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Terms of Use

VIVE Arts NFT Platform Terms & Conditions

Last updated on 17th November, 2021.

The VIVE Arts NFT Platform (“VIVE Arts NFT Platform” or the “Platform”) allows You to purchase and resell non-fungible tokens (“NFTs”) and is made available to You by VIVE ARTS LIMITED. (“VIVE Arts”).

 

  1. Introduction

Welcome to the VIVE Arts NFT Platform, owned and operated by VIVE Arts. These terms and conditions constitute a legally binding agreement (the “Agreement”) between You (also referred to herein as “You”, “Your” or “User”) and VIVE Arts ( “we”, “us” or “Our”), governing Your access to and use of the VIVE Arts NFT Platform, including any content, functionality, and services offered on or through www.vivearts.com (the “Site”). By clicking the “Sign Up” button, completing the account registration process or using the VIVE Arts NFT Platform, You confirm that You understand and agree to these terms and conditions, together with any documents that may be expressly referred to and are incorporated by reference (“Terms”). 

VIVE Arts reserves the right to change or modify these Terms at any time and at Our sole discretion. You agree and understand that by accessing or using the VIVE Arts NFT Platform and the Site following any change to these Terms, You are regarded as having agreed to the revised Terms.

 

  1. Definitions 

Applicable Law” means any law, rule, statute, subordinate legislation, regulation, by-law order, ordinance, protocol, code, guideline, treaty, policy, notice, direction or judicial, arbitral, administrative, ministerial or departmental judgment, award, decree, treaty, directive, or other requirement or guideline published or in force at any time which applies to or is otherwise intended to govern or regulate any person (including all parties to these Terms), property, transaction, activity, event or other matter, including any rule, order, judgment, directive or other requirement or guideline issued by any governmental or regulatory authority; 

“Artwork” means any digital artwork created by a VIVE Arts approved artist to which an NFT associates with. 

"NFT" means unique non-fungible tokens, implemented on the Ethereum or Matic network using Smart Contracts, representing a digital Artwork in existence at the moment of the sale. 

 

  1. Eligibility.

VIVE Arts has sole and absolute discretion to allow or disallow Your access to the VIVE Arts NFT Platform.

By agreeing to these Terms, You represent and warrant that:

  • You are at least 20 years of age, or of the age of majority in Your jurisdiction of residence;
  • You have the full right, power, and authority to agree to these Terms;
  • You are not subject to any financial sanctions, embargoes or other restrictive measures imposed by the United Nations, European Union, any EU country, UK Treasury or US Office of Foreign Assets Control (OFAC), or any governmental authority in any jurisdiction in which the VIVE Arts NFT Platform is available;
  • You are not a citizen or resident of any of the following countries: Algeria, Bangladesh, Belarus, Burma (Myanmar), Bolivia, Central African Republic, China, Colombia, Cote d’Ivoire (Ivory Coast), Cuba, Democratic Republic of the Congo, Ecuador, Egypt, Ghana, Iran, Iraq, Kazakhstan, Lebanon, Liberia (former Liberian Regime of Charles Taylor), Libya, Quatar, Russia, Nepal, North Korea, The Republic of Macedonia, Somalia, Sudan, Syria, Thailand, Turkey, Vietnam, Zimbabwe.
  • You will not use the Platform if any Applicable Laws in Your country prohibit You from doing so in accordance with these Terms;
  • You are compliant with all Applicable Laws to which You are subject;
  • You have read, understood and agreed to Our Privacy Policy;
  • You will not send, upload, distribute or disseminate any unlawful, defamatory, harassing, abusive, fraudulent, obscene, or otherwise objectionable content;
  • You will not distribute viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or any other items of a destructive or deceptive nature; 
  • You will not upload, post, transmit or otherwise make available through the Platform any content that infringes the intellectual proprietary rights of any party; 
  • You will not operate to defraud VIVE Arts, other users, or any other person or provide false, inaccurate or misleading information; 
  • You will not interfere with another individual’s or entity’s access to or use of the Platform; defame, abuse, extort, harass, stalk, threaten or otherwise violate or infringe the legal rights (such as, but not limited to, rights or privacy, publicity and intellectual property) of others; incite, threaten, facilitate, promote, or encourage hate, racial intolerance or violent acts against others; harvest or otherwise collect information from the Platform about others, including without limitation email addresses, without proper consent;  
  • You will not engage in, promote, or encourage illegal activity (including, without limitation, terrorism, tax evasion or money laundering); 
  • You will not exploit the Platform for any unauthorized commercial purpose; 
  • You will not modify, adapt, translate, or reverse engineer any portion of the Platform; 
  • You will not remove any copyright, trademark or other proprietary rights notices contained in or on the Platform or any part of it; 
  • You will not reformat or frame any portion of the Platform; 
  • You will not display any content on the Platform that contains any hate-related or violent content or contains any other material, products or services that violate or encourage conduct that would violate any criminal laws, any other applicable laws, or any third party rights; 
  • You will not use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Platform or the content posted on the Platform, or to collect information about its users for any unauthorized purpose; 
  • You will not create user accounts by automated means or under false or fraudulent pretenses; or 
  • You will not access or use the Platform for the purpose of creating a product or service that is competitive with any of Our products or services.

