use of the Services or use any device, software or routine that causes the same; (e) attempt to gain unauthorized access to, interfere with, damage or disrupt the Services, accounts registered to other users, or the computer systems or networks connected to the Services; (f) circumvent, remove, alter, deactivate, degrade, or thwart any technological measure or content protections of the Services; (g) use any robot, spider, crawlers, or other automatic device, process, software, or queries that intercepts, “mines,” scrapes or otherwise accesses the Services to monitor, extract, copy, or collect information or data from or through the Services, or engage in any manual process to do the same; (h) introduce any viruses, trojan horses, worms, logic bombs, or other materials that are malicious or technologically harmful into our systems; (i) use the Services for illegal, harassing, unethical, or disruptive purposes; (j) violate any applicable law or regulation in connection with your access to or use of the Services; or (k) access or use the Services in any way not expressly permitted by these Terms.
- Ownership and Content
- Ownership of the Services. The Services, including their “look and feel” (e.g., text, graphics, images, logos), proprietary content, information and other materials, are protected under copyright, trademark and other intellectual property laws. You agree that Company and/or its licensors own all right, title and interest in and to the Services (including the NFT Art, any and all intellectual property rights in the Services and NFT Art) and you agree not to take any action(s) inconsistent with such ownership interests. We and our licensors reserve all rights in connection with the Services and its content, including the right to create derivative works.
- Ownership of Trademarks. Company’s name, trademarks, Company’s logo, the Fabulous Flamingo Club name or logo, and all related names, logos, product and service names, designs and slogans (the “Company Marks”) are trademarks of Company or its affiliates, service providers, or licensors. Nothing in these Terms is intended to grant a license to any of the foregoing, and the licenses granted in Section 2 do not include any license or rights in any Company Marks. Other names, logos, product and service names, designs, and slogans that appear on the Services are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us.
- Disclaimers; Limitations of Liability; Indemnity
- Disclaimers. YOUR ACCESS TO AND USE OF THE SERVICES ARE AT YOUR OWN RISK. YOU UNDERSTAND AND AGREE THAT THE SERVICES ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ITS PARENTS, AFFILIATES, RELATED COMPANIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, PARTNERS, SERVICE PROVIDERS AND LICENSORS (THE “THE COMPANY ENTITIES”) DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THE COMPANY ENTITIES MAKE NO WARRANTY OR REPRESENTATION AND DISCLAIM ALL RESPONSIBILITY AND LIABILITY FOR: (A) THE COMPLETENESS, ACCURACY, AVAILABILITY, TIMELINESS, SECURITY OR RELIABILITY OF THE SERVICES; (B) THE OPERATION OR COMPATIBILITY WITH ANY OTHER APPLICATION OR ANY PARTICULAR SYSTEM OR DEVICE; AND (C) WHETHER THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE OR ERROR-FREE BASIS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM THE COMPANY ENTITIES OR THROUGH THE SERVICES, WILL CREATE ANY WARRANTY OR REPRESENTATION NOT EXPRESSLY MADE HEREIN.
- Limitations of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, YOU AGREE THAT IN NO EVENT WILL THE COMPANY ENTITIES BE LIABLE (A) FOR DAMAGES OF ANY KIND, INCLUDING DIRECT, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICES), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THESE TERMS OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE SERVICES OR THESE TERMS AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF THE COMPANY ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; OR (B) FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE DELIVERY, USE OR PERFORMANCE OF THE SERVICES. SOME JURISDICTIONS (SUCH AS THE STATE OF NEW JERSEY) DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU. THE COMPANY ENTITIES’ TOTAL LIABILITY TO YOU FOR ANY DAMAGES FINALLY AWARDED SHALL NOT EXCEED THE GREATER OF THE AMOUNT OF ONE HUNDRED DOLLARS ($100.00), OR THE AMOUNT YOU PAID THE COMPANY ENTITIES, IF ANY FOR COMPANY NFTs. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Assumption of Risks. You acknowledge that there are risks associated with purchasing and holding NFTs and using blockchain technology and Internet-based currency, including, but not limited to, the risk of hardware, software and Internet connections and/or failures, the risk of malicious software introduction, the risk of errors in the smart contract underlying any NFT, the risk that third parties may obtain unauthorized access to information stored within your digital “wallet” or elsewhere, and you agree that Company will not be responsible for any of these, however caused. The prices of collectible blockchain assets are extremely volatile and subjective. Given such volatility, each NFT should not be considered an investment and has no inherent or intrinsic value. Your purchase may materially diminish in value. You further acknowledge and agree that the Company NFTs are made available solely for entertainment purposes. You agree that NFTs are not to be used as a substitute for currency or medium of exchange, resale, or redistribution and that you are not acquiring any equity or other ownership or revenue sharing interest in Company, its affiliates, or any brand as a result of your acquisition of such NFTs. The regulatory regime governing blockchain technologies, cryptocurrencies, and tokens is unsettled, and new regulations or policies may materially adversely affect the potential utility or value of your Company NFT(s). You understand and accept all risks set forth above.
