Last updated on June 22, 2021
Terms & Conditions for
NFTs being offered as part of the DeLorean NFT Collection Auction.
These terms and conditions constitute a legally binding
agreement (the “Agreement”) between you (also referred to herein as
“You”, “Your” or “User”) and Medium Rare Mgmt NFT, Inc. (“MRM” “we” or
“us”), governing your license of NFTs as part of the DeLorean NFT
Collection Auction (the “Auction”). BY BIDDING IN THIS AUCTION, YOU
AGREE TO BE BOUND BY THESE TERMS AND ALL OF THE TERMS INCORPORATED
HEREIN AND ALL OF THE TERMS OF SERVICE INCLUDED AS PART OF OZONE
NETWORKS, INC D/B/A OPENSEA (the “OpenSea Terms of Service”). If you
do not agree to the terms of this Agreement, as well as the OpenSea
Terms of Service, you may not bid in the Auction.
PLEASE
BE ADVISED: THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS
BETWEEN YOU AND MRM CAN BE BROUGHT (SEE SECTION 12 BELOW). THESE
PROVISIONS WILL REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST MRM OR
MRM PARTIES TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS,
NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, GROUP OR
REPRESENTATIVE ACTION OR PROCEEDING.
By entering into this
Agreement, and/or by you participating in the DeLorean NFT Collection
Auction, you expressly acknowledge that you understand this Agreement
(including the dispute resolution and arbitration provisions in
Section 12) and accept all of its terms. IF YOU DO NOT AGREE TO BE
BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT
PARTICIPATE IN THE AUCTION.
1. Definitions.
“Art”
means any art, graphics, images, designs, logos, taglines, and
drawings that may be associated with an NFT in which you acquire
Licensed Rights.
“Equivalent” means the value, in US
Dollars, of the market value of the relevant amount of cryptocurrency
on the day of the transaction.
“DeLorean” means The
DeLorean Motor Company and Project 1639 LLC.
“Name and
Likeness” means name, nicknames, product design, likenesses, images,
marks, logos, copyrights, trade dress colors, trade dress designs,
and/or all other intellectual property of DeLorean, including without
limitation the DELOREAN and DMC marks and logos and associated vehicle
trade dress and design, and other rights in and to the associated
names, likenesses, personas, personalities, voices, digital
signatures, signatures, the related rights of publicity, and other
indicia of, and rights of association and endorsements related
thereto.
"NFT" means any blockchain-tracked,
non-fungible token.
“Licensed Rights” with respect to an
NFT means your rights to a Licensed NFT of which you are the current
rightful licensee and which you acquired from a legitimate source,
where proof of such purchase is recorded on the relevant
blockchain.
“Licensed NFT” means an NFT from the DeLorean
NFT Collection for which you successfully provided the highest bid.
“MRM
Parties” means MRM, DeLorean, Ozone Networks, Inc d/b/a OpenSea, and
each of their parent, subsidiary and affiliate companies, and each of
their respective officers, directors, members,affiliates, agents,
attorneys, licensees, licensors and employees.
“Third Party
IP” means any third-party patent rights (including, without
limitation, patent applications and disclosures), copyrights, trade
secrets, trademarks, know-how or any other intellectual property
rights recognized in any country or jurisdiction in the world.
2.
Ownership. You acknowledge and agree that DeLorean (or, as applicable,
its licensors) owns all legal right, title and interest in and to the
Art, Name and Likeness, and all intellectual property rights therein.
The rights that You have in and to the Licensed NFT and Art are
limited to those expressly stated in Section 3 of this Agreement. MRM
and its licensors reserve all rights and ownership in and to the
Licensed NFT, Name and Likeness, and Art not expressly granted to You
in Section 3 of this Agreement. All purchases of Licensed NFTs, as
well as associated charges, are non-refundable. This no-refund policy
shall apply at all times regardless of Your decision to terminate
usage of the Licensed NFT, any disruption to the operations of any
components of the Licensed NFT, or any other reason whatsoever.
3.
Rights.
(a) Your Licensed Rights. You acknowledge and agree that
the Licensed NFTs are made available solely for entertainment
purposes. Without limiting the foregoing and subject to your continued
compliance with this Agreement (and the OpenSea Terms of Service), MRM
grants you a worldwide, on-exclusive, non-transferable (except as
specifically provided below in section 3 (b)), royalty-free license to
display the Art for your Licensed NFTs, solely for your own personal,
non-commercial use.