If You breach or We reasonably believe that You have breach any of Your representations and warranties, We may, at Our sole and absolute discretion, without notice or liability to You, and without limiting any of Our other rights or remedies at law or in equity, immediately (i) suspend or terminate Your account; (ii) delete your NFTs’ images and descriptions from the Platform. (If We delete your NFTs’ images and descriptions from the Platform, such deletion will not affect Your ownership rights in any NFTs that You already own, but You will not receive a refund of any amounts You paid for those NFTs); (iii) deem any transaction that took place via or as the result of such breach to be void ab initio; and/or (iv) terminate any license granted to You under this Agreement; and/or (v) confiscate or invalidate any NFTs that were purchased or acquired as the result of such breach.

 

  1. VIVE Arts NFT Platform Account
  • To access and use certain features of the VIVE Arts NFT Platform, You will be required to create an account (“Account”) to use the VIVE Arts NFT Platform. To create an account, We will require You to provide certain information about Yourself and We may, in Our sole discretion, require You to provide further information and/or documents at any stage during Your use of the Platform. We may, in Our sole discretion, refuse, decline, suspend or disable Your access or use of the VIVE Arts NFT Platform.
  • You must provide accurate and complete registration information when You create an account for the Platform. By creating an account, You agree to provide accurate, current and complete account information about Yourself, and to maintain and promptly update as necessary Your account information. 
  • To most easily access and use the Platform, You should first install a web browser. You can make the purchase and engage in transactions in US Dollars. To make purchase with cryptocurrency, You will need to bind your MetaMask wallet to the Account (“Account Wallet”).
  • Transactions that take place on the Platform are managed and confirmed via the Ethereum or Matic network. You understand that Your Ethereum or Matic public address will be made publicly visible whenever you engage in a transaction on the Platform.  We neither own nor control MetaMask, the Ethereum platform, or any other third party site, product, or service that You might access, visit, or use for the purpose of enabling You to use the various features of the Platform. We will not be liable for the acts or omissions of any such third parties, nor will We be liable for any damage that You may suffer as a result of Your transactions or any other interaction with any such third parties.
  • You are solely responsible for the security of Your Account and Your MetaMask wallet (and other Ethereum wallets and accounts).  You agree to undertake to maintain at all times adequate security and control of all of Your Account details, passwords, personal identification numbers or any other codes that You use to access the Platform.  You must ensure that Account(s) registered under Your name will not be used by any other person. You agree that we may attribute all use of Your Account to You and that You are responsible for all activities that occur under Your Account, including any purchases made using Your Account. In case of any breach of security, loss, theft or unauthorized use of Your username, password or security information, You may contact Us for Account support at general@vivearts.com or VIVEARTS Help Center.
  • VIVE Arts reserves the right to terminate, suspend or restrict Your access to any account(s) if there is reasonable suspicion by Us that the person logged into Your account(s) is not You or if we suspect that the account(s) have been or will be used for any illegal, fraudulent, or unauthorized purposes. Under no circumstances shall VIVE Arts or indemnified persons in accordance with these Terms be responsible or liable for any direct or indirect losses (including loss of profits, business or opportunities), damages or costs suffered by You or any other person or entity due to any such termination, suspension or restriction of access to any account(s).

 

  1. Changes to the VIVE Arts NFT Platform

We may in Our absolute and sole discretion change, update, amend, remove, or discontinue any part of the Site, the services and the content at any time without prior notice to You.

 

