These Platform User Terms of Service (these “Terms”) govern your access to and use of products, services and properties made available by Penky (“us”, “we”, or “our”) on this SaaS Platform. As used herein, the term “you” (including any variant) or “User” refers to each individual user who enters into these Terms on such individual’s own behalf or any entity on behalf of which an individual enters into these Terms. Penky provides its services (as described below) to you through its website, SaaS Platform, and marketplace (the “Platform”), subject to the following Terms of Service (as amended from time to time, the “Terms”). Our products, services and properties include, without limitation, to help you in marketing and sale, of certain digital assets, with and to, potential buyers by enabling you to create your own store(s), marketplace(s), shop(s) or hub(s); our online services, and software provided on or in connection with those services (collectively, the “Service”).
PLEASE READ THESE TERMS OF PLATFORM 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 EXCEPTION) 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 PENKY 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.
Penky reserves the right to change or modify these Terms at any time and in our sole discretion. If we make changes to these Terms, we will provide notice of such changes, such as by sending an email notification, providing notice through the Service or updating the “Last Updated” date at the beginning of these Terms. By continuing to access or use the Service at any point after such update, you confirm your acceptance of the revised Terms and all of the terms incorporated therein by reference. We encourage you to review these Terms frequently to ensure that you understand the terms and conditions that apply when you access or use the Service. If you do not agree to the revised Terms, you may not access or use the Service.
The Service is an online platform through which anyone can launch their own NFT(s); store(s), marketplace(s), shop(s), or hub(s), which can be used by anyone to mint, purchase or offer to purchase, and sell or offer for sale or auction of digital artwork as unique Non-Fungible Tokens (“NFTs”) collectively referred to as (“Items”) created on the one or more Blockchain networks utilized by Penky (each referred to as a “Blockchain Platform”) using smart contracts. You may only create a store or marketplace by registering on the platform & then only participate in the minting or sale of any Item on the created store or marketplace, as described below.
Penky offers a platform for creators, collectors, and sellers of digital assets and any products, services and/or benefits, whether digital or otherwise, to be furnished by or on behalf of sellers in connection with such sales. We are not a broker, financial institution, or creditor, Penky through its platform powered stores or marketplace facilitates transactions between the buyer and seller in a peer-to-peer manner but is not a party to any agreement between the buyer and seller or otherwise between any users of the service.
You bear full responsibility for verifying the identity, legitimacy, and authenticity of Items you sell or market through the services. Notwithstanding indicators and messages that suggest verification, Penky makes no claims about the identity, legitimacy, or authenticity of Items offered for sale on or through the platform.
a. 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 and the information you provide to us, and (iv) immediately notify us if you discover or otherwise suspect any security breaches related to the Service or your Account. You may have more than one Account, and Penky reserves the right to block multiple accounts of the same user at their sole desecration.
b. You agree that you will not:
1. Buy, sell, rent, or lease access to your Account or username without our written permission.
2. Share your Account password with anyone.
3. Log in or try to log in to access the Service through unauthorized third-party applications or clients.
c. Penky may require you to provide additional information and documents at the request of any competent authority or in order to help Penky comply with applicable law, regulation, or policy, including laws related to anti-laundering (legalization) of incomes obtained by criminal means, or for counteracting financing of terrorism. Penky may also require you to provide additional information and documents in cases where it has reasons to believe that:
1. Your Account is being used for money laundering or for any other illegal activity.
2. You have concealed or reported false identification information and other details.
3. Transactions effected via your Account effected in breach of these Terms.
In such cases, Penky, in its sole discretion, may pause or cancel your transactions until such requested additional information and documents have been reviewed by Penky and accepted as satisfying the requirements of applicable law, regulation, or policy. If you do not provide complete and accurate information and documents in response to such a request, Penky may refuse to provide any Item, Content, product, service, and/or further access to the Service to you.
d. By providing your email in your dashboard, you consent to receive electronic communications from Penky (e.g., via email or by posting notices to the Service). These communications may include notices about your Account (e.g., password changes and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, any requirements that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy. We have no obligation to store for your later use or access any such electronic communications that we make to you. We may also send you promotional communications via email, including, but not limited to, newsletters, special offers, surveys and other news and information we think will be of interest to you. You may opt out of receiving these promotional emails at any time by sending an email to email@example.com.