(b) Permissible Transfers of Your
Licensed NFT. You have the limited right to transfer the Licensed NFT,
provided that (i) the transferee accepts all of the terms of this
Agreement and all of the terms of the OpenSea Terms of Service; (ii)
MRM is paid ten percent (10%) of the gross amounts paid by such party
relating to the Licensed NFT, including but not limited to any
transfer price and any other related compensation (e.g., (1) if the
transfer price is the Equivalent of $100,000 then MRM will be entitled
to the Equivalent of $10,000 or (2) if the transfer price is
Equivalent to $100,000 and an additional$50,000 is paid as related use
fee then MRM would be entitled to $15,000) and such payment shall be
paid on the same terms and at the same time as you are paid; (iii) You
have not prior to the transfer breached this Agreement or the OpenSea
Terms of Service; (iv) prior to the transfer your license to the
Licensed NFT has not been terminated; and (v) the party purchasing the
Licensed NFT provides MRM with a valid e-mail address. You acknowledge
and agree that the foregoing amounts payable to MRM under Section
3(b)(ii) hereof do not include, and are not intended to cover, any
additional fees imposed or required by the platform through which You
are transferring the Licensed NFT.
(c) Special Offer. (i)
To the extent that You are the current valid licensee of the Licensed
NFT entitled the Special Edition DeLorean 1-of-1 Anniversary Montage
NFT as of August 1st, 2021 and further that you comply with the
redemption conditions set forth below, You shall be entitled to
receive:(1) One (1) refurbished car produced by the DeLorean Motor
Company ; and (2) one (1) placard made from steel taken from a car
produced by the DeLorean car company. .To redeem this offer, You must
schedule the redemption date no later than August 1st, 2021 and must
follow all instructions presented to You after You redeem the offer,
including but not limited to either arranging the picking up of the
car in Huntington Beach, California, or arranging for and paying for
the shipping of the car to you at Your own expense. This offer is
non-transferable. The offer is further conditioned upon all terms and
conditions associated with the use of this offer, including but not
limited to Covid-19 rules, security provisions and other restrictions.
Such grant shall not include any other benefits, including but not
limited to travel or accommodations relating to the picking up of the
car. Such car is being presented to You on, and You agree to accept
such car on an "AS IS" and "WHERE IS" basis. The
transfer of such car to You shall be on a quitclaim basis, without any
warranties and/or representations of any kind either express or
implied.
(ii) To the extent that You are the current valid
licensee of the Licensed NFT entitled the DMC-12: 1981- The Start of
it All as of August 1st, 2021 and further that you comply with the
redemption conditions set forth below, You shall be entitled to
receive: (1) spot on an upcoming DeLorean Model release waitlist,; and
(2) one(1) placard made from steel taken from a car produced by the
DeLorean car company. To redeem this offer, You must schedule the
redemption date no later than August 1st, 2021 and must follow all
instructions presented to You after You redeem the offer. This offer
is non-transferable. The offer is further conditioned upon all terms
and conditions associated with the use of this offer, including but
not limited to Covid-19 rules, security provisions and other
restrictions. Such grant shall not include any other benefits,
including but not limited to the car, or travel or accommodations your
future purchase of the car. Further the wait list shall not apply to
one-off prototypes cars, concept cars and/or similar cars. You
acknowledge that this spot on the waitlist does not guarantee your
ability to purchase a future car and/or that any future cars will be
produced, and that the model, availability, and timing of availability
of such car, if any, shall be at the sole discretion of DeLorean and
is subject to DeLorean having the sole authority to make such
determination at the time of the wait list offering..
(iii)
To the extent that You are the current valid licensee of the Licensed
NFT entitled DMC-12: 1983 –The End of the Beginning as of August 1,
2021 and further that you comply with the redemption conditions set
forth below, You shall be entitled to: (1) receive a picture of the
shuttered DeLorean Factory; and (2) one (1) placard made from steel
taken from a car produced by the DeLorean car company. To redeem this
offer, You must schedule the redemption date no later than August 1,
2021and must follow all instructions presented to You after You redeem
the offer. This offer is non-transferable. The offer is further
conditioned upon all terms and conditions associated with the use of
this offer.
