CounterTEN Terms of Service

Last Updated: 03/14/2024

General

These Terms of Service (these “Terms”) govern your access to, and use of products and services made available by CounterTEN.com (“CounterTEN”, “Company”, “we”, “us” or “our”) on CounterTEN.com, our APIs, mobile app (the “App”), and any other software provided in connection with our products and services (collectively, the “Service”). For purposes of these Terms, “user”, “you”, and “your” means you as the user of the Service, including but not limited to your use of the Service to create or sell non-fungible tokens implemented on a blockchain (“NFTs”) using our Service and/or to view or purchase NFT’s created by others.

By signing up for a CounterTEN account on the Service or otherwise using or accessing the Service, you acknowledge that you have read and agree to these Terms. CounterTEN’s Privacy Policy available at https://counterten.com/privacy is hereby incorporated by reference into these Terms and expressly agreed to and acknowledged by you. These Terms, as may be amended from time to time by CounterTEN and updated on the Service shall, at all times, govern our relationship, and these Terms, shall prevail in the event of any conflict with any other agreement, document, letter, or instrument executed with you.

If you use the Service on behalf of a company or other entity then “you” includes you and that entity, and you represent and warrant that (a) you are an authorized representative of the entity with the authority to bind the entity to these Terms, and (b) you agree to these Terms on the entity’s behalf.

PLEASE READ THESE TERMS OF SERVICE CAREFULLY, INCLUDING THE TERMS IN THE SECTION ENTITLED “DISPUTES” AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST COUNTERTEN ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW. THESE TERMS OF USE ARE IMPORTANT AND AFFECT YOUR LEGAL RIGHTS, SO READ THEM CAREFULLY. BY CLICKING TO ACCEPT AND/OR USING OUR SERVICE, YOU AGREE TO BE BOUND BY THESE TERMS AND ALL OF THE TERMS INCORPORATED HEREIN BY REFERENCE. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICE.

We reserve the right to change or modify these Terms at any time and in our sole discretion. If we make material changes to these Terms, we will use reasonable efforts to provide notice of such changes, such as by providing notice through the Service or updating the “Last Updated” date at the top of these Terms. By continuing to access or use the Service, you confirm your acceptance of the revised Terms and all of the terms incorporated therein by reference effective as of the date these Terms are updated. It is your sole responsibility to review the Terms from time to time to view such changes and to ensure that you understand the terms and conditions that apply when you access or use the Service.

Our Service

The Service is an online platform through which (a) brands and other third parties can create and sell their own NFTs using smart contracts, and (b) consumers can view, purchase and store NFTs on the Solana Blockchain (the “Blockchain”). We are not a broker, or a financial institution, or a marketplace. CounterTEN through its Service facilitates transactions between the creator or seller of the NFT and the purchaser in a peer-to-peer manner and should neither be considered a marketplace nor a party, directly or indirectly, to any agreement between the seller and purchaser of an NFT or otherwise between any users of the Service. Notwithstanding anything to the contrary, CounterTEN makes no claims and accepts no liability or responsibility about the identity, legitimacy, or authenticity of NFTs offered for sale on or through the Service.

Accessing the Service

In order to use certain features of the Service you will need to register for an account on the Service (“Account”). You must be eighteen (18) years old to register for an Account. By creating an Account, you agree to (i) provide accurate, current, and complete Account information about yourself, (ii) maintain and promptly update from time to time as necessary your Account information, (iii) maintain the security of your password, wallet or private keys and accept all risks of unauthorized access to your Account as unauthorized usage is strictly prohibited and the information you provide to us, and (iv) immediately notify us if you discover or otherwise suspect any unauthorized usage or a security breach related to the Service or your Account. You may have more than one Account, and CounterTEN reserves the right to block multiple accounts of the same user at our sole discretion. You are solely responsible for the activity that occurs on your Account, including your use of a wallet and we make no representations or warranties regarding how the Service will operate with any specific wallet. You agree to immediately notify us if you discover or otherwise suspect any security issues related to the Service or your Account (you can contact us at [email protected].

