Last update: December
Palm NFT Studio, Inc. ("Palm Studio," "we," "us," "our") is a Delaware corporation and our registered office is located at 874 Walker Road, Dover, Delaware 19904, United States. You can contact us at https://support.palm.io/hc/en-us/requests/new.
We provide the Services (as defined below) to you ("you") and other users of the Services (together with you, "Users") through a website located at obilum.art (the "Dropsite"), subject to these Terms and Conditions, as amended from time to time (the "Dropsite Terms"). By signing up for an account ("Account") on the Dropsite or otherwise using or accessing the Dropsite, you acknowledge that you have read and agreed to these Dropsite Terms. The Dropsite is a website that enables the purchase, redemption and collection of blockchain-tracked non-fungible tokens ("NFT(s)") that you will Own (as defined below) upon purchase or redemption, as applicable, provided that you comply with these Dropsite Terms and the User License (as defined below). Each NFT will be associated with certain digital media and metadata, which may include, as applicable, artwork, content, graphics, images, designs, logos, drawings, photographs, text, taglines, or video or audio recordings or any image, name or likeness of any individual (collectively the "NFT Media" and, together with the NFT, the "Collectible(s)"). The Collectibles will be generated through smart contracts and recorded on the Palm network, a sidechain of the Ethereum blockchain (the "Palm Network"). The Collectible is a good you purchase or receive. Upon such purchase or receipt and until you Transfer (as defined below) the Collectible, (1) you will Own the NFT associated with that Collectible and (2) you will receive the limited license to the NFT Media associated with that Collectible per the terms in the User License. You do not own the NFT Media and you will not have any legal ownership, right, or title to any copyrights, trademarks, or other intellectual property rights thereto. For clarity, all right, title, and interest in the NFT Media (including all copyrights, trademark rights, and all other intellectual property rights) are owned by one or more persons named in a separate User License(the "User License") between you and Obilum S.L. ("Obilum"), which User License governs your access to, and limited rights to use, the NFT Media owned or licensed by Obilum. These Dropsite Terms and the User License set forth the sole terms of any licenses to such NFT Media granted to purchasers or redeemers of Collectibles.
These Dropsite Terms create a binding agreement that governs your access to, and use of, the Dropsite, and any content, tools, features, and functionality offered through the Dropsite (collectively, the "Services"). Users must affirmatively acknowledge the User License prior to receiving a Collectible and accruing any rights therein (including any Ownership rights in the NFT). In the event of any conflict between the terms of the User License and any express term or condition provided in these Dropsite Terms, the terms of these Dropsite Terms shall prevail. As used in these Dropsite Terms, the word "including" is a term of enlargement meaning "including, without limitation" and does not denote exclusivity. You further acknowledge and agree that to the extent these Dropsite Terms or the User License appear in any language other than English (whether or not translated by you or on your behalf), the English version of these Dropsite Terms shall govern in the event of any dispute or ambiguity in connection therewith.
PLEASE READ THESE DROPSITE TERMS CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTIONS) THAT YOU SUBMIT ALL DISPUTES YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION; AND FURTHER: (A) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST US ON AN INDIVIDUAL BASIS, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; (B) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS; AND (C) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW. FOR FURTHER INFORMATION, INCLUDING INFORMATION REGARDING YOUR RIGHT TO OPT OUT OF THIS AGREEMENT TO ARBITRATE DISPUTES, SEE "DISPUTE RESOLUTION" BELOW.
We reserve the right, in our sole discretion, to change or modify portions of these Dropsite Terms at any time. If we do this, we will post the changes on this page and indicate at the top of this page the date these Dropsite Terms were last revised. We will also provide notice of any changes or modifications, either on the Dropsite, in your Account, in an email notification, or through other reasonable means as determined by us. Your continued use of the Services after the date any such changes become effective constitutes your acceptance of the new Dropsite Terms.
These Dropsite Terms constitute the entire agreement between you and us and govern your use of the Services, superseding any prior agreements between you and us with respect to the Services. You also may be subject to additional terms and conditions that may apply when you use affiliate or third-party services, data, information, applications, software, or materials (collectively, "Third-Party Materials") we make available via the Services. Except to the extent that they are preempted by U.S. federal law, the laws of the state of Delaware, excluding conflict-of-laws principles of any jurisdiction, govern these Dropsite Terms and any Disputes (whether contract, tort, or otherwise) arising out of or relating to these Dropsite Terms or their subject matter.
In some countries, and for certain people or entities, there may be restrictions on the distribution of NFTs under applicable Export Control and Sanctions Laws (as defined below) and regulations, or restrictions on the use of the Services, and therefore the use of the Services may be limited or restricted. See "Restrictions" below for details.
Dropsite Account, Password, and Security. We may use third-party providers for secure logins to access the Services. You are responsible for maintaining the confidentiality of your Account and password, if any, and are fullyresponsible for any and all activities that occur on your Account. You agree to (a) immediately notify us of any unauthorized use of your password or Account or any other breach of security, and (b) ensure that you exit from your Account at the end of each session when accessing the Services. You may only hold one Account at any time. We reserve the right to freeze, suspend, merge, or close any of your Accounts in the event that you have created multiple Accounts, and you may lose access to any Collectibles in any such Accounts in such cases. This does not apply if you have multiple Accounts because you opened one for yourself and at least one for the benefit of one or more children under 18 years old where you are the parent or legal guardian. We will not be liable for any loss or damage arising from your failure to comply with this Section. We may require you to provide additional information and documents regarding your use of the Services, including to assess application of any policy, law, or regulation, at the request of any competent authority or if we reasonably suspect that you have breached these Dropsite Terms.
Identity Verification. You agree and acknowledge that you may be required to complete identification verification in order to use certain features of the Dropsite including the Dropsite Marketplace (defined below). This includes, and is not limited to, the following: billing address, country of residence, residential address, government-issued ID, social security number, selfie, and date of birth. If you are unable to provide any of the requested information, you may be prevented from purchasing or selling Collectibles or Credits (defined below). We will not be liable for any loss or damage arising from your failure to comply with this section.
Purchasing or Redeeming Collectibles; Credits. To purchase or redeem Collectibles from us, we may require you to either pay via credit or debit card, or first purchase credits ("Credits"), and such requirements may be updated in our discretion from time to time. You acknowledge and agree that all payment information you provide with regard to a purchase or redemption of Collectibles is accurate, current, complete and corresponds to the person who controls the Account. When you purchase or redeem a Collectible, you agree to pay the price for such Collectible as set forth in the applicable listing for the Collectible; and all processing fees, network fees (including gas fees) and handling charges and all applicable taxes in connection with your purchase or redemption, as applicable. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable. In certain cases, your transaction may not be successful due to an error with the blockchain. Neither we, nor Obilum, accept any 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.
Your payment via credit or debit card and/or purchase of Credits is governed exclusively by the CircleUser Agreements of our payment processor partner, Circle, and the terms of service of any other financial partner with whom we engage in the future (collectively, "Financial Partners"). Credits have no monetary value or cash equivalent, do not constitute currency, cannot be transferred to other Users or Palm Network users, and cannot be exchanged for cash or for any other goods and/or services outside of the Palm Network without our or the Financial Partners' prior written approval. Purchases of Credits, and purchases of Collectibles using Credits or via credit or debit card, may be subject to transaction limits established by us and/or our Financial Partners in our sole discretion in accordance with applicable law; and depending on the purchase amount, we reserve the right to delay or refuse completion of your purchase request until we obtain additional information from you. We also reserve the right to require a minimum balance in Credits or a minimum amount of Credits purchased if you desire to purchase Credits.