c. When you register for an Account, you hereby represent and warrant, to and for the benefit of Penky and its affiliates, as follows:
1. Authority. You have all requisite capacity, power and authority to enter into and perform your obligations under these Terms, including to creating a store(s), marketplace(s), shop(s), hub(s) to Mint, list, sell or trade any Items. The execution, delivery and performance of, and the performance of your obligations under, these Terms have been duly authorized by all necessary action on your part and on the part of any entity on behalf of which you are entering into these Terms, and no other proceedings are necessary to authorize the execution, delivery or performance of your obligations under these Terms.
2. Due Execution. These Terms constitute your legal, valid and binding obligation, enforceable against you in accordance with these Terms.
3. Accuracy of Information. All information provided to Penky, including any address and social security number or tax ID number, is accurate and complete. None of: (i) you; (ii) any affiliate of any entity on behalf of which you are entering into these Terms; (iii) any other person having a beneficial interest in any entity on behalf of which you are entering into these Terms (or in any affiliate thereof); or (iv) any person for whom you are acting as agent or nominee in connection with these Terms is: (A) a country, territory, entity or individual named on an OFAC list as provided at http://www.treas.gov/ofac, or any person or entity prohibited under the OFAC programs, regardless of whether or not they appear on the OFAC list; or (B) a senior foreign political figure, or any immediate family member or close associate of a senior foreign political figure.
4. Non-Contravention. These Terms do not, and the performance of your obligations under these Terms and your minting, listing, selling or trading of any Items will not: (i) if you are entering into these terms on behalf of an entity, conflict with or violate any of the charter documents of such entity or any resolution adopted by its equity holders or other persons having governance authority over the entity; (ii) contravene, conflict with or violate any right of any third party or any legal requirement applicable to you or to any of the assets owned or used by you; or (iii) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under any material contract or agreement to which you are a party, permit held by you or legal requirement applicable to you.
5. Independent Investigation and Non-Reliance. You are sophisticated, experienced and knowledgeable in the setting up of NFT store(s), marketplace(s), shop(s) or hub(s), for minting, listing, selling or trading of any Items. Additionally, you have conducted an independent investigation of the Service and the matters contemplated by these Terms, have formed your own independent judgment regarding the benefits and risks of and necessary and desirable practices regarding the foregoing and, in making the determination to setup NFT store(s), marketplace(s), shop(s) or hub(s) to mint, list, sell or trade any Items using the Service, you have relied solely on the results of such investigation and such independent judgment. Without limiting the generality of the foregoing, you understand, acknowledge and agree that the legal requirements pertaining to blockchain technologies and digital assets generally, including the Items, are evolving, and you have conducted an independent investigation of such potentially applicable legal requirements and the resulting risks and uncertainties, including the risk that one or more governmental entities or other persons may assert that any digital assets or cryptographic tokens (including the Items) may constitute securities under applicable legal requirements. You hereby irrevocably disclaim and disavow reliance upon any statements or representations made by or on behalf of, or information made available by, Penky, in determining to enter into these Terms, for setting up of NFT store(s), marketplace(s), shop(s) or hub(s) to mint, list, sell or trade any Items or use the Service.
6. Litigation. There is no legal proceeding pending that relates to your activities relating to the minting of Items or other token- or digital asset- trading or blockchain technology related activities.
7. Intellectual Property and Related Matters. You are the sole and exclusive owner of all right, title and interest in and to all rights, including intellectual property rights, incorporated into or otherwise used, held for use or practiced in connection with (or planned by you to be incorporated into or otherwise used, held for use or practiced in connection with) the Item, any Off-Chain Benefits and the minting of the Item, other than any intellectual property rights that are validly licensed (or provided on a hosted basis) to you pursuant to valid and binding licenses granted to you.
8. Compliance. You have not failed to comply with, and have not violated, any applicable legal requirement relating to any blockchain technologies, token trading activities or minting Items. No investigation or review by any governmental entity is pending or, to your knowledge, has been threatened against or with respect to you, nor does any government order or action prohibit you or any of your representatives from engaging in or continuing any conduct, activity or practice relating to setting up of NFT store(s), marketplace(s), shop(s) or hub(s) to mint, list, sell or trade any Items or use the Service.