You are hereby granted a limited, nonexclusive, nontransferable, nonsublicensable, and nonassignable license to access and use the Service provided, however, that such license is subject to your compliance with these Terms. If any software, content, or other materials owned by, controlled by, or licensed to us are distributed or made available to you as part of your use of the Service, we hereby grant you a non-commercial, non-assignable, non-sublicensable, non-transferrable, and non-exclusive right and license to access and display such software, content, and materials provided to you as part of the Service (and right to download a single copy of the App onto your applicable device), in each case for the sole purpose of enabling you to use the Service as permitted by these Terms, provided that your license in any content linked to or associated with any NFTs is solely as set forth by the applicable Minter (as defined below) of such NFT.

User Code of Conduct

If we believe you have violated these Terms, we may remove your ability to view certain NFTs on the Service; disable your the ability to use the Service in connection with creating/buying/selling/transferring NFTs; suspend your ability to access our Service; and/or other actions. You agree that you will not violate any law, contract, intellectual property or other third-party right, and that you are solely responsible for your conduct and content, while accessing or using the Service. You also agree that you will not:

• Use or attempt to use another user’s Account without authorization from such user;
• Access the Service from a different Blockchain address if we have blocked any of your other Blockchain addresses from accessing the Service;
• Violate the security of any computer network, or crack any password, account, or other security information of any other user while using the Service.
• Mint any NFTs or upload any content which contain 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; pose or create a privacy or security risk to any person; constitute 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; are unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libellous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; or in the sole judgment of CounterTEN, are objectionable or may expose CounterTEN or its users to any liability of any type.
• Attempt to probe or probe, scan, or test the vulnerability of any CounterTEN server or network or breach any security or authentication measures.
• Reverse engineer, duplicate, decompile, disassemble, or decode any aspect of the Service, or circumvent any technological measure implemented by CounterTEN to protect the Service, including without limitation, encryption technology used to protect sensitive personal information.
• Use any robots, spider, crawler, scraper, script, deep link, or other similar automated data gathering or extraction tool, program, algorithm or methodology to access, copy, modify or monitor the Service.
• Employ, operate, or create a computer program to simulate the human behavior of a user (“Bots”), and or use, employ, or operate such Bots or other similar forms of automation to engage in any activity or transaction on the Service.
• 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.
• Use the Service to carry out any financial activities subject to registration or licensing, including but not limited to creating, selling, or buying securities, commodities, options, or debt instruments;
• Use the Service to create, sell, or buy NFTs or other items that give owners rights to participate in an initial coin offering or any securities offering, or that are redeemable for securities, commodities, or other financial instruments;
• Use the Service to engage in price manipulation, fraud, or other deceptive, misleading, or manipulative activity;
• Use the Service to buy, sell, or transfer stolen items, fraudulently obtained items, items taken without authorization, and/or any other illegally obtained items;
• Infringe or violate the intellectual property rights or any other rights of others; and
• Use the Service in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Service.

Minting and Selling an NFT

An individual who has created a Business Account through the Service or visits or browses CounterTEN.com can use his or her Account to use the Service to create or issue (“Mint”) an NFT on the Blockchain. By Minting an NFT or otherwise using the Service, you agree to comply with any terms, including licenses or payment rights, that you embed within or otherwise include with the NFT, and to disclose fully all such terms in the description of your listing of the NFT on the Service. Certain additional terms may apply to your use of the Service to Mint NFTs.