  1. The VIVE Arts Marketplace 
  1. The Platform allows You to purchase, make offers, and bid on the NFTs. A contract of sale will be between VIVE Arts and the successful bidder/purchaser. If You are the successful bidder/purchaser in this sale, You will, subject to these Terms, acquire title to the NFT.
  2. The Artwork is not the subject of this sale and has also been created by the approved artist at the moment of the sale. For the avoidance of doubt, VIVE Arts is not selling the ownership rights or the copyright to the Artwork related to the NFT. VIVE Arts is only selling the ownership rights to the NFT.  
  3. Your offer and bids constitute a manifestation of Your full satisfaction as to the condition of the NFT and the accuracy of its description prior the such offer and bids.  
  4. Purchases of NFTs, as well as associated charges and fees, are non-refundable.
  5. We may use a third-party payment processor to process sales through the Platform and/or allow an authorized reseller to manage and control the sales and purchase experience in the Platform (collectively “Third-Party Payment Provider”).
  6. If You purchase any NFTs through the Platform You authorize Us or Our Third-Party Payment Provider to facilitate the purchase of those NFTs, to use the payment method, and, where applicable, to store the payment related information You provide. You may be billed for any purchased NFTs: (i) in advance, (ii) at the time of purchase or sign up; or (iii) shortly after purchase or sign-up. In the event the payment method You designate cannot be verified, is invalid, or is not otherwise acceptable, We or Our Third-Party Payment Provider may suspend or cancel Your order.
  7. Any purchase from the Platform will be subject to and in accordance with the terms of sale presented to You at the time of the purchase. Please read those terms of sale carefully before making any purchase. If those terms of sale are between You and Our Third-Party Payment Provider, then You agree that We will be a third-party beneficiary to those terms of sale and is entitled to the rights and benefits thereunder and may enforce the provisions thereof as if we are a party thereto. You are solely responsible for all amounts payable associated with purchases made using Your Account.
  8. Prices in the Platform are subject to change without notice. We reserve the right to refuse or cancel orders at any time and in Our sole discretion.
  9. Purchasing the NFTs with a Fixed Price. You may enter into a fixed price sale transaction whereby We have listed such NFT for sale on the Platform at a fixed sale price and You may enter into a legally binding agreement to purchase such NFT by committing to buy the NFT at the specified sale price, which offer from You to buy the NFT is accepted by VIVE Arts.
  10. Make an Offer. You can make offers on all listed NFTs with a “MAKE AN OFFER” button on the NFT Detail Page. You can only make one offer on each listed NFT. Offers on the marketplace are legally binding, revocable offers to purchase the listed NFTs capable of immediate acceptance by VIVE Arts.  By making an offer, You agree that You may temporarily send and lose control over an amount of offered cryptocurrency to a Smart Contract.  The Smart Contract is configured to hold the offered cryptocurrency until either Your offer is accepted by VIVE Arts, another participant’s offer is accepted, or Your offer is revoked. We have the unilateral authority to accept the bid.
  11. Auctions
    1. You may enter into an auction transaction whereby We have listed such NFT for sale on the Platform via an auction process. Make sure You have enough cryptocurrency in your wallet to place a bid and pay for gas fees. You'll need to pay a gas fee each time you place a bid. A bid is a binding contract that You cannot revoke. When You bid on a NFT in an auction, You're committing to buy it if You win the auction.
    2. Timed Auction
      1. We may establish a specific start and end time for an auction for a NFT to go live. We may optionally include a starting auction price. In the Timed Auction, Your bid must be higher than the starting price and You bid against other auction participants. 
      2. A Timed Auction may be cancelled or postponed prior to the start of the auction, i.e. when it is counting down to kick off. After the auction begins, it cannot be stopped, cancelled, or undone. 
    3. Reserved AuctionA Reserved Auction for a NFT is configured to automatically go live once a bid is received equal or greater to a reserve price established by Us. Once the reserve price is met, the auction will be initiated and configured to last for a set period of time (normally 24 hours). The NFT goes to the highest bidder at the end of the auction. 
    4. Once initiated, both Timed and Reserve Auctions last for a discrete window of time (between few hours and up to few days for Timed Auctions and normally 24 hours for Reserve Auctions). 
    5. The bid increments for the bid under USD$ 10,000 require at least 10% of the current bid. Once the bid exceeds USD$ 10,000, minimum bid increment no longer applies.
    6. You cannot cancel the bid once it is placed.
    7. The Platform runs a 15 Minute Rule policy which means that if any participant places a bid within the last 15 minutes of the auction closing, the auction will extend and reset to 15 minutes. 
    8. When the auction ends, the highest bidder wins the auction and the NFT will be sold.
    9. Auction timers are not exact and only represent an approximate as to the start or end time remaining for a particular auction. Auction participants should get their bids in as early as possible to ensure that they are processed by the auction Smart Contract before the close of the auction.
    10. Auction participants are generally forbidden from engaging in any deceptive conduct that may prevent competitive or fair bidding, artificially inflate or deflate the price of an NFT, simulate demand for an NFT (i.e., "wash trading"), or any other anticompetitive bidding conduct, including but not limited to “puffing”, “chill bidding”, “shill bidding”, “sham bidding”, or “sock puppet bidding”. 
    11. You acknowledge and agree to assume the risk of initiating or participating in an auction and take full responsibility and liability for the outcome of any auction that You participate in. We shall not be liable to You or any third-party for the outcome of any auction.
  12. Purchasing the NFTs with cryptocurrency.
    1. Upon successful purchase from Your Account Wallet with cryptocurrency, Your Purchased NFTs will automatically transfer to Your Account Wallet. We will not be liable for the acts or omissions of any such third parties, nor will We be liable for any damage that You may suffer as a result of Your transactions or any other interaction with any such third parties.
    2. Risk will transfer to You immediately upon successful purchase with cryptocurrency of NFT from the Platform and Our transfer of title of the NFT to You by sending to Your Account Wallet. You are thereafter responsible for secure storage of the NFT in Your Account Wallet, and You further acknowledge that You are solely responsible for any risk associated with the NFTs such as transferring, creating, holding, storing, or using withdrew NFTs or a digital wallet, and VIVE Arts will not be responsible for any such risks or losses.
  13. Purchasing the NFTs with Fiat Currency and Withdraw of the Purchased NFTs
    1. Upon successful purchasing with fiat currency, You may withdraw Your Purchased NFTs from the Platform to Your wallet linked to Your Account, or to a specific Ethereum or Matic address. We will not be liable for the acts or omissions of any such third parties, nor will We be liable for any damage that You may suffer as a result of Your transactions or any other interaction with any such third parties.
    2. Risk will transfer to You immediately upon withdraw of NFT from the Platform, and You are thereafter responsible for secure storage of the withdrew NFT in Your wallet or other storage mechanism You use to receive and hold the withdrew NFT, and you further acknowledge that you are solely responsible for any risk associated with the withdrew NFTs such as transferring, creating, holding, storing, or using withdrew NFTs or a digital wallet, and VIVE Arts will not be responsible for any such risks or losses.
  14. Resale of the Purchased NFTs:

If You wish to resale the purchased NFTs, You can contact Us at business@vivearts.com or VIVEARTS Help Center.

VIVE Arts will not release the NFT to You as the purchaser until We have received payment of its purchase price in full and cleared funds, You have paid all outstanding amounts due to VIVE Arts or any of Our affiliated companies, including any charges payable pursuant to these Terms, and You have satisfied such other terms as We, in Our sole discretion shall require, including completing any anti-money laundering or antiterrorism financing checks.

 

  1. Payment, Gas Fees and Taxes
  • You may purchase an NFT with cryptocurrency, by USD credit card or bank wire. You are responsible for any and all transaction fees associated with any payment by credit card or wire transfer. 
  • You agree and understand that all cryptocurrency payment and fees are transferred, processed, or initiated directly through one or more of the Smart Contracts on the Ethereum or Matic network.  By transacting on the Platform and by using the Smart Contracts, You hereby acknowledge, consent to, and accept all automated payment and fees for the purchase of NFTs on the Platform. You hereby consent to and agree to be bound by the Smart Contracts’ execution and distribution of the payment and fees. You hereby waive any entitlement to payment made to or fees paid to VIVE Arts by operation of the Smart Contracts.
  • All Your transactions on the Platform, including without limitation making offers, bidding, listing, purchasing, or confirming, are facilitated by Smart Contracts existing on the blockchain network.  The Ethereum network requires the payment of a transaction fee (a “Gas fee”) for every transaction that occurs on the Ethereum network, and thus every transaction occurring on the Platform.  The value of the Gas Fee changes, often unpredictably, and is entirely outside of the control of the Platform. You acknowledge that under no circumstances will a contract, agreement, offer, sale, bid, or other transaction on the Platform be invalidated, revocable, retractable, or otherwise unenforceable on the basis that the Gas Fee for the given transaction was unknown, too high, or otherwise unacceptable to You. You also acknowledge and agree that gas is non-refundable under all circumstances.
  • You are responsible to pay any and all sales, use, value-added and other taxes, duties, and assessments now or hereafter claimed or imposed by any governmental authority, associated with Your use of the Platform (including, without limitation, any taxes that may become payable as the result of Your ownership, transfer, purchase, sale of any Artworks).

 