9. You must provide all equipment and software necessary to connect to the Service. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Service.
10. You will not upload any content which 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; (i) poses or creates a privacy or security risk to any person; (ii) 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; (iii) 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 (iv) in the sole judgment of Penky, is objectionable or which restricts or inhibits any other person from using or enjoying the Platform, or which may expose Penky or its Users to any harm or liability of any type.
11. You do not 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.
12. You are not manipulating the price of Items in any way, including bidding on your own Items, preventing bidding, or using Penky to conceal economic activity.
13. You do not further, promote, mint or sell any Item which may represent or promote complete nudity, child abuse, child harassment, child sexual harassment, animal torture, animal pornography, drugs, violence, racism, Nazi symbols etc. Penky have complete right and authority to remove or delete any such content and/or shut down the NFT store(s), marketplace(s), shop(s) or hub(s) of Users who repeatedly promote such acts.
a. An individual who has created a store(s), marketplace(s), shop(s) or hub(s) through Penky Services can use his/her Account (each, a “User”) to use the Service to create or issue (“mint”) an Item on the Blockchain. By minting an Item 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 Item, and to disclose fully all such terms in the description of your listing of the Item on the Service. Certain additional terms may apply to your use of the Service to mint Items.
b. The Service includes launch of a store(s), marketplace(s), shop(s) or hub(s) to mint, list, sell or trade Items, and Penky is not and shall not be a party to any transaction or dispute between the minter or seller of an Item and any actual or prospective purchaser or owner of that Item, whether arising from any rights granted in that Item or otherwise.
Creator is a User who owns all legal right, title, and interest in all intellectual property rights underlying the Items minted by the Creator on the Platform, including but not limited to copyrights and trademarks. As the copyright owner, the Creator has the right to reproduce, prepare derivative the Item, distribute, and display or perform the Items.
a. Creators hereby acknowledges, understands, and agrees that selling Items on Penky's powered Store of Marketplace constitutes an express representation, warranty, and covenant that the Creator has not, will not, and will not cause another to sell, tokenize, or create another cryptographic token representing a digital collectible for the same Items, excepting, without limitation, the Creator’s ability to sell, tokenize, or create a cryptographic token or other digital asset representing a legal, economic, or other interest relating to any of the exclusive rights belonging to the Creator under copyright law.
b. The Creator hereby acknowledges, understands, and agrees that launching a Items on Penky's powered store(s), marketplace(s), shop(s) or hub(s) constitutes an express and affirmative grant to Penky, its affiliates and successors a non-exclusive, world- wide, assignable, sublicensable, perpetual, and royalty-free license to make copies of, display, perform, reproduce, and distribute the Items on any media whether now known or later discovered for the broad purpose of operating, promoting, sharing, developing, marketing, and advertising the Platform, or any other purpose related to Penky, including without limitation, the express right to: (i) display or perform the Items on the Platform, a third party platform, social media posts, blogs, editorials, advertising, market reports, virtual galleries, museums, virtual environments, editorials, or to the public; (ii) create and distribute digital or physical derivative Items based on the Items; (iii) indexing the Items in electronic databases, indexes, catalogues; and (iv) hosting, storing, distributing, and reproducing one or more copies of the Items within a distributed file keeping system, node cluster, or other database (e.g., IPFS) or causing, directing, or soliciting others to do so.
c. Creators expressly represent and warrant that their Items listed on Penky's powered store(s), marketplace(s), shop(s) or hub(s) contains only original content otherwise authorized for use by the Creator, and does not contain unlicensed or unauthorized copyrighted content, including any imagery, design, audio, video, human likeness, or other unoriginal content not created by the Creator, not authorized for use by the Creator, not in the public domain, or otherwise without a valid claim of fair use, the Creator further represents and warrants that it has permission to incorporate the unoriginal content.
