Terms of Service
Effective Date: January 6, 2023
Welcome to Shibuya. Please read these Terms of Service (these “TOS”) carefully, as they constitute a legally binding agreement between you (“you”, “your”, or “Producer”) and NotShibuya, Inc. (“Shibuya”, “we”, “us” or “our”).
These TOS, together with any Modifications, as well as all policies posted on our website and incorporated by reference herein, set out the terms on which Shibuya offers you access to and use of (a) the website located at www.shibuya.xyz and all relevant sub-pages associated with the foregoing URL (the “Site”) and (b) any other applications (e.g., mobile apps, web applications, etc.), add-ons, tools, services and offerings provided by us that make reference to these TOS, including without limitation, smart contracts (collectively, the “Platform”). These TOS apply whether you are accessing the Platform via a personal computer, a wireless or mobile device or any other technology or devices now known or hereafter developed or discovered (each, a “Device”).
THESE TOS CONTAIN IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT APPLY TO YOU. PLEASE READ THEM CAREFULLY.
BY USING OR ACCESSING THE PLATFORM IN ANY MANNER, YOU AFFIRM, REPRESENT AND WARRANT (A) THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS SET FORTH IN THESE TOS (ALONG WITH ANY MODIFICATIONS), INCLUDING THE ARBITRATION AGREEMENT AND CLASS ACTION WAIVER, (B) THAT YOU HAVE THE RIGHT, AUTHORITY AND CAPACITY TO ENTER INTO THESE TOS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT) AND MEET ALL OF THE ELIGIBILITY AND OTHER REQUIREMENTS, (C) THAT YOUR ACCESS AND USE OF THE PLATFORM IS PERMITTED BY, AND SHALL NOT VIOLATE, ANY APPLICABLE LAWS, INCLUDING THOSE IN YOUR JURISDICTION.
IF YOU DO NOT AGREE TO THE CURRENT VERSION OF THE TOS AND/OR ANY MODIFICATIONS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO REFRAIN FROM ACCESSING OR OTHERWISE USING THE PLATFORM.
Modifications. We reserve the right to revise these TOS, at any time and from time to time, for any reason in our sole discretion by any written announcement or notice or by posting an updated TOS without advance notice to you (the “Modifications”). These changes become effective immediately and, if you use or access the Platform after they become effective, it will signify your agreement to be bound by the Modifications. It is your responsibility to monitor and periodically check for changes to these TOS by clicking the applicable link on the Site and consulting the “Last Modified” date at the bottom of this page.
What is Shibuya? Shibuya is building a web3 video platform (the “Platform”) which allows you to view long form video content (“Content”) and utilize non-fungible tokens on the Ethereum blockchain using smart contracts (each, an “NFT”) to act as a producer (a “Producer”), engage with Content, vote on character action to determine plot outcome and potentially serve as a proprietor of the Content once completed and housed on the Platform. Our goal is to change the way Content projects are developed, owned and consumed by allowing the Platform to support projects that encourage users to vote to decide outcome, engage in the creative process, interact with the community, and potentially become a steward of the final product. Watching Content on the Platform does not require a Non-Custodial Wallet.
Wallet Access. In order to participate in certain aspects of the Platform, including but not limited to claiming, minting, purchasing, staking, voting, storing, transferring or executing similar Platform transactions (collectively “Transactions”), you must connect a non-custodial wallet (a “Non-Custodial Wallet”) to the Platform. A Non-Custodial Wallet allows you to log into the Platform and engage in Transactions utilizing the Platform’s interface. We reserve the right to refuse to engage with a Non-Custodial Wallet in our sole and exclusive discretion. We accept no responsibility or liability to you in connection with your use of a Non-Custodial Wallet and make no representations or warranties regarding how the Platform will operate with any specific Non-Custodial Wallet. You must use a Non-Custodial Wallet in order to participate in Transactions on your Device.
