Effective Date: August 10, 2022
PLEASE BE AWARE THAT SECTION 15 (DISPUTE RESOLUTION) CONTAINS PROVISIONS GOVERNING HOW TO RESOLVE DISPUTES BETWEEN YOU AND COMPANY. AMONG OTHER THINGS, SECTION 15 INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US SHALL BE RESOLVED BY BINDING AND FINAL ARBITRATION. SECTION 15 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ SECTION 15 CAREFULLY.
UNLESS YOU OPT OUT OF THE AGREEMENT TO ARBITRATE WITHIN 30 DAYS: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
The Services are intended to help you find actions you can take through third-party platforms and services by aggregating your communications channels across those platforms and services.
DAYLIGHT CANNOT INITIATE A TRANSFER OF ANY OF YOUR CRYPTOCURRENCY OR DIGITAL ASSETS OR OTHERWISE ACCESS YOUR DIGITAL ASSETS. DAYLIGHT DOES NOT INDEPENDENTLY VERIFY THE ACCURACY OR CONTENTS OF ANY INFORMATION AGGREGATED BY OR DELIVERED THROUGH THE SERVICES. DAYLIGHT HAS NO FIDUCIARY RELATIONSHIP OR OBLIGATION TO YOU REGARDING ANY DECISIONS OR ACTIVITIES THAT YOU EFFECT IN CONNECTION WITH YOUR USE OF THE SERVICES, INCLUDING ANY ACTIONS THAT YOU TAKE IN RELIANCE ON ANY MESSAGES. DAYLIGHT IS NOT CAPABLE OF PERFORMING TRANSACTIONS OR SENDING TRANSACTION MESSAGES ON YOUR BEHALF.
- “Ability” means an action that can be taken by an individual or entity through or in connection with a Digital Asset or smart contract affiliated with such individual or entity’s Wallet, and may include (by way of example and without limitation) voting through a governance token or receiving or claiming a Digital Asset.
- “Ability Message” means any digital communication or alert related to an Ability and transmitted via the Platform, whether such message is initiated by a Partner using the Software or by a Third-Party Service.
- “Account” means a registered account on the Services as accessed through a Wallet.
- “Arbitration Agreement” means the dispute resolution process set forth in Section 15.
- “Connected Content” means any Content or personal financial data that you have provided to and/or stored in your Wallet or other Partner Application.
- “Content” means any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials.
- “Daylight,” “we,” or “us” means Daylight Studios, Inc.
- “Daylight Parties” means Daylight, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors.
- “Digital Asset” means any cryptocurrency, cryptoasset, blockchain-based token, or other digital asset.
- “Fee(s)” means any fees or charges assessed by Daylight and incurred by any customer (including both Registered Users and Partners) in connection with any Services.
- “Feedback” means any ideas, suggestions, documents, and/or proposals that you submit to Daylight through the Services.
- “Make Available” or “Made Available” means to upload, post, e-mail, transmit or otherwise make available through the Services.
- “NFT” means a non-fungible token consisting of digital data recorded on a blockchain.
- “Order” means any order form or supplemental documentation pursuant to which any Registered User purchases any Services from Daylight.
- “OSS” or “Open-Source Software” means any software or components thereof subject to “open source” or “free software” licenses.
- “Partner” means a Daylight partner or customer that, pursuant to an agreement with Daylight, uses the Software to enable Web3 Platforms to connect with such Web3 Platforms’ end users, including without limitation to (i) make Abilities available through the Services and (ii) review and display the Abilities made available to Registered Users.
- “Partner Application” means a service (including without limitation Web3 Platforms and suppliers or service providers thereto) owned or operated by a Partner and integrated with the Services.
- “Platform” means Daylight’s proprietary platform (i) that allows Registered Users to aggregate disparate Ability Messages and related notifications in one simple interface and (ii) through which Registered Users can initiate actions, including drafting and sending Transaction Messages, in connection with Abilities.
- “Registered User” is a user who has registered an Account and may include, without limitation, a Partner or an individual end user.
- “Services” means any products and services made available by Daylight, including without limitation the Website, the Platform, and the Software.
- “Software” means Daylight’s proprietary software that powers personalized interactions between Web3 developers and their end users by tailoring developers’ communications to such end users’ preferred messaging platforms.
- “Subscription” means any services or features for which access and use is purchased on a time limited basis.
- “Third-Party Account” means a valid account on a Web3 Platform; a social networking service supported by the Services; or a valid third-party Wallet compatible with the Services.
- “Third-Party Content” means any Content that is Made Available by or through Third-Party Services or any other applicable third party.