CounterTEN is not and shall not be a party to any transaction or dispute between any user who mints or sells an NFT (a “Minter”) and any actual or prospective purchaser or owner of that NFT, whether arising from any rights granted in that NFT or otherwise. Each Minter acknowledges and agrees to the following:

• Selling NFTs through the Service constitutes an express representation, warranty, and covenant that the Minter has not, will not, and will not cause another to sell, tokenize, or create another cryptographic token representing the exact same digital utility or collectible for the NFT;
• Minting NFTs through the Service constitutes an express grant to CounterTEN of a non-exclusive, world-wide, assignable, sublicensable, perpetual, and royalty-free license to access, use, transmit, adapt, modify, translate, publish, create derivative works based on the NFT, make copies of, display, perform, reproduce, and distribute the NFT, in whole or in part, on any media whether now known or later discovered for the broad purpose of operating, promoting, sharing, developing, marketing, and advertising the Service, or any other purpose related to CounterTEN, including without limitation, the express right to: (i) display or perform the NFT on the Service, social media posts, blogs, editorials, advertising, market reports, virtual environments, editorials, or to the public; (ii) create and distribute digital or physical derivative NFTs; (iii) indexing the NFT in electronic databases, indexes, catalogues; and (iv) hosting, storing, distributing, and reproducing one or more copies of the NFT within a distributed file keeping system, node cluster, or other database (e.g., IPFS) or causing, directing, or soliciting others to do so; and
• Listing of NFTs on the Service complies with CounterTEN’s Code of Conduct specified in these Terms and does not contain unlicensed or unauthorized copyrighted content.

CounterTEN reserves the rights to determine the appropriateness of NFT listings on the Service and may remove any NFT or other user content at any time. If you create content or offer an NFT in violation of these Terms, we reserve the right to take corrective actions, as appropriate, including but not limited to removing the NFT or content from our system, disabling NFT verification, deleting your Account, and permanently withholding payments due and owed to you. CounterTEN may not be able to destroy or impound your NFTs, but if they are stored on the CounterTEN custodial wallet and are in violation of our Terms of Service, we reserve the right to transfer ownership away from the current owner and destroy inappropriate or illegal metadata stored on our servers and IPFS.

If you become aware of the Minting, listing, or selling, of NFTs in violation of these Terms, please contact us at [email protected] to report it.

By using the Service to Mint an NFT, you hereby appoint CounterTEN as your limited payments agent for the sole purpose of receiving, holding, and settling payments due and owed to you arising out of the Minting of NFTs through the Service and any sales of such NFTs through the Service. Subject to these terms, CounterTEN will process such payments and settle payments that are actually received by CounterTEN, less any amounts owed to CounterTEN, including taxes, fees, and other obligations. You agree that a payment received by CounterTEN on your behalf satisfies the purchaser’s obligation to make payment to you.

Purchasing an NFT

Each purchaser of an NFT (a “Purchaser”) receives a cryptographic token representing the NFT as a piece of property, but do not own the creative work itself. Purchasers may display and share the NFTs, but as a Purchaser, you do not have any legal ownership, right, or title to any copyrights, trademarks, or other intellectual property rights to the NFT, excepting the limited license to the NFT granted by these Terms or the terms of the Minter or the NFT that has been purchased.

Upon purchasing an NFT, you will receive a limited, worldwide, non-assignable, non-sublicensable, royalty-free license to display the NFT legally owned and properly obtained by the Minter: (i) for the purpose of promoting or sharing the purchase, ownership, or interest, (ii) for the purpose of sharing, promoting, discussing, or commenting on the NFT; (iii) on third party marketplaces, exchanges, platforms, or applications in association with an offer to sell, or trade, the NFT; and (iv) within decentralized virtual environments. Purchaser have the right to sell, trade, transfer, or use their NFT, but may not make “commercial use” of the NFT unless otherwise specified in the terms of the NFT or otherwise approved by the Minter.

As a Minter or a Purchaser, you irrevocably release, acquit, and forever discharge CounterTEN and its officers, directors and agents of any liability in connection with your use of the NFT and any dispute related to an NFT. If you are a California resident using the Service, you may specifically waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”

All sales of NFTs are final. Once you have made a purchase of an NFT, you should promptly take the necessary steps to complete your transaction (e.g., download the NFT to your Apple or Google mobile wallet). We encourage you to create your own Solana digital wallet and use this in place of the CounterTEN custodial wallet. CounterTEN will not be held liable for any loss of use that results from the CounterTEN custodial wallet being compromised – either through the negligence of a website user, a deliberate malicious attack on the CounterTEN infrastructure, or any other reason.