(iv) To the extent that You are the current
valid licensee of the Licensed NFT entitled DMC-12: 1985 –DMC-12 Goes
Hollywood as of August 1st, 2021 and further that you comply with the
redemption conditions set forth below, You shall be entitled to: (1) a
steel DMC sign;; and (2) one (1) placard made from steel taken from a
car produced by the DeLorean car company. To redeem this offer, You
must schedule the redemption date no later than August 1st,2021 and
must follow all instructions presented to You after You redeem the
offer. This offer is non-transferable. The offer is further
conditioned upon all terms and conditions associated with the use of
this offer.
(v) To the extent that You are the current
valid licensee of the Licensed NFT entitled DMC-12: 1988–as of August
1 st , 2021 and further that you comply with the redemption conditions
set forth below, You shall be entitled to: (1) collector DMC Watch;
and (2) one (1) placard made from steel taken from a car produced by
the DeLorean car company. To redeem this offer, You must schedule the
redemption date no later than August 1st , 2021 and must follow all
instructions presented to You after You redeem the offer. This offer
is non-transferable. The offer is further conditioned upon all terms
and conditions associated with the use of this offer.
(vi)
To the extent that You are the current valid licensee of the Licensed
NFT entitled DMC-12: 1995 – Stephen Wynn Buys DeLorean as of
August1st, 2021 and further that you comply with the redemption
conditions set forth below, You shall been titled to: (1) Looking
Inside’ DeLorean Book, signed by Stephen Wynne, CEO of DeLorean Motor
Company; ;and (2) one (1) placard made from steel taken from a car
produced by the DeLorean car company. To redeem this offer, You must
schedule the redemption date no later than August 1st,2021 and must
follow all instructions presented to You after You redeem the offer.
This offer is non-transferable. The offer is further conditioned upon
all terms and conditions associated with the use of this offer.
(vii)
To the extent that You are the current valid licensee of the Licensed
NFT entitled DMC-12: 2002 - DMC Flagship opens in Humble, TX as of
August 1st, 2021 and further that you comply with the redemption
conditions set forth below, You shall been titled to: (1)
commemorative sign made from steel taken from a car produced by the
DeLorean car company. To redeem this offer, You must schedule the
redemption date no later than August 1st,2021 and must follow all
instructions presented to You after You redeem the offer. This offer
is non-transferable. The offer is further conditioned upon all terms
and conditions associated with the use of this offer.
(viii)
To the extent that You are the current valid licensee of the Licensed
NFT entitled DMC-12: 2010 – Sneakerheads Rejoice as of August 1st,
2021 and further that you comply with the redemption conditions set
forth below, You shall been titled to: (1) receive one (1) pair of
Nike Dunk Low 6.0 SE DeLorean DMC -12sneakers in original box, and
with display case.. Size is not specified and will need to be decided
by the winner of the auction. MRM shall use reasonable efforts to
provide the auction winner with their requested size, provided that if
such size is not available, MRM shall provide the auction winner with
an available size of their choosing. ; and (2) one (1) placard made
from steel taken from a car produced by the DeLorean car company. To
redeem this offer, You must schedule the redemption date no later than
August 1st, 2021 and must follow all instructions presented to You
after You redeem the offer. This offer is non-transferable. The offer
is further conditioned upon all terms and conditions associated with
the use of this offer.
(ix) To the extent that You are
the current valid licensee of the Licensed NFT entitled DMC-12: 2012
as of August 1st, 2012 and further that you comply with the redemption
conditions set forth below, You shall been titled to: (1) receive a
1:18 Scale DMC-12 Model in the original Box; and (2)one (1) placard
made from steel taken from a car produced by the DeLorean car company.
To redeem this offer, You must schedule the redemption date no later
than August 1st, 2021 and must follow all instructions presented to
You after You redeem the offer. This offer is non-transferable. The
offer is further conditioned upon all terms and conditions associated
with the use of this offer.
(x) To the extent that You are
the current valid licensee of the Licensed NFT entitled DMC-12: 2020
as of August 1st , 2021 and further that you comply with the
redemption conditions set forth below, You shall be entitled to: (1)
receive one (1) digital DeLorean NFT from Riot Racers and playable
only within the Riot Racers game. To redeem this offer, You must
schedule the redemption date no later than August 1st , 2021 and must
follow all instructions presented to You after You redeem the offer.
