Terms of service

Last Updated Date: April 9, 2024

PLEASE READ THIS TERMS OF SERVICE AGREEMENT (THESE “TERMS OF SERVICE”) CAREFULLY.

Welcome, and thank you for your interest in Sea Ranch Labs, Inc. d/b/a Highlight (“Highlight” “we,” or “us”), our website at http://www.highlight.xyz (“Website”), and any other services or resources that are accessed or enabled via the Website (collectively with the Website, the “Services”).

BY ACCESSING, DOWNLOADING, INSTALLING OR OTHERWISE USING THE SERVICES IN ANY WAY, INCLUDING BY CLICKING ON AN “I ACCEPT” BUTTON OR SIMILAR BUTTON, COMPLETING THE ACCOUNT REGISTRATION PROCESS, AND/OR BROWSING THE WEBSITE, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH HIGHLIGHT, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THESE TERMS OF SERVICE PERSONALLY OR ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE USER, AND TO BIND THAT ENTITY TO THESE TERMS OF SERVICE. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED FOR THE SERVICES. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS OF SERVICE, YOU MAY NOT ACCESS OR USE ANY OF THE SERVICES.

THE SERVICES INCLUDE A MARKETPLACE WHICH ALLOWS USERS TO OFFER TO SELL, BUY AND/OR TRANSFER TANGIBLE AND/OR DIGITAL GOODS, ASSETS, PRODUCTS, SERVICES AND BENEFITS. ALL ITEMS AVAILABLE THROUGH THE MARKETPLACE, WHETHER DIGITAL OR TANGIBLE, ARE FURNISHED BY OR ON BEHALF OF SELLERS IN CONNECTION WITH SUCH SALES. HIGHLIGHT IS NOT RESPONSIBLE FOR ANY GOODS OFFERED FOR SALE OR SOLD THROUGH THE SERVICES. WE ARE NOT A BROKER, DEALER, FINANCIAL INSTITUTION, PAYMENTS PROCESSOR, EXCHANGE, MONEY SERVICES BUSINESS, OR CREDITOR. YOU AGREE THAT WE SHALL NOT BE A PARTY TO OR HAVE ANY RESPONSIBILITY OR LIABILITY FOR, ARISING OUT OF, RELATING TO, ASSOCIATED WITH OR RESULTING FROM ANY DISPUTES BETWEEN YOU AND ANY SELLER OF GOODS IN RESPECT OF THE USE, MISUSE, PROVISION OR FAILURE TO PROVIDE ANY GOODS.

THESE TERMS OF SERVICE INCLUDE (1) YOUR AGREEMENT THAT OUR LIABILITY REGARDING THE SERVICES IS LIMITED; (2) YOUR AGREEMENT THAT THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTY; (3) YOUR CONSENT TO RELEASE US FROM LIABILITY; AND (4) YOUR AGREEMENT TO INDEMNIFY US FOR YOUR USE OF, OR INABILITY TO USE, THE SERVICES.

PLEASE BE AWARE THAT SECTION 19 (DISPUTE RESOLUTION) OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND HIGHLIGHT HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (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 (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.

ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE SERVICES WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.

PLEASE BE AWARE THAT SECTION 1.4 (COMPANY COMMUNICATIONS) OF THIS AGREEMENT, BELOW, CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING VIA E-MAIL, TEXT MESSAGE, CALLS AND PUSH NOTIFICATION.

Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in these Terms of Service or will be presented to you for your acceptance when you sign up to use the supplemental Service. If these Terms of Service are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. These Terms of Service and any applicable Supplemental Terms are referred to herein as the “Agreement.” Because we have a growing number of services, we sometimes need to provide additional terms for specific services (and such services are deemed part of the “Services” hereunder and shall also be subject to this Agreement). Those additional terms and conditions, which are available with the relevant service, then become part of this Agreement with us if you use those services. In the event of a conflict between this Agreement and any additional applicable terms we may provide for a specific service, such additional terms shall control for that specific service.