White Rabbit. White Rabbit is Shibuya’s proof of concept, the first episodic animated Content property being created and curated for the Platform. Some White Rabbit episodes (each an “Episode”) will present alternative Content, allowing users to contribute to the Content Production experience by casting a vote or otherwise helping to determine Content progress and direction (the “Production”). In order to participate, a Producer must mint an ERC-1155 NFT in the form of a producer pass (each a “Producer Pass”). Once a sufficient amount of Producer Passes are minted, each Producer will be entitled to stake their Producer Passes on the Platform to help determine the Content’s future Production. Producer Passes are Episode specific and represent an on-chain track record of Producer participation in shaping the Content Production outcome for each Episode.
Sale of NFT’s or other Digital Collectibles. Any NFT or other digital collectible (collectively “NFT”) made available on the Platform will be displayed and described on a listing page (“Listing Page”) containing information about the NFT and any additional terms specifically relating to the sale of, or conditions to claiming such NFT (“Listing Terms”). In relation to any NFT that is offered to be minted or claimed through the Platform, the artwork, metadata, content, character, digital asset and/or other work of authorship, if any, to which such NFT relates is referred to as the “Referenced Content.” In a transaction for the purchase of an NFT where you are or become the buyer of record, you are considered a Producer under these TOS, responsible for the payment of the Purchase Price in accordance with the Listing Terms (the “Purchase Price”), in addition to any applicable artist resale royalty right or fees. You accept responsibility for inspecting the Listing Page and the smart contract, if available, prior to your purchase. You acknowledge and agree that by acquiring an NFT, you accept that NFTs are subject to inherent technological risks which may affect their performance now or in the future. You further acknowledge and agree that the characterization and regulatory scheme governing NFTs, cryptocurrencies, and blockchain technology is uncertain and undetermined, that your purchase and/or receipt of the NFT complies with applicable laws and regulations in your jurisdiction, and that new regulations or policies may materially adversely affect the sale or resale of the NFT. You acknowledge and agree that an NFT may be subject to resale royalties, through application of the smart contract or other technical solution, on any subsequent resales of the NFT.
Taxes. Shibuya is not responsible for determining the withholding, sales, use, value added, transfer or other taxes, together with any interest and penalties imposed with respect thereto (“Taxes”), that apply to any Transaction on the Platform. You agree that you are solely responsible for determining what, if any, Taxes apply to your Transaction and to withhold, collect, report and remit the correct amounts of Taxes to the appropriate taxing authorities. Unless otherwise indicated, any amounts due in respect of a Transaction on the Platform are exclusive of sale, use, value added or similar Taxes (“Sales Taxes”) which shall be your responsibility.
White Rabbit Token. The White Rabbit Token is an ERC-20 token utilized on the Platform. In the future, we will enable creative ways for fans to obtain and interact with $WRAB. Please review these TOS, any Modifications and our Site at https://shibuyaxyz.substack.com/ for any updates on $WRAB Tokens.
Proprietary Rights. As between you and Shibuya, Shibuya owns, solely and exclusively, all right, title and interest in and to the Platform, White Rabbit, the Content and Production, and all elements thereof, including without limitation, the Shibuya logo, the Referenced Content and any and all images, video recordings, writings, artwork, works of authorship of any nature whatsoever, and all results and proceeds thereof, in whatever stage of completion as may exist from time to time (including but not limited to all rights of whatever kind and character, throughout the universe, in perpetuity, in any and all languages, of character ideation, copyright, trademark, patent, merchandising, production, manufacture, recordation, reproduction, transcription, performance, broadcast and exhibition by any art, method or device, now known or hereafter devised, including without limitation, radio broadcasting, theatrical and non-theatrical exhibition, internet, online and/or and television, cable and/or motion picture exhibition or otherwise), along with the selection and arrangement thereof, including all intellectual property and proprietary rights (whether registered or unregistered in any jurisdiction) related to any of the foregoing (collectively, the “Platform Content”). All rights in and to the Platform and Platform Content not expressly granted to you under these TOS are expressly reserved. Your use of the Platform does not grant to you any right, title or interest in the Platform Content any element thereof, and Shibuya (or our applicable licensors, partners, or affiliates) owns and retains all right, title and interest (including all intellectual property and proprietary rights) therein and thereto. For the avoidance of