Collectors receive a cryptographic token representing the Creator’s Items as a piece of property, but do not own the creative work itself. Collectors may display and share the Items, but Collectors do not have any legal ownership, right, or title to any copyrights, trademarks, or other intellectual property rights to the Items, excepting the limited license to the Items granted by these Terms or the terms of the store(s), marketplace(s), shop(s) or hub(s) where the Items have been purchased or Collected. Upon collecting Items, Collectors receive a limited, worldwide, non-assignable, non-sublicensable, royalty-free license to display the Items legally owned and properly obtained by the Collector.
a. The Collector’s limited license to display the Items, includes, but is not limited to, the right to display the Items privately or publicly: (i) for the purpose of promoting or sharing the Collector’s purchase, ownership, or interest, (ii) for the purpose of sharing, promoting, discussing, or commenting on the Items; (iii) on third party marketplaces, exchanges, platforms, or applications in association with an offer to sell, or trade, the Items; and (iv) within decentralized virtual environments, virtual worlds, virtual galleries, virtual museums, or other navigable and perceivable virtual environments.
b. Collectors have the right to sell, trade, transfer, or use their Items, but Collectors may not make “commercial use” of the Items unless it is approved by the minter or seller on its store(s), marketplace(s), shop(s) or hub(s) as per its respective terms.
d. Collectors irrevocably release, acquit, and forever discharge Penky and its subsidiaries, affiliates, officers, and successors of any liability for direct or indirect copyright or trademark infringement for Penky use of Items in accordance with these Terms.
a. All pricing plans and payment terms are indicated on Pricing Page and shall appear before completion of sign up for an account with us. Any payment obligations you incur are binding after you sign up for an account with us for the Service. Please review carefully the terms and conditions contained or expressly referenced on the Pricing Page.
b. You may not substitute any other currency, whether cryptocurrency or fiat currency, for the currency in which you have contracted to pay at the time of sign up. For clarity, no fluctuation in the value of any currency, whether cryptocurrency or otherwise, shall impact or excuse your obligations with respect to any payment obligation.
c. To participate as a Creator or Collector in the marketplace, you must connect to a browser extension called MetaMask or any other wallet allowed by us. MetaMask is an electronic wallet which allows you to purchase, store, and engage in transactions using the native Ethereum or Ethereum based cryptocurrencies or Sidechains based Cryptocurrencies which includes but not limited to ETH, Matic, BNB and ERC-20 tokens. All transactions on Penky's powered store(s), marketplace(s), shop(s) or hub(s) can be conducted in various cryptocurrencies.
d. In certain instances, Penky at its own discretion may accept, process, and settle payments made in cryptocurrency.
e. Penky shall provide with ‘Know your Customer’ (KYC) verification to User purchasing the certain plans as per the pricing available at Pricing Page. For those plans Users KYC verification is conducted for limited numbers of buyers as described in the pricing page, the appropriate details of such buyers are recorded in compliance with laws and shall be submitted to you for your review. If you choose not to implement KYC verification for any specific buyer and approves to grant access to such buyer, then Penky will not be responsible for any damages caused by not conducting the KYC verification of the buyer.
f. All transactions on Penky, including without limitation minting, tokenizing, bidding, listing, offering, or confirming, are facilitated by smart contracts existing on the Ethereum network. The Ethereum network requires the payment of a transaction fee (a “Gas fee”) for every transaction that occurs on the Ethereum network, and thus every transaction occurring on Penky. The value of the Gas Fee changes, often unpredictably, and is entirely outside of the control of Penky. The User acknowledges that under no circumstances will a contract, agreement, offer, sale, bid, or other transaction on Penky be invalidated, revocable, retractable, or otherwise unenforceable on the basis that the Gas Fee for the given transaction was unknown, too high, or otherwise unacceptable.
g. Taxes. Users are responsible to pay any and all sales, use, value-added and other taxes, duties, and assessments now or hereafter claimed or imposed by any governmental authority, “associated with your use of Penky (including, without limitation, any taxes that may become payable as the result of your ownership, transfer, sale, or creation of any artworks).
h. Penky may add or change any pricing, plans and payment terms at any time. Such changes may be subject to additional terms or conditions. Whether a particular cryptocurrency is accepted as a payment method by Penky is subject to change at any time in Penky's sole discretion.
i. Penky will downgrade your store(s), marketplace(s), shop(s) or hub(s) to free plan if your payment is not processed by our payment processor as per the due date. You shall be communicated about the same, however it is your responsibility to ensure that payment is processed and does not fail.