  1. License of the Digital Artwork
  1. Subject to Your continued compliance with these Terms, We grant You a worldwide, non-exclusive, non-transferable, royalty-free license to use, copy, and display the digital Artwork for Your purchased NFTs, solely for the following purposes:
    • for your own personal, non-commercial use;
    • as part of a marketplace that permits the purchase and (re)sale of your purchased NFTs, provided that the marketplace cryptographically verifies each NFT owner’s rights to display the Artwork for their purchased NFT to ensure that only the actual owner can display the Artwork; or
    • as part of a third party website or application that permits the inclusion, involvement, or participation of Your purchased NFTs, provided that the website/application cryptographically verifies each NFT’s owner’s rights to display the Artwork for their purchased NFT to ensure that only the actual owner can display the Artwork, and provided that the Artwork is no longer visible once the owner of the purchased NFT leaves the website/application.
  1. You agree that You may not, nor permit any third party to do or attempt to do any of the foregoing without the licensors (i.e. the IP owner of the Artwork) express prior written consent in each case: 
    • modify the Artwork for Your purchased NFT in any way, including, without limitation, the shapes, designs, drawings, attributes, or color schemes; 
    • use the Artwork for Your purchased NFT to advertise, market, or sell any third party product or service; 
    • use the Artwork for Your purchased NFT in connection with images, videos, or other forms of media that depict hatred, intolerance, violence, cruelty, or anything else that could reasonably be found to constitute hate speech or otherwise infringe upon the rights of others; 
    • use the Artwork for Your purchased NFT in movies, videos, or any other forms of media, except to the limited extent that such use is expressly permitted in these Terms or solely for Your own personal, non-commercial use; 
    • sell, distribute for commercial gain (including, without limitation, giving away in the hopes of eventual commercial gain), or otherwise commercialize merchandise that includes, contains, or consists of the Artwork for Your purchased NFT; 
    • attempt to trademark, copyright, or otherwise acquire additional intellectual property rights in or to the Art for Your purchased NFT; or 
    • otherwise utilize the Artwork for Your purchased NFT for Your or any third party’s commercial benefit.
  2. The license granted in Section 8(1) above applies only to the extent that You continue to own the applicable purchased NFT. If at any time You sell, swap, donate, give away, transfer, or otherwise dispose of Your purchased NFT for any reason, the license granted in Section 9(1) will immediately expire with respect to that NFT without the requirement of notice, and You will have no further rights in or to the Artwork for that NFT. The restrictions in Sections 9(2) will survive the expiration or termination of these Terms.

 

  1. The Platform is a Property of VIVE Arts

You acknowledge and agree that We (or, as applicable, Our licensors) own all legal right, title and interest in and to all elements of the Platform.  The graphics, design, systems, methods, information, computer code, software, services, “look and feel”, organization, compilation of the content, code, data, and all other elements of the Platform (collectively, the “VIVE Arts Materials”) are owned by Us, and are protected by copyright, trade dress, patent, and trademark laws, international conventions, other relevant intellectual property and proprietary rights, and applicable laws.  All VIVE Arts Materials are the copyrighted property of VIVE Arts or its licensors, and all trademarks, service marks, and trade names contained in the VIVE Arts Materials are proprietary to VIVE Arts or its licensors. Except as expressly set forth herein, Your use of the Platform does not grant You ownership of or any other rights with respect to any content, code, data, or other materials that You may access on or through the Platform. We reserve all rights in and to the VIVE Arts Materials not expressly granted to You in these Terms.

 

  1. Termination
  • You may terminate these Terms at any time by canceling Your account on the Platform and discontinuing Your access to and use of the Platform.  You will not receive any refunds if You cancel Your account, or otherwise terminate these Terms.  You agree that We, in Our sole discretion and for any or no reason, may terminate these Terms and suspend and/or terminate Your account(s) for the Platform. You agree that any suspension or termination of your access to the Platform may be without prior notice, and that we will not be liable to You or to any third party for any such suspension or termination. If We terminate these Terms or suspend or terminate Your access to or use of the Platform due to Your breach of these Terms or any suspected fraudulent, abusive, or illegal activity, then termination of these Terms will be in addition to any other remedies We may have at law or in equity. Upon any termination or expiration of these Terms, whether by You or Us, You may no longer have access to information that You have posted on the Platform or that is related to Your account, and You acknowledge that We will have no obligation to maintain any such information in Our databases or to forward any such information to You or to any third party.
  • We have the right, without provision of prior notice, to take appropriate legal action, including, without limitation, referral to law enforcement or regulatory authority, or notifying the harmed party of any illegal or unauthorized use of the Platform. Without limiting the foregoing, We have the right to fully cooperate with any law enforcement authorities or court order requesting or directing Us to disclose the identity or other information of anyone using the Platform.
  • You waive and hold VIVE Arts, including each of Our respective affiliates, subsidiaries, parents, successors and assigns, and each of their respective officers, directors, employees, agents, shareholders, service providers, contractors, suppliers, licensors and licensees harmless from any and all claims resulting from any action taken by Us and any of the forgoing parties relating to any investigations by either Us or such parties or by law enforcement authorities.