This offer is non-transferable. The offer is further conditioned upon
all terms and conditions associated with the use of this offer.
(xi)
Special Offer. (i) To the extent that You are the current valid
licensee of the Licensed NFT entitled the DMC-12: 2012 - An
Electrifying Future as of August 1st,2021 and further that you comply
with the redemption conditions set forth below, You shall be entitled
to receive: (1) One (1) DeLorean xSuper 73-S2 model electric bike;(2)
one (1) placard made from steel taken from a car produced by the
DeLorean car company, and one (1) digital DeLorean NFT from Riot
Racers and playable only within the Riot Racers game. To redeem this
offer, You must schedule the redemption date no later than August 1st,
2021 and must follow all instructions presented to You after You
redeem the offer, including but not limited to arranging the picking
up of the bike in Irvine, California or arranging for and paying for
the shipping of the bike to you at your own expense with the
limitation that the bike can only be shipped to the lower 48 states of
America. Buyer further acknowledges that the bike will be ready no
sooner than 16 weeks after auction close. This offer is
non-transferable. The offer is further conditioned upon all terms and
conditions associated with the use of this offer. Such grant shall not
include any other benefits, including but not limited to travel or,
accommodations relating to the picking up of the bike. Such bike is
being presented on, and You agree to accept such bike on an "AS
IS", and "WHERE IS" basis. The transfer of such
electric bike to You shall be on a quitclaim basis, without any
warranties and/or representations either express or implied.
4.Restrictions.You
agree that you may not, nor permit any third party to do or attempt to
do any of the following without MRM’s express prior written consent in
each case:(i) modify
the Licensed NFT, Name and Likeness and/or Art for your Licensed NFT in any way, including, without limitation,
the shapes,designs, drawings, attributes, or color schemes; (ii) use
the Licensed NFT, Name and Likeness and/or Art for your Licensed NFTs
to advertise, market, or sell any product or service; (iii) use the
Licensed NFT, Name and Likeness and/or Art from your Licensed NFTs 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,drugs (including, without limitation, both
prescription and non-prescription)or other supplements, death,
pornography or other “adult only” or sexually explicit activities,
massage parlors, prostitution or any dating or escort activities,
weapons or ammunition, denigration or discrimination against
individuals based on race, national origin, gender, religion,
disability,ethnicity, sexual orientation, gender identity or age,
medical conditions and/or political campaigns or causes; (iv) use the
Licensed NFT, Name and Likeness and/or Art from Your Licensed NFTs in
movies, videos, or any other forms of media, except solely for Your
own personal, non-commercial use; (v)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 Licensed NFT, Name and Likeness
and/or Art from Your Licensed NFTs; (vi) attempt to
trademark,copyright, or otherwise acquire additional intellectual
property rights in or to the Licensed NFT, Name and Likeness and/or
Art from Your Licensed NFTs; or(vii) otherwise utilize the Art from
your Licensed NFTs for Your or any thirdparty’s commercial benefit.
To the extent that the Licensed NFT, Name and Likeness
and/or Art associated with Your Licensed NFTs contains Third Party IP
You understand and agree as follows: (i) that You will not have the
right to use such Third Party IP in any way except as incorporated in
the Art, and subject to the license and restrictions contained herein;
(ii) that, depending on the nature of the license granted from the
owner of the Third Party IP, MRM, and/or DeLorean may need to pass
through additional terms and/or restrictions on Your ability to use
the Art; and (iii) to the extent that MRM or DeLorean informs You of
such additional restrictions in writing (email is permissible), You
will be responsible for complying with all such restrictions from the
date that Your eceive the notice, and that failure to do so will be
deemed a breach of this Agreement.
The restrictions in
this Section 4 will survive the expiration or termination of this
Agreement.
5. Termination of the License.
The Licensed Rights granted toYou hereunder shall automatically
terminate and all rights shall return to MRMif: (i) at any time You
sell, trade, donate, give away, transfer, or otherwisedispose of Your
Licensed NFT for any reason except as specially provided insection 3
of this Agreement; (ii) the email address you provide to MRM is
nolonger valid; (iii) You breach any of the Agreement and conditions
and/or OzoneNetworks, Inc. d/b/a OpenSea Terms of Service,
https://opensea.io/tos; (iii) You have a trustee, receiveror similar
party appointed for Your property, become insolvent, acknowledge
Yourinsolvency in any manner, make an assignment for the benefit of
your creditors,or file a petition of bankruptcy; (iv) You engage in
any unlawful businesspractice related to the Licensed NFT; (iv) You
initiate any legal actions, exceptan arbitration as specifically
provided herein, against any of the MRM Parties and/orand each of
their parent, subsidiary and affiliate companies, and each of
theirrespective officers, directors, members, affiliates, agents,
attorneys andemployees; or (v) You disparage any of the MRM Parties or
any parties related toany of them.