Unless purchased or redeemed as part of a Pack (as defined and described below), the Services will provide you with the opportunity to purchase or redeem one or more Collectibles, and you will control the volume of Collectibles you purchase or redeem, subject to (a) supply of Collectibles and market demand, and (b) transaction limits established by us (as described above).
Cashing Out Your Credit Balance. If enabled by us, and if you meet eligibility requirements imposed by our payment processing partner, Circle, you may convert your Credits to cash ("Cash Out"). Cash Outs will be made via wire transfer by Circle to your bank account and will be subject to Circle's $25 wire transfer fee, and a wire reversal fee in the event you or your bank reverse the wire transfer after the wire transfer reversal window expires. Cash Outs will be subject to a minimum Cash Out amount of $25.00.Your bank may also charge you a separate fee to receive a wire transfer. The Cash Out feature is subject to the Circle User Agreements.
Packs. With respect to your purchase or redemption of Collectibles through the Services, Palm Studio and Obilum may offer, from time to time, purchase or redemption options that vary between single Collectibles available for purchase or redemption and packs of Collectibles available to purchase or redeem as a bundle (each, a "Pack"). At any given time, there may be no Packs or different types of Packs available for purchase or redemption via the Services, and we reserve the right to modify the types, prices and numbers of Packs available at our discretion. Depending on the type of Pack you buy, you may purchase or redeem Collectibles of varying levels of scarcity. Before you buy a Pack, Palm Studio and Obilum may make available to you information regarding the types of Collectibles (but not the exact Collectibles, rarity or traits) that are contained in that Pack as well as the total available number of each trait, where applicable.
Dropsite Marketplace. We may offer a marketplace feature via the Services whereby you may purchase Collectibles from holders of such Collectibles and sell to other Users the Collectibles you have purchased or redeemed (the "Dropsite Marketplace"). Use of certain features of the Dropsite Marketplace may be conditioned on the User's successful completion of identity verification. Unlike a Pack purchase or redemption, if you purchase a Collectible through the Dropsite Marketplace, you will have access to information revealing exactly which Collectible you are purchasing. For clarity, the Transfer Royalty (as defined in the User License) shall apply to all transactions on the Dropsite Marketplace. The Dropsite Marketplace would facilitate transactions between buyers and sellers of Collectibles, but we are not a party to any agreement between buyers and sellers of Collectibles and all transactions are effectuated on a public blockchain. We are not a broker, financial institution, or creditor. We reserve the right to be the final decision maker on any disputes arising from purchases via the Services, including in connection with any auctions or other purchase methods.
Smart-Contract Enabled. The Collectibles are created through the use of bytecode deployed on the Palm Network ("Smart Contracts"). The Palm Network provides a tamper-resistant ledger of all transactions that occur on that network. The Collectibles are subject to many risks and uncertainties, certain of which are described in more detail in these Dropsite Terms.
Auction Terms. In addition to sale at a set price, Collectibles may be sold via the Services as part of an auction. We may offer different types of auctions, such as English auctions, Dutch auctions, bonding curve auctions, etc. It is your responsibility to review and understand how each auction works before participating. As soon as you place and confirm your bid amount, you agree that you may not be able to amend, retract or revoke your bid and the bid amount will be deducted from the payment method you have designated. We or the applicable seller party may be able to set or change a reserve price for the applicable auction, including after you have placed a bid. We are not responsible for any errors made in your bidding. We reserve the right to be the final decision maker on any disputes arising from any auctions.
Refunds. Unless otherwise required by law or permitted by these Dropsite Terms, the dollar value you paid to purchase Credits through the Services is final and non-refundable, and Collectibles may not be redeemed for cash. Additional terms regarding the purchase of Credits are set by our payment processor partner, Circle Internet Financial, LLC, may be found here.
Maintenance, Storage and Transfer of Collectibles. All Collectibles purchased or redeemed by you will be maintained in custodial wallets that we own and embed in the Services (each, a "Palm-owned Wallet") and the NFT Media is stored in IPFS and Amazon S3. Although we custody your NFT in a Palm-owned Wallet on the Palm Network, you acknowledge that you do not have any rights in other digital assets that may be added to our Palm-owned Wallet by third-parties, including through drops. Subject to these Dropsite Terms and the terms of service of our Financial Partners (the "Financial Partner Terms"), we may permit you to transfer your Collectibles to any other Palm-owned Wallet whether pursuant to a sale via the Dropsite Marketplace or otherwise ("Palm Transfers").
External Transfers. If supported by us, Obilum, and our Financial Partners, we may enable you to transfer your Collectibles to Ethereum-compatible wallets outside the Palm Network ("External Transfers"), but we expressly make no commitment to provide External Transfer capability. Such External Transfers may be facilitated by one or more smart contracts that Palm Studio may develop, some or all of which Palm Studio has not developed and does not control. You acknowledge the risk of smart contracts and agree to be bound by the outcome of any smart contract operation that you initiate or that is initiated at your direction. We accept no liability or responsibility for any External Transfer or other similar transaction, including for any loss, data corruption, or other negative impact that may occur to your Collectible(s) or wallets or other assets when attempting to transfer assets between your Palm-owned wallet and a third-party wallet.
Fees and Transfer Royalties. We do not currently charge fees for creating an Account or for Palm Transfers, but we reserve the right to do so in the future. You also understand and agree that the Transfer Royalty (as defined and set forth in the User License) will apply to all Palm Transfers and External Transfers (collectively, "Transfer(s)"). You further agree that Palm Studio and Obilum are not responsible for any transaction between you and a third party (e.g., your Transfer of a Collectible, if Transfers are enabled), and Palm Studio and Obilum shall have no liability in connection with any such transaction.
Taxes. You may be responsible for payment of any and all taxes, duties, and assessments now or hereafter claimed or imposed by any governmental authority ("Taxes") and associated with your use of the Services (including any Taxes that may become payable as the result of your Ownership, or Transfer of any Collectibles). If you live in one of the following countries or territories, you may be responsible for any sales tax incurred in connection with your purchase or redemption of Collectibles as part of the initial sale of such Collectible offered by us on the Dropsite, as well as any secondary transactions on the Dropsite Marketplace: Brazil, Canada, France, Germany, Hong Kong, Japan, Mexico, South Korea, Spain, the United Kingdom, and United States (the "Covered Territories"). You may also be charged Taxes on any initial sales or secondary sales taking place on any Third-Party Marketplace, to the extent applicable.
Additional Rewards. Purchasing or redeeming a Collectible via the Services may entitle you to one or more additional rewards offered by Palm Studio and/or Obilum at its sole discretion on a periodic basis, which may include, by way of example only, priority access to future NFT drops, access to private social media channels, and early access to Obilum or any third-party licensors' of Obilum such as artists' offerings ("Additional Rewards"), for such time as you are a valid holder of a Collectible. You hereby acknowledge the following with respect to Additional Rewards:
Availability of and Modifications to the Services. Although we will attempt to provide continuous availability of the Services, we do not guarantee that the Services will always be available or be accessible at any particular time. We reserve the right to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You agree that Palm Studio and Obilum will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services.