You may purchase NFTs using fiat or cryptocurrency, where multiple payment options are made available to you. You may resell or otherwise transfer an NFT that you purchase where permitted under applicable NFT Terms and applicable law. Any sale or transfer must provide for the transfer of all of your rights then outstanding with respect to such NFT. Anyone receiving such NFTs from you agrees to and is bound by these NFT Terms. Any transfers that take place outside of the application will no longer verify authenticity and ownership using the QR code provided on the NFT. CounterTEN recommends any and all transfers to take place through its own secondary marketplace.

CounterTEN allows the purchase of NFTs using a credit through the Stripe payment gateway. Your use of Stripe is subject to the applicable Stripe Terms of Service found at https://stripe.com/connect/legal.

Users are responsible to pay any and all sales, use, value-added and other taxes imposed by any governmental entity in connection with your use of CounterTEN.

CounterTEN uses custodial wallets for the purpose of Minting, buying, or selling NFTs. The platform also allows user-provided wallets to be used, thus granting you 100% control over the access to the fund. You understand and agree that non-custodial wallets are not operated by, maintained by, or affiliated with CounterTEN, and CounterTEN does not have custody or control over the contents of your wallet and CounterTEN has no ability to retrieve or control Item once it has been Minted, this enables a User to freely transfer an NFT from CounterTEN to any other marketplace without any restriction.

We accept no responsibility for, or liability to you, in connection with your use of a wallet and make no representations or warranties regarding how the Service will operate with any specific wallet. You are solely responsible for keeping your wallet secure and you should never share your wallet credentials with anyone. If you discover an issue related to your wallet, please contact your wallet provider. You are solely responsible for your wallet and we are not liable for any acts or omissions by you in connection with your wallet being compromised. For all transactions minted on the CounterTEN custodial wallet, we strive to do everything in our power to maintain a secure custodial wallet, but we accept no responsibility for, or liability to you, in connection with the custodial wallet being compromised by a malicious third party.

Third-Party Materials

CounterTEN does not make any representations or warranties about third-party content visible through our Service, including any content associated with NFTs displayed on the Service, regardless of whether CounterTen provided suggested content for the NFT. Each Minter bears responsibility for the content of its NFTs and each Purchaser bears responsibility for verifying the legitimacy, authenticity, and legality of NFTs that you purchase from NFT sellers.

NFTs are subject to terms specified in the NFT by the Minter which are directly between the Minter and the Purchaser with respect to the use of the NFT content and benefits associated with a given NFT (“Purchase Terms”). CounterTEN is not a party to any such Purchase Terms, and you are responsible for reviewing such Purchase Terms.

The Service may also contain links or functionality to access or use third-party websites and applications, or otherwise display, include, or make available content, data, information, services, applications, or materials from third parties (collectively, “Third-Party Materials”). When you click on a link to, or access and use, Third-Party Materials, you are subject to the terms and conditions of another third party. Third-Party Materials are not under the control of CounterTEN, and CounterTEN is not responsible or liable for any Third-Party Materials. You use all Third-Party Materials at your own risk.

Intellectual Property Rights

The Service and all rights therein are and shall remain CounterTEN’s property or the property of CounterTEN’s licensors. Neither these Terms nor your use of the Service conveys or grants to you any rights in or related to the Service except for the limited license to use the Service granted above.

You agree that you will not use CounterTEN’s trademarks, service marks, or trade dress or any similar names, marks, or trade dress (“CounterTEN’s Marks”), aside from use incidental to your use of the Service, without express, written permission from CounterTEN. This prohibition on using CounterTEN Marks includes, but is not limited to, use in domain names, websites, and social media accounts.