doubt, nothing contained in these TOS will be deemed to grant any rights in or to any image, media content, character or other intellectual property associated with, related to, or linked to, any Platform Content, NFT or other digital collectible, including any right to use such image, media content, character or intellectual property for any non-personal or commercial purposes, or to create any derivative works of such image, media content, character or intellectual property. You agree that you may not, nor permit any third party to do or attempt to do any of the following without our express prior written consent in each case: (a) modify the Platform Content in any way; (b) use the Platform Content to advertise, market, or sell any third party product or service; (c) use the Platform Content for any derogatory or defamatory purpose, hate speech or otherwise infringe upon the rights of others; (d) sell, distribute for commercial gain, or otherwise commercialize merchandise that includes, contains, or consists of the Platform Content; or (e) attempt to trademark, copyright, or otherwise acquire intellectual property rights in or to the Platform Content. Any copyright(s) in and to the Platform, Platform Content, Episode, Content, Production, any NFT, digital collectible and/or character, artwork or Referenced Content contained therein, including but not limited to any reproduction rights, remain with Shibuya, and neither the use of our Platform, purchase of an NFT or other digital collectible, acquisition of any token or participation in any Transaction constitutes an assignment of any copyright(s) or other intellectual property in and to the Platform, Platform Content, Episode, Content, Production or any NFT or other digital collectible and/or character, artwork or Referenced Content contained therein.
Limited License. Subject to the restrictions and limitations set forth in these TOS, we grant you a limited license to access and use the Platform for internal purposes of (a) accessing and viewing the Content on the Platform on your Device; (b) purchasing NFT’s offered for sale on the Platform; (c) participating in allowed Platform Transactions using a Non-Custodial Wallet; and (d) to the limited extent that an image is displayed as a result of the operation of the smart contract related to the Producer Pass in connection with Producer’s use of the Platforms in accordance with these TOS, displaying such image for Producer’s own personal, non-commercial purpose for so long as Producer owns the Producer Pass.
Prohibited Use. Any commercial distribution, publishing, use or exploitation of the Platform, Platform Content or any element thereof (including any content, software, code, data, materials, and/or character, artwork or Referenced Content contained therein and used in or available on the Platform) is prohibited. As a condition of your access to and use of the Platform, you agree that you will not use the Platform, Platform Content or any element thereof for any purpose that is unlawful, commercial in nature or prohibited by these TOS, or any other purpose not permitted under these TOS. You agree to abide by all applicable local, state, national and international laws, regulations and rules and not to access or use the Platform from a jurisdiction where such access or use illegal or unauthorized. By way of example, and not limitation, you agree that while using the Platform, you shall not: (a) obtain or attempt to obtain unauthorized access to computer systems, materials or information that is not intentionally made publicly available by Shibuya; (b) use the Platform, Platform Content or any services, content, functions, information, materials or Transactions available through the Platform in violation of Shibuya’s or any third party’s intellectual property or other proprietary or legal rights; (c) use the Platform or any services, content, functions, information, materials or Transactions available through the Platform for purposes of money laundering, price fixing or other unlawful collusion, price signaling or exchange of competitively sensitive data or information; (d) engage in activities, or use the Platform or any services, content, functions, information, materials or Transactions available through the Platform, in a manner that could damage, disable, overburden, or impair the Platform; or (e) use or access the Platform (i) from a country sanctioned by the government of the United States; or (ii) for the purpose of concealing economic activity, laundering money, or financing terrorism.
Restriction of Access. We reserve the right to deny access and use privileges to anyone (and to suspend, restrict or terminate an existing Non-Custodial Wallet) at our sole and absolute discretion, including without limitation if we suspect that the Non-Custodial Wallet has or will be used for any fraudulent, illegal, or other unauthorized purposes. We reserve the right to refuse or revoke permission to engage in Transactions and to remove such privileges at any time and for any reason. In the event that your Non-Custodial Wallet is suspended, restricted, revoked or terminated by us for any reason, you agree that you will not connect with another Non-Custodial Wallet following the termination, suspension, or restriction of access (unless expressly directed by us to do so).