- Indemnity. You will defend, indemnify, and hold Company and its affiliates, subsidiaries, parents, successors and assigns, officers, directors, employees, agents, or shareholders, harmless from any claims, actions, suits, losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of (1) your license, sale or possession of any Company NFTs and/or your use of the Services that is in breach of these Terms; (2) your violation of any law or the rights of a third party as a result of your own interaction with such third party. This indemnity shall be applicable without regard to the negligence of any party, including any indemnified person.
- Arbitration and Class Action Waiver
- Arbitration Agreement and Class Action Waiver. Any dispute, controversy, or claim (collectively, “Claim”) relating in any way to your use of Company’s services and/or products, including the Services, that we cannot resolve after good faith informal dispute resolution will be resolved by arbitration, including threshold questions of arbitrability of the Claim. You and Company agree that any Claim will be administered by JAMS under its Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”) then in effect (those rules are deemed to be incorporated by reference into this section, and as of the date of these Terms). Arbitration will be handled by a sole arbitrator in accordance with the JAMS Rules. Any arbitration will be conducted in the English language and the seat of the arbitration shall be New York, New York. Notwithstanding the foregoing, you and Company will have the right to bring an action in a court of proper jurisdiction for injunctive or other equitable or conservatory relief, pending a final decision by the arbitrator. You may instead assert your claim in “small claims” court, but only if your claim qualifies, your claim remains in such court and your claim remains on an individual, non-representative and non-class basis.
- Waiver of Class Actions and Class Arbitrations. You and Company agree that each party may bring Claims against the other party only in an individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding, including without limitation federal or state class actions, or class arbitrations. 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 Company agree that no dispute shall proceed by way of class arbitration without the written consent of all affected parties.
- Costs of Arbitration. Payment for any and all reasonable JAMS filing, administrative and arbitrator fees will be in accordance with the JAMS Rules. If the value of your claim does not exceed ten thousand dollars ($10,000), Company will pay for the reasonable filing, administrative and arbitrator fees associated with the arbitration, unless the arbitrator finds that either the substance of your claim or the relief sought was frivolous or brought for an improper purpose, except that if you have initiated the arbitration claim, you will still be required to pay the lesser of two hundred fifty dollars ($250) or the maximum amount permitted under the JAMS 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.
- Opt-Out. You have the right to opt-out and not be bound by the arbitration provisions set forth in these Terms by sending written notice of your decision to opt-out to firstname.lastname@example.org. The notice must be sent to Company within thirty (30) days of your registering to use the Services or agreeing to these Terms, otherwise you shall be bound to arbitrate disputes in accordance with these Terms. If you opt-out of these arbitration provisions, Company also will not be bound by them.
- Additional Provisions
- Updating These Terms. We may modify these Terms from time to time in which case we will update the “Last Revised” date at the top of these Terms. If we make changes that are material, we will use reasonable efforts to attempt to notify you, such as by e-mail and/or by placing a prominent notice on the first page of the Website. However, it is your sole responsibility to review these Terms from time to time to view any such changes. The updated Terms will be effective as of the time of posting, or such later date as may be specified in the updated Terms. Your continued access or use of the Services after the modifications have become effective will be deemed your acceptance of the modified Terms.
- Termination of License. If you breach any of the provisions of these Terms, all licenses granted by Company will terminate automatically. Additionally, Company may suspend, disable, or delete the Services (or any part of the foregoing) with or without notice, for any or no reason. 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 this Agreement by Company or you. Termination will not limit any of Company’s other rights or remedies at law or in equity.
- Injunctive Relief. You agree that a breach of these Terms will cause irreparable injury to Company for which monetary damages would not be an adequate remedy and Company 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.
- California Residents. 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 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.
- Force Majeure. We will not be liable or responsible to you, nor be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any of our obligations under these Terms or in providing the Services, including operating the Website, when and to the extent such failure or delay is caused by or results from any events beyond our ability to control.
- Miscellaneous. If any provision of these Terms shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions. These Terms and the licenses granted hereunder may be assigned by Company but may not be assigned by you without the prior express written consent of Company. 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. These Terms are governed by the laws of the State of New York, without regard to conflict of laws rules, and the proper venue for any disputes arising out of or relating to any of the same will be the arbitration venue set forth in Section 5, or if arbitration does not apply, then the state and federal courts located in New York. You and Company 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.
- How to Contact Us. You may contact us regarding the Services or these Terms by e-mail at email@example.com.