By using the Service to mint an Item, you hereby appoint Penky as your limited payments agent for the sole purpose of receiving, holding and settling payments due and owed to you arising out of (i) the minting of Items through the Service; and (ii) any Secondary Sale of Items. Subject to these terms, Penky will process such payments and settle payments that are actually received by Penky, less any amounts owed to Penky, including taxes, fees and other obligations. You agree that a payment received by Penky on your behalf satisfies the payor’s obligation to make payment to you, regardless of whether Penky actually settles such payment to you.
a. Unless otherwise indicated in writing by us, the Service and all content and other materials contained therein, including, without limitation, the Penky logo and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, “Content”) are the proprietary property of Penky or our affiliates, licensors or users, as applicable.
b. Except as expressly authorized by Penky, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Platform or the Platform Content, in whole or in part. In connection with your use of the Platform you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by Penky from accessing the Platform (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Platform or the Platform Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Platform or distributed in connection therewith are the property of Penky, our affiliates and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Penky.
c. Notwithstanding anything to the contrary in these Terms, the Service and Content may include software components provided by Penky or its affiliates or a third party that are subject to separate license terms, in which case those license terms will govern such software components.
d. The Penky logo and any Penky product or service names, logos or slogans that may appear on the Service are trademarks of Penky or our affiliates and may not be copied, imitated or used, in whole or in part, without our prior written permission. You may not use any metatags or other “hidden text” utilizing Penky, or any other name, trademark or product or service name of Penky or our affiliates without our prior written permission. In addition, the look and feel of the Service and Content, including, without limitation, all page headers, custom graphics, button icons and scripts, constitute the service mark, trademark or trade dress of Penky and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and Penky names or logos mentioned on the Service are the property of their respective owners and may not be copied, imitated or used, in whole or in part, without the permission of the applicable trademark holder. Reference to any products, services, processes or other information by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by Penky.
e. Under no circumstances will Penky be liable in any way for any content or materials of any third parties (including Users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that Penky does not pre-screen content, but that Penky and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Platform. Without limiting the foregoing, Penky and its designees will have the right to remove any content that violates these Terms of Service or is deemed by Platform, in its sole discretion, to be otherwise objectionable.
Certain features on Penky may be offered while still in “beta” form (“Beta Platforms”). Penky will utilize best efforts to identify the Beta Platforms by labeling on its Platform. By accepting these Terms or using the Beta Platforms, you understand and acknowledge that the Beta Platforms are being provided as a “Beta” version and made available on an “As Is” or “As Available” basis. The Beta Platforms may contain bugs, errors, and other problems.
YOU ASSUME ALL RISKS AND ALL COSTS ASSOCIATED WITH YOUR USE OF THE BETA PLATFORMS, 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. Penky or its representatives shall not be responsible for any damage caused to your brand, reputation, revenue and income because of the beta nature of the platform. In addition, we are not obligated to provide any maintenance, technical, or other support for the Beta Platforms.
Penky respects the intellectual property of others, and we ask our Users to do the same. Penky will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“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 Penky's Copyright Agent firstname.lastname@example.org(Subject line: “DMCA Takedown Request”).
a. 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 Copyright Agent:
1. your physical or electronic signature;
2. 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;
3. 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
4. your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within the Northern District of California and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
b. If a counter-notice is received by the Copyright Agent, Penky 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.
c. Repeat Infringer Policy. In accordance with the DMCA and other applicable law, Penky has adopted a policy of terminating, in appropriate circumstances and at Penky's sole discretion, Users who are deemed to be repeat infringers. Penky may also at its sole discretion limit access to the Platform and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
d. You expressly agree to refund to the Collector and/or Penky the entire portion of Fees received from the sale of an Item that was subsequently removed from the Site pursuant to an effective DMCA request to which the you failed to timely submit an effective DMCA Counter notification. Penky will not be held liable to any User for removing allegedly infringing works from the Platform or otherwise fulfilling its legal obligations under the DMCA.
e. You expressly agree to cooperate and timely respond to Penky's investigations, requests, and inquiries related to DMCA disputes or allegations of infringement. You agree to initiate a “burn” transaction upon Penky's request for any Item that have been permanently removed from the Penky marketplace pursuant to a valid DMCA Take- Down Notice, or that are otherwise alleged to be infringing.