6. DISCLAIMER OF
WARRANTIES & LIMITATION OF LIABILITY.ALL LICENSED NFTs ARE
PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OFANY KIND
EITHER EXPRESS OR IMPLIED. TOTHE FULLEST EXTENT PERMISSIBLE PURSUANT
TO APPLICABLE LAW, THE MRM PARTIESDISCLAIM ALL WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO,IMPLIED WARRANTIES OF
NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR APARTICULAR PURPOSE.
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NOEVENT SHALL
THE MRM PARTIES BE LIABLE TO YOU FOR ANY PERSONAL INJURY,
PROPERTYDAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES,
LOSS OF DATA, LOSSOF GOODWILL, WORK STOPPAGE, COMPUTER AND/OR DEVICE
OR TECHNOLOGY FAILURE ORMALFUNCTION, OR FOR ANY FORM OF DIRECT OR
INDIRECT DAMAGES, AND/OR ANY SPECIAL,INCIDENTAL, CONSEQUENTIAL,
EXEMPLARY OR PUNITIVE DAMAGES BASED ON ANY CAUSES OFACTION WHATSOEVER
RELATED TO ANY NFT, INCLUDING BUT NOT LIMITED TO THE LICENSEDNFT, THE
AUCTION, ANY TECHNOLOGY AND/OR PARTIES RELATED TO THE
AUCTION,INCLUDING BUT NOT LIMITED TO BLOCKCHAIN, METAMASK WALLET and
OZONE NETWORKS, INC D/B/A OPENSEA. YOU AGREE THAT THIS LIMITATION OF
LIABILITYAPPLIES WHETHER SUCH ALLEGATIONS ARE FOR BREACH OF CONTRACT,
TORTIOUS BEHAVIOR,NEGLIGENCE, OR FALL UNDER ANY OTHER CAUSE OF ACTION,
REGARDLESS OF THE BASISUPON WHICH LIABILITY IS CLAIMED AND EVEN IF A
DISCLAIMING PARTY HAS BEENADVISED OF THE POSSIBILITY OF SUCH LOSS OR
DAMAGE, AND IN ANY EVENT, TO THEMAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, THE MRM PARTIES’ TOTAL AGGREGATELIABILITY SHALL NOT EXCEED TEN
PERCENT (10%) OF THE TOTAL SUM PAID DIRECTLY BYYOU TO MRM FOR THE
APPLICABLE LICENSED NFT. YOU ACCEPT THE INHERENT SECURITY RISKSOF
PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET AND AGREE
THAT WEHAVE NO LIABILITY OR RESPONSIBILITY FOR ANY BREACH OF SECURITY
UNLESS IT IS DUETO OUR GROSS NEGLIGENCE. IF APPLICABLE LAW DOES NOT
ALLOW ALL OR ANY PART OFTHE ABOVE LIMITATION OF LIABILITY TO APPLY TO
YOU, THE LIMITATIONS WILL APPLYTO YOU ONLY TO THE EXTENT PERMITTED BY
APPLICABLE LAW. PLEASE BE AWARE THATTHIS LIMITATION OF LIABILITY
PROVISION APPLIES TO NEW JERSEY RESIDENTS (ANDRESIDENTS OF ANY OTHER
STATES, TERRITORIES, AND/OR JURISDICTION).