 

  1. Disclaimer
  • ALL PURCHASED NFTs ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, VIVE ARTS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 
  • TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL  VIVE ARTS BE LIABLE TO YOU FOR ANY PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER AND/OR DEVICE OR TECHNOLOGY FAILURE OR MALFUNCTION, OR FOR ANY FORM OF DIRECT OR INDIRECT DAMAGES, AND/OR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES BASED ON ANY CAUSES OF ACTION WHATSOEVER RELATED TO ANY NFT, INCLUDING BUT NOT LIMITED TO THE PURCHASED NFT, THE SALE OF NFT, THE AUCTION, ANY TECHNOLOGY AND/OR PARTIES RELATED TO SALE OF NFT AND/OR THE AUCTION, INCLUDING BUT NOT LIMITED TO BLOCKCHAIN AND/OR METAMASK WALLET.

 

  1. Limitation of Liability and Exclusive Remedies

YOU AGREE THAT THIS LIMITATION OF LIABILITY APPLIES WHETHER SUCH ALLEGATIONS ARE FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR FALL UNDER ANY OTHER CAUSE OF ACTION, REGARDLESS OF THE BASIS UPON WHICH LIABILITY IS CLAIMED AND EVEN IF A DISCLAIMING PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND IN ANY EVENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VIVEARTS’ TOTAL AGGREGATE LIABILITY SHALL NOT EXCEED THE GREATER OF (I) THE ACTUAL DAMAGES YOU INCUR BASED UPON REASONABLE RELIANCE ON THE STORE, ANY NFTS AVAILABLE WITHIN, UP TO FIVE DOLLARS (U.S.$5.00)  OR (II) THE AMOUNT YOU PAID TO USE THE AFFECTED NFTS IN THE PRIOR YEAR. YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET AND AGREE THAT WE HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY BREACH OF SECURITY UNLESS IT IS DUE TO OUR GROSS NEGLIGENCE. IF APPLICABLE LAW DOES NOT ALLOW ALL OR ANY PART OF THE ABOVE LIMITATION OF LIABILITY TO APPLY TO YOU, THE LIMITATIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.

THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THESE TERMS OF USE, THE PLATFORM, NFT, OR THE PROVISION OR FAILURE TO PROVIDE SUPPORT WILL NOT ENLARGE OR EXTEND THE LIMITATION OF MONEY DAMAGES. EXCEPT FOR THE EXCLUSIVE REMEDY IN THE FOLLOWING SENTENCE, THESE ACTUAL MONEY DAMAGES WILL BE YOUR SOLE AND EXCLUSIVE REMEDY.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGE, LOSS, OR LIABILITY FROM INTENTIONAL ACTS (INCLUDING FRAUD, FRAUDULENT MISREPRESENTATION, AND FAILURE TO DISCLOSE DEFECTS), PRODUCT LIABILITY, OR FOR DEATH OR PERSONAL INJURY. NOTHING IN THIS SECTION WILL BE INTERPRETED AS EXCLUDING LIABILITY WHICH CANNOT UNDER APPLICABLE LAW BE EXCLUDED IN THOSE JURISDICTIONS. IF YOU LIVE, OR ARE OTHERWISE SUBJECT TO THE LAWS IN ONE OF THOSE JURISDICTIONS, ANY STATUTORY ENTITLEMENT AVAILABLE TO YOU WILL BE DEEMED LIMITED TO THE EXTENT (IF AT ALL) PERMISSIBLE UNDER THAT LAW AND, IF LIMITATION IS NOT PERMITTED, THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION MAY NOT APPLY TO YOU.

EXCEPT FOR DISPUTES IN WHICH EITHER PARTY SEEKS TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT, YOU AND VIVEARTS AGREE THAT ANY DISPUTE MUST BE COMMENCED OR FILED BY YOU OR VIVEARTS WITHIN ONE (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND HTC WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE).

 

  1. Indemnification

You will defend, indemnify, and hold VIVE Arts, including each of Our respective affiliates, subsidiaries, parents, successors and assigns, and each of their respective officers, directors, employees, agents, shareholders, service providers, contractors, suppliers, licensors and licensees, harmless from any claims, actions, suits, losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of Your purchase, resale or possession of the NFT and/or Your access or use of the Platform, including: 

  • Your breach of these Terms or the documents it incorporates by reference; 
  • Your misuse of the Platform;
  • Your violation of any Applicable law or the rights of a third party as a result of Your own interaction with such third party; 
  • any allegation that any materials/information that You submit to us or transmit in the course of accessing/using the Platform, communications seeking Our consent to activities or otherwise, infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party; and/or 
  • any other activities in connection with the purchased NFTs or Your accessing/using the Platform. 

This indemnity shall be applicable without regard to the negligence of any party, including any indemnified person. 

You agree that We will have control of the defense or settlement of any such claims.