a. The Service may contain links to third-party properties (“Third-Party Properties”) and applications (“Third-Party Applications”). When you click on a link to a Third-Party Property or Third-Party Application, you are subject to the terms and conditions (including privacy policies) of another property or application. Such Third-Party Properties and Third-Party Applications and are not under the control of Penky. Penky is not responsible for any Third-Party Properties or Third-Party Applications. Penky provides links to these Third-Party Properties and Third-Party Applications only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Properties or Third-Party Applications, or their products or services. You use all links in Third-Party Properties, and Third-Party Applications at your own risk. When you leave our Service, our Terms and policies no longer govern. You should review all applicable agreements and policies, including privacy and data gathering practices, of any Third-Party Properties or Third-Party Applications, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
b. The Service and Content may include components, including software components, that are provided by a third party and that are subject to separate license terms, in which case those license terms will govern your access to and use of such components. Our Service and/or any Third-Party Property may include terms governing the use of such Item, including license terms.
a. Penky has the right, but not the obligation, to remove any listing at any time. Penky exercises its sole judgment in allowing or disallowing certain assets, listings, smart contracts, and collections.
b. Items, listings, smart contracts, collections, and other User Content that Penky in its sole discretion deems inappropriate, disruptive, or illegal are prohibited on the Service. Penky reserves the rights to determine the appropriateness of listings on its site and remove any User Content, including any listing, at any time. If you create or offer an Item, listing, smart contract, or collection in violation of these policies, we reserve the right to take corrective actions, as appropriate, including but not limited to removing the Item, listing, smart contract, or collection, deleting your Account, and permanently withholding payments due and owed to you. Penky cannot destroy or impound your Items or smart contracts, but we reserve the right to destroy inappropriate or illegal metadata stored on our servers.
c. Penky retains the absolute right, but Penky has not the obligation, to terminate the Account and remove the User Content of any User of the Service who violates or infringes our rights or those of any third party.
d. If you become aware of the creation, minting, listing, selling or trading of assets in violation of any of the terms specified in the above sections, please contact us at email@example.com to report it.
If Penky becomes aware of any possible violations by you of these Terms, Penky reserves the right to investigate such violations. If, as a result of the investigation, Penky believes that criminal activity may have occurred, Penky reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Penky is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Service, including User Content, in Penky's possession in connection with your use of the Service, to (i) comply with applicable laws, legal process or governmental request; (ii) enforce these Terms, (iii) respond to any claims that User Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of Penky, its users, or the public, and all law enforcement or other government officials, as Penky in its sole discretion believes to be necessary or appropriate. By agreeing to these Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning your use of the Service, including without limitation text, voice, or video communications.
You hereby release and forever discharge Penky and our officers, employees, agents, successors, and assigns (the Penky Entities”) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Service (including any interactions with, or act or omission of, other Users or any Third-Party Properties or Third-Party Applications). IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
You acknowledge and agree that:
a. The prices of digital assets are extremely volatile. Fluctuations in the price of other digital assets could materially and adversely affect the Items, which may also be subject to significant price volatility.
b. You are solely responsible for determining what, if any, taxes apply to transactions involving your Items. Neither Penky nor any other Penky Entity is responsible for determining the taxes that may apply to transactions involving Items.
c. Items exist and can be transferred only by virtue of the ownership record maintained on the blockchain supporting such Items. Any transfer of Items occurs within the supporting blockchain and not on the Service.
d. There are risks associated with using digital currency, including but not limited to, 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 digital wallet.
e. The legal and regulatory regime governing blockchain technologies, cryptocurrencies, and tokens is uncertain, and new regulations or policies may materially adversely affect the development of the Service and the utility of Items.
f. Penky reserves the right to hide collections, contracts, and assets that Penky suspects or believes may violate these Terms.
