Hits Terms of Use

Last Updated: December 7, 2021

Hits is a phone application, website, marketplace and online community that provides users with the opportunity to view and share video clips containing exclusive content from card breakers and other content contributors (the “Contributors”) and purchase, collect, and showcase these clips as digital blockchain non-fungible tokens (“NFTs”) (collectively, the “Product”).   Hits Collective, LLC ("HCLLC", "we", or "us"), a Georgia limited liability company, is making the Product available to you. By using this Product, you agree to these Terms of Use and any terms and conditions incorporated herein by reference (collectively, these “Terms"). This document contains very important information regarding your rights and obligations, as well as conditions, limitations and exclusions that might apply to you. Please read it carefully.

PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE PRODUCT. THESE TERMS GOVERN YOUR USE OF THE PRODUCT, UNLESS WE HAVE EXECUTED A SEPARATE WRITTEN AGREEMENT WITH YOU FOR THAT PURPOSE. WE ARE ONLY WILLING TO MAKE THE PRODUCT AVAILABLE TO YOU IF YOU ACCEPT ALL OF THESE TERMS. BY USING THE PRODUCT OR ANY PART OF IT YOU ARE CONFIRMING THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY ALL OF THESE TERMS. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO ACCEPT THESE TERMS ON THAT ENTITY’S BEHALF, IN WHICH CASE “YOU” WILL MEAN THAT ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT ACCEPT ALL OF THESE TERMS, THEN WE ARE UNWILLING TO MAKE THE PRODUCT AVAILABLE TO YOU. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT ACCESS OR USE THE PRODUCT.

THE PRODUCT AND THE NFTS ARE NOT AFFILIATED WITH OR ENDORSED BY ANY CARD MANUFACTURER, MEDIA FRANCHISE, ARTIST, LEAGUE, TEAM, PLAYER OR CHARACTER.

THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION (SEE SECTION 15).  PLEASE REVIEW THE ARBITRATION PROVISION CAREFULLY, SINCE  IT AFFECTS YOUR RIGHTS.  BY USING THE PRODUCT OR ANY PART OF IT YOU UNDERSTAND AND AGREE TO BE BOUND BY THE ARBITRATION PROVISION.

ANY PURCHASE OR SALE YOU MAKE, ACCEPT OR FACILITATE OF A NFT WILL BE ENTIRELY AT YOUR RISK. PURCHASES AND SALES OF NFTS ARE DONE THROUGH THIRD-PARTY MARKETPLACES OR OTHER MEANS THAT WE DO NOT DIRECTLY CONTROL. WE EXPRESSLY DENY ANY OBLIGATION TO INDEMNIFY YOU OR HOLD YOU HARMLESS FOR ANY LOSSES YOU MAY INCUR BY TRANSACTING, OR FACILITATING TRANSACTIONS OF NFTS THROUGH THIRD-PARTY MARKETPLACES OR OTHER MEANS.

Any changes to these Terms will be in effect as of the “Last Updated Date” referred to at the top of this page. You should review these Terms before using the Product,  purchasing any NFT, or using any services that are available through this Product.

Your continued use of this Product after the “Last Updated Date” will constitute your acceptance of and agreement to such changes.

By using this Product, you affirm that you are of legal age to enter into these Terms, and you accept and are bound by these Terms. You affirm that if you are using this Product on behalf of an organization or company, you have the legal authority to bind any such organization or company to these Terms.

You may not use this Product if you: (i) do not agree to these Terms; (ii) are not of the age of majority in your jurisdiction of residence; or (iii) are prohibited from accessing or using this Product or any of this Product’s contents, products or services by applicable law.


1. USE OF THE PRODUCT

(i) To most easily use the Product, you should first install the Hits phone app and a web browser (such as the Google Chrome web browser).  Should you purchase a NFT, you will also need to use a supported electronic wallet, which will enable you to store NFTs that you purchase.

(ii) You must provide accurate and complete registration information when you create an account for the Product. By creating an account, you agree to provide accurate, current and complete account information about yourself, and to maintain and promptly update your account information as necessary.  We reserve the right reclaim usernames without liability to you.

(iii) You are responsible for the security of your account for the Product and for your electronic wallets. If you become aware of any unauthorized use of your password or of your account with us, you agree to notify us immediately at support@hitstheapp.com.


2. PURCHASING, SELLING AND TRANSACTING NFTS

(i) This Product promotes and may link to the sale of NFTs. PURCHASES AND SALES OF NFTS ARE DONE THROUGH THIRD-PARTY MARKETPLACES OR OTHER MEANS THAT WE DO NOT DIRECTLY CONTROL. ANY PURCHASE OR SALE YOU MAKE, ACCEPT OR FACILITATE OF A NFT WILL BE ENTIRELY AT YOUR RISK. WE EXPRESSLY DENY ANY OBLIGATION TO INDEMNIFY YOU OR HOLD YOU HARMLESS FOR ANY LOSSES YOU MAY INCUR BY TRANSACTING, OR FACILITATING TRANSACTIONS OF NFTS THROUGH THIRD-PARTY MARKETPLACES OR OTHER MEANS.

(ii) The value of each NFT is inherently subjective, in the same way the value of other collectibles is inherently subjective. Each NFT has no inherent or intrinsic value. The prices of blockchain assets such as NFTs are extremely volatile and subjective. Fluctuations in the price of other digital assets could materially and adversely affect the value of your NFTs, which may also be subject to significant price volatility. We cannot guarantee that any NFTs purchased will retain their original value.

(ii) NFT transactions are subject to royalties, gas fees, transaction fees, and other related fees. We maintain an ongoing royalty on the resale of NFTs purchased and sold. You are solely responsible for these fees should you buy or sell NFTs.

(iii) You will be solely responsible to pay any and all sales, use, value-added and other taxes, duties, and assessments (except taxes on our net income) now or hereafter claimed or imposed by any governmental authority (collectively, the “Taxes”) associated with your use of the Product. Except for income taxes levied on us, you: (a) will pay or reimburse us for all national, federal, state, local or other taxes and assessments of any jurisdiction, including value added taxes and taxes as required by international tax treaties, customs or other import or export taxes, and amounts levied in lieu thereof based on charges set, services performed or payments made hereunder, as are now or hereafter may be imposed under the authority of any national, state, local or any other taxing jurisdiction; and (b) will not be entitled to deduct the amount of any such taxes, duties or assessments from payments made to us pursuant to these Terms. 


3. OWNERSHIP, LICENSE, AND OWNERSHIP RESTRICTIONS

YOUR OWNERSHIP OF NFTS WILL ONLY BE RECOGNIZED BY US IF YOU HAVE PURCHASED OR OTHERWISE RIGHTFULLY ACQUIRED FROM A LEGITIMATE SOURCE, HAVE CONNECTED YOUR WALLET PROPERLY TO OUR PRODUCT, AND ARE IN COMPLIANCE WITH OUR TERMS AND POLICIES.

For the purposes of this Section 3, the following capitalized terms will have the following meanings: 

“Art” means any art, design, and drawings (in any form or media, including, without limitation, video or photographs) that may be associated with a NFT that you Own.

“Own” means, with respect to a NFT, a NFT that you have purchased or otherwise rightfully acquired from a legitimate source, where proof of such purchase is recorded on the blockchain.

“Purchased NFT” means a NFT that you Own. “Third Party IP” means any third party patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, trademarks, know-how or any other intellectual property rights recognized in any country or jurisdiction in the world.

(i) Ownership of NFT.  When you purchase a NFT in accordance with these Terms (and not through any of the Prohibited Activities), you own the underlying NFT completely.  This means that you have the right to swap your NFT, sell it, or give it away. Ownership of the NFT is mediated entirely by the blockchain, at no point will we seize, freeze, or otherwise modify the ownership of any NFT. 

(ii) We Own the Product.  You acknowledge and agree that we (or, as applicable, our licensors) owns all legal right, title and interest in and to all other elements of the Product, and all intellectual property rights therein (including, without limitation, all Art, designs, systems, methods, information, computer code, software, services, “look and feel”, organization, compilation of the content, code, data, and all other elements of the Product (collectively, the “Product Materials”)).  You acknowledge that the Product Materials are protected by copyright, trade dress, patent, and trademark laws, international conventions, other relevant intellectual property and proprietary rights, and applicable laws. All Product Materials are the copyrighted property of us or our licensors, and all trademarks, service marks, and trade names associated with the Product or otherwise contained in the Product Materials are proprietary to us or our licensors.

(iii) No User License or Ownership of Product Materials. Except as expressly set forth herein, your use of the Product does not grant you ownership of or any other rights with respect to any content, code, data, or other Product Materials that you may access on or through the Product. We reserve all rights in and to the Product Materials that are not expressly granted to you in these Terms.

(iv) Further User Ownership Acknowledgements. For the sake of clarity, you understand and agree: (a) that your purchase of a NFT, whether via the Product or otherwise, does not give you any rights or licenses in or to the Product Materials (including, without limitation, our copyright in and to the associated Art) other than those expressly contained in these Terms; (b) that you do not have the right, except as otherwise set forth in these Terms, to reproduce, distribute, or otherwise commercialize any elements of the Product Materials (including, without limitation, any Art) without our prior written consent in each case, which consent we may withhold in our sole and absolute discretion; and (c) that you will not apply for, register, or otherwise use or attempt to use any of our trademarks or service marks, or any confusingly similar marks, anywhere in the world without our prior written consent in each case, which consent we may withhold at our sole and absolute discretion.

(v)  User License to Art.  Subject to your continued compliance with these Terms, we grant you a worldwide, non-exclusive, non-transferable, royalty-free license to use, copy, and display the Art for your NFTs, solely for the following purposes: (a) for your own personal, non-commercial use; (b) as part of a marketplace that permits the purchase and sale of your NFTs, provided that the marketplace cryptographically verifies each NFT owner’s rights to display the Art for their Purchased NFT to ensure that only the actual owner can display the Art; or (c) as part of a third party website or application that permits the inclusion, involvement, or participation of your Purchased NFT, provided that the website/application cryptographically verifies each NFT’s owner’s rights to display the Art for their Purchased NFT to ensure that only the actual owner can display the Art, and provided that the Art is no longer visible once the owner of the Purchased NFT leaves the website/application.  

(vi) Restrictions on Ownership.  You agree that you may not, nor permit any third party to do or attempt to do any of the foregoing without our (or, as applicable, our licensors’) express prior written consent in each case: (a) modify the Art for your Purchased NFT in any way, including, without limitation, the shapes, designs, drawings, attributes, or color schemes; (b) use the Art for your Purchased NFT to advertise, market, or sell any third party product or service; (c) use the Art for your Purchased NFT 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; (d) use the Art for your Purchased NFT in movies, videos, or any other forms of media, except to the limited extent that such use is expressly permitted in these Terms or solely for your own personal, non-commercial use; (e) 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 Art for your Purchased NFT; (f) attempt to trademark, copyright, or otherwise acquire additional intellectual property rights in or to the Art for your Purchased NFT; or (g) otherwise utilize the Art for your Purchased NFT for your or any third party’s commercial benefit.

(vii) Third Party IP. If the Art associated with your Purchased NFT contains Third Party IP (e.g., licensed intellectual property from the Contributors or an Contributors player), you understand and agree as follows: (a) that you will not have the right to use such Third Party IP in any way except as incorporated in the Art, and subject to the license and restrictions contained herein; (b) that, depending on the nature of the license granted from the owner of the Third Party IP, we may need to (and reserve every right to) pass through additional restrictions on your ability to use the Art; and (c) to the extent that we inform you of such additional restrictions in writing, you will be responsible for complying with all such restrictions from the date that you receive the notice, and that failure to do so will be deemed a breach of the license contained in this Section 3.

(viii) Other Terms of License.  The license granted in this Section 3 above applies only to the extent that you continue to Own the applicable Purchased NFT. If at any time you sell, swap, donate, give away, transfer, or otherwise dispose of your Purchased NFT for any reason, the license granted in this Section 3 will immediately expire with respect to that NFT without the requirement of notice, and you will have no further rights in or to the Art for that NFT. The restrictions in this Section 3 will survive the expiration or termination of these Terms.

(ix) User  Feedback.  You may choose to submit comments, bug reports, ideas or other feedback about the Product, including without limitation about how to improve the Product (collectively, “Feedback”). By submitting any Feedback, you agree that we are free to use such Feedback at our discretion and without additional compensation to you, and to disclose such Feedback to third parties (whether on a non-confidential basis, or otherwise). You hereby grant us a perpetual, irrevocable, nonexclusive, worldwide license under all rights necessary for us to incorporate and use your Feedback for any purpose.


4. CONDITIONS OF USE AND PROHIBITED ACTIVITIES

YOU AGREE THAT YOU ARE RESPONSIBLE FOR YOUR OWN CONDUCT WHILE ACCESSING OR USING THE PRODUCT, AND FOR ANY CONSEQUENCES THEREOF. YOU AGREE TO USE THE PRODUCT ONLY FOR PURPOSES THAT ARE LEGAL, PROPER AND IN ACCORDANCE WITH THESE TERMS AND ANY PRODUCTLICABLE LAWS OR REGULATIONS.

(i) User Warranties.  Without limiting the foregoing, you warrant and agree that your use of the Product will not (and will not allow any third party to) in any manner:

(1)  involve the sending, uploading, distributing or disseminating any unlawful, defamatory, harassing, abusive, fraudulent, obscene, or otherwise objectionable content;

(2)  involve the distribution of any viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or any other items of a destructive or deceptive nature;

(3)  involve the uploading, posting, transmitting or otherwise making available through the Product any content that infringes the intellectual proprietary rights of any party;

(4)  involve using the Product to violate the legal rights (such as rights of privacy and publicity) of others; 

(5)  involve engaging in, promoting, or encouraging illegal activity (including, without limitation, money laundering);

(6)  involve interfering with other users’ enjoyment of the Product;

(7)  involve exploiting the Product for any unauthorized commercial purpose;

(8)  involve modifying, adapting, translating, or reverse engineering any portion of the Product;

(9) involve removing any copyright, trademark or other proprietary rights notices contained in or on the Product or any part of it;

(10) involve reformatting or framing any portion of the Product;

(11) involve displaying any content on the Product that contains any hate-related or violent content or contains any other material, products or services that violate or encourage conduct that would violate any criminal laws, any other applicable laws, or any third party rights;

(12) involve using any spider, site search/retrieval application, or other device to retrieve or index any portion of the Product or the content posted on the Product, or to collect information about its users for any unauthorized purpose;

(13) involve accessing or using the Product for the purpose of creating a product or service that is competitive with any of our products or services;

(14) involve abusing, harassing, or threatening another user of the Product or any of our authorized representatives, customer service personnel, chat board moderators, or volunteers (including, without limitation, filing support tickets with false information, sending excessive emails or support tickets, obstructing our employees from doing their jobs, refusing to follow the instructions of our employees, or publicly disparaging us by implying favoritism by a our employees or otherwise); or

(15) involve using any abusive, defamatory, ethnically or racially offensive, harassing, harmful, hateful, obscene, offensive, sexually explicit, threatening or vulgar language when communicating with another user of the Product or any of our authorized representatives, customer service personnel, chat board moderators, or volunteers

(16) involve creating user accounts by automated means or under false or fraudulent pretenses;

(17)  involve the impersonation of another person (via the use of an email address or otherwise);

(18)  involve using, employing, operating, or creating a computer program to simulate the human behavior of a user (“Bots”);

(19)  involve using, employing, or operating Bots or other similar forms of automation to engage in any activity or transaction on the Product (including, without limitation, purchases of Packs, or of NFTs on the Marketplace);

(20)  involve acquiring NFTs through inappropriate or illegal means (including, among other things, using a stolen credit card, or a payment mechanism that you do not have the right to use, or purchasing a NFT and then attempting to charge the cost back to your payment method while still maintaining ownership or control of the NFT or selling, gifting or trading the NFT to someone else); or

(21)  involve the purchasing, selling or facilitating the purchase and sale of any user’s account(s) to other users or third parties for cash or cryptocurrency consideration outside of the Product; or

(22)  otherwise involve or result in the wrongful seizure or receipt of any NFTs or other digital assets

(Each of the above, a “Prohibited Activity,” and, together, the “Prohibited Activities”)

(ii) Effect of Your Breaches. If you engage in any of the Prohibited Activities, we may, at our sole and absolute discretion, without notice or liability to you, and without limiting any of our other rights or remedies at law or in equity, immediately suspend or terminate your user account and/or delete your NFTs’ images and descriptions from the Product. If we delete your NFTs’ images and descriptions from the Product, such deletion will not affect your ownership rights in any NFTs that you already Own, but you will not receive a refund of any amounts you paid for those NFTs. 

NOTWITHSTANDING THE FOREGOING, HOWEVER, IF WE REASONABLY BELIEVE THAT YOU ARE ENGAGED IN ANY OF THE PROHIBITED ACTIVITIES, IN ADDITION TO OUR RIGHT TO IMMEDIATELY SUSPEND OR TERMINATE YOUR USER ACCOUNT AND/OR DELETE REFERENCE TO YOUR NFT OWNERSHIP FROM THE PRODUCT, WE ALSO RESERVE THE RIGHT, AT OUR SOLE AND ABSOLUTE DISCRETION, WITHOUT NOTICE OR LIABILITY TO YOU, TO TAKE ANY OR ALL OF THE FOLLOWING ACTIONS: (A) TO DEEM ANY TRANSACTION THAT TOOK PLACE VIA OR AS THE RESULT OF SUCH ACTIVITIES TO BE VOID AB INITIO; AND/OR (B) TO IMMEDIATELY CONFISCATE ANY NFTS THAT WERE PURCHASED OR ACQUIRED AS THE RESULT OF SUCH ACTIVITIES.


5. TERMINATION

(i) You may terminate these Terms at any time by canceling your account on the Product and discontinuing your access to and use of the Product. If you cancel your account, or otherwise terminate these Terms, you will not receive any refunds for any purchases that you might make on or through the Product – whether for NFTs or anything else.

(ii) You agree that we, in our sole discretion and for any or no reason, may terminate these Terms and suspend and/or terminate your account(s) for the Product without the provision of prior notice. You agree that any suspension or termination of your access to the Product may be without prior notice, and that we will not be liable to you or to any third party for any such suspension or termination.

(iii) If we terminate these Terms or suspend or terminate your access to or use of the Product due to your breach of these Terms or any suspected fraudulent, abusive, or illegal activity (including, without limitation, if you engage in any of the Prohibited Activities), then termination of these Terms will be in addition to any other remedies we may have at law or in equity.

(iv) We have the right, without provision of prior notice, to take appropriate legal action, including, without limitation, referral to law enforcement or regulatory authority, or notifying the harmed party of any illegal or unauthorized use of the Product. Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone using the Product.

(v) Upon any termination or expiration of these Terms, whether by you or us, you may no longer have access to information that you have posted on the Product or that is related to your account, and you acknowledge that we will have no obligation to maintain any such information in our databases or to forward any such information to you or to any third party. All other Sections of this Agreement, other than this Section 5, will survive the termination or expiration of these Terms for any reason.


6. DISCLAIMERS

YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR ACCESS TO AND USE OF THE PRODUCT IS AT YOUR SOLE RISK, AND THAT THE PRODUCT IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO PRODUCTLICABLE LAW, WE, OUR SUBSIDIARIES, AFFILIATES, AND LICENSORS MAKE NO EXPRESS WARRANTIES AND HEREBY DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE PRODUCT AND ANY PART OF IT, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, CORRECTNESS, ACCURACY, OR RELIABILITY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE, OUR PARENT, SUBSIDIARIES, AFFILIATES, AND LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (I) YOUR ACCESS TO OR USE OF THE PRODUCT WILL MEET YOUR REQUIREMENTS; (II) YOUR ACCESS TO OR USE OF THE PRODUCT WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR; (III) USAGE DATA PROVIDED THROUGH THE PRODUCT WILL BE ACCURATE; (IV) THE PRODUCT OR ANY CONTENT, SERVICES, OR FEATURES MADE AVAILABLE ON OR THROUGH THE PRODUCT ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (V) THAT ANY DATA THAT YOU DISCLOSE WHEN YOU USE THE PRODUCT WILL BE SECURE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN CONTRACTS WITH CONSUMERS, SO SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT PRODUCTLY TO YOU.

YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET, AND AGREE THAT WE HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY BREACH OF SECURITY UNLESS IT IS DUE TO OUR GROSS NEGLIGENCE.

WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSSES YOU INCUR AS THE RESULT OF YOUR USE OF OUR NETWORK, NFTS, OR YOUR ELECTRONIC WALLET, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (I) USER ERROR, SUCH AS FORGOTTEN PASSWORDS OR INCORRECTLY CONSTRUED SMART CONTRACTS OR OTHER TRANSACTIONS; (II) SERVER FAILURE OR DATA LOSS; (III) CORRUPTED WALLET FILES; OR (IV) UNAUTHORIZED ACCESS OR ACTIVITIES BY THIRD PARTIES, INCLUDING, BUT NOT LIMITED TO, THE USE OF VIRUSES, PHISHING, BRUTE-FORCING OR OTHER MEANS OF ATTACK AGAINST THE PRODUCT, NFTS, OR ANY ELECTRONIC WALLET.

NFTS ARE INTANGIBLE DIGITAL ASSETS THAT EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE BLOCKCHAIN. ALL SMART CONTRACTS ARE CONDUCTED AND OCCUR ON THE DECENTRALIZED LEDGER WITHIN THE BLOCKCHAIN. WE HAVE NO CONTROL OVER AND MAKE NO GUARANTEES OR PROMISES WITH RESPECT TO SMART CONTRACTS.

WE ARE NOT RESPONSIBLE FOR LOSSES DUE TO BLOCKCHAINS, ANY ELECTRONIC WALLET, ANY THIRD-PARTY MARKETPLACE, OR ANY OTHER MEANS OF BUYING, SELLING, TRADING OR TRANSACTING NFTS.


8. LIMITATION OF LIABILITY

YOU UNDERSTAND AND AGREE THAT WE, OUR PARENT, SUBSIDIARIES, AFFILIATES AND LICENSORS WILL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES WHICH YOU MAY INCUR, HOWSOEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF PROFITS (WHETHER INCURRED DIRECTLY OR INDIRECTLY), LOSS OF GOODWILL OR BUSINESS REPUTATION, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, DIMINUTION OF VALUE OR ANY OTHER INTANGIBLE LOSS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

YOU AGREE THAT OUR TOTAL, AGGREGATE LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR ACCESS TO OR USE OF (OR YOUR INABILITY TO ACCESS OR USE) ANY PORTION OF THE PRODUCT, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, IS LIMITED TO THE GREATER OF THE AMOUNTS YOU HAVE ACTUALLY AND LAWFULLY PAID US UNDER THESE TERMS IN THE TWO (2) MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE.

YOU ACKNOWLEDGE AND AGREE THAT WE HAVE MADE THE PRODUCT AVAILABLE TO YOU AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE REPRESENTATIONS AND WARRANTIES,  DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN, WHICH REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN US AND YOU AND FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN US AND YOU. WE WOULD NOT BE ABLE TO PROVIDE THE PRODUCT TO YOU WITHOUT THESE LIMITATIONS.

YOU WAIVE AND HOLD US AND OUR PARENT, SUBSIDIARIES, AFFILIATES AND OUR AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, CONTRACTORS, LICENSORS, LICENSEES, SUPPLIERS, AND SUCCESSORS HARMLESS FROM ANY AND ALL CLAIMS RESULTING FROM ANY ACTION TAKEN BY US AND ANY OF THE FOREGOING PARTIES RELATING TO ANY INVESTIGATIONS BY EITHER US OR SUCH PARTIES OR BY LAW ENFORCEMENT AUTHORITIES.


9. ASSUMPTION OF RISK

(i) Value and Volatility. The prices of collectible blockchain assets are extremely volatile and subjective and collectible blockchain assets have no inherent or intrinsic value. Fluctuations in the price of other digital assets could materially and adversely affect the value of your NFTs, which may also be subject to significant price volatility. Each NFT has no inherent or intrinsic value. We cannot guarantee that any NFTs purchased will retain their original value, as the value of collectibles is inherently subjective and internal and external factors materially impact the value and desirability of any particular NFT.

(ii) Tax Calculations. You are solely responsible for determining what, if any, taxes apply to your NFT-related transactions. We are not responsible for determining the taxes that apply to your transactions on the Product.

(iii) Use of Blockchain. The Product does not store, send, or receive NFTs. This is because NFTs exist only by virtue of the ownership record maintained on the blockchain. Any transfer of NFTs occurs within the blockchain, and not on the Product.

(iv) Inherent Risks with Internet Currency. 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, and the risk that third parties may obtain unauthorized access to information stored within your electronic wallet. You accept and acknowledge that we will not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience when using the Product, however caused.

(v) Regulatory Uncertainty. The regulatory regime governing blockchain technologies, cryptocurrencies and tokens is uncertain, and new regulations or policies may materially adversely affect the development of the Product, and therefore the potential utility or value of your NFTs.

(vi) Software Risks. Upgrades to the Product may have adverse effects on the value and utility of your NFTs.


9. INDEMNIFICATION

You agree to hold harmless and indemnify us and our parent, subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners from and against any claim, liability, loss, damage (actual and consequential) of any kind or nature, suit, judgment, litigation cost and attorneys' fees arising out of or in any way related to: (i) your breach of these Terms; (ii) your misuse of the Product; or (iii) your violation of applicable laws, rules or regulations in connection with your access to or use of the Product. You agree that we will have control of the defense or settlement of any such claims.


10. EXTERNAL SITES

The Product may include hyperlinks to other marketplaces, websites or resources (collectively, the “External Sites”), which are provided solely as a convenience to our users. We have no control over any External Sites. You acknowledge and agree that we are not responsible for the availability of any External Sites, and that we do not endorse any advertising, products or other materials on or made available from or through any External Sites. Furthermore, you acknowledge and agree that we are not liable for any loss or damage which may be incurred as a result of the availability or unavailability of the External Sites, or as a result of any reliance placed by you upon the completeness, accuracy or existence of any advertising, products or other materials on, or made available from, any External Sites.


11. FORCE MAJEURE

(i) Force Majeure Events. We will not be liable or responsible to the you, nor be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any of these Terms, when and to the extent such failure or delay is caused by or results from the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, epidemics, pandemics, including the 2019 novel coronavirus pandemic (COVID-19), tsunami, explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this agreement; (f) strikes, labour stoppages or slowdowns or other industrial disturbances; (g) shortage of adequate or suitable Internet connectivity, telecommunication breakdown or shortage of adequate power or electricity; and (h) other similar events beyond our control.

(ii) Performance During Force Majeure Events. If we suffer a Force Majeure Event, we will use reasonable efforts to promptly notify you of the Force Majeure Event, stating the period of time the occurrence is expected to continue. We will use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. We will resume the performance of our obligations as soon as reasonably practicable after the removal of the cause. In the event that our failure or delay remains uncured for a period of forty-five (45) consecutive days following written notice given by us under this Section 11, we may thereafter terminate these Terms upon fifteen (15) days' written notice.


12. CHANGES TO THE PRODUCT

We are constantly innovating the Product to help provide the best possible experience. You acknowledge and agree that the form and nature of the Product, and any part of it, may change from time to time without prior notice to you, and that we may add new features and change any part of the Product at any time without notice. Changes to the Product may adversely affect the value of your NFTs.


13. CHILDREN

You affirm that you are over the age of 18.  The Product is not intended for children under 18.  If you are under the age of 18, you may not use the Product.  We do not knowingly collect information from or direct any of our content specifically to children under the age of 18.  If we learn or have reason to suspect that you are a user who is under the age of 18, we will unfortunately have to close your account.  Other countries may have different minimum age limits, and if you are below the minimum age for providing consent for data collection in your country, you may not use the Product. 


14. PRIVACY POLICY

Our Privacy Policy describes the ways we collect, use, store and disclose your personal information, and is hereby incorporated by this reference into these Terms. You agree to the collection, use, storage, and disclosure of your data in accordance with our Privacy Policy.


15. DISPUTE RESOLUTION; BINDING ARBITRATION AND CLASS ACTION WAIVER

If a dispute arises in connection with your use of our Services or in relation to any of these Terms (collectively, “Disputes”) our hope is that we can resolve the matter informally. Accordingly, in the event of a Dispute, we agree to first contact each other via email with a description of the Dispute and any proposed resolution. You will email support@hitstheapp.com with your concern and we will contact you via the email address we have on file for you.

If a Dispute cannot be resolved informally, we each agree that except as provided below, the Dispute will be submitted to final and binding arbitration before a panel of three arbitrators of the American Arbitration Association (“AAA”) in Atlanta, Georgia. Either party may commence the arbitration process by submitting a written demand for arbitration with the AAA, and providing a copy to the other party. The arbitration will be conducted in accordance with the provisions of the AAA’s Commercial Dispute Resolutions Procedures, Supplementary Procedures for Consumer-Related Disputes, in effect at the time of submission of the demand for arbitration. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. You expressly agree to refrain from bringing or joining any claims in any representative or class-wide capacity, including but not limited to bringing or joining any claims in any class action or any class-wide arbitration.

YOU UNDERSTAND THAT YOU ARE WAIVING YOUR RIGHT TO HAVE A JUDGE OR JURY DECIDE YOUR CASE AND TO BE PARTY TO A CLASS OR REPRESENTATIVE ACTION. YOU UNDERSTAND AND AGREE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY AND ONLY THROUGH ARBITRATION.


16. GENERAL

(i) Entire Agreement.  These Terms and our Privacy Policy constitute the entire legal agreement between you and us and will be deemed to be the final and integrated agreement between you and us, and govern your access to and use of the Product, and completely replace any prior or contemporaneous agreements between you and us related to your access to or use of the Product, whether oral or written.

(ii) No Third-Party Beneficiaries. These Terms do not and are not intended to confer any rights or remedies upon any person or entity other than you

(iii) Interpretation. The language in these Terms will be interpreted as to its fair meaning, and not strictly for or against any party.

(iv) Severability. Should any part of these Terms be held invalid, illegal, void or unenforceable, that portion will deemed severed from these Terms and will not affect the validity or enforceability of the remaining provisions of these Terms.

(v) No Waivers. Our failure or delay to exercise or enforce any right or provision of these Terms will not constitute or be deemed a waiver of future exercise or enforcement of such right or provision. The waiver of any right or provision of these Terms will be effective only if in writing and signed for and on behalf of us by a duly authorized representative.

(vi) Governing Law. All matters arising out of or relating to these Terms will be governed by and construed in accordance with the laws of the State of Georgia and the federal laws of the United States of America applicable therein without giving effect to any choice or conflict of law provision or rule.

(vii) Venue. Subject to Section 15 of these Terms, any legal action or proceeding arising under these Terms will be brought exclusively in the U.S. District Court for the Atlanta, Georgia area, unless the proceeding involves a matter in which the Federal court does not have jurisdiction, in which case the venue shall be in the Circuit Court of Fulton County, Georgia. 

(viii) Notices. We may provide you with any notices (including, without limitation those regarding changes to these Terms) by email or postings on the Product. By providing us with your email address, you consent to our using the email address to send you any notices. Notices sent by email will be effective when we send the email, and notices we provide by posting will be effective upon posting. It is your responsibility to keep your email address current.

(ix) Assignment. You may not assign any of your rights or obligations under these Terms, whether by operation of law or otherwise, without our prior written consent. We may assign our rights and obligations under these Terms in our sole discretion to an affiliate, or in connection with an acquisition, sale or merger.

(x) Our Product is directed at a U.S. audience. We cannot warrant that the Product is appropriate for users outside the United States or that use of the Product is permitted under the laws of other jurisdictions. All personal data is maintained in the United States under the terms of our Privacy Policy, which is also incorporated by reference.