Third Party Websites. The Platform may contain links or connections to Third-Party Websites, and Third-Party Websites may link to the Platform. For purposes of this Section, “Third-Party Websites” include all websites, mobile websites, mobile and web applications, and services owned, operated or provided by any third party, including any such website, application or service operated or provided by a third party under license from Shibuya or any of our affiliates. The inclusion in the Platform of any link to a Third-Party Website does not constitute an endorsement or sponsorship by Shibuya of such Third-Party Website, or the information, content, products, services, advertising, code or other materials presented on or through such Third-Party Website. Any reliance on the contents of a Third-Party Website is done at your own risk.
(a) Rights and Licenses. The Platform may provide you with the opportunity to submit, post, display, transmit or otherwise make available certain content, including messages, files, data, software, sound, videos, photos, graphics and other items, on or through the Platform (all of the foregoing, inclusive of all metadata relating thereto, but expressly excluding any Referenced Content, “User Content”). By submitting, transmitting, posting, displaying or otherwise making available any User Content, you grant us a worldwide, non-exclusive, sublicensable, royalty-free and paid-up license to exploit such User Content for our lawful business purposes, including to provide, promote, and improve the Platform, without obligation. You represent and warrant that you have, or have obtained, all rights, licenses, consents, permissions, power and/or authority necessary to grant the rights granted herein for any User Content.
(b) Compliance. We shall have the right, but not the obligation, to monitor the User Content and any other content submitted to or posted through the Platform to determine compliance with these TOS and any operating rules established by us, as well as to satisfy any requirement under law or government request. We shall have the right, but not the obligation, to edit, refuse to post or remove any User Content submitted to or posted through the Platform. You acknowledge that we reserve the right to delete, edit, block, correct, refuse to post or permanently remove from our systems any material that is believed to be unlawful, in breach of these TOS or otherwise objectionable at our sole discretion.
- Infringing Content.
(a) Infringing Content. It is Shibuya’s policy to promptly respond to any claim that User Content infringes on the copyright or other intellectual property, personality, or likeness rights of any person. Upon receiving notice of a relevant claim, Shibuya will use reasonable efforts to investigate such notices of alleged infringement and will take appropriate action as further set forth herein.
(b) Removal of Infringing Content. Shibuya reserves the right to remove any User Content that allegedly infringes upon another person’s intellectual property rights, thereby restricting access to or visibility of such User Content and/or restricting the ability to access, or view such User Content on the Platform. Shibuya will not, under any circumstance, be held liable for removing allegedly infringing works from the Platform or otherwise fulfilling its obligations under the DMCA.
- Copyright Agent. If you believe that your work has been copied in a way that constitutes copyright infringement, please forward the following information to our Copyright Agent, designated as such pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(2), named below: (a) your address, telephone number, and email address; (b) A description of the copyrighted work that you claim has been infringed; (c) a description of where the alleged infringing material is located; (d) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (e) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and (f) a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Copyright Agent: email@example.com
Representations and Warranties. In addition to any representations and/or warranties set forth elsewhere in these TOS, you represent and warrant that at all relevant times: (a) neither your performance under these TOS, nor your participation in any Transaction in accordance with the terms herein, has violated or will violate any applicable law; (b) you are of legal age, in the jurisdiction in which you reside, to enter into a binding contract (and in any event are older than eighteen (18) years of age); (c) you have full legal authority without any further action or other party’s consent to enter into and perform this agreement and to give these representations and warranties; if you are an entity, the individual transacting on your behalf is authorized to do so and the entity is duly incorporated or formed, validly existing and in good standing in the jurisdiction where it is incorporated or formed; and (d) you acknowledge and affirm that you are completing Transactions for purposes of participating in the Production process and/or acquiring digital collectibles and not for any investment or speculative purposes and that any economic benefit that may be derived from appreciation in the value of an NFT or other blockchain asset is incidental to obtaining it for its participatory and/or collectible purpose. You also represent and warrant to us that at all relevant times: (i) you have no knowledge or reason to suspect that the funds used to participate in any Transaction are connected with the proceeds of criminal activity; and (ii) you (and your principal, if applicable) are not, nor are you (or your principal, if applicable) owned (in whole or in part), controlled, or acting on behalf of, an entity or individual that is the subject of economic sanctions, embargoes or other trade restrictions in any jurisdiction, including those administered and enforced by the United States, European Union or any of its member states, United Kingdom, United Nations Security Council, or other applicable sanctions authority (collectively, “Sanctions”), or located, organized, or resident in a country or territory that is the subject of Sanctions (including Crimea, Cuba, Iran, North Korea, Syria, the Russian Federation and Belarus) (collectively, “Sanctioned Jurisdictions”); (iii) the Purchase Price will not be funded directly or indirectly by or from anyone that is the subject of Sanctions or located, organized, or resident in a Sanctioned Jurisdiction; and (v) no party directly or indirectly involved in the transaction is the subject of Sanctions or is owned (in whole or in part) or controlled by any individual or entity that is the subject of Sanctions or otherwise located, organized, or resident in a Sanctioned Jurisdiction, except as expressly authorized in writing by the government authority having jurisdiction over the purchase and with our prior express written consent.