To the fullest extent permitted by applicable law, you agree to indemnify, defend, and hold harmless Penky and the Penky Entities from and against all actual or alleged third party claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses (including, without limitation, attorneys’ fees and expenses) and costs (including, without limitation, court costs, costs of settlement, and costs of or associated with pursuing indemnification and insurance), of every kind and nature whatsoever arising out of or related to these Terms or your use of the Service, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise (collectively, “Claims”), including, but not limited to, damages to property or personal injury, that are caused by, arise out of or are related to (a) your use or misuse of the Service, User Content or Items, (b) any feedback you provide, (c) your violation of these Terms, and (d) your violation of the rights of any third party, including another user. You agree to promptly notify Penky of any third-party Claims and cooperate with the Penky Entities in defending such Claims. You further agree that the Penky Entities shall have control of the defense or settlement of any third-party Claims. THIS INDEMNITY IS IN ADDITION TO, AND NOT IN LIEU OF, ANY OTHER INDEMNITIES SET FORTH IN A SEPARATE WRITTEN AGREEMENT BETWEEN YOU AND PENKY.
THE SERVICE, CONTENT CONTAINED THEREIN, AND ITEMS LISTED THEREIN ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. PENKY MAKES NO WARRANTY THAT THE SERVICE: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, COMPLETE, LEGAL, OR SAFE. PENKY 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 AS TO THE SERVICE OR ANY CONTENT CONTAINED THEREIN. PENKY DOES NOT REPRESENT OR WARRANT THAT CONTENT ON THE SERVICE IS ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE. WE 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. WHILE PENKY ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF THE SERVICE AND CONTENT SAFE, PENKY CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICE, CONTENT, OR ANY ITEMS LISTED ON OUR SERVICE OR OUR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE CANNOT GUARANTEE THE SECURITY OF ANY DATA THAT YOU DISCLOSE ONLINE. YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET AND WILL NOT HOLD US RESPONSIBLE FOR ANY BREACH OF SECURITY UNLESS IT IS DUE TO OUR GROSS NEGLIGENCE.
PENKY WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSSES YOU SUSTAIN AS A RESULT OF YOUR USE OF THE SERVICE. WE TAKE NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO YOU FOR, ANY USE OF ITEMS, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (I) USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED ADDRESSES; (II) SERVER FAILURE OR DATA LOSS; (III) CORRUPTED DIGITAL WALLET FILES; (IV) UNAUTHORIZED ACCESS TO APPLICATIONS; OR (V) ANY UNAUTHORIZED THIRD PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK AGAINST THE SERVICE OR ITEMS. FROM TIME TO TIME, PENKY MAY OFFER NEW “BETA” FEATURES OR TOOLS. SUCH FEATURES OR TOOLS ARE OFFERED “AS IS” AND WITH ALL FAULTS, SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT PENKY'S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
ITEMS ARE INTANGIBLE DIGITAL ASSETS. THEY EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE BLOCKCHAIN NETWORK. ANY TRANSFER OF TITLE THAT MIGHT OCCUR IN ANY UNIQUE DIGITAL ASSET OCCURS ON THE DECENTRALIZED LEDGER WITHIN THE APPLICABLE BLOCKCHAIN PLATFORM. WE DO NOT GUARANTEE THAT PENKY OR ANY PENKY ENTITY CAN EFFECT THE TRANSFER OF TITLE OR RIGHT IN ANY ITEMS.
Penky is not responsible for any losses or harms sustained by you due to vulnerability or any kind of failure, abnormal behavior of software (e.g., wallet, smart contract), blockchains, or any other features of or inherent to the Items. Penky is not responsible for casualties due to developers or representatives delay or failure to report any issues with any blockchain supporting Items, including without limitation forks, technical node issues, or any other issues that result in losses of any sort.
Nothing in these Terms shall exclude or limit liability of either party for fraud, death or bodily injury caused by negligence, violation of laws, or any other activity that cannot be limited or excluded under the laws applicable to your jurisdiction. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN CONTRACTS WITH CONSUMERS, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL PENKY 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, THE SERVICE, ANY ITEMS, 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 TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE AND EVEN IF PENKY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICE IS UNDERTAKEN BY YOU AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA RESULTING THEREFROM.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF PENKY ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS, YOUR ACCESS TO AND USE OF THE SERVICE, CONTENT (INCLUDING YOUR CONTENT), OR ANY ITEMS SOLD THROUGH THE SERVICE EXCEED THE GREATER OF (A) $100 OR (B) THE AMOUNT PAID TO PENKY BY YOU FOR THE SERVICE IN THE TRANSACTION OR INCIDENT THAT IS THE SUBJECT OF THE CLAIM.