- “Third-Party Services” means any third-party websites, applications, and advertisements for third parties accessible or otherwise connected to the Services but not provided by Daylight, including, without limitation, Partner Applications, and Wallets.
- “Transaction Message” means any transaction message written and digitally signed by a Registered User through or in connection with the Platform.
- “User Content” means any Content that is Made Available by a Registered User, but excluding Connected Content.
- “Wallet” means a software-based system for secure storage of cryptocurrency, cryptoassets, and payment information related thereto.
- “Website” means the Daylight website and any associated subdomains.
- “Web3 Platform” means a blockchain-based or other Web3 service provider that facilitates the availability of Abilities for its end users.
- “You” means the individual or legal entity, as applicable, that is using or accessing the Services, or that is identified as the user when you registered on the Services.
- USE OF THE SERVICES.
- Services. Our Services include, without limitation, the Website, the Platform and the Software. The Services are protected by copyright laws throughout the world. Unless otherwise specified by Daylight in a separate license (including without limitation applicable Supplemental Terms), your right to use any and all Services is subject to the Agreement.
- Access to the Platform. Subject to the Agreement, Daylight grants you a limited license to access and use the Platform for the sole purpose of using the Services for your personal or internal business purposes and solely in accordance with the functionality of the Services.
- Token-Gated Access. In order to access certain Content and/or Services, including without limitation to access certain beta services made available by Daylight, you may need to have certain Digital Asset(s) in the Wallet linked to your Account. Except as expressly set forth in connection with any Digital Asset(s) made available by us, we are not liable for, and take no responsibility for, any failure or incompatibility of any such Digital Assets.
- License to the Software. Use of the Software is subject to any Supplemental Terms, including any payment terms, made available to you in connection with such Software. These license terms may be posted at the Website page where the Software can be accessed. You shall not access, use, download or install any Software (including without limitation any SDK, API, or API key) that is accompanied by or includes a license agreement unless you agree to the terms of such license agreement and this Agreement. At no time will Daylight provide you with any tangible copy of our Software. Daylight shall deliver access to the Software via electronic transfer and shall not use or deliver any tangible media in connection with the (a) delivery, installation, updating or problem resolution of any Software (including any new releases); or (b) delivery, correction or updating of documentation. For the purposes of this section tangible media shall include, but not be limited to, any tape disk, compact disk, card, flash drive, or any other comparable physical medium. Any redistribution of the Software is prohibited except as expressly set forth in the applicable license agreement, including any redistribution or use on a service bureau basis. If there is any conflict between the Agreement and the license agreement, the license agreement shall take precedence in relation to that Software (except as provided in the following sentence). If the Software is a pre-release version, then, notwithstanding anything to the contrary included within an accompanying license agreement, you are not permitted to use or otherwise rely on the Software for any commercial or production purposes. If no license agreement accompanies use of the Software, use of the Software will be governed by the Agreement. Subject to your compliance with the Agreement, Daylight grants you a non-assignable, non-transferable, revocable non-exclusive license to use the Software for the sole purpose of enabling you to use the Services in the manner contemplated and to the extent permitted by the Agreement. Some Software may be offered under an open source license that we will make available to you. There may be provisions in the OSS licenses that expressly override some of these terms.
- Updates. You understand that the Services are evolving. You acknowledge and agree that Daylight may update the Services with or without notifying you. You may need to update third-party software from time to time in order to use the Services.
- Connecting Your Wallet. In order to access certain features of the Services (including to create an Account) you need to connect a Wallet that is supported by or compatible with the Services. You cannot create a Wallet using the Services. You represent that you are entitled to connect any Wallet that you connect to the Services and to grant any permissions that you grant us in and to such Wallet in order to facilitate any Services, including but not limited to for the purposes described herein, without breach by you of any of the terms and conditions that govern your use of the applicable Wallet and without obligating Daylight to pay any fees or making Daylight subject to any usage limitations imposed by such third-party service providers. Please note that if a Wallet or associated service becomes unavailable or Daylight’s access to such Wallet is terminated by the third-party service provider, then you will no longer be able to integrate such Wallet with the Services, and we disclaim all liability in connection with the foregoing. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR WALLET IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND DAYLIGHT DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE OR OTHER INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH WALLET OR OTHER THIRD-PARTY ACCOUNTS.
- Registering an Account. In order to access certain features of the Services, including without limitation the Platform, you may be required to create an Account, in accordance with the functionality of the Services, by connecting one or more Wallets to the Service. When you connect a unique Wallet to the Services, you register an Account for such Wallet. In registering an Account, you agree to (a) provide true, accurate, current and complete information about yourself; and (b) maintain and promptly update such information to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Daylight has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Daylight has the right to suspend or terminate your Account and refuse any and all current or future use of Services (or any portion thereof). You agree not to create an Account using a false identity or information or a Wallet that you do not have the authorization to use, or on behalf of someone other than yourself unless expressly authorized to do so.