Assumption of Risk. The purchase or redemption of Collectibles comes with a number of risks of which we strongly recommend you make yourself aware. Neither Palm Studio nor Obilum will be responsible for any such risks, however caused. You acknowledge and agree that: such risks include, without limitation,
(a) The risk associated with assets such as the Collectibles, including, but not limited to, the risk of loss of your Collectibles as a result of faulty or insufficient hardware, software, or Internet connections and/or failures of Third-Party Materials; the risk of the introduction or intrusion of malicious software; the risk that third parties may obtain unauthorized access to information stored within the custodial wallet holding your Collectibles; the risk of mining or blockchain attacks, risk of hacking, theft and security weaknesses; and the risk of loss of your Collectibles due to loss of private key(s), or any other custodial error, or User error;
(b) Except as expressly set forth herein, neither Palm Studio nor Obilum makes any promises or guarantees about the availability of any Collectibles on the Internet or the availability of any Additional Rewards;
(c) Upgrades to the Services or the Palm Network or the Ethereum blockchain, a hard fork in the Palm Network or Ethereum blockchain, a failure or cessation of the Palm Network or Ethereum blockchain, or a change in how transactions are confirmed on the Palm Network or Ethereum blockchain all may have unintended, adverse effects on the Collectibles;
(d) The prices of collectible blockchain assets are extremely volatile and subjective and collectible blockchain assets have no inherent or intrinsic value. Each Collectible has no inherent or intrinsic value. The Collectibles are made available solely for collection and entertainment purposes and you acknowledge and agree that you are collecting, trading, or purchasing Collectibles for purposes of acquiring digital collectibles for your personal use and enjoyment, and not for any investment or speculative purposes. Any economic benefit that may be derived from appreciation in the value of a Collectible is incidental to obtaining it for its collectible purpose. You agree that the Collectibles 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 Palm Studio, Obilum or any other enterprise as a result of your acquisition of Collectibles. Under no circumstances will the operation of all or any portion of the Site or Services be deemed to create a relationship between you, on the one hand, and Palm Studio and/or Obilum, on the other hand, that includes the provision or tendering of investment advice;
(e) Palm Studio and Obilum do not make any promises or guarantees related to any Third-Party Materials, or any other third parties you interact with, including but not limited to the continued availability of either, or the protection or storage of any data you provide to those parties;
(f) We will not be liable or responsible to you for any failure in the intended function of any smart contracts underlying any Collectibles, or any bugs, viruses, exploits, logic gaps, or malicious code which may be incorporated into any such smart contracts, or which could be used to commit fraud or otherwise cause harm. You acknowledge and agree that you have obtained sufficient information to make an informed decision to purchase or redeem a Collectible, including carefully reviewing the code of the smart contract and the NFT, and fully understand and accept the functions of the same. Further, we will not be liable for any failure or removal of the storage system used to store any NFT Media that is linked to or associated with Collectibles, or for any failures in the underlying blockchain on which Collectibles' ownership may be recorded;
(g) Any purchase, redemption or sale you make, accept, or facilitate outside of the Services of any Collectible(s) will be entirely at your risk. We do not authorize, control, or endorse purchases, redemptions or sales of Collectibles outside of the Services. We expressly deny and disclaim any liability to you and deny any obligation to indemnify you or hold you harmless for any losses you may incur by transacting, or facilitating transactions, in any Collectibles outside of the Services; and
(h) The characterization and regulatory regime governing blockchain technologies, cryptocurrencies, NFTs and other digital assets are uncertain and continually evolving, and developments in the law, including new regulations or policies, may materially adversely affect the potential rights associated with or value of your Collectible(s). There also exists the risks of new taxation of the purchase, sale, or appreciation in value of Collectibles.
In addition to assuming all of the above risks, you acknowledge that Palm Studio and Obilum cannot and do not represent or warrant that any Collectible, or its supporting systems or technology, is reliable, up-to-date, or error-free, meets your requirements; or that defects in any Collectible, or its supporting systems or technology, will or can be corrected. Palm Studio and Obilum cannot and do not represent or warrant that any Collectible or the delivery mechanism for it are free of viruses or other harmful components. You accept and acknowledge that Palm Studio and Obilum will not be responsible for any communication failures, disruptions, errors, distortions, or delays you may experience related to any Collectible. Palm Studio and Obilum cannot guarantee that any Collectibles purchased or redeemed by you will retain their original value at the time of purchase or redemption, as the value of each Collectible is inherently subjective. For additional clarity, you are responsible for complying with local laws, if and to the extent local laws are applicable. you specifically agree to comply with all applicable laws concerning the transmission of technical data exported from the United States or the country you reside in. Lastly, you acknowledge that these brief statements do not disclose all of the risks associated with the Collectibles.
Beta Features. Certain features of the Services may be offered while still in test or "beta" form ("Beta Features"). We will utilize best efforts to identify the Beta Features by labeling them as such on the Services. By accepting these Dropsite Terms or using the Beta Features, you understand and acknowledge that the Beta Features are being provided as a "Beta" version and made available on an "As -Is" or "As-Available" basis. The Beta Features may contain bugs, errors, and other technological issues. YOU ASSUME ALL RISKS AND ALL COSTS ASSOCIATED WITH YOUR USE OF THE BETA FEATURES, INCLUDING, WITHOUT LIMITATION, ANY INTERNET ACCESS FEES, BACK-UP EXPENSES, COSTS INCURRED FOR THE USE OF YOUR DEVICE AND PERIPHERALS, AND ANY DAMAGE TO ANY EQUIPMENT, SOFTWARE, INFORMATION, OR DATA YOU SUFFER. In addition, we are not obligated to provide any maintenance, technical, or other support for the Beta Features.
Additional Features. The Services may include, from time to time, certain features (including, but not limited to, Beta Features) that permit you to "merge" more than one Collectible you Own into a new Collectible that may contain elements of your existing Collectibles by "burning" those existing Collectibles you desire to merge ("Merge and Burn Features"). You acknowledge that by engaging with any Merge and Burn Features, you may lose some or all of the traits of your original Collectible(s) and that the Collectible(s) that remains following use of Merge and Burn Features may not be as rare or valuable as one or more of the Collectibles you merged and burned, and that any interaction with Merge and Burn Features provided by Palm Studio or Obilum hereunder is at your own risk. For the avoidance of doubt, any NFT and NFT Media associated therewith that remains following the use of a Merge and Burn Feature shall, collectively, be considered a Collectible for the purposes of these Dropsite Terms and the User License.