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 PLATFORM OR WITH THESE TERMS OF PLATFORM, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE PLATFORM.
You agree that Penky, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Platform and remove and discard any content within the Platform, for any reason, including, without limitation, for lack of use or if Penky believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Platform, may be referred to appropriate law enforcement authorities. Penky may also in its sole discretion and at any time discontinue providing the Platform, or any part thereof, with or without notice. You agree that any termination of your access to the Platform under any provision of this Terms of Service may occur without prior notice, and acknowledge and agree that Penky 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 the Platform. Further, you agree that Penky will not be liable to you or any third party for any termination of your access to the Platform.
Dispute Resolution. Please read the arbitration agreement in this section (“Arbitration Agreement”) carefully. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
a. Applicability of Arbitration Agreement. You agree that all claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with these Terms or the use of any Service provided by Penky that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and Penky, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under these Terms.
b. Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written notice describing the nature and basis of the claim or dispute and the requested relief (“Notice of Dispute”). A Notice of Dispute to Penky should be sent to: Penky, 3790 El Camino Real Unit #590 Palo Alto, CA 94306. After the Notice of Dispute is received, you and Penky may attempt to resolve the claim or dispute informally. If you and Penky do not resolve the claim or dispute within thirty (30) days after the Notice of Dispute is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
c. Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with these Terms. The AAA Consumer Arbitration Rules (“Arbitration Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1- 800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Five Thousand U.S. Dollars (US $5,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Five Thousand U.S. Dollars (US $5,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offers that Penky made to you prior to the initiation of arbitration, Penky will pay you the greater of the award or $2,500.00. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
d. Additional Rules for Non-Appearance Based Arbitration. If non-appearance-based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
e. Time Limits. If you or Penky pursues arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
f. Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Penky, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have exclusive authority to (i) determine the scope and enforceability of this Arbitration Agreement; and (ii) 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 any part of this Arbitration Agreement is void or voidable; and shall also have the authority to grant motions dispositive of all or part of any claim. The exceptions to the preceding sentence are (1) all disputes arising out of or relating to the class action waiver, including any claim that all or part of the class action waiver is unenforceable, illegal, void or voidable, or such class action waiver has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) all disputes arising out of or relating to the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (3) all disputes arising out of or relating to whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and these Terms. 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. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Penky. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
g. Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and Penky in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND PENKY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
h. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into the courts of Grand Cayman. All other claims shall be arbitrated.
i. Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
j. Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
k. Right to Opt Out. You have the right to opt out of this Arbitration Agreement by sending written notice of your decision to opt out to: firstname.lastname@example.org.Such notice must be given within 30 days after first becoming subject to a version of these Terms containing an arbitration provision. Your notice must include your name and address, your Account username (if any), NFT store or Marketplace URL, the email address, wallet address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of arbitration, all other parts of these Terms will continue to apply to you. Opting out of arbitration has no effect on any other arbitration agreements that you may currently have, or may enter into in the future, with us.
l. Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
m. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Penky.
n. Small Claims Court. Notwithstanding the foregoing, either you or Penky may bring an individual action in small claims court.
o. Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
p. Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
q. Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Grand Cayman, for such purpose.
We reserve the right in our sole discretion to modify, suspend, or discontinue the Service, or any features or parts thereof, whether temporarily or permanently, at any time with or without notice to you in our sole discretion. 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 Cayman Islands, without regard to any conflict of law rules or principles that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, shall be resolved in the courts of the Cayman Islands, sitting in Grand Cayman. Notwithstanding anything contained in these Terms, we reserve the right, without notice and in our sole discretion, to terminate your right to access or use the Service 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, to the fullest extent permitted by applicable law. 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. Your relationship to Penky is that of an independent contractor, and neither party is an agent or partner of the other. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of Penky. Penky's failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Except as otherwise provided herein, these Terms are intended solely for the benefit of Penky and you and are not intended to confer third party beneficiary rights upon any other person or entity.
Penky email@example.com Email:firstname.lastname@example.org