 

  1. Assumption of Risk

You agree that You assume the following risks:

  • To the extent there is a price or market for a blockchain asset such as an NFT, such markets and prices are extremely volatile, and variations in the price of other digital assets could materially and adversely affect the value of any digital asset(s) You own, including Your purchased NFTs, and there is no guarantee that Your purchased NFTs will have or retain any value.
  • There are risks associated with using an Internet-native assets (e.g., non-fungible tokens, cryptocurrencies, etc.) including, but not limited to, the risk of hardware, software and Internet connections and/or failures, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to information stored within Your digital wallet or elsewhere, and VIVE Arts will not be responsible for any of these, however caused.
  • VIVE Arts does not make any promises or guarantees about the availability of the purchased NFT or the Artwork on the Internet or that they will host the purchased NFT or the Artwork at any specific location and/or for any specific period of time.
  • Upgrades to the Ethereum platform, a hard fork or other change in the Ethereum platform, a failure or cessation of Ethereum, or a change in how transactions are confirmed on the Ethereum platform may have unintended, adverse effects on all blockchains using such technologies, including without limitation purchased NFTs.
  • The regulatory regime governing blockchain technologies, cryptocurrencies and tokens is uncertain, and new regulations or policies may materially adversely affect the development of the Platform, and therefore the potential utility or value of your NFTs.
  • VIVE Arts does not make any promises or guarantees related to Your linked wallet, Blockchain or any other third parties related to Your use of the Platform and each of their applications and/or services, including but not limited to the continued availability of either and/or the protection and/or storage of any data You provide to those parties.
  • The risk of mining attacks.
  • The risk of hacking, security weaknesses, fraud, counterfeiting, cyber attacks and other technological difficulties.
  • The risk of changes to the regulatory regime governing blockchain technologies, cryptocurrencies, and tokens and new regulations, unfavorable regulatory intervention in one or more jurisdictions or policies any of which may materially adversely affect the use and value of the Your purchased NFT.
  • The risks related to taxation. You are solely responsible for determining what, if any, taxes apply to Your NFT-related transactions. We are not responsible for determining the taxes that apply to Your transactions on the Platform.
  • NFTs are not legal tender and are not backed by any government.
  • VIVE Arts is not responsible for any transaction between You and a third party (e.g., Your transfer of a purchased NFT to a third party on a third party website or application that permits the inclusion, involvement, or participation of Your purchased NFTs), and We shall have no liability in connection with any such transaction. 
  • You acknowledge the limitations of VIVE Arts’ descriptions and accept responsibility for carrying out inspections and investigations to satisfy Yourself as to the NFT being offered for sale. Notwithstanding the foregoing, We will exercise reasonable care when making express statements in online descriptions and in light of information provided to Us by the approved artists.
  • Online descriptions of the NFT may include an metadata, property specifications, an Blockchain Service Explorer to the blockchain, a description of NFT, its functionality, the history of ownership of the NFT (also referred to as “provenance”), as well as any exhibition history and references to the NFT or the digital file to which the NFT relates (“the Artwork”) in art publications. We have no control over and accepts no responsibility for the transactions and information recorded or displayed in the blockchain in relation to the NFT. Information provided in respect to online descriptions of the NFT or the Artwork and any condition report (where available), or link to the blockchain whether written or oral, is not a representation of fact but rather a statement of opinion held by VIVE Arts.
  • Photographs, videos and illustrations are for identification purposes only and cannot be used as precise indications of size or convey full information as to the condition of the NFT or the Artwork. We make every effort to describe the NFT and Artwork in the sale as accurately as possible. Where colors are displayed, the colors You see will, however, depend on the resolution of Your monitor or of Your mobile device. We cannot guarantee that Your monitor’s or Your mobile device’s display of any color will reflect accurately the color of the items described.
  • NFTs, due to their nature as a unit of data, are not available for physical inspection.

In addition to assuming all of the above risks, VIVE Arts cannot and does not represent or warrant that any purchased NFT, or its supporting systems or technology, is reliable, current or error-free, meets Your requirements, or that defects in the purchased NFT, or its supporting systems or technology, will be corrected. VIVE Arts cannot and does not represent or warrant that the purchased NFT or the delivery mechanism for it are free of viruses or other harmful components. You accept and acknowledge that VIVE Arts will not be responsible for any communication failures, disruptions, errors, distortions or delays You may experience related to sale of NFTs on the Platform. In the event of an error, VIVE ARTS or its third party payment processor reserves the right to correct such error and revise Your order accordingly (which includes charging the correct price) or to cancel the order and refund any amount charged.

 

  1. Copyright Infringement Complaints

You agree to respect the intellectual property rights of VIVE Arts and third parties. If You believe that Your content has been copied in a way that constitutes copyright infringement, please report this by contacting VIVE Arts at general@vivearts.com or VIVEARTS Help Center.