7. Assumption Of Risk. As noted above, the Licensed NFTs are made available solely for
entertainment purposes. You agree that You assume the following
risks:(A) 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 Licensed NFT, and there is nonguaranteed that Your
Licensed NFTs will have or retain any value; (B) the commercial or
market value on a Licensed NFT that You purchase may materially
diminish in value as a result of a variety of factors such as the
actions of third parties and/or negative publicity, and including but
not limited to such factors related to the current and past owners of
the DeLorean car company and any of their actions or statements; (C)
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 the MRM Parties
will not be responsible for any of these, however caused; (D) the MRM
Parties do not make any promises or guarantees about the availability
of the Licensed NFT or the Art on the Internet or that they will host
the Licensed NFT or the Art at any specific location and/or for any
specific period of time; (E) 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
Licensed NFTs; (F) the MRM Parties do not make any promises or
guarantees related to MetaMask Wallet, Ozone Networks, Inc. d/b/a
OpenSea, Blockchain or any other third parties related to this auction
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; (G) the risk
of losing access to Licensed NFT due to loss of private key(s),
custodial error or purchaser error; (H) the risk of mining attacks;
(I) the risk of hacking, security weaknesses, fraud, counterfeiting,
cyber attacks and other technological difficulties (J) 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 ot he
Licensed NFT; (K) the risks related to taxation; (L) that NFTs are not
legal tender and are not back by any government; and (M) the MRM
Parties are not responsible for any transaction between you and a
third party (e.g., Your transfer of a Licensed NFT from a third party
on the so-called “secondarymarket”), and the MRM Parties shall have no
liability in connection with any such transaction. In addition to
assuming all of the above risks, you acknowledge that You have
obtained sufficient information to make an informed decision to
license the Licensed NFT and that You understand and agree that you
are solely responsible for determining the nature, potential value,
suitability and appropriateness of these risks for yourself. MRM and
the MRM Parties cannot and do not represent or warrant that any
Licensed NFT, or its supporting systems or technology, is reliable,
current or error-free, meets Your requirements, or that defects in the
Licensed NFT, or its supporting systems or technology, will be
corrected. MRM and the MRM Parties cannot and do not represent or
warrant that the Licensed NFT or the delivery mechanism for it are
free of viruses or other harmful components. You accept and
acknowledge that MRM and the MRM Parties will not be responsible for
any communication failures, disruptions, errors,distortions or delays
You may experience related to the Auction.
8. Governing Law.
This Agreement and all matters related to it and/or any Licensed NFT
shall be governed by, construed, and enforced in accordance with the
laws of the State of New York, as they are applied to agreements
entered into and to be performed entirely within New York and without
regard to conflict of law principles,except to the extent that law is
inconsistent with or preempted by federal law.
9. Changes to this Agreement. MRM may make changes to this Agreement from time to time. When MRM
makes such changes, we will make the updated Agreement available on
this website and update the “Last Updated” date at the beginning of
the Agreement accordingly. Please check this page periodically for
changes. Any changes to this Agreement will apply on the date that
they are made and, by way of example, Your continued access to or use
of the Licensed NFT and the Art after the Agreement has been updated
will constitute your binding acceptance of the updates.
10. Eligibility:(a) Participation in the DeLorean NFT Collection Auction is open
only to individuals who have the right and authority to enter into
this Agreement, are fully able and competent to satisfy the terms,
conditions, and obligations herein and who are using currency that
such party is the lawful holder thereof. It is not available to Users
who have had their User privileges temporarily or permanently
deactivated. You may not allow other persons to use your User
credentials, and You agree that You are the sole authorized user.
(b) By becoming a User, your represent and warrant that
you are at least 18 years old.
11. Indemnity:
You will defend,indemnify, and hold MRM and the MRM Parties,
including each of their respective affiliates, subsidiaries, parents,
successors and assigns, and each of our respective officers,
directors, employees, agents, or shareholders, harmless from any
claims, actions, suits, losses, costs, liabilities and
expenses(including reasonable attorneys’ fees) relating to or arising
out of your license,sale or possession of the Licensed NFT and/or Your
participation in the auction,including: (1) Your breach of this
Agreement or the documents it incorporates by reference; (2) Your
violation of any law or the rights of a third party as a result of
your own interaction with such third party; (3) any allegation that
any materials that You submit to us or transmit in the course of the
auction,communications seeking MRM’s 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 (4) any other activities in connection with the
Auction or the Licensed NFT. This indemnity shall be applicable
without regard to the negligence of any party, including any
indemnified person.
12. DISPUTERESOLUTION, ARBITRATION AGREEMENT AND CLASS ACTION
WAIVER
(a) Agreement to Binding Arbitration Between You and
MRM.
YOU AGREETO WAIVE YOUR RIGHTS TO RESOLUTION OF
DISPUTES IN A COURT OF LAW BY A JUDGE ORJURY AND AGREE TO RESOLVE ANY
DISPUTE BY ARBITRATION, asset forth below. This agreement to arbitrate
(“Arbitration Agreement”) is governed by the Federal Arbitration Act
(“FAA”) and survives after the Agreement terminates or your
relationship with MRM ends. ANY ARBITRATION UNDER THIS AGREEMENT WILL
TAKE PLACE ON ANINDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS
ARE NOT PERMITTED. Except as expressly provided below, this
Arbitration Agreement applies to all Claims(defined below) between you
and MRM or the MRM Parties, including their affiliates, subsidiaries,
parents, successors and assigns, and each of our respective officers,
directors, employees, agents, or shareholders.
ALL
DISPUTES YOU MAY HAVEWITH, AND CLAIMS AGAINST ANY MRM PARTY (EACH A
“CLAIM” AND COLLECTIVELY,“CLAIMS”) SHALL BE EXCLUSIVELY RESOLVED BY
BINDING ARBITRATION SOLELY BETWEENYOU AND MRM Parties.These Claims
include, but are not limited to, any dispute, claim or
controversy,whether based on past, present, or future events, arising
out of or relating to the DeLorean NFT Collection Auction, this
Agreement and prior versions thereof (including the breach,
termination, enforcement, interpretation or validity thereof),
payments made by you or any payments made or allegedly owed to you,
any promotions o roffers made by any MRM Party, any city, county,
state or federal trade secrets,unfair competition, discrimination,
harassment, retaliation, fraud, defamation,emotional distress, breach
of any express or implied contract or covenant,claims arising under
federal or state consumer protection laws; claims arisingunder
antitrust laws, claims arising under the Telephone Consumer Protection
Act and Fair Credit Reporting Act; and claims arising under the
Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With
Disabilities Act, andstate statutes, if any, addressing the same or
similar subject matters, and all other federal and state statutory and
common law claims. All disputes concerning the arbitrability of a
Claim (including disputes about the scope,applicability,
enforceability, revocability, or validity of the ArbitrationAgreement)
shall be decided by the arbitrator, except as expressly provided
below.
BY AGREEINGTO ARBITRATION, YOU UNDERSTAND THAT YOU
ARE WAIVING THE RIGHT TO SUE IN COURTOR HAVE A JURY TRIAL FOR ALL
CLAIMS. This Arbitration Agreement is intended to require arbitration
of every claim or dispute that can lawfully be arbitrated, except for
those claims and disputes which by the terms of this Arbitration
Agreement are expressly excluded from the requirement to arbitrate.
(b)
Prohibition of Class Actions and Non-Individualized Relief.
YOUUNDERSTAND
AND AGREE THAT YOU MAY BRING CLAIMS IN ARBITRATION AGAINST AN MRM
party ONLY IN AN INDIVIDUAL CAPACITY AND NOT ON A CLASS, COLLECTIVE
ACTION, ORREPRESENTATIVE BASIS (“CLASS ACTION WAIVER”). YOU UNDERSTAND
AND AGREE THAT YOUARE WAIVING THE RIGHT TO PURSUE OR HAVE A DISPUTE
RESOLVED AS A PLAINTIFF ORCLASS MEMBER IN ANY PURPORTED CLASS,
COLLECTIVE OR REPRESENTATIVE PROCEEDING.NOTWITHSTANDING THE FOREGOING,
THIS SUBSECTION 12(B) SHALL NOT APPLY TOREPRESENTATIVE PRIVATE
ATTORNEYS GENERAL ACT CLAIMS BROUGHT AGAINST AN MRMParty, WHICH ARE
ADDRESSED SEPARATELY IN other SECTIONs.
The arbitrator
shall have no authority to consider or resolve any Claim or issue any
relief on any basis other than an individual basis. The arbitrator
shall have no authority to consider or resolve any Claim or issue any
relief on a class, collective, or representative basis. The arbitrator
may award declaratory or injunctive relief only in favor of the
individual party seeking relief and only to the extent necessary to
provide relief warranted by that party's individual claims.
(c)
Rules Governing the Arbitration.
Any arbitration conducted
pursuant to this Arbitration Agreement shall be administered by the
American Arbitration Association (“AAA”) pursuant to its Consumer
Arbitration Rules that are in effect at the time the arbitration is
initiated, as modified by the terms set forth in this Agreement.
Copies of these rules can be obtained at the AAA’s website
(www.adr.org) (the “AAA Rules”) or by calling the AAA
at1-800-778-7879. Notwithstanding the foregoing, if requested by you
and if proper based on the facts and circumstances of the Claims
presented, the arbitrator shall have the discretion to select a
different set of AAA Rules,but in no event shall the arbitrator
consolidate more than one person’s Claims,or otherwise preside over
any form of representative, collective, or class proceeding. The
parties may select a different arbitration administrator upon mutual
written agreement. As part of the arbitration, both you and the
applicable MRM Parties will have the opportunity for reasonable
discovery of non-privileged information that is relevant to the Claim.
The arbitrator may award any individualized remedies that would be
available in court. The arbitrator may award declaratory or injunctive
relief only in favo rof the individual party seeking relief and only
to the extent necessary to provide relief warranted by that
party's individual claims.
The case shall be heard by
one arbitrator, who shall be an executive with a company in the
entertainment event production industry, and will be conducted in
English. The arbitrator will decide the substance of all claims in
accordance with applicable law and will honor all claims of privilege
recognized by law. The arbitrator shall not be bound by rulings in
prior arbitrations involving different Users but is bound by rulings
in prior arbitrations involving the same User to the extent required
by applicable law. The arbitrator’s award shall be final and binding
and judgment on the award rendered by the arbitrator may be entered in
any court having jurisdiction thereof.
(d) Arbitration
Fees and Awards.
The payment of filing and arbitration fees
will be governed by the relevant AAA Rules subject to the following
modification: The arbitrator in his award shall allocate all
arbitration fees in his sole discretion and shall have the power to
charge reasonable attorney fees of the successful party to the losing
party.
(e) Location and Manner of Arbitration.
Unless
you and MRM agree otherwise, any arbitration hearings between MRM and
a User will take place in New York State in the county of New York and
shall take place in English.If AAA arbitration is unavailable in your
county, the arbitration hearings willtake place in the nearest
available location for a AAA arbitration. Your right to a hearing will
be determined by the AAA Rules.
(f) Severability of
Arbitration Agreement provisions
In addition to the
severability provisions in subsections (b) and (c) above, in the event
that any portion of this Arbitration Agreement is deemed illegal or
unenforceable under applicable law not preempted by the FAA, such
provision shall be severed, and the remainder of the Arbitration
Agreement shall be given full force and effect.
(g)
Optional Pre-Arbitration Negotiation Process.Before initiating any
arbitration or proceeding, you and the applicable MRM Parties may
agree to first attempt to negotiate any dispute, claim or controversy
between the parties informally for30 days, unless this time period is
mutually extended by you and the applicable MRM Parties. If you intend
to seek negotiation under this subsection must firs send to the
applicable MRM Parties a written notice of the dispute (“Notice”)to
MRM at [address]. The Notice must (1) describe the nature and basis of
the claim or dispute; and (2) set forth the specific relief sought.
All offers, promises, conduct and statements, whether oral or written,
made in the course of the negotiation by MRM or the MRM Parties, their
agents, employees, and attorneys are confidential, privileged and
inadmissible for any purpose, including as evidence of liability or
for impeachment, IN arbitration or other proceeding involving the
parties.
13. TAXES
You are responsible for
all applicable tax including any VAT, sales or compensating use tax or
equivalent tax wherever such taxes may arise. The successful bidder is
responsible for any applicable taxes including any sales or use tax or
equivalent tax wherever such taxes may arise on the price, the buyer’s
premium, and/or any other charges related to this Auction.The
applicable sales tax rate will be determined based upon the state,
county, or locale. The MRM Parties are not responsible for determining
the taxes that may apply to your transaction(s).
14. If
you are provided a translation of this Agreement, the original version
in English will be used in deciding any issues or disputes which arise
under this Agreement.
15. Severability If any term or
provision of this Agreement is invalid, illegal, or unenforceable in
any jurisdiction, such invalidity, illegality, or unenforceability
shall not affect any other term or provision of this Agreement or
invalidate or render unenforceable such term or provision in any other
jurisdiction.
16. Contact Us If you have any questions or
concerns, including if you need to access this Agreement in an
alternative format, we encourage you to contact us via e-mail at
Info@DeLorean40NFT.com