Restrictions on Your Use of the Services. When using the Services, you may not:
(a) engage in any conversation or otherwise upload, submit, or post any content that (i) infringes, violates or misappropriates any intellectual property or other proprietary rights of any person; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities, and/or sales, "junk mail," "spam," "chain letters," "pyramid schemes," "contests," "sweepstakes," or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another's privacy, hateful racially, ethnically, or otherwise objectionable; or (vii) in our sole judgment, is objectionable or which restricts or inhibits any other person from using or enjoying the Services, or which may expose Palm Studio, Obilum, or other Users to any harm or liability of any type;
(b) Modify, copy, frame, scrape, rent, lease, loan, sell, distribute, or create derivative works based on the Services or the Dropsite Content (as defined below), in whole or in part;
(c) Duplicate, decompile, reverse engineer, reverse assemble, decode, or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Services (including any underlying idea or algorithm or transferring or selling your Account), or attempt to do any of the same;
(d) Use, reproduce, or remove any copyright, trademark, service mark, trade name, slogan, logo, image, or other proprietary notation displayed on or through the Services;
(e) Use automation software (bots), hacks, modifications (mods) or any other unauthorized third-party software designed to modify the Services or facilitate automated transactions on the Services;
(f) Interfere with or disrupt the Services or servers or networks connected to the Dropsite, or disobey any requirements, procedures, policies, or regulations of networks connected to the Services;
(g) Violate any applicable local, state, national, or international law, or any regulations having the force of law; including, but not limited to regulations promulgated by the U.S. Department of Treasury's Office of Foreign Assets Control; or engage in any activity involving the proceeds of any unlawful activity;
(h) Impersonate any other person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(i) Solicit personal information from anyone under the age of 18;
(j) Harvest or collect email addresses or other contact information of other Users on the Dropsite by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
(k) Advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;
(l) Further or promote any criminal activity or enterprise or provide instructional information about illegal activities, including for the purpose of concealing economic activity, laundering money, or financing terrorism;
(m) Obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Services;
(n) Use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Services or the content posted on the Services, to collect information about its Users for any unauthorized purpose;
(o) Engage in or use any data mining, robots, scraping or similar data gathering or extraction methods;
(p) Implement any measures to circumvent blocking in the event we block you from accessing the Services (including by blocking your IP address), e.g., by masking your IP address or using a proxy IP address;
(q) Create multiple User Accounts by automated means, under false or fraudulent pretenses, or for any other reason other solely than for the benefit of a child under 18 year old;
(r) File a chargeback or similar request for a Collectible following your Transfer of such Collectible;
(s) Fractionalize any Collectibles for sale purposes or otherwise;
(t) Access or use the Services for the purpose of creating a product or service that is competitive with any of Palm Studio's or Obilum's products or services; or
(u) Provide false, misleading, or fraudulent information to Palm regarding your Account or identity.
Your Rights.If you Transfer your Collectible for any reason, any and all licenses and other rights granted to you under these Dropsite Terms and the User License, including certain Dropsite Rights (as defined below) automatically and immediately terminate and such license and rights shall transfer to the new purchaser of the Collectible, and you will have no further rights in the Collectible that has been transferred; provided that, for the avoidance of doubt, you shall still be able to use and access the Services following a Transfer of all of your Collectibles if you are otherwise in compliance with these Dropsite Terms and the User License.
As used herein, "Own" (and any variations thereof, including "Owns," "Owned," "Owner," or "Ownership") means with respect to a Collectible, ownership of the NFT associated with a Collectible that a person has rightfully and lawfully purchased, redeemed or acquired from a legitimate source in accordance with these Dropsite Terms and the User License, where proof of purchase, redemption or acquisition was recorded on the applicable blockchain and ownership of the NFT can be proven. For the avoidance of doubt, you do not own the NFT Media and you will not have any legal ownership, right, or title to any copyrights, trademarks, or other intellectual property rights thereto.
Notwithstanding any additional restrictions set forth in the User License, you agree that, with respect to any Collectible you purchased and properly obtained in accordance with these Dropsite Terms, you may not, nor permit any third party to do or attempt to do, any of the foregoing: (a) modify, distort, mutilate, or perform any other modification to the related NFT Media; (b) use the related NFT Media to advertise, market, or sell any third-party product or service; (c) use the related NFT Media 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; (d) incorporate the related NFT Media in movies, videos, video games, or any other forms of media for a commercial purpose; (e) sell, distribute for commercial gain, or otherwise commercialize merchandise that includes, contains, or consists of representations of the related NFT Media; (f) attempt to trademark, copyright, or otherwise acquire additional intellectual property rights in or to the related NFT Media; or (g) attempt to mint, tokenize, or create an additional cryptographic token representing or associated with the related NFT Media, whether on or off of the Palm Network.
You irrevocably release, acquit, and forever discharge Palm Studio, Obilum, and their respective subsidiaries, affiliates, officers, and successors of any liability for direct or indirect copyright or trademark infringement for your use in accordance with these Dropsite Terms of any NFT Media.
Dropsite Content, Software, and Trademarks. You acknowledge and agree that the Services contain content or features ("Dropsite Content") that are protected by copyright, patent, trademark, trade secret, or other proprietary rights and laws. Any use of the Services or the Dropsite Content by you other than as specifically authorized herein is strictly prohibited. The technology and software that comprise the Services and distributed in connection therewith (the "Software") are the property of Palm Studio, its affiliates, and partners. Any rights not expressly granted herein are reserved by Obilum and Palm Studio, as applicable.
Except for the Palm Studio name, brands and logos, which are trademarks and service marks of Palm Studio (collectively the "Palm Trademarks"), all other service names and logos used and displayed on the Service, including but not limited to the Obilum name and logos, are trademarks or service marks of Obilum (collectively the "Obilum Trademarks"), nothing in these Dropsite Terms or the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Palm Trademarks or Obilum Trademarks displayed on the Services without prior written permission in each instance. All goodwill generated from the use of Palm Trademarks or Obilum Trademarks will inure to the exclusive benefit of the respective owner.
Third** - Party Materials.** Under no circumstances will Palm Studio or Obilum be liable in any way for any Third-Party Materials; including, but not limited to any errors or omissions therein, any loss or damage of any kind you or any third party incurs as a result of the use of any Third-Party Materials, or any damages that you may suffer as a result of your activity on the Dropsite or your Account using any Third-Party Materials or any other interaction with such Third-Party Materials. You acknowledge that we do not pre-screen or evaluate the content, accuracy, completeness, availability, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of Third-Party Materials or websites, but that we and our designees will have the right (but not the obligation) in our sole discretion to refuse or remove any Third-Party Materials available via the Services. Without limiting the foregoing, we and our designees will have the right to remove any Third-Party Materials that violates these Dropsite Terms, is deemed by us or Obilum, in our sole discretion to be otherwise objectionable, or for any other reason whatsoever.
Third-Party Websites. The Services may provide, or third parties may provide, links or other access to other sites and resources on the Internet, which may include Third-Party Marketplaces ("Third-Party Website(s)"). Palm Studio and Obilum have no control over such Third-Party Websites and are not responsible for and do not endorse such sites and resources. You further acknowledge and agree that Palm Studio and Obilum will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by, or in connection with use of or reliance on any content, events, goods, or services available on or through any Third-Party Website. Any dealings you have with third parties you encounter while using the Services or any Third-Party Website are between you and the third party, and you agree that Palm Studio and Obilum are not liable for any loss or claim that you may have against any such third party. In addition, the manner in which Third-Party Websites use, store, and disclose your information is governed solely by the privacy policies of such third parties, and Palm Studio and Obilum shall have no liability or responsibility for the privacy practices or other actions of any Third-Party Website with whom you interact while using the Services.
User Content Transmitted Through the Services**.**In connection with your use of the Services, you may be able to post, upload, or submit content to be made available through the Services ("User Content"). By posting, uploading, or submitting your User Content through the Services, you represent and warrant that you have, or have obtained, all rights, licenses, consents, permissions, power, and/or authority necessary to grant the rights granted herein for your User Content. You agree that your User Content will not contain material subject to copyright or other proprietary rights, unless you have the necessary permission or are otherwise legally entitled to post the material and to grant us the license described herein. By posting, uploading, or submitting any User Content you hereby grant us, Obilum and our respective affiliates a non-exclusive, worldwide, royalty free, fully paid up, transferable, sublicensable (through multiple tiers), perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify, share and otherwise use your User Content in connection with the operation of the Services; or the promotion, advertising, or marketing of the Services and/or Collectibles in any form, medium, or technology now known or later developed. You waive all so-called "Droit Moral" or "Moral Rights of Authors" and any similar rights or principles of law which you may now or hereafter have in relation to or arising out of the User Content. You agree that these rights and licenses include a right for us to make your User Content available to, and pass these rights along to, others with whom we have contractual relationships related to the provision of the Services, solely for the purpose of providing the functionality of the Services. As part of the foregoing license grant you agree that the other Users may have the right to comment on and/or tag your User Content and/or to use, publish, display, modify, or include a copy of your User Content as part of their own use of the Services; except that the foregoing shall not apply to any of your User Content that you post privately for non-public display on the Services.
Any questions, comments, suggestions, ideas, feedback, or other information about the Services ("Submissions"), provided by you to Palm Studio or Obilum are non-confidential and Palm Studio and/or Obilum will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
We may preserve content and may also disclose User Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws, or government requests; (b) enforce these Dropsite Terms; (c) respond to claims that any User Content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Palm Studio or Obilum, or our or Obilum's users, vendors, partners, and the public. You understand that the technical processing and transmission of the Services, including UserContent, may involve: (i) transmissions over various computer networks and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
Copyright Complaints. We respect the intellectual property of others, and we ask that you do the same. If you believe that any User Content has copied, used, or displayed in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify us of your infringement claim in accordance with the procedure set forth below.
We will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act, 17 USC sec. 512 ("DMCA") and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to the Palm Studio Copyright Agent as set forth below (subject line: "DMCA Takedown Request"):
Palm NFT Studio, Inc.
874 Walker Road, Suite C
Dover, Delaware 19904
Attn: Copyright Agent
To be effective, the notification must be in writing and contain the following information:
(a) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
(b) A description of the copyrighted work or other intellectual property that you claim has been infringed;
(c) A description of where the material that you claim is infringing is located on the Dropsite, with enough detail that we may find it on the Dropsite;
(d) Your address, telephone number, and email address;
(e) A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property 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 or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
Counter-Notice. If you believe your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the Palm Studio Copyright Agent:
(a) Your physical or electronic signature;
(b) Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
(c) A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
(d) Your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within the Delaware Federal Court District, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Palm Studio Copyright Agent, Palm Studio will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member, or User, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
PLEASE NOTE THAT PALM STUDIO AND OBILUM INTEND TO COMPLY WITH ALL PROVISIONS OF THE DIGITAL MILLENNIUM COPYRIGHT ACT, BUT WILL NOT UNILATERALLY TAKE RESPONSIBILITY FOR POLICING AND REMOVING MATERIAL THOUGHT TO BE INFRINGING.
Repeat Infringer Policy. In accordance with the DMCA and other applicable law, we have adopted a policy of terminating, in appropriate circumstances and at our sole discretion, Users who are deemed to be repeat infringers. We may also at our sole discretion limit access to the Services and/or terminate the memberships of any User who infringes any intellectual property rights of others, whether or not there is any repeat infringement.
In addition, Palm Studio and Obilum are not responsible for the accuracy, availability, or reliability of any information, content, goods, data, opinions, advice, or statements made available in connection with Social Networking Services. As such, Palm Studio and Obilum are not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Social Networking Services. We enable these features merely as a convenience and the integration or inclusion of such features does not imply an endorsement or recommendation.
Indemnity and Release**.** You agree to release, indemnify, and hold Palm Studio and Obilum and each of their respective parent, subsidiary and affiliates, officers, employees, directors, vendors, partners and agents (collectively, "Indemnitees") harmless from any from any and all losses, damages, expenses, including reasonable attorneys' fees, rights, claims, actions of any kind, and injury (including death) arising out of or relating to your use of the Services, any User Content,your violation of these Dropsite Terms, your failure to pay, remit or report Taxes, or your violation of any rights of another or violation of any applicable law or regulation. If you are a California resident, you expressly waive California Civil Code Section 1542, which says:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY."
If you are a resident of another jurisdiction, you waive any comparable statute or doctrine to the fullest extent permitted by law in that jurisdiction. This indemnity and release obligation survives the termination or expiration of these Dropsite Terms.
Disclaimer of Warranties**.** The Services and activity on the Dropsite, including but not limited to purchase, receipt or transfer of Collectibles, as well as secondary market sales (including on the Dropsite Marketplace), listings, offers, bids, acceptances, Beta Features, Merge and Burn Features, and other operations with respect to NFTs, if applicable in the future, utilize experimental smart contract and blockchain technology, including non-fungible tokens, cryptocurrencies, consensus mechanisms, and decentralized or peer-to-peer networks and systems. You acknowledge and agree that such technologies are experimental, speculative, and inherently risky and may be subject to bugs, malfunctions, timing errors, hacking and theft, or changes to the protocol rules of the Palm Network (i.e., "forks"), which can adversely affect the Smart Contracts and may expose you to a risk of total loss, forfeiture of your Collectibles, or, in the future, if activated, lost opportunities to buy or sell Collectibles. YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS-AVAILABLE" BASIS. PALM STUDIO AND OBILUM EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY; INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
PALM STUDIO AND OBILUM MAKE NO WARRANTY THAT (A) THE SERVICES WILL MEET YOUR REQUIREMENTS; (B) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; OR (D) THE QUALITY OF ANY PRODUCTS, THIRD-PARTY MATERIALS, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS. THESE DISCLAIMERS SHALL EACH SURVIVE TERMINATION OR EXPIRATION OF THESE DROPSITE TERMS.
Limitation of Liability**.** YOU EXPRESSLY UNDERSTAND AND AGREE THAT PALM STUDIO AND OBILUM WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS; INCLUDING BUT NOT LIMITED TO LOSS IN VALUE OF ANY COLLECTIBLE, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES); WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (A) THE USE OR THE INABILITY TO USE THE SERVICES; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS RESULTING FROM THE LOSS OF ANY COLLECTIBLE, GOODS, DATA, THIRD-PARTY MATERIALS, OR INFORMATION, PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (C) ANY LOSS IN VALUE OF ANY COLLECTIBLE OR INABILITY TO TRANSFER ANY COLLECTIBLE; (D) UNAUTHORIZED ACCESS TO, OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (E) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE DROPSITE; OR (F) ANY OTHER MATTER RELATING TO THE SERVICES. IN NO EVENT WILL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID US IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES OR WITH THESE DROPSITE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES.
IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED "DISCLAIMER OF WARRANTIES" AND "LIMITATION OF LIABILITY" ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE DROPSITE TERMS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
THIS LIMITATION OF LIABILITY SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THESE DROPSITE TERMS.
Termination Rights. Your Account, your access to and use of the Services (or any part thereof), your Ownership of any NFT and rights and license to the NFT Media associated therewith, any Additional Rewards offered to you, and any other licenses contained herein and in the User License (collectively, your "Dropsite Rights") each shall automatically and immediately terminate if you breach any of the terms of these Dropsite Terms or the User License. You agree that we, in our sole discretion, may suspend, discontinue, or terminate your Dropsite Rights (or any part thereof), freeze any of your Palm-owned Wallets and/or access to Credits, and/or remove and discard any content within the Services, for any reason; including, without limitation for lack of use or if we believe that you have violated or acted inconsistently with the letter or spirit of these Dropsite Terms and/or the User License. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your Dropsite Rights (or any part thereof) may be referred to appropriate law enforcement authorities, and we have full rights to cooperate with government authorities and law enforcement, including by disclosing your identity or other information provided in connection with your use of the Services. You agree that any termination of your Dropsite Rights (or any part thereof) and the freezing of any Palm-owned Wallets and/or access to Credits under any provision of these Dropsite Terms may be effected without prior notice and acknowledge and agree that we may immediately deactivate or delete your Account and all related information and files in your Account and/or bar any further access to such files or any of your Dropsite Rights (or any part thereof). Further, you agree that we will not be liable to you or any third party for any termination of your access to such files, Collectibles or the Services (or any part thereof) for any reason. Regardless of termination, both you and Palm Studio continue to be bound by the Sections under the heading "Dispute Resolution" below. Upon any termination of these Dropsite Terms, you may no longer have access to information in your account, and you acknowledge that we have no obligation to maintain any such information in our databases, and you shall immediately cease and desist all activities and Dropsite Rights granted to you under these Dropsite Terms and the User License. Any provisions in these Dropsite Terms which, by their nature, would be intended to survive termination or expiration of these Dropsite Terms, shall survive the termination or expiration of these Dropsite Terms, including, without limitation, those provisions which expressly survive such termination or expiration. Any termination of your rights under these Dropsite Terms shall not affect your obligations to us or Obilum under these Dropsite Terms and our rights hereunder.
Certain Restrictions. We are making the Services available in the Covered Territories and reserve the right to change the list of Covered Territories at any time in our discretion. We are not permitted to engage in any transactions with any person, entity, or country prohibited by any applicable export control and sanctions laws and regulations of the United States and any other applicable governmental authority, including without limitation, the U.S. Export Administration Regulations and U.S. sanctions regulations ("Export Control and Sanctions Laws"); including, without limitation: (a) a national or resident of any country subject to U.S. sanctions or similar restrictions (currently, Cuba, Iran, Syria, North Korea, Russia, and the regions Crimea, the Donetsk People's Republic and the Luhansk People's Republic) and (b) anyone on the U.S. Treasury Department's list of Specially Designated Nationals or other sanctions lists. Due to the dynamic nature of regulatory requirements and interpretations of the cryptocurrency market, we reserve the right to update the list of prohibited jurisdictions and reject applications to open accounts that we determine we would be unable to accept for regulatory or policy reasons in our sole and absolute discretion. You will not be permitted to receive a Collectible from us if we learn that such action would be in breach of Export Control and Sanctions Laws.
Please read the following arbitration agreement ("Arbitration Agreement") carefully. It requires you to arbitrate Disputes with Palm Studio and/or Obilum. In arbitration, there is no judge or jury and there is less discovery and appellate review than in court. The Arbitration Agreement survives termination or expiration of these Dropsite Terms. For the purposes of this Dispute Resolution Section, "Palm Studio" and "Obilum", if applicable, means Palm Studio, Obilum, and any of their predecessors, successors, assigns, parents, subsidiaries, affiliates, vendors and independent contractors, and each of their officers, directors, employees and agents, as applicable.
If you or we intend to initiate an arbitration proceeding, you or we must first send a written notice to the other providing a detailed description of the Dispute; your name and contact information (address, telephone number, Dropsite username, and email address); sufficient information to enable you or us to identify any transaction at issue; and a detailed description of (1) the nature and basis of any claims, and (2) the nature and basis of the relief sought, with a detailed calculation for it. Your notice to us must be personally signed by you (and your attorney if you are represented). Our notice to you will be personally signed by a Palm Studio representative (and our attorney if we are represented). If requested by us in connection with a notice initiated by you, you must personally appear at and participate in an individualized telephone settlement conference (if you are represented by an attorney, your attorney may also participate) to discuss the Dispute in a good faith effort to resolve it. If requested by you in connection with a notice initiated by us, a Palm Studio representative must personally appear at and participate in an individualized telephone settlement conference (if we are represented by an attorney, our attorney may also participate).
Your notice to us must be sent via email to: firstname.lastname@example.org. Our notice to you will be sent to you based on the most recent contact information that you have provided to us. But if no such information exists or if such information is not current, then we have no obligation under this Dispute Resolution section of these Dropsite Terms. For a period of sixty (60) days from the date of receipt of a completed notice from the other party, we and you will engage in an effort to try to resolve the Dispute. If the Dispute is not resolved within this sixty (60) day period (which can be extended by written agreement (email sufficient) of the parties), you or we may commence arbitration consistent with the process set forth in this Dispute Resolution section of these Dropsite Terms below. Compliance with this informal dispute resolution process is a condition precedent to initiating arbitration. The party initiating arbitration must include as part of the demand for arbitration a personally signed certification of compliance with the informal dispute resolution process (if you initiate arbitration, then the certification must be signed by you and by your attorney, if you are represented; if we initiate arbitration, then the certification must be signed by a Palm Studio representative and our attorney, if we are represented.).
Any applicable statute of limitations shall be tolled while the parties engage in this informal dispute resolution process. If the sufficiency of a notice or compliance with this informal dispute resolution process is at issue, it may be decided by a court at either party's election, and any formal dispute resolution proceeding shall be stayed pending resolution of the issue. A court shall have the authority to enforce this condition precedent to arbitration, which includes the power to enjoin the filing or prosecution of a demand for arbitration.
Agreement to Arbitrate. After the pre-arbitration informal dispute resolution process, you agree that any and all remaining Disputes that have arisen or may arise between you and us, whether arising out of or relating to these Dropsite Terms (including any alleged breach thereof), the Services, any advertising of the Dropsite or the Collectibles, any aspect of the relationship or transactions between us, and any threshold questions of arbitrability of the Dispute, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that (a) you or we may elect to have individual claims heard in small claims court within the scope of its jurisdiction, if the claims qualify and as long as the matter remains in such court and is not removed or appealed to a court of general jurisdiction; and (b) you or we 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). Further, this Arbitration Agreement does not preclude you or us from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against either party. You agree that, by entering into these Dropsite Terms, you and we are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act ("FAA") governs the interpretation and enforcement of this Arbitration Agreement.
Arbitration Procedures. You agree that any Dispute will be settled by final and binding arbitration, using the English language, in accordance with the then-current Consumer Arbitration Rules ("Rules") of the American Arbitration Association ("AAA") except as modified herein, and the arbitration will be administered by the AAA consistent with this Arbitration Agreement. If the AAA is unavailable or unwilling to administer the arbitration consistent with this Arbitration Agreement, then the parties agree that the arbitration will be administered by National Arbitration and Mediation ("NAM") under its then-current rules as modified by this agreement. If NAM is unavailable or unwilling to administer the arbitration consistent with this Arbitration Agreement, the parties will work together in good faith to agree on an arbitration administrator that will do so consistent with this agreement. If the parties cannot agree on an arbitration administrator, then they will petition a court of competent jurisdiction to appoint one that will administer the arbitration consistent with this Arbitration Agreement. The AAA rules are available at https://www.adr.org/Rules. The NAM rules are available at https://www.namadr.com/resources/rules-fees-forms/.
To begin an arbitration proceeding, after satisfying the informal process identified in the Pre-Arbitration Informal Dispute Resolution section of these Dropsite Terms above, you or we must (1) send a personally signed demand for arbitration that describes (a) the nature and basis of the claims, and (b) the nature and basis of the relief sought, including a detailed calculation for it; (2) send the signed certification of completion of the process in set forth in the Pre-Arbitration Informal Dispute Resolution section of these Dropsite Terms above; and (3) contact the AAA, NAM, or the applicable agreed upon or court-appointed arbitration administrator and follow the appropriate procedures to commence the arbitration. We and you, if you or we are represented by an attorney in connection with your or our arbitration demand, agree that any arbitration demand must also be signed by your or our attorney. By signing the arbitration demand, the attorney certifies to the best of their information, knowledge, and belief, formed after a reasonable inquiry that: (1) the arbitration demand 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 or 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 contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after reasonable opportunity for further investigation or discovery. The arbitrator shall be authorized to impose any sanctions available under Federal Rule of Civil Procedure 11. Your demand for arbitration must be sent to us via email at: email@example.com. Our demand for arbitration to you will be sent to you based on the most recent contact information that you have provided to us.
Except as provided below, you may choose to have the arbitration conducted by phone, video, in-person or through written submissions, except any Dispute over $50,000 shall have an in-person or video hearing. You and we reserve the right to request a hearing in any matter from the arbitrator. If you initiate arbitration, then you agree to personally appear at any in-person, video, or telephonic hearing (along with your attorney if you are represented). If we initiate arbitration, then we agree to have a representative appear at any in-person, video, or telephonic hearing (along with our attorney if we are represented). In addition to the above, the arbitrator may require you and/or a Palm Studio representative to personally appear at any hearing. If an in-person arbitration hearing is required, then it will be conducted at a location that is reasonably convenient to you or at another mutually agreed location. The arbitrator shall be located in reasonable proximity to you or the mutually agreed location (or will travel as needed) if an in-person hearing is required or requested consistent with the above.
Arbitration fees shall be governed by the applicable arbitration administrator rules unless they are authorized by law or the arbitrator determines that a claim or proceeding was frivolous or brought for an improper purpose or in bad faith (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)); but if applicable arbitration rules or laws require us to pay a greater portion or all of such fees and costs in order for this Dispute Resolution section to be enforceable, then we will have the right to elect to pay the fees and costs and proceed to arbitration. In addition, the provisions of Federal Rule of Civil Procedure 68 (cost-shifting) shall apply and be enforced by the arbitrator after entry of an award.
The arbitration will be conducted by a single arbitrator who will apply and be bound by these Dropsite Terms and the User License, and will determine any Dispute according to applicable law and facts based upon the record and no other basis. The arbitrator shall issue a reasoned written award only in favor of the individual party seeking relief and only to the extent to provide relief warranted by that party's individual claim. Except as expressly provided herein, all issues, including scope, are for the arbitrator to decide. The arbitration award shall be binding only among the parties to the arbitration and shall have no preclusive effect in any other arbitration or other proceeding involving a different party. This arbitration provision shall survive termination of these Dropsite Terms or the Services.
ARBITRATION OPT-OUT: YOU MAY OPT OUT OF RESOLVING DISPUTES BY ARBITRATION BY EMAILING US AT LEGAL@PALM.IO WITHIN 30 DAYS OF FIRST ACCEPTING THESE DROPSITE TERMS, AND TELLING US YOU WOULD LIKE TO OPT OUT OF MANDATORY ARBITRATION, OTHERWISE YOU SHALL BE BOUND TO ARBITRATE DISPUTES IN ACCORDANCE WITH THESE DROPSITE TERMS. YOU MUST INCLUDE YOUR FIRST AND LAST NAME, YOUR MAILING ADDRESS, YOUR EMAIL, AND YOUR MOBILE PHONE NUMBER IN THE EMAIL. IF YOU OPT OUT OF THIS ARBITRATION AGREEMENT, WE WILL ALSO NOT BE BOUND BY ARBITRATION.
Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND WE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, PRIVATE ATTORNEY GENERAL OR REPRESENTATIVE ACTION OR PROCEEDING. DISPUTES WILL BE ARBITRATED ONLY ON AN INDIVIDUAL BASIS AND, UNLESS BOTH YOU AND WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S ARBITRATIONS OR OTHER CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, PRIVATE ATTORNEY GENERAL, OR CLASS PROCEEDING. IF, FOR ANY REASON, ANY COURT WITH COMPETENT JURISDICTION HOLDS THAT THIS RESTRICTION IS UNENFORCEABLE WITH RESPECT TO A PARTICULAR CLAIM OR WITH RESPECT TO A PARTICULAR REQUEST FOR RELIEF (SUCH AS A REQUEST FOR PUBLIC INJUNCTIVE RELIEF), AND ALL APPEALS FROM THAT DECISION HAVE BEEN EXHAUSTED (OR THE DECISION IS OTHERWISE FINAL), THEN THE PARTIES AGREE THAT THAT PARTICULAR CLAIM OR REQUEST FOR RELIEF MAY PROCEED IN COURT BUT SHALL BE STAYED PENDING ARBITRATION OF THE REMAINING CLAIMS. SPECIFICALLY, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS DISPUTE RESOLUTION SECTION, THE ARBITRATOR MAY NOT ISSUE A "PUBLIC INJUNCTION" AND ANY SUCH "PUBLIC INJUNCTION," IF PERMITTED, MAY BE AWARDED ONLY BY A FEDERAL OR STATE COURT. IN DOING SO, THE FEDERAL OR STATE COURT IS BOUND UNDER PRINCIPLES OF CLAIM OR ISSUE PRECLUSION BY THE DECISION OF THE ARBITRATOR. NOTWITHSTANDING ANY OTHER PROVISION OF THIS DISPUTE RESOLUTION SECTION, ANY AND ALL ISSUES RELATING TO THE SCOPE, INTERPRETATION AND ENFORCEABILITY OF THE CLASS ACTION WAIVER PROVISIONS CONTAINED HEREIN, ARE TO BE DECIDED ONLY BY A COURT OF COMPETENT JURISDICTION, AND NOT BY THE ARBITRATOR. THE ARBITRATOR DOES NOT HAVE THE POWER TO VARY THESE CLASS ACTION WAIVER PROVISIONS.