CounterTEN may permit you from time to time to submit, upload, publish or otherwise make available to it through the Service textual, audio, and/or visual content and information (“User Content”). Any User Content provided by you remains your property. However, by providing User Content to CounterTEN, you grant CounterTEN a worldwide, perpetual, irrevocable, transferable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Service and CounterTEN’s business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.

You represent and warrant that: (i) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents and releases necessary to grant CounterTEN the license to the User Content as set forth above; and (ii) neither the User Content, nor your submission, uploading, publishing or otherwise making available of such User Content, nor CoutnerTEN’s use of the User Content as permitted herein will infringe, misappropriate or violate a third-party’s intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

You agree to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by CounterTEN whether or not such material may be protected by law. CounterTEN may, but shall not be obligated to, review, monitor, and remove User Content, at its sole discretion and at any time and for any reason, without notice to you.

Notwithstanding the foregoing, with respect to any ideas, information, or suggestions you submit relating to the Service (collectively, “Feedback”) regardless of what your communication regarding your Feedback says, you understand that your Feedback submission is voluntary and the following terms shall apply to your submissions: (i) your Feedback will automatically become the property of CounterTEN, without any compensation to you; (ii) CounterTEN has no obligation to review your Feedback; and (iii) CounterTEN has no obligation to keep your Feedback confidential.

Digital Millennium Copyright Act

Our policy is to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act (“DMCA”). Copyright-infringing materials found on the Service can be identified and removed via our process listed below, and you agree to comply with such process in the event you are involved in any claim of copyright infringement to which the DMCA may be applicable.

If you believe in good faith that your work has been copied in a way that constitutes copyright infringement, please provide our copyright agent the written information specified below. Please note that this procedure is exclusively for notifying us that your copyrighted material has been infringed. We do not and will not make any legal decisions about the validity of your claim of infringement or the possible defenses to a claim. When a clear and valid notice is received pursuant to the guidelines set forth below, we will respond by either taking down the allegedly infringing content or blocking access to it. We may contact the notice provider to request additional information. Under the DMCA, we are required to take reasonable steps to notify the user who posted the allegedly infringing content (“Alleged Infringer”). The Alleged Infringer is allowed under the law to send us a counter-notification. Notices and counter-notices are legal notices distinct from regular activities or communications through the Service. We may publish or share them with third parties in our sole discretion (in addition to producing them pursuant to a subpoena or other legal discovery request). Anyone making a false or fraudulent notice or counter-notice may be liable for damages under the DMCA, including costs and attorneys’ fees. Any person who is unsure of whether certain material infringes a copyright held by such person or a third party should contact an attorney.

To file a DMCA notice, the copyright owner must send in a written letter by regular mail only. We reserve the right to ignore a notice that is not in compliance with the DMCA, and we may, but are not obligated to, respond to a non-compliant notice.

A DMCA notice must:

• Identify specifically the copyrighted work(s) believed to have been infringed (for example, “My copyrighted work is the picture that appears at [list location where material is located].”);
• Identify the content that a copyright owner claims is infringing upon copyrighted work. The copyright owner must provide information reasonably sufficient to enable us to locate the item on the Service. The copyright owner should provide clear screenshots of the allegedly infringing materials for identification purposes only. The information provided should be as detailed as possible;
• Provide information sufficient to permit us to contact the copyright owner directly: name, street address, telephone number, and email (if available);
• If available, provide information sufficient to permit us to notify the Alleged Infringer (email address preferred);
• Include the following statement: “I have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law”;
• Include the following statement: “I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed”;
• Be signed; and
• Be sent to our DMCA designated agent at the following address:

CounterTEN, Inc.
Attn: DMCA Designated Agent
11172 Corte Pleno Verano
San Diego, California 92130
Email: [email protected]
Phone: 858-251-9032

Indemnification

By agreeing to these Terms and accessing the Service, you agree, to the fullest extent permitted by applicable law, to indemnify, defend, and hold harmless CounterTEN and its licensors and suppliers, and their respective directors, officers, employees, consultants, agents and other representatives, harmless from and against any and all claims, damages, losses, costs (including reasonable attorneys’ fees) and other expenses that arise directly or indirectly out of or from (a) your breach of these Terms or any NFTs, including but not limited to any violation of the Code of Conduct above; (b) any allegation that any NFT, User Content or other materials you submit to us or transmit through the Service infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party; (c) your activities in connection with the Service, including but not limited to your creation, use, sale or purchase of any NFT through the Service; (d) your negligence or willful misconduct, and/or (e) termination of your access to the Service.