Formal infringement claims regarding content on the Platform must include:

  • A written communication delivered to the contact above;
  • A physical or electronic signature of someone authorized to act on behalf of the copyright owner;
  • Identification of the copyrighted work(s) allegedly infringed;
  • Identification of material claimed to be infringing, reasonably sufficient to permit VIVE Arts to locate the material;
  • Information reasonably sufficient to permit VIVE Arts to contact the complaining party. This can be an address, phone number, email address, or other suitable method of contact;
  • A statement that the “complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law;” 
  • A statement that the information in the notice is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the copyright owner;
  • A statement that You consent to the jurisdiction of Taiwan Court, and a statement that You will accept service of process from the person who provided notification of the alleged infringement to Us.

After receiving report, VIVE Arts may remove or disable access to any potentially infringing material. VIVE Arts has the right to terminate any account or right of access to the Platform for infringement by the account holder, or person accessing the Platform, of VIVE Arts’ or others' rights.

 

  1. Force Majeure
  • We will not be deemed in default nor be liable or responsible to You for any cessation, interruption, failure or delay in fulfilling or performing any of these Terms due to causes beyond Our reasonable control including, but not limited to: earthquake, flood, fire, storm or other natural disaster, act of God, COVID-19, pandemic, labor controversy or threat thereof, civil disturbance or commotion, disruption of the public markets, war or armed conflict or the inability to obtain sufficient material, supplies, labor, transportation, power or other essential commodity or service required in the conduct of its business, including internet access, or any change in or the adoption of any law, ordinance, rule, regulation, order, judgment or decree. 
  • If We suffer such events, We will use reasonable efforts to promptly notify You of such events, stating the period of time the occurrence is expected to continue. We will use diligent efforts to end the cessation, interruption, failure or delay and ensure the effects of such events are minimized. We will resume the performance of Our obligations as soon as reasonably practicable after the removal of the cause. In the event that Our cessation, interruption, failure or delay remains uncured for a period of ninety (90) consecutive days following written notice given by Us, We may thereafter terminate these Terms upon fifteen (15) days' written notice.

 

  1. Privacy

In order to access certain features of the Platform or NFTs available within the Platform You may be required to provide information about Yourself such as Your name, address, billing details and wallet address. VIVE Arts’ Privacy Policy explains how VIVE Arts treats Your personal data and protects Your privacy when using the Platform. Any such information You provide to VIVE Arts must always be accurate, correct and up to date. VIVE Arts may provide Your personal information to third parties for the purposes of processing Your transactions and/or provisioning NFT for You.

 

  1. Miscellaneous Terms
  • If any provision of these Terms is found to be unlawful or unenforceable, then that provision will be deemed severable from these Terms and will not affect the enforceability of any other provisions.
  • These Terms of Use do not change Your rights under the laws of the country in which You reside if the laws of Your country do not permit it to legally change Your rights. You may have rights under the laws of the country in which You reside that are in addition to, or different from, the rights set forth in these Terms.
  • Neither party may assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party, provided that VIVE Arts may assign this Agreement without Your prior consent to any of VIVE Arts’ affiliates, or to its successors in interest of any business associated with the services provided by VIVE Arts. This Agreement shall be binding upon the permitted assigns or transferees of each party.
  • These Terms and our Privacy Policy constitute the entire legal agreement between You and VIVE Arts and will be deemed to be the final and integrated agreement between You and Us, and govern Your access to and use of the Platform, and completely replace any prior or contemporaneous agreements between You and Us related to Your access to or use of the Platform, whether oral or written.
  • The failure of VIVE Arts to exercise any right, power or remedy provided under this Agreement or otherwise available in respect hereof at law or in equity, or to insist upon compliance by VIVE Arts with its obligations hereunder, and any custom or practice of the parties at variance with these Terms, shall not constitute a waiver by VIVE Arts of its right to exercise any such or other right, power or remedy or to demand such compliance.
  • These Terms will be governed by and construed under the laws of Taiwan, without giving effect to any conflict of laws rules or provisions.  You agree that any action of whatever nature arising from or relating to these Terms, the Platform, or Your purchased NFTs, or Our services will be filed only in the Taiwan Taipei District Court.  You consent and submit to the personal jurisdiction of such courts for any such action.  The failure by Us to enforce any right or provision of these Terms will not prevent Us from enforcing such right or provision in the future.  We may assign Our rights and obligations under these Terms, including in connection with a merger, acquisition, sale of assets or equity, or by operation of law.
  • We may provide You with any notices by email or postings on the Platform. By providing Us with Your email address, You consent to Our using the email address to send You any notices. Notices sent by email will be effective when We send the email, and notices We provide by posting will be effective upon posting. It is Your responsibility to keep Your email address current.
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