Indemnification. You agree to defend, indemnify on demand and keep Shibuya and our affiliates, parents, subsidiaries and each of our and their respective officers, employees, agents, partners, members, content providers, service providers, suppliers and licensors (collectively, the “Released Parties”) indemnified, and hold the Released Parties harmless from any and all claims, liabilities, costs, losses (including without limitation consequential and indirect losses) and expenses, including reasonable attorneys’ fees, arising in any way from (a) your use of or reliance on the Platform or any services, content, functions, information, materials, Transactions available through the Platform, (b) your purchase, use of or receipt of any NFT’s or other blockchain assets through the Platform, (c) your placement or transmission of any message, content, information, software, Transaction or other materials through the Platform, or (d) your fraudulent or deceptive acts or omissions, or breach or violation of the law (including infringement of any intellectual property or other right of any person or entity) or of these TOS. We will provide notice to you promptly of any such claim, suit, or proceeding. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to assist and cooperate with our defense of such claim.
Disclaimer of Warranties. All Transactions, NFT’s and/or other blockchain assets are offered “AS IS,” without any guarantee, representations or warranties by us. We disclaim all implied warranties, including but not limited to merchantability and fitness for a particular purpose, except in so far as such obligations cannot be excluded by law. We give no guarantee, representation or warranty as to the correctness of images or descriptions of the condition, completeness, size, quality, rarity, value, importance, medium, frame, provenance, exhibition history, or historical relevance of any NFT or other blockchain asset, and no statement anywhere, whether oral or written, will be deemed such a warranty, representation or assumption of liability.
We do not make any representations or warranties as to the following: (a) the nature, character, contents, condition, behavior, operation, performance, security, integrity, metadata, persistence, quality, technical details or terms of any Transaction, smart contract, NFT or other blockchain assets or the Referenced Content, including without limitation any further iterations of the same; (b) that the Transaction, smart contract, NFT or other blockchain asset or the Referenced Content or the delivery mechanism for the same does not contain vulnerabilities, viruses or malware or other harmful components, or that either will function as you expect or without error or mistake; (c) the uniqueness of any NFT or other blockchain assets or the Referenced Content; (d) that the Transaction, smart contract, NFT or other blockchain asset is reliable, correctly programmed, compatible with your or others’ computer systems, up-to-date, error-free, compatible with your Non-Custodial Wallet or meeting your requirements, or that defects can or will be corrected; or (e) the accuracy or reliability of any simulation or videos depicting the intended performance of the Transaction, smart contract, NFT or other blockchain asset or the Referenced Content, whether displayed on our Site, Platform or any other platform.
We offer the Platform as a convenience. Broadband or other internet capacity constraints, corporate firewalls and other technical problems beyond our reasonable control may create difficulties for some users including, for example, in relation to accessing the Platform and in maintaining continuity of such access. We will not be liable to you for any failure to execute Transactions, or errors or omissions in connection therewith, including, without limitation, errors or failures caused by (i) any loss of connection between you and the Platform; (ii) a breakdown on or problem with the Platform or other technical services; or (iii) a breakdown or problem with your internet connection, Device or system.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR ACCESS TO AND USE OF THE PLATFORM IS AT YOUR SOLE RISK, AND THE PLATFORM AND ALL SERVICES, CONTENT, FUNCTIONS, INFORMATION, MATERIALS, TRANSACTIONS AND PRODUCTS AVAILABLE THROUGH THE PLATFORM ARE PROVIDED ON AN “ AS IS ” AND “AS AVAILABLE ” BASIS WITHOUT WARRANTY OF ANY KIND, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, INTEGRATION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
WITHOUT LIMITING THE FOREGOING, THE RELEASED PARTIES (I) MAKE NO WARRANTIES OR REPRESENTATIONS REGARDING ANY TRANSACTIONS, PRODUCTS OR SERVICES ORDERED OR PROVIDED VIA THE PLATFORM, AND (II) HEREBY DISCLAIM, AND YOU HEREBY WAIVE, ANY AND ALL WARRANTIES AND REPRESENTATIONS WITH RESPECT THERETO, INCLUDING WITHOUT LIMITATION ANY AND ALL WARRANTIES AND REPRESENTATIONS MADE IN ANY LITERATURE, DOCUMENTS OR OTHERWISE ON THE PLATFORM OR IN CORRESPONDENCE WITH SHIBUYA OR ITS AGENTS. YOU ARE SOLELY RESPONSIBLE FOR, AND ASSUME ALL RISKS RELATED TO ALL TRANSACTIONS, THE HANDLING, STORAGE, AND USE OF ANY NFT OR OTHER BLOCKCHAIN ASSETS MADE AVAILABLE TO YOU VIA THE PLATFORM.
THE RELEASED PARTIES FURTHER DO NOT WARRANT OR GUARANTEE THAT:
(A) THE PLATFORM OR ANY SERVICES, CONTENT, FUNCTIONS, TRANSACTIONS, INFORMATION, MATERIALS, OR PRODUCTS AVAILABLE THROUGH THE PLATFORM WILL MEET YOUR REQUIREMENTS OR THAT THE QUALITY OF ANYTHING AVAILABLE ON THE PLATFORM WILL MEET YOUR EXPECTATIONS;
(B) ANY INFORMATION PROVIDED WILL BE TIMELY, ACCURATE, RELIABLE, PRECISE, THOROUGH, CORRECT OR COMPLETE;
(C) THE PLATFORM OR ANY SERVICES, CONTENT, FUNCTIONS, MATERIALS, NFT, OR OTHER BLOCKCHAIN ASSET OR TRANSACTIONS AVAILABLE THROUGH THE PLATFORM WILL BE AVAILABLE AT ANY PARTICULAR TIME OR PLACE, UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE;
(D) ANY DEFECTS OR ERRORS IN THE PLATFORM WILL BE CORRECTED; OR
(E) THE PLATFORM WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
- LIMITATION OF LIABILITY.
IN NO EVENT SHALL ANY RELEASED PARTY BE LIABLE, WHETHER IN AN ACTION BASED ON A CONTRACT INDEMNIFICATION, OBLIGATION, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), COLLATERALLY OR ARISING FROM ANY STATUTORY DUTY, PRE-CONTRACT OR OTHER REPRESENTATIONS, OR OTHERWISE, HOWEVER ARISING, FOR ANY ECONOMIC LOSSES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUES, PROFITS, CONTRACTS, BUSINESS, GOODWILL OR ANTICIPATED SAVINGS) OR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM, OR DIRECTLY OR INDIRECTLY RELATED TO (A) ANY BREACH OF THIS AGREEMENT, (B) THE USE OF, OR THE INABILITY TO USE, THE PLATFORM OR THE CONTENT, MATERIALS, INFORMATION, TRANSACTIONS, FUNCTIONS, NFTS OR OTHER BLOCKCHAIN ASSETS AVAILABLE THROUGH THE PLATFORM, (C) YOUR PROVISION OF INFORMATION VIA THE PLATFORM; (D) ANY INACCURACY OR OMISSION CONCERNING ANY OF THE INFORMATION PROVIDED ON THE PLATFORM; (E) ANY CONTENT POSTED, TRANSMITTED, EXCHANGED OR RECEIVED BY OR ON BEHALF OF ANY USER OR OTHER PERSON ON OR THROUGH THE PLATFORM, OR (F) LOST BUSINESS OR LOST SALES, EVEN IF SUCH RELEASED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
WITHOUT LIMITING THE FOREGOING, ANY MATERIALS, DATA, TEXT, IMAGES, VIDEO, AUDIO OR SOFTWARE DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE PLATFORM ARE ACCESSED, DOWNLOADED OR OBTAINED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR OTHER PROPERTY THAT RESULTS THEREFROM OR FROM YOUR USE OF ANY SUCH MATERIALS. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CERTAIN USERS.
IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF THE RELEASED PARTIES FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM THESE TOS OR YOUR USE OF THE PLATFORM OR THE CONTENT, MATERIALS, INFORMATION, FUNCTIONS, TRANSACTIONS, NFTS OR OTHER BLOCKCHAIN ASSETS AVAILABLE THROUGH THE PLATFORM EXCEED, IN THE AGGREGATE, FOUR HUNDRED TWENTY DOLLARS AND SIXTY-NINE CENTS ($420.69).
- Acknowledgement and Acceptance of Risk.
(a) Inherent Risks of Smart Contracts and Blockchain Technology. Where the purchase or receipt in a given transaction involves assets and activities memorialized on the blockchain, certain related activities (which may extend to, in relation to the Platform, purchases, sales, listings, transfers and other functionalities) utilize experimental smart contract and blockchain technology. You represent and warrant that you are knowledgeable, experienced and sophisticated in using blockchain technology and that you acknowledge, understand and are willing to accept the risks associated with related technological and cryptographic systems such as blockchains, NFTs, tokens, smart contracts, consensus algorithms, cryptocurrencies, decentralized or peer-to-peer networks and systems. You further acknowledge and agree that such technological and cryptographic systems (inclusive of the examples listed in the preceding sentence) may be subject to malfunctions, bugs, timing errors, hacking and theft, changes to the protocol rules of the blockchain (i.e., “forks”), hardware, software and/or Internet connectivity failures, unauthorized third party data access, and other technological risks, any of which can adversely affect the relevant smart contracts and may expose you to a risk of loss, forfeiture of tokens, or lost opportunities to participate in Transactions on the Platform. You accept the inherent security risks of providing information and conducting business over the Internet and acknowledge that Shibuya assumes no liability or responsibility for any such failures, risks, or uncertainties, nor for any communication failures, disruptions, errors, distortions or delays you may experience when using the Platform or any Transaction, however so caused. You acknowledge that the Platform is subject to flaws and acknowledge that you are solely responsible for evaluating any code provided by the Platform. The Platform may experience or be the target of sophisticated cyber-attacks, unexpected surges in activity or other operational or technical difficulties that may cause interruptions to or delays on the Platform.
(b) Acknowledgement of the Volatility of the Valuation of Blockchain Assets. You acknowledge and agree that the prices of blockchain assets (including NFTs) are extremely volatile and unpredictable, that such assets may have no or little inherent or intrinsic value and that fluctuations in the price or markets of those or other digital assets could materially and adversely affect the value of blockchain assets (including NFTs) purchased or received on the Platform (which may itself be subject to significant price volatility). We do not make any representations of any kind that the value of any blockchain assets (including NFTs) will retain the original acquisition value or any future value. You acknowledge that the value and/or utility of an NFT or other blockchain assets can be based on both subjective factors and market forces (e.g., the market(s) for cryptocurrencies, the issuance of new regulations, etc.), and any fluctuations in value are outside of the control of Shibuya or the Platform.
(c) Risks and Limitations of the Platform. You accept and acknowledge that (i) we do and will rely on third-party platforms in the operation of the Platform and for support in the facilitation of transactions, the recording of any transfer of title to NFT’s or other blockchain assets in the decentralized ledger within the blockchain, the processing of payments and other assistance, tasks and support relating to the operation and administration of the Platform (collectively, “Platform Providers”); and (ii) the applicable regulatory landscape governing blockchain technologies, cryptocurrencies, NFTs and other blockchain assets is uncertain, and new regulations or policies may materially adversely affect the development of the Platform and the value or utility (or both) thereof, as well as interfere with our ability to operate or improve upon the Platform (or your ability to access or use the Platform or applicable smart contracts).
(d) No Implicit Endorsements. You acknowledge that reference on the Platform 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 us, and that we do not endorse or assume any responsibility for any activities of or resources, products, services, content or promotions owned, controlled, operated or sponsored by third parties (including Third Party Sites).
(e) Acknowledgement of Responsibilities for Transaction Outcomes. You acknowledge and agree that that use of the Platform, including the creating, buying or utilizing of digital assets, may carry financial risk, and that the risk of loss may be substantial. All transaction decisions are made solely by you. By using the Platform, you represent that you have been, are and will be solely responsible for making your own independent appraisal and investigations into the risks of a given Transaction and any underlying digital assets. You acknowledge and assume the risk of initiating, interacting with and participating in transactions via the Platform, in whatever means effectuated thereby, and take full responsibility and liability for the outcome of any transaction you initiate (regardless of whether the smart contracts, the Platform, other market participants or other users behave as expected or intended) and all other aspects of your use of and access to the Platform. Under no circumstances will the operation of all or any portion of the Platform be deemed to create a relationship that includes the provision or tendering of investment advice.
(f) Local Standards. You acknowledge that the Platform and the content, materials, information, functions or Transaction available through the Platform may not be appropriate for use in all locations. Persons who choose to access the Platforms do so on their own initiative, and are responsible for compliance with local laws, if and to the extent local laws are applicable.
Dispute Resolution. EXCEPT AS OTHERWISE PROVIDED UNDER THESE TOS, ALL DISPUTES AND CLAIMS BETWEEN YOU AND SHIBUYA THAT ARISE OUT OF OR IN CONNECTION WITH, OR RELATE TO, THESE TOS SHALL BE RESOLVED, AT THE FILING PARTY'S ELECTION, IN EITHER A SMALL CLAIMS COURT OR BY FINAL AND BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION UNDER ITS COMMERCIAL ARBITRATION RULES AND SUPPLEMENTARY PROCEDURES FOR CONSUMER-RELATED DISPUTES, WHICH ARBITRATION SHALL TAKE PLACE IN LOS ANGELES, CALIFORNIA. ALL DISPUTES IN ARBITRATION WILL BE HANDLED SOLELY BETWEEN THE NAMED PARTIES, AND NOT ON ANY REPRESENTATIVE OR CLASS BASIS. FURTHER, UNLESS BOTH YOU AND SHIBUYA AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. THE ARBITRATOR MAY AWARD DECLARATORY OR INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM WITHOUT AFFECTING OTHER INDIVIDUALS. YOU UNDERSTAND AND AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS BOTH YOU AND SHIBUYA SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION. THIS PROVISION IS NOT APPLICABLE TO THE EXTENT SUCH WAIVER IS PROHIBITED BY LAW. YOU UNDERSTAND THAT YOU AND SHIBUYA ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS BEFORE A JURY. You have the right to opt-out and not be bound by the arbitration and waiver of class provisions set forth in these TOS by sending written notice of your decision to opt-out to firstname.lastname@example.org. The notice must be sent to Shibuya within thirty (30) days of agreeing to these TOS (or if this Section 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 TOS, and the notice must specify your name and mailing address.
Termination. Notwithstanding anything to the contrary set forth in these TOS, we may terminate access to all or any part of the Platform at any time, and/or block or prevent future access to and use of the Platform, in each case with or without cause, with or without notice and without attendant liability, effective immediately. Upon any termination, all rights and obligations of the parties hereunder shall cease and you shall immediately cease using the Platforms, except that (a) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) and all remedies for breach of these TOS shall survive and (b) the provisions of these TOS that by their nature are intended to survive termination shall so survive.
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.
Injunctive Relief. You agree that a breach of these TOS will cause irreparable injury to Shibuya for which monetary damages would not be an adequate remedy and we 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.
Further Inquiries. You may direct questions about these TOS, or other issues, to NotShibuya, Inc. at email@example.com.
Last Modified: January 6, 2023