Warranty Disclaimer

YOUR ACCESS TO AND USE OF THE SERVICE IS AT YOUR OWN RISK. YOU UNDERSTAND AND AGREE THAT THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND COUNTERTEN EXPRESSLY DISCLAIMS WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. COUNTERTEN AND ITS LICENSORS AND SUPPLIERS MAKE NO WARRANTY OR REPRESENTATION AND DISCLAIM ALL RESPONSIBILITY FOR WHETHER THE SERVICE: (A) WILL MEET YOUR SPECIFIC REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, COMPLETE, LEGAL, OR SAFE. COUNTERTEN DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. COUNTERTEN WILL NOT BE LIABLE FOR ANY LOSS OF ANY KIND FROM ANY ACTION TAKEN OR TAKEN IN RELIANCE ON MATERIAL OR INFORMATION, CONTAINED ON THE SERVICE. COUNTERTEN DOES NOT REPRESENT OR WARRANT THAT THE SERVICE, CONTENT, OR ANY NFTS YOU MINT OR PURCHASE USING OUR SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACCEPT THE SECURITY RISKS OF PROVIDING INFORMATION THROUGH THE SERVICE AND WILL NOT HOLD COUNTERTEN RESPONSIBLE FOR ANY DATA OR SECURITY BREACH.

WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSS AND TAKE NO RESPONSIBILITY FOR: (A) SERVER FAILURE OR DATA LOSS OR CORRUPTION; (B) UNAUTHORIZED ACCESS OR USE; AND (C) ANY THIRD-PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, CYBER ATTACK AGAINST THE SERVICE OR NFTS. SCHEDULED AND UNSCHEDULED INTERRUPTIONS MAY OCCUR, AND WE DO NOT WARRANT UNINTERRUPTED AVAILABILITY OF THE SERVICE.

NFTS EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE BLOCKCHAIN. ANY TRANSFERS OR SALES OCCUR ON THE BLOCKCHAIN. COUNTERTEN AND/OR MINTERS CANNOT EFFECT OR OTHERWISE CONTROL THE TRANSFER OF TITLE OR RIGHT IN ANY NFTS AND NEITHER COUNTETEN NOR ANY MINTERS WILL BE RESPONSIBLE FOR ANY ACTIVITY OCCURING ON THE BLOCKCHAIN, INCLUDING BUT NOT LIMITED TO ANY ISSUES WITH THE BLOCKCHAIN SUPPORTING THE NFTS, INCLUDING FORKS, OR TECHNICAL NODE ISSUES.

IF YOUR JURISDICATION DOES NOT ALLOW AN EXCLUSION OF IMPLIED WARRANTIES IN CONTRACTS WITH CONSUMERS, THE ABOVE PROVISIONS MAY NOT APPLY TO YOU.

Potential Risks Specific to NFTs

You acknowledge that NFTs carry certain risks among others. We expressly disclaim any responsibility for these risks, including but not limited to the following:

• The risk of hardware, software and Internet connections, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to information stored within your electronic wallet. You accept and acknowledge that we will not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience when using the Blockchain, however caused;
• NFT prices and markets are extremely volatile and any variations in the price of other digital assets could materially and adversely affect the value of any NFTs your purchase. There is no guarantee that NFTs will have or retain any value.
• Any transfer of NFTs occurs within the supporting Blockchain, and not through the Service. You accept and acknowledge that we will not be responsible for any loss of access to your NFTs due to loss of your private key(s), custodial error or purchaser error, mining attacks, hacking, security weaknesses, fraud, counterfeiting, cyberattacks and other technological difficulties through the Blockchain.
• NFTs are a new product and the regulatory environment is uncertain. New regulations may materially adversely affect the development of the NFT ecosystem, and therefore the potential value of your NFTs. You accept and acknowledge that we will not be responsible for the risk of changes to the regulatory regime governing digital assets, including NFTs. In addition, you are solely responsible for determining what, if any, taxes apply to your NFT-related transactions. We are not responsible for determining the taxes that apply to your transactions through the Service.

Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AGREE THAT IN NO EVENT WILL COUNTERTEN, ITS LICENSORS OR ITS SERVICE PROVIDERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES ARISING FROM THESE TERMS OR THE SERVICE, PRODUCTS OR THIRD-PARTY SITES AND PRODUCTS, OR FOR ANY DAMAGES RELATED TO LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, OR LOSS OF DATA, AND WHETHER CAUSED BY STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE AND EVEN IF COUNTERTEN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF COUNTERTEN ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS, THE ACCESS TO AND USE OF THE SERVICE, CONTENT, NFTS, OR ANY OTHER PRODUCTS OR SERVICES EXCEED THE GREATER OF (A) $100 OR (B) THE AMOUNT YOU HAVE PAID TO COUNTERTEN FOR THE SERVICES IN THE LAST TWELVE MONTHS OUT OF WHICH LIABILITY AROSE. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. Some jurisdictions also limit disclaimers or limitations of liability for personal injury from consumer products, so this limitation may not apply to personal injury claims.

Consent to Receive Electronic Communications

Pursuant to these Terms, you hereby: (a) consent to receive communications from us in an electronic form via the email address you have submitted; and (b) agree that all Terms, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if it were in writing. The foregoing does not affect your non-waivable rights. We may also use your email address to send you other messages, including information about the Service and special offers. You may opt out of such email by changing your account settings, using the “Unsubscribe” link in the message, or by sending an email to [email protected]. Opting out may prevent you from receiving messages regarding the Service or other special offers.

Modifications to the Service

We reserve the right in our sole discretion to modify, suspend, or discontinue, temporarily or permanently, the Service (or any features or parts thereof) at any time and without liability as a result.

Disputes

Please read the following agreement to arbitrate (“Arbitration Agreement”) in its entirety. This clause requires you to arbitrate disputes with CounterTEN and limits the manner in which you can seek relief from us.

You agree that any dispute or claim relating in any way to: your access, use, or attempted access or use of the Service; any NFT or other products sold or distributed through the Service; or any aspect of your relationship with CounterTEN will be resolved by binding arbitration, except that (1) you may assert claims in small claims court if your claims qualify; and (2) you or CounterTEN may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyright, or patent). You agree that any such arbitration shall be settled solely and exclusively by binding arbitration held in Los Angeles, California, administered by JAMS.

Any such arbitration shall be conducted in accordance with the then-prevailing JAMS Streamlined Arbitration Rules & Procedures, except that any dispute involving claims and counterclaims over $250,000, not inclusive of attorneys’ fees and interest, shall be subject to the then-prevailing JAMS Comprehensive Arbitration Rules and Procedures.

The arbitrator shall have exclusive authority to (1) determine the scope and enforceability of this Arbitration Agreement; and (2) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including but not limited to any claim that all or part of this Arbitration Agreement is void or voidable; (3) decide the rights and liabilities, if any, of you and CounterTEN; (4) grant motions dispositive of all or part of any claim; (5) award monetary damages and grant any non-monetary remedy or relief available to a party under applicable law, arbitration rules, and these Terms of Use (including the Arbitration Agreement). The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. Such an award is final and binding upon you and us.