PLEASE NOTE THAT THE AGREEMENT IS SUBJECT TO CHANGE BY US IN OUR SOLE DISCRETION AT ANY TIME. When changes are made, we will make a new copy of these Terms of Service available on or through the Services and any new Supplemental Terms will be made available from within, or through, the affected Service on the Website. We will also update the “Last Updated” date at the top of these Terms of Service. If we make any material changes, and you have registered with us to create an Account (defined below) we may also send an e-mail to you at the last e-mail address you provided to us pursuant to the Agreement. Any changes to these Terms of Service will be effective immediately. We may require you to provide consent to the updated Terms of Service in a specified manner before further use of the Services is permitted. If you do not agree to any change(s), you shall stop using the Services. Otherwise, your continued use of the Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE SERVICES TO VIEW THE THEN-CURRENT TERMS OF SERVICE.

SERVICES. The Services consist of the Highlight website and any other products and services made available by Highlight. Highlight is a social marketplace where supporters can access, discover and interact with premium information, data, text, software, music, sound, photographs, graphics, video, messages, tags, and/or other materials (collectively, “Content”) made available by their favorite artists, musicians, and/or other creators (“Creator(s),” and such Content “Creator Content”), join exclusive members-only communities for those Creators (“Membership Communities”), purchase and sell digital and tangible merchandise and collectibles through Membership Communities or the Marketplace (as defined below), and interact with Creators and other Members. We do not have custody or control over the Content, Creator Content or blockchains you are interacting with.
1. License to use the Services. The Services, and the information and content available on the Website are protected by copyright laws. Subject to the terms of this Agreement, Highlight grants you a limited license to access and reproduce portions of the Services to which you have access for the sole purpose of using such Services for your personal or internal business purposes. Unless otherwise specified by us in a separate license, your right to use any and all Services is subject to the Agreement.Updates. You understand that the Services are evolving. As a result, we may require you to accept updates to any of the Services that you have installed on your computer or mobile device. You acknowledge and agree that we 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.Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion of the Services, including the Website; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Services (including images, text, page layout or form) of Highlight; (c) you shall not use any metatags or other “hidden text” using our name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, duplicate, decompile, reverse compile or reverse engineer, decode any part of the Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any service, area, or code of the Service except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we may choose to grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services. Any future release, update or other addition to the Services shall be subject to the Agreement. Highlight, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any Services terminates the licenses granted by us pursuant to the Agreement.Company Communications. By entering into the Agreement or using the Services, you agree to receive communications from us, including via e-mail, text message, and push notifications. You agree that texts may be generated by automatic telephone dialing systems. Communications from us and our affiliated companies may include but are not limited to: operational communications concerning your Account or the use of the Services, updates concerning new and existing features on the Services, communications concerning promotions run by us or our third-party partners, and news concerning us and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages that we send. IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF. IF YOU WISH TO OPT OUT OF PROMOTIONAL TEXTS, PLEASE REPLY ‘STOP’ TO THE MESSAGE OR CONTACT US AT SUPPORT@HIGHLIGHT.XYZ. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL TEXTS AS A CONDITION OF USING THE SERVICES. IF YOU WISH TO OPT OUT OF ALL TEXTS FROM US (INCLUDING OPERATIONAL OR TRANSACTIONAL TEXTS), PLEASE CONTACT US AT SUPPORT@HIGHLIGHT.XYZ. HOWEVER, YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL TEXTS MAY IMPACT YOUR USE OF THE COMPANY PROPERTIES OR RELATED SERVICES.
REGISTRATION.
1. Registering Your Account. In order to access certain features of the Services you may be required to become a Member. For purposes of the Agreement, a “Member” is a user who has registered an account on the Website (“Account”). When your account has been registered, you can add additional information to your profile. For additional information about your account and profile data, please see our Privacy Policy.