Additional Procedures for Mass Arbitration. If your claim is part of fifty (50) or more similar claims asserted against us by the same or coordinated counsel or are otherwise coordinated, you understand and agree that these additional procedures apply and the resolution of your Dispute might be delayed. You agree to the following staged process and application of the AAA Multiple Consumer Case Filing Fee Schedule (or NAM fee schedule).
Staged Bellwether Process. Your counsel and us (or our counsel) shall each select twenty-five (25) cases (per side) to proceed in individual arbitration proceedings as part of an initial staged bellwether process. Each side's twenty-five (25) cases shall be assigned to a different arbitrator. The remaining claims shall not be filed or deemed filed in arbitration nor shall any arbitration fees be assessed in connection with those claims until they are selected to proceed to individual arbitration proceedings as part of this bellwether process. After this initial bellwether process, counsel for the parties shall engage in an effort to resolve the remaining claims. If they are unable to resolve the remaining claims at this time, they shall participate in a mandatory global mediation session with a retired federal or state court judge in an effort to resolve the remaining claims. If they are still unable to resolve the remaining claims, each side shall select another twenty-five (25) cases to proceed to individual arbitration proceedings as part of a second bellwether process. Each side's twenty-five (25) cases shall be assigned to a different arbitrator. The remaining claims shall not be filed or deemed filed in arbitration nor shall any arbitration fees be assessed in connection with those claims until they are selected to proceed to individual arbitration proceedings as part of a bellwether process. After this second bellwether process, counsel for the parties shall engage in an effort to resolve the remaining claims. If they are unable to resolve the remaining claims at this time, they shall participate in a mandatory second global mediation session with a retired federal or state court judge in an effort to resolve the remaining claims. This staged process shall continue for a third set of individual proceedings with twenty-five (25) cases (per side), consistent with the parameters identified above, including that the remaining claims shall not be filed or deemed filed in arbitration nor shall any arbitration fees be assessed in connection with those claims until they are selected to proceed. After this third bellwether process, counsel for the parties shall engage in an effort to resolve the remaining claims. If they are unable to resolve the remaining claims at this time, claimants' counsel may request a third global mediation session with a retired federal or state court judge in an effort to resolve the remaining claims. If they are still unable to resolve the remaining claims at this time, counsel for the parties will engage in an effort to agree on a reasonable, cost-effective, and efficient process for the filing, staging, and adjudication of the remaining claims. If the parties are unable to agree, the AAA, NAM, or the applicable agreed upon or court-appointed arbitration administrator shall appoint a procedural arbitrator who is a retired federal or state court judge through a ranking and strike process from an identical list of names. The procedural arbitrator shall engage with counsel for the parties and make a determination as to a reasonable, cost-effective, and efficient process for the filing, staging, and adjudication of the remaining claims, similar to what a court might do in connection with mass claims, by requiring no fewer than twenty-five (25) and no more than one hundred (100) claims to be filed and proceed individually at any one time. Based on the volume of claims, counsel for the parties may agree to have and negotiate with the arbitration administrator to have a greater number of cases proceed at any one time. The procedural arbitrator shall also determine the method by which claims shall be selected for filing and adjudication. A single arbitrator shall preside over each case. As part of any set of proceedings, only one case may be assigned to each arbitrator unless the parties agree otherwise. Identical sets of arbitrators shall not be assigned to different sets of proceedings. The statute of limitations and any filing fee deadlines shall be tolled for claims subject to these additional procedures that apply to mass arbitrations from the time the first cases are selected for a bellwether process until the time your case is selected for a process, withdrawn, or otherwise resolved. Each arbitrator shall endeavor to issue their award within 120 days of their appointment. You and Palm Studio agree to engage in this process in good faith and that you and Palm Studio have a mutual interest in reducing the cost and maximizing the efficiency of arbitration. Counsel for either party may negotiate with the arbitration administrator for reductions in arbitration fees. Counsel for the parties may agree to discuss resolution of the remaining claims or to participate in additional mediation sessions at any time. A court shall have the authority to enforce this paragraph and, if necessary, to enjoin the mass filing or prosecution of arbitration demands against Palm Studio. If this paragraph is deemed unenforceable by a court of competent jurisdiction and all appeals of that decision have been exhausted (or it is otherwise final), this section shall be severed as to those parties within the jurisdiction of that court and the remaining terms of the Dispute Resolution section shall survive.
Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential.
Severability. If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the section entitled "Prohibition of Class and Representative Actions and Non-Individualized Relief" above) or these Dropsite Terms, as applicable, is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement and/or Dropsite Terms, as applicable, shall be enforceable as so modified. If a court decides that any of the provisions of the section above entitled "Prohibition of Class and Representative Actions and Non-Individualized Relief" are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of these Dropsite Terms will continue to apply. If a court or the arbitrator decides that any term or provision of these Dropsite Terms is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and the Dropsite Terms shall be enforceable as so modified.
Future Changes to Arbitration Agreement. Notwithstanding any provision in these Dropsite Terms to the contrary, we agree that if we make any future change to this Arbitration Agreement (other than a change to the address of Palm Studio first written above in these Dropsite Terms (the "Notice Address") while you are a User of the Services, you may reject any such change by sending us written notice to the Notice Address provided above within thirty (30) calendar days of the change. By rejecting any future change, you are agreeing that you will arbitrate any Dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Dropsite Terms (or accepted any subsequent changes to these Dropsite Terms).
Governing Law and Forum. Unless you and Palm Studio agree otherwise, to the greatest extent permitted by law, the state and federal courts in Delaware, United States shall have exclusive jurisdiction over any Disputes (except for claims brought in small claims court) that are not subject to arbitration or over any action that seeks to enforce or challenge the enforceability of the Arbitration Agreement or any provision of the Arbitration Agreement. You and Palm Studio consent to the jurisdiction of those courts and waive any objections as to personal jurisdiction or as to the laying of venue in such courts due to inconvenient forum or any other basis or any right to seek to transfer or change venue of any such action to another court.
Assignability and Transfer. These Dropsite Terms and the User License may not be assigned or transferred by you to any person without Palm Studio's and Obilum's prior written consent. Further, your Account may not be transferred or assigned to any third party without Palm Studio's and Obilum's prior written consent. Any such assignment or transfer of these Dropsite Terms, the User License, or a User's Account in violation of this provision shall be null and void.
Notice for California Users. Under California Civil Code Section 1789.3, Users of the Dropsite from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Platforms of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact the California Department of Consumer Affairs at firstname.lastname@example.org.
Complaints. If you have any questions or complaints about the Services, please contact us at https://support.palm.io/hc/en-us/requests/new.
User Disputes. You agree that you are solely responsible for your interactions with any other Users in connection with the Services, and Palm Studio and Obilum will have no liability or responsibility with respect thereto. We reserve the right, but have no obligation to become involved in any way with disputes between you and any other Users.
Accessibility.We strive to make the content on the Services usable by all visitors, including those with disabilities. If you are having difficulty using the Dropsite, with or without assistive technology, please contact us at email@example.com. To enable us to respond in a manner most helpful to you, please indicate the nature of your difficulty using the Services, the specific web address (URL link) at issue, and your full contact information, including email address and phone number. Thank you for helping us make your online experience more enjoyable.
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