You and CounterTEN agree that each party may bring claims against the other party only in an individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding, including without limitation federal or state class actions, or class arbitrations. Accordingly, under the arbitration procedures outlined in this section, an arbitrator shall not combine or consolidate more than one party’s claims without the written consent of all affected parties to an arbitration proceeding. Without limiting the generality of the foregoing, you and Company agree that no dispute shall proceed by way of class arbitration without the written consent of all affected parties.

You have the right to opt-out and not be bound by the arbitration and waiver of class provisions set forth in these Terms by sending written notice of your decision to opt-out to [email protected]. The notice must be sent to the Company within thirty (30) days of your registering to use the Service or agreeing to these Terms (or if the pertaining to arbitration, is materially amended hereafter, within 30 days of such amendment being effective), otherwise you shall be bound to arbitrate disputes in accordance with these Terms, and the notice must specify your name and mailing address. If you opt-out of these arbitration provisions, the Company also will not be bound by them.

If any part of this Arbitration Agreement is found to be invalid or unenforceable, then such part shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue to in full force and effect.

This Arbitration Agreement shall survive the termination of your relationship with CounterTEN.

Governing Law and Venue

These Terms and your access to and use of the Service shall be governed by and construed and enforced in accordance with the laws of the State of California (without regard to conflict of law rules or principles of the State of California, or any other jurisdiction that would cause the application of the laws of any other jurisdiction). Any dispute between the parties that is not subject to arbitration as set forth above or cannot be heard in small claims court, shall be resolved in the state or federal courts of Los Angeles, California.

Termination

If you breach any of the provisions of these Terms, all licenses granted by CounterTEN will terminate automatically. Additionally, notwithstanding anything contained in these Terms, we reserve the right, with or without notice and in our sole discretion, to suspend, disable, terminate, or delete your Account and/or your ability to access or use the Service (or any part of the foregoing) at any time and for any or no reason, and you acknowledge and agree that we shall have no liability or obligation to you in such event and that you will not be entitled to a refund of any amounts that you have already paid to us.

Severability

If any term, clause, or provision of these Terms is held invalid or unenforceable, then that term, clause, or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause, or provision, or any other term, clause, or provision of these Terms.

Injunctive Relief

You agree that a breach of these Terms will cause irreparable injury to CounterTEN for which monetary damages would not be an adequate remedy and CounterTEN shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security, or proof of damages.

California Residents

If you are a California resident, in accordance with Cal. Civ. Code § 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.

Export Laws

You represent and warrant that you will comply with all applicable laws (e.g., local, state, federal and other laws) when using the Service. You agree that you will not export or re-export, directly or indirectly, the Service, and/or other information or materials provided by CounterTEN hereunder, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. In particular, but without limitation, the Service may not be exported or re-exported (a) into any U.S. embargoed countries or any country that has been designated by the U.S. Government as a “terrorist supporting” country, or (b) to anyone listed on any U.S. Government list of prohibited or restricted parties, including the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Service, you represent and warrant that you are not located in any such country or on any such list. You are responsible for and hereby agree to comply at your sole expense with all applicable United States export laws and regulations.

Miscellaneous

These Terms constitute the entire agreement between you and CounterTEN relating to your access to and use of the Service. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of CounterTEN, and CounterTEN’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default.

Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. All sections which by their nature should survive the termination of these Terms shall continue in full force and effect subsequent to and notwithstanding any termination of these Terms by CounterTEN or you. Termination will not limit any of CounterTEN’s other rights or remedies at law or in equity.

The Service is operated by us in the United States. Those who choose to access the Service from locations outside the United States do so at their own initiative and are responsible for compliance with applicable local laws.

Professional Services

If you are purchasing Professional Services from CounterTEN, the terms of the Professional Services Addendum set forth at https://counterten.com/professional-services/ shall also apply.

Contact Information

If you have any questions, would like to provide feedback, or would like more information about CounterTEN, Inc., please feel free to email us at [email protected] or write to us at: CounterTEN, Inc., 11172 Corte Pleno Verano, San Diego, California 92130.