2. Registration Data. In registering an Account on the Services, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (i) at least eighteen (18) years old, and if you are at least thirteen (13) years old but under eighteen (18) years old, you may only use our Services through a parent or guardian’s Account and with their approval and oversight such that the account holder is responsible for your actions using the Account (if you are the parent or guardian of a user under the age of eighteen (18) years old, you are accepting this Agreement on behalf of such individual, authorizing such individual to use the Services pursuant to the account you’ve established on the Services, and remain liable for all activities of such individual arising out of such individual’s use of the Services); (ii) of legal age to form a binding contract; and (iii) not a person previously suspended or removed from the Service or 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 under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Services by minors. You may not share your Account or password with anyone, and you agree to notify us immediately of any unauthorized use of your password or any other breach of security. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, we have the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform at any given time. We reserve the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Services if you have been previously removed by us, or if you have been previously banned from any of the Services. You acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Highlight; provided that, subject to this Agreement, termination of your access to your Account will not affect your ownership of any Tokens (defined below). Highlight may require you to provide additional information and documents at the request of any competent authority, in order to help Highlight comply with applicable law, regulation, or policy, including laws related to anti-laundering (legalization) of incomes obtained by criminal means, or for counteracting financing of terrorism, or otherwise in Highlight’s sole discretion. Highlight may also require you to provide additional information and documents in cases where it has reasons to believe that (x) your Account is being used for money laundering or for any other illegal activity; (y) you have concealed or reported false identification information and other details; or (z) transactions effected via your Account were effected in breach of this Agreement. In such cases, Highlight, in its sole discretion, may pause or cancel your transactions until such requested additional information and documents have been reviewed by Highlight and accepted as satisfying the requirements of applicable law, regulation, or policy. If you do not provide complete and accurate information and documents in response to any such request from Highlight, Highlight may refuse to provide any Tokens, Limited Content, product, service, and/or further access to the Services to you.
3. Member Representations and Warranties. When you register for an Account, you hereby represent and warrant, to and for the benefit of Highlight and its affiliates, as follows:
  1. Independent Investigation and Non-Reliance. You are sophisticated, experienced and knowledgeable in the minting, listing, buying, selling or trading of any Tokens (as defined below) using blockchain technology. Additionally, you have conducted an independent investigation of the Services and the matters contemplated by this Agreement, have formed your own independent judgment regarding the benefits and risks of and necessary and desirable practices regarding the foregoing and, in making the determination to mint, list, buy, sell or trade any Tokens using the Services, you have relied solely on the results of such investigation and such independent judgment. Without limiting the generality of the foregoing, you understand, acknowledge and agree that the legal requirements pertaining to blockchain technologies and digital assets generally, including the Tokens, are evolving, and you have conducted an independent investigation of such potentially applicable legal requirements and the resulting risks and uncertainties (including the risks outlined under Section 9 of these Terms of Service), including without limitation the risk that one or more governmental entities or other persons may assert that any digital assets or cryptographic tokens (including the Tokens) may constitute securities under applicable legal requirements. You hereby irrevocably disclaim and disavow reliance upon any statements or representations made by or on behalf of, or information made available by, Highlight, in determining to enter into this Agreement, mint, list, buy, sell or trade any Tokens or otherwise use the Services.
  2. Litigation. There is no legal proceeding pending that relates to your activities relating to the minting of Tokens or other token- or digital asset-trading or blockchain technology related activities.
  3. Compliance. You have not failed to comply with, and have not violated, any applicable legal requirement relating to any blockchain technologies, token trading activities or minting Tokens. No investigation or review by any governmental entity is pending or, to your knowledge, has been threatened against or with respect to you, nor does any government order or action prohibit you or any of your representatives from engaging in or continuing any conduct, activity or practice relating to buying, minting or selling Tokens.
4. Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the Services, including but not limited to, a mobile device that is suitable to connect with and use the Services, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing or using the Services.
5. Relationship of the Parties. You are not a partner, joint venturer, agent or employee of Highlight, and you will not bind, represent or attempt to bind Highlight to any contract. You are not eligible to participate in any of Highlight’s employee benefit plans, fringe benefit programs, group insurance arrangements, or similar programs. Neither this Agreement nor your use of the Services shall create an association, partnership, joint venture, or relationship of principal and agent, master and servant, or employer and employee, between you and Highlight. For the avoidance of doubt, you shall be solely responsible for all tax withholding, Social Security, Worker’s Compensation Insurance, FICA, unemployment compensation, medical insurance, life insurance, paid vacations, paid holidays, pensions, and other obligations or benefits, and Highlight shall have no obligation or liability to you in connection with the same.
USING THE SERVICES.