- Representations. You represent that you are not a person barred from using the Services under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur during your use of the Services. You agree that you shall monitor your use of the Services to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Services by minors.
- Necessary Equipment and Software. You must provide all equipment, software, and hardware necessary to connect to the Services. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Services. You are solely responsible for keeping your hardware devices secure.
- RESPONSIBILITY FOR CONTENT.
- Types of Content. You acknowledge that all Content, including without limitation Content Made Available in connection with the Services, Abilities, Transaction Messages, and Ability Messages, is the sole responsibility of the party from whom such Content originated. This means that you and other Registered Users of the Services, and not Daylight, are responsible for all User Content.
- Transaction Message Content. When you use the Services to draft and send Transaction Messages to a Web3 Platform or other Third-Party Service, you acknowledge and agree that, as between Daylight and you, you are solely responsible for any Content contained in any such Transaction Messages and any action effected as a result of such Transaction Messages.
- Ability Content. When you use the Services to submit Content in connection with a new or existing Ability, you acknowledge and agree that you are solely responsible for such Content. Daylight reserves the right, but has no obligation, to monitor any Content submitted by you in connection with an Ability. Daylight may, but has no obligation to, identify you as the source of such Content.
- Ability Message Content. When you use the Services to receive Ability Messages from a Web3 Platform or other Third-Party Service, you acknowledge and agree that such Web3 Platform or other Third-Party Service, and not Daylight, is responsible for any Content contained in any such Ability Messages, including without limitation any inaccuracies with respect to the same. When you use the Services, including the Software, to (i) initiate or transmit any Ability Message or (ii) facilitate the transmission of an Ability Message on behalf of a Web3 Platform, you acknowledge and agree that, as between you and Daylight, you, and not Daylight, are responsible for the Content of any such Ability Message. Daylight shall have no liability to you in connection with such Content, including without limitation if such Content (i) violates applicable law, including without limitation securities law; or (ii) violates the terms or rules applicable to any Third-Party Service to or through which such Ability Message is transmitted.
- Messages Content Disclaimer. Daylight makes no representation that the Platform is or will be compatible with all Web3 Platforms or Third-Party Services, and Daylight does not and cannot verify that the Content of any Ability Message or Transaction Message will be accurate or complete, or that any Ability Message or Transaction Message will be effectively or completely transmitted by the Platform. Daylight shall have no liability to you or any third party in connection with such Content. Before taking any action in reliance on any Ability Message or any other Content, you should verify the accuracy of such Content.
- The Services. Except with respect to any OSS, your Wallet, and any User Content that you Make Available, you agree that Daylight and its licensors own all rights, title and interest in and to the Services. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Services.
- Open Source Software. You acknowledge that the Services may use, incorporate or link to certain OSS and that your use of the Services is subject to, and you will comply with any, applicable OSS licenses. Each item of OSS is licensed under the terms of the end-user license that accompanies such OSS. Nothing in this Agreement limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for the OSS. If required by any license for particular OSS, Daylight makes such OSS, and Daylight’s modifications thereto, available by written request at the notice address specified below.
- Trademarks. Daylight’s logoand all related graphics, logos, service marks and trade names used on or in connection with any the Services or in connection with the Services are the trademarks of Daylight and may not be used without permission in connection with your, or any third-party, products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners.
- Your User Content. Daylight does not claim ownership of your User Content. However, when you as a Registered User post or publish your User Content on or in the Services, including without limitation to use the Software to initiate or facilitate the transmission of any Transaction Message or to publish or interact with any Ability, you represent that you own and/or have, and have all rights necessary to grant to Daylight and do hereby grant to Daylight, a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display your User Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in your User Content. Notwithstanding anything contained herein to the contrary, by submitting your User Content to any forums, comments, or any other public area on the Platform, including without limitation by publishing any Ability, you hereby expressly permit Daylight to identify you by your ENS address or other associated username (which may be a pseudonym) as the contributor of such User Content in any form, media or technology now known or later developed in connection with such User Content.
- Feedback. You agree that submission of Feedback is at your own risk and that Daylight has no obligations with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Daylight a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, for any purpose.
- FEES; PAYMENT.
- Fees. In the event that Daylight makes available, and you elect to purchase, any Services in connection with which Daylight charges Fees, you agree that you will pay Daylight all such Fees as set forth in a separate Order or at Daylight’s then-current standard rates. You agree that, unless otherwise set forth in an Order or otherwise prior to purchase: (i) all Fees are non-cancellable, non-refundable, and non-recoupable; and (ii) all invoices for Fees are due and payable in United States dollars (or an alternative currency or cryptocurrency to be agreed-upon by the parties in writing) within 30 days after the invoice date, without deduction or setoff. Notwithstanding any fluctuation in the value of any currency, whether fiat or cryptocurrency, you shall pay all Fees in the currency in which you have agreed to pay such Fees. You are responsible for all federal, state, local, sales, use, value added, excise, or other taxes, fees, or duties arising out of the Agreement or the transactions contemplated by the Agreement (other than taxes based on Daylight’s net income).
- Subscriptions. Certain products or services offered on or through the Services may be provided for a fee or other charge, including on a Subscription basis. Daylight may add new Services for additional Fees, or amend Fees for existing Services, at any time in its sole discretion. Any increased fees for existing Subscriptions will apply solely on a forward-looking basis beginning on your next billing period. The purpose of the Agreement is for you to secure access to the Services. Any Fees set forth within and paid by you under the Agreement shall be considered solely in furtherance of this purpose. In no way are these Fees paid considered payment for the sale of any of Daylight’s Software.
- Minting NFTs. You may be able to use the Services to mint or purchase NFTs. By minting or purchasing an NFT, you agree to comply with any terms, including license or payment rights, that are embedded within or otherwise included with any such NFT. Daylight does not guarantee that any NFTs will be transferable to or operable with any other platform. Daylight may set limits on or other terms regarding the sale of NFTs comprising Daylight’s Content, including, without limitation, any Fee payable to Daylight or any third party in connection with any subsequent sale of an NFT, whether or not such sale takes place on or through the Services, and Daylight will display such terms at point of sale or otherwise within the Services. Daylight is not and shall not be a party to any transaction or dispute between any initial buyer of an NFT and any subsequent owner of such NFT, whether arising from any rights granted in that NFT or otherwise, unless otherwise expressly set forth in connection with such NFT.
- USER CONDUCT. You agree that you are solely responsible for your conduct in connection with the Service. You agree that you will abide by this Agreement and will not (and will not attempt to): (a) provide false or misleading information to Daylight; (b) pose as another person or entity; (c) Use the Services in any manner that could interfere with, disrupt, negatively affect or inhibit other Registered Users from fully enjoying the Services, or that could damage, disable, overburden or impair the functioning of the Services in any manner; (d) develop, utilize, or disseminate any software, or interact with any API in any manner, that could damage, harm, or impair the Services; (e) bypass or circumvent measures employed to prevent or limit access to any service, area, or code of the Services; (f) attempt to circumvent any content-filtering techniques we employ; (g) use any robot, spider, crawler, scraper, script, browser extension, offline reader, or other automated means or interface not authorized by us to access the Services, extract data or otherwise interfere with or modify the rendering of Service pages or functionality; (h) collect or harvest data from our Services that would allow you to contact individuals, companies, or other persons or entities, or use any such data to contact such entities; (i) use data collected from our Services for any direct marketing activity (including without limitation, email marketing, SMS marketing, telemarketing, and direct marketing); (j) bypass or ignore instructions that control all automated access to the Services; (k) use the Service for any illegal or unauthorized purpose, or engage in, encourage, or promote any activity that violates any applicable law or this Agreement; (l) use your Wallet to carry out any illegal activities in connection with or in any way related to your access to and use of the Services, including but not limited to money laundering, terrorist financing or deliberately engaging in activities designed to adversely affect the performance of the Services; (m) Make Available any Content (including any Transaction Message or Ability Message) that infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; or (n) attempt to access any Wallet that you do not have the legal authority to access. Any unauthorized use of any Services terminates the licenses granted by Daylight pursuant to the Agreement.
- INVESTIGATIONS. Daylight may, but is not obligated to, monitor or review the Services and Content at any time. Without limiting the foregoing, Daylight shall have the right, in its sole discretion, to remove any of your User Content for any reason (or no reason), including if such User Content violates the Agreement or any applicable law. Although Daylight does not generally monitor user activity occurring in connection with the Services or Content, if Daylight becomes aware of any possible violations by you of any provision of the Agreement, Daylight reserves the right to investigate such violations, and Daylight may, at its sole discretion, immediately terminate your license to use the Services, or change, alter or remove your User Content, in whole or in part, without prior notice to you.
- INTERACTIONS WITH OTHER USERS.
- User Responsibility. You are solely responsible for your interactions with other Registered Users, Web3 Platforms, and any other parties with whom you interact through or in connection with the Service; provided, however, that Daylight reserves the right, but has no obligation, to intercede in such disputes. You agree that Daylight will not be responsible for any liability incurred as the result of such interactions, including without limitation any interactions resulting from or arising in connection with any Abilities or Ability Messages.
- Connected Content. Daylight is not liable to you in connection with Daylight’s or any third party’s use of the Services to view any Connected Content that you have Made Available. DAYLIGHT DISCLAIMS ANY LIABILITY FOR CONNECTED CONTENT, INCLUDING WITHOUT LIMITATION PERSONALLY IDENTIFIABLE INFORMATION AND FINANCIAL INFORMATION, THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH WALLETS. Daylight has no obligation to review or verify any Connected Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Daylight is not responsible for any Connected Content.
- INDEMNIFICATION. You agree to indemnify and hold the Daylight Parties harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) your User Content; (b) your use of, or inability to use, any of the Services; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any Registered Users; or (e) your violation of any applicable laws, rules or regulations. Daylight reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Daylight in asserting any available defenses. This provision does not require you to indemnify any of the Daylight Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of the Agreement and/or your access to the Services.
- ASSUMPTION OF RISK RELATED TO BLOCKCHAIN TECHNOLOGY. In order to be successfully completed, any transaction involving Digital Assets initiated by or sent to your Wallet must be confirmed by and recorded on the blockchain supporting such Digital Asset. Daylight has no control over any blockchain and therefore cannot and does not ensure that any transaction details that you submit or receive via our Services (including without limitation any Transaction Message or Ability Message) will be validated by or confirmed on the relevant blockchain, and Daylight does not have the ability to facilitate any cancellation or modification requests. You accept and acknowledge that you take full responsibility for all activities that you effect through your Wallet and accept all risks of loss, including loss as a result of any authorized or unauthorized access to your Wallet, to the maximum extent permitted by law. You further accept and acknowledge that:
- You (a) have the necessary technical expertise and ability to review and evaluate the security, integrity and operation of your Wallet and any Web3 Platforms accessed in connection with the Services; (b) have the knowledge, experience, understanding, professional advice and information to make your own evaluation of the merits, risks and applicable compliance requirements under applicable laws of any use of your Wallet and any Web3 Platforms accessed in connection with the Services; (c) know, understand and accept the risks associated with your Wallet and any Web3 Platforms accessed in connection with the Services; and (d) accept the risks associated with blockchain technology and Web3 Platforms generally, and are responsible for conducting your own independent analysis of the risks specific to your use of the Services. You further agree that Daylight will have no responsibility or liability for, such risks.
- Daylight does not store, send, or receive Digital Assets.
- There are risks associated with using an Internet based currency, including but not limited to, the risk of hardware, software and Internet connections; the risk of malicious software introduction; the risk that third parties may obtain unauthorized access to information stored within your Wallet; and the risk of counterfeit assets, mislabeled assets, assets that are vulnerable to metadata decay, assets on smart contracts with bugs, and assets that may become untransferable. You accept and acknowledge that Daylight will not be responsible for any communication failures, disruptions, errors, distortions or delays or losses you may experience when using blockchain technology, however caused.
- The regulatory regime governing blockchain technologies, cryptocurrencies, and tokens is uncertain, and new regulations or policies may materially adversely affect the development of the Services.
- Daylight makes no guarantee as to the functionality of any blockchain’s decentralized governance, which could, among other things, lead to delays, conflicts of interest, or operational decisions that are unfavorable to certain owners of certain Digital Assets. You acknowledge and accept that the protocols governing the operation of a blockchain may be subject to sudden changes in operating rules which may materially alter the blockchain and affect the value and function of Digital Assets supported by that blockchain.
- Daylight makes no guarantee as to the security of any blockchain. Daylight is not liable for any hacks, double spending, stolen Digital Assets, or any other attacks on a blockchain.
- The Services rely on, and Daylight makes no guarantee or warranties as to the content of, functionality of, or access to, any Partner Application, Web3 Platform, Wallet, or other Third-Party Service.
- Daylight makes no guarantee as to the security of any Partner Application or Web3 Platform.
- DISCLAIMER OF WARRANTIES AND CONDITIONS.
- As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. DAYLIGHT PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE. DAYLIGHT PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE. ANY CONTENT ACCESSED THROUGH THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. DAYLIGHT MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM DAYLIGHT OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
- No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT DAYLIGHT PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD DAYLIGHT PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING WITHOUT LIMITATION OPERATORS OF EXTERNAL SITES, WEB3 PLATFORMS, AND DECENTRALIZATED APPLICATIONS, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. DAYLIGHT MAKES NO WARRANTY THAT THE GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. DAYLIGHT MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH GOODS OR SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT (INCLUDING ABILITY MESSAGES) OBTAINED THROUGH THE SERVICES.
- No Liability in Connection with Beta Services. FROM TIME TO TIME, DAYLIGHT MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT DAYLIGHT’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
- LIMITATION OF LIABILITY.
- Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL DAYLIGHT PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, ETHEREUM OR OTHER VIRTUAL CURRENCY, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT DAYLIGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (a) THE USE OR INABILITY TO USE THE SERVICES; (b) THE COST OF PROCUREMENT OF SUBSTITUTE DIGITAL ASSETS, GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED, OR MESSAGES RECEIVED OR DRAFTED THROUGH OR IN CONNECTION WITH THE SERVICES; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR (e) ANY OTHER MATTER RELATED TO THE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A DAYLIGHT PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A DAYLIGHT PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A DAYLIGHT PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
- Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, DAYLIGHT PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a) $100;OR (b) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A DAYLIGHT PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A DAYLIGHT PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A DAYLIGHT PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
- Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
- Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN DAYLIGHT AND YOU.
- TERM AND TERMINATION.
- Term. The Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Services, unless terminated earlier in accordance with the Agreement.
- Termination of Services by Daylight. Daylight is free to terminate (or suspend access to) your use of the Services for any reason in our discretion, including your breach of this Agreement. Daylight has the sole right to decide whether you are in violation of any of the restrictions set forth in this Agreement. If we suspend your use of the Services, you may continue to access your Wallet directly or through other services not hosted by us. Daylight will not have any liability whatsoever to you for any suspension or termination.
- Termination of Services by You. If you want to terminate the Services provided by Daylight, you may do so by ceasing your use of the Services. You may continue to access your Wallet directly or through other services not hosted by us.
- Survival. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
- No Subsequent Use. If your ability to access the Services or any other Daylight service is discontinued by Daylight, then you agree that you shall not attempt to access the Services or any Daylight service through use of a different Wallet, Third-Party Account, member name or otherwise. In the event that you violate the immediately preceding sentence, Daylight reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
- DISPUTE RESOLUTION. Please read this Arbitration Agreement carefully. It requires you to arbitrate disputes with Daylight and limits the manner in which you can seek relief from us.
- Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and we agree that any dispute, claim, or request for relief relating in any way to your access or use of the Services or to any aspect of your relationship with Daylight, including any claims and disputes that arose between us before the effective date of this Agreement, (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that (a) you may assert claims or seek relief in small claims court if your claims qualify; and (b) you or Daylight may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Agreement as well as claims that may arise after the termination of this Agreement.
- Informal Dispute Resolution. There might be instances when a Dispute arises between you and Daylight. If that occurs, Daylight is committed to working with you to reach a reasonable resolution. You and Daylight agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and Daylight therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference. The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Daylight that you intend to initiate an Informal Dispute Resolution Conference should be sent by email or regular mail to the address(es) set forth in Section 17.8. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address or Wallet address associated with your Account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute. The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
- Waiver of Jury Trial. YOU AND DAYLIGHT HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Daylight are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the subsection entitled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
- Waiver of Class and Other Non-Individualized Relief. YOU AND DAYLIGHT AGREE THAT, EXCEPT AS SPECIFIED IN SUBSECTION 15.9, EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, 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 the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the subsection 15.9 entitled “Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this subsection, “Waiver of Class and Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Daylight agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of California. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or Daylight from participating in a class-wide settlement of claims.
- Rules and Forum. This Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Conference process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and Daylight agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf. A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address and/or Wallet address of the party seeking arbitration and the Account username (if applicable) as well as the email address associated with any applicable Account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution Conference process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration. If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. Unless you and Daylight otherwise agree, or the Batch Arbitration process discussed in subsection 15.9 is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA Rules. You and Daylight agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
- Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of New York and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under subsection 15.9 is triggered, the AAA will appoint the arbitrator for each batch.
- Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to the subsection entitled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of the subsection entitled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such subsection entitled “Waiver of Class and Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in the subsection entitled “Batch Arbitration,” all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about 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; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in the subsection entitled “Batch Arbitration.” The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. 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 award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
- Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Daylight need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Conference process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
- Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Daylight agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against Daylight by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”). All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Daylight. You and Daylight agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings. This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
- 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the address set forth in Section 17.8, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address and digital wallet you used to set up your Account (if applicable), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
- Invalidity, Expiration. Except as provided in the subsection entitled “Waiver of Class and Other Non-Individualized Relief”, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, 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. You further agree that any Dispute that you have with Daylight as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
- Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Daylight makes any future material change to this Arbitration Agreement, it will notify you. Unless you reject the change within thirty (30) days of such change become effective by writing to Daylight at the address set forth in Section 17.8, your continued use of the Services following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of this Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Services, this Agreement, the provisions of this Arbitration Agreement as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement) remain in full force and effect. Daylight will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.
- THIRD-PARTY SERVICES. The Services may contain, link to, or integrate with certain Third-Party Services. When you click on a link to or access or use a Third-Party Service, we will not warn you that you have left the Services and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Services are not under the control of Daylight. Daylight is not responsible for any Third-Party Services. Daylight provides these Third-Party Services only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Services, or any product or service provided in connection therewith. You use all links in Third-Party Services at your own risk. When you leave our Services, this Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Services, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
- GENERAL PROVISIONS.
- Electronic Communications. For contractual purposes, you (a) consent to receive communications from Daylight in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Daylight provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
- Release. You hereby release Daylight Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Services, including but not limited to, any interactions with or conduct of other Registered Users or third-party websites of any kind arising in connection with or as a result of the Agreement or your use of the Services. 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 OR RELEASING PARTY 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 OR RELEASED PARTY.”
- Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Daylight’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
- Force Majeure. Daylight shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
- Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at email@example.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
- Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Daylight agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in the State of Washington.
- Governing Law. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT.
- Notice. You may give notice to Daylight at the following address: firstname.lastname@example.org. Such notice shall be deemed given when received by Daylight by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address, or, if by email sent and expressly referencing this Section 17.8, within 24 hours of confirmed transmission to the email address set forth in this Section 17.8.
- Copyright Policy. Daylight respects the intellectual property of others and asks that users of our Services do the same. In connection with our Services, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Site who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Site, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent: your physical or electronic signature; identification of the copyrighted work(s) that you claim to have been infringed; identification of the material on our services that you claim is infringing and that you request us to remove; sufficient information to permit us to locate such material; your address, telephone number, and e-mail address; a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner. Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement. The designated Copyright Agent for Daylight is: Daylight Studios, ATTN: Copyright Agent, c/o Corporation Service Company, 251 Little Falls Drive, Wilmington, New Castle County, Delaware 19808.
- Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
- International Users. The Services can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Daylight intends to announce such Services or Content in your country. The Services are controlled and offered by Daylight from the United States of America. Daylight makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
- Export Control. You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws.
- Consumer Complaints. In accordance with California Civil 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.
- Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
Daylight NFT Terms
By purchasing, acquiring, or otherwise receiving an NFT that originated from Daylight Studios (“Daylight NFT”), you agree to these Dawn Pass NFT Terms. These Daylight NFT Terms, along with Daylight User Terms of Service, made available at https://www.daylight.xyz/terms and incorporated herein by reference, are collectively referred to as the “Agreement.”
OWNERSHIP OF DAYLIGHT NFTS AND ARTWORK. Each Dawn Pass NFT is a digital asset that embodies or includes certain artwork owned or created by Daylight (the “Artwork”). You acknowledge and agree that Daylight Studios (“Daylight”) owns all legal right, title and interest in and to the Artwork, and all intellectual property rights therein. Daylight NFTs may also incorporate one or more elements of Daylight’s trademarks and branding (the “Brand”). Each Daylight NFT is a non-fungible token hosted on the Ethereum blockchain, ownership of which can be transferred through gift, purchase, disposition, or acquisition. The Artwork is neither stored nor embedded in the Daylight NFT, but is accessible through the Daylight NFT. ALTHOUGH EACH DAYLIGHT NFT ITSELF IS OWNED BY ITS THEN-CURRENT OWNER, THE ARTWORK EMBODIED THEREBY AND ANY BRAND INCORPORATED THEREIN OR USED THEREWITH IS LICENSED, PURSUANT TO THESE NFT TERMS, AND NOT TRANSFERRED OR SOLD, TO SUCH OWNER. “OWN” MEANS, WITH RESPECT TO A DAYLIGHT NFT, A DAYLIGHT NFT THAT YOU HAVE RIGHTFULLY AND LAWFULLY PURCHASED OR ACQUIRED FROM A LEGITIMATE SOURCE, WHERE PROOF OF SUCH PURCHASE OR ACQUISITION IS RECORDED ON THE APPLICABLE BLOCKCHAIN. The rights that you have in and to the Artwork are limited to those expressly stated in the paragraph immediately below. Daylight and its licensors reserve all rights in and to the Artwork and Brand not expressly granted to you herein.
LICENSES. Subject to your lawful purchase or acquisition of a Daylight NFT and your continued compliance with this Agreement, Daylight grants you a worldwide, non-exclusive, revocable, royalty-free license, with no right to sub-license, (a) to display the Artwork and any Brand embodied by your Dawn Pass NFTs, solely for the following purposes: (i) for your own personal, non-commercial use (e.g., display in a virtual gallery, on a mobile device, as an avatar, or in your home); (ii) through or as a part of a marketplace that permits the disposition or acquisition of your Daylight NFTs in connection with such potential disposition or acquisition, provided that the marketplace cryptographically verifies rights to ensure that only the actual owner can offer a Daylight NFT for acquisition; or (iii) as part of a third party website or application that permits the inclusion, involvement, or participation of your Daylight NFTs, provided that the website/application cryptographically verifies rights to ensure that only the actual owner can display a Daylight NFT; and (b) to access certain limited features or exercise certain privileges on or through the Daylight website and/or mobile application(s) (collectively, the “Daylight Digital Properties”), in each case in accordance with the functionalities of such Daylight Digital Properties and as may be modified by Daylight from time to time in Daylight’s sole discretion. Daylight provides this Dawn Pass NFT, licenses the Artwork and Brand to the owner of this Dawn Pass NFT, and provides the Daylight Digital Properties on an “AS IS” basis, and expressly disclaims any warranties or conditions of any kind, either express or implied, including, without limitation, any warranties or conditions of title, non-infringement, merchantability, or fitness for a particular purpose. The license to display the Artwork and any Brand embodied by a Daylight NFT is automatically and always transferred with the NFT as provided below. Otherwise the license to display the Artwork and any Brand embodied by a Daylight NFT is non-transferable.
You acknowledge that the license granted to you in this Agreement applies only to the extent that you lawfully purchased or acquired a Daylight NFT and, with respect to a Daylight NFT that you purchase, that you continue to own such Daylight NFT. If at any time you burn or otherwise dispose of your Daylight NFT for any reason, the license granted in this Agreement to you will immediately expire with respect to such Daylight NFT without the requirement of notice, and you will have no further rights in or to the Artwork or Brand embodied by such Daylight NFT. The license granted in this Agreement will also automatically terminate, with all rights returning to Daylight, if: (x) you breach this Agreement, which shall include, transferring or acquiring this Daylight NFT in a way not specifically permitted hereunder or (y) you engage in any unlawful business practice related to Daylight NFT. In the event that you did not lawfully purchase or acquire this Daylight NFT or upon any termination of the license granted in this Agreement, Daylight may disable your access to the Artwork and/or Brand and/or deny you access to any further benefits, services or goods associated with this Daylight NFT.
RESTRICTIONS. You agree that you will not, nor will you permit any third party to, do or attempt to do any of the following without Daylight’s express prior written consent in each case: (i) modify, distort or perform any other change to the Artwork or Brand embodied by your Daylight NFT in any way, including, without limitation, the shapes, designs, drawings, attributes, or color schemes; (ii) use the Artwork or Brand embodied by your Daylight NFTs as a brand or trademark or to advertise, market, or sell any product or service (other than an authorized offering of Daylight NFT itself); (iii) use the Artwork or Brand embodied by your Daylight NFTs in connection with images, videos, or other forms of media that depict hatred, intolerance, violence, cruelty, or anything else that could reasonably be found to constitute hate speech or otherwise infringe upon the rights of others or promote illegal activities; (iv) sell, distribute for commercial gain (including, without limitation, giving away in the hopes of eventual commercial gain), or otherwise commercialize merchandise that includes, contains, or consists of the Artwork or Brand embodied by your Daylight NFTs; (v) attempt to trademark, copyright, or otherwise acquire additional intellectual property rights in or to the Artwork or Brand embodied by your Dawn Pass NFTs; (vi) use the Artwork or Brand embodied by your Daylight NFTs in connection with defamatory or dishonest statements about Daylight and/or its affiliated companies or which otherwise damage the goodwill, value or reputation of Daylight or represent or imply that your exercise of the licenses granted hereunder is endorsed by Daylight and/or its affiliated companies; or (vii) otherwise utilize the Artwork or Brand embodied by your Daylight NFTs for your or any third party’s commercial benefit (other than an authorized offering of the Daylight NFT itself). These restrictions will survive the expiration or termination of licenses granted hereunder.
Without limiting the foregoing, the license granted by this Agreement does not include: (i) the right to use the Artwork or Brand in connection with additional NFTs; or (ii) the right to create derivative works of the Artwork. You may not use or attempt to register any asset, including any domain names, social media accounts or related addresses, that contains or incorporates any Artwork, Brand, or any other representation, name or mark that may be confusingly similar to any of Daylight’s intellectual property.
NO TRANSFER OF DAYLIGHT NFT. Daylight NFTs are non-transferable. If you burn your Daylight NFT, all licenses hereunder will immediately terminate.