1. Wallets. Members may have access to an electronic system for payments and storage (a “Digital Wallet”), which is an unhosted and non-custodial wallet software program that is linked to and accessible through their Account (a “Highlight Wallet”). The Highlight Wallet can be used to store Tokens. Access to your Highlight Wallet requires the use of a private key or passphrase (“Private Key”) and Highlight has no ability to access your Highlight Wallet or your Private Key without your involvement and authority. Your Private Key is unique to you, and shall be maintained by you. If you lose your Private Key, you may lose access to your Highlight Wallet and any contents thereof. Highlight does not have the ability to recover a lost Private Key. While a Highlight Wallet may be interoperable with other compatible blockchain platforms, tokens, or services, only Tokens and other digital goods supported by Highlight that are stored in your Highlight Wallet will be accessible through the Services. Tokens or other digital goods that have been transferred out of your Highlight Wallet to a third-party Digital Wallet may no longer be compatible with the Services, and Highlight makes no representations or warranties, and disclaims all liability, in connection with Tokens that have been transferred from a Highlight Wallet to a third-party Digital Wallet.
2. Tokens. “Tokens” are digital collectible artworks, including without limitation unique non-fungible tokens, that may be minted, purchased, or sold through the Services. Tokens may be redeemed for or used to “unlock” various goods, rights, and other privileges on or through the Services, including without limitation unique Creator Content not otherwise available to Members (“Limited Content”). The Creator offering any Token shall set forth at point of sale the terms applicable to each Token, as well as any goods, services, rights, or Limited Content to which the purchaser or then-current owner of such Token is entitled and any limitations applicable thereto, and such terms shall be viewable in the Highlight Wallet of such Token’s then-current owner. When you purchase a Token, you agree to comply with any terms, including licenses or payment rights, that are embedded within or otherwise included with such Token, and to make commercially reasonable efforts to bind subsequent owners of such Tokens to any such terms. Unless otherwise expressly set forth at point of sale for such Token, ownership of a Token does not convey any right, title, or interest in or to the Content embodied by or linked to such Token (such Content, “Token IP”). Unless otherwise expressly set forth at point of sale for such Token, when you purchase a Token you shall receive in connection with such Token a limited, non-exclusive, non-sublicensable, non-transferable license to view and display the Token IP for your personal, non-commercial use and to perform, display, and reproduce the Token IP solely in accordance with the functionality of the Services for so long as you own such Token.
3. Memberships. Creators can use the Services to develop Membership Communities and offer Members access to such Membership Communities. Each Membership Community has unique access requirements. Members may be able to use certain Tokens to gain access to a Membership Community. Once you join a Membership Community, you may have access to certain Creator Content, including Limited Content. A Creator may also enable you to access and use Third-Party Websites and/or Third-Party Applications (as defined below) through such Creator’s Membership Community, including without limitation a private Discord server for such Creator’s Members. The Creator determines the terms applicable to such Creator’s Membership Community in their sole discretion.
4. Creator Store. Creators may offer tangible goods (“Collectibles”) for sale through an online storefront available through their Membership Community (“Storefront”). Each such Storefront is considered a part of the Marketplace (as defined below) and subject to (i) the terms set forth in Section 3.5 below and (ii) any supplemental terms applicable to such Creator’s Storefront, including without limitation the terms and conditions of third-party service providers.
5. Marketplace. The Services include a marketplace (the “Marketplace”) where Members and Creators can offer for sale, sell, offer to purchase, and purchase Tokens, Limited Content, and Collectibles (collectively, “Goods”). Pricing and payment terms, including the specific details with relation to the offering of any Goods, shall be set forth at point of sale. Certain portions of the Marketplace may be accessible only through the Membership Community of a particular Creator. Goods listed on the Marketplace are being offered by persons seeking to sell Goods (“Sellers”), and the actual contracts for sale are between the Sellers and persons seeking to buy Goods (“Buyers”). A Member who has purchased a Good on the Marketplace may be able to resell that Good on the Marketplace. Unless explicitly set forth at point of sale, Highlight is not the Seller of any Good listed on the Marketplace and will not personally provide or deliver any Goods. While we may, in our discretion, help facilitate resolution of disputes through various programs, we have no control over the quality of Goods offered on the Marketplace. We cannot control or guarantee the truth or accuracy of a Member’s or Creator’s Content, the ability of Sellers to sell Goods, the ability of Buyers to pay for Goods, or that a Buyer and Seller will actually complete a transaction or deliver or return any Goods listed on the Marketplace. While Highlight may provide pricing and guidance for Goods sold by Sellers on our Marketplace, such information is solely informational. We do not have control over the quality, timing, legality, failure to provide, or any aspect whatsoever of any reviews provided by Members, Goods sold by Sellers, or of the integrity, responsibility, or any actions of any Members. Highlight makes no representations about the suitability, reliability, timeliness or accuracy in public, private or offline interactions. When interacting with other Members you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting offline with other persons whom you don’t know. NEITHER HIGHLIGHT NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICES. HIGHLIGHT AND ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR INTERACTIONS WITH OTHER USERS OF THE SERVICES OR YOUR USE OF OR INABILITY TO USE ANY GOODS PURCHASED THROUGH THE SERVICES.
6. Transacting on Highlight. PLEASE READ CAREFULLY THIS IMPORTANT INFORMATION ABOUT PROCEDURES FOR TRANSACTING ON HIGHLIGHT BEFORE USING THE MARKETPLACE. When you engage in transactions on Highlight, we may ask for your name, address, date of birth, and other information that will allow us and/or our Payment Processor(s) (as defined below) to identify you. We may also ask for a copy of your driver’s license or other identifying documents. We reserve the right to require you to provide additional information and documents in accordance with Section 2.2 of these Terms of Service. Failure to provide such information upon request, as well as any other violation of this Agreement, may result in your removal from the Services, including a termination of your ability to use the Marketplace.
RESPONSIBILITY FOR CONTENT.
1. Types of Content. You acknowledge that all Content shall be the sole responsibility of the party from whom such Content originated. This means that you, and not Highlight nor any Highlight Party, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through the Services (“Your Content”), and that you and other Members of the Services, and not Highlight, are similarly responsible for all Content that you and they Make Available through the Services (“User Content”). User Content includes, without limitation, Creator Content. You agree to indemnify, defend, and hold Highlight Parties harmless from and against any and all damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising from the minting, sale, reproduction, distribution, public display, public performance, communication to the public, advertising, marketing, promoting or other use or exploitation of your Tokens.
2. No Obligation to Pre-Screen Content. You acknowledge that we have no obligation to pre-screen Content (including, but not limited to, User Content), although we reserve the right in our sole discretion to monitor, pre-screen, refuse or remove any Content. By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Highlight pre-screens, refuses or removes any Content, you acknowledge that Highlight will do so for Highlight’s benefit, not yours. Without limiting the foregoing, we shall have the right to remove any Content that violates the Agreement or that we otherwise determine in our sole discretion is objectionable. For additional information, please see our Privacy Policy.
3. Storage. Unless expressly agreed to by us in writing elsewhere, we have no obligation to store any of Your Content that you Make Available on the Services. Highlight has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Services. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that we retain the right to create reasonable limits on our use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits as determined by us in our sole discretion.
OWNERSHIP.
1. Services. Except with respect to Your Content and User Content, you agree that Highlight and our licensors own all rights, title and interest in the Services, including but not limited to, the “look and feel” (e.g., text, graphics, images, logos, page headers, button icons, and scripts), any computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, and Highlight software. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any of the Services.
2. Trademarks. Highlight and all related graphics, logos, designs, slogans, service marks and trade names used on or in connection with the Services are the trademarks of Highlight or Highlight Parties and may not be copied, imitated or used, in whole or in part, without our prior permission in connection with your, or any third-party, products or services. In addition, the “look and feel” of the Services constitutes the service mark, trademark or trade dress of Highlight and may not be copied, imitated or used, in whole or in part, without our prior written permission. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners.
3. Your Content. Highlight does not claim ownership of Your Content. However, when you submit, upload, publish, store, broadcast, mint or otherwise transmit Your Content on, in, or through the Services, you represent that you own and/or have 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 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 Content.
4. License to Your Content. When you submit, upload, publish, store, broadcast, mint or otherwise transmit Your Content, subject to any applicable account settings that you select, you grant Highlight an unrestricted, assignable, fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and sublicensable right (including any moral rights) and license throughout the universe to use, license, distribute, reproduce, modify, adapt, make available, create derivative works from, retransmit, publicly perform, communicate to the public, publicly display and otherwise exploit and use all or any of Your Content (in whole or in part) for the purposes of operating and providing the Services to you and to our other Members and to improve the Services and develop new products and services. Unless otherwise set forth in a written agreement between you and Highlight, Highlight does not receive any right or title to any of Your Content that you submit, post, or otherwise share through the Services. Please remember that other Members may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of the Services. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Highlight, are responsible for all of Your Content that you Make Available on or in the Services. Any Content posted by you on or through the Services may not contain nudity, violence, sexually explicit, or offensive subject matter as set forth in Highlight’s then-current or otherwise as determined by Highlight in its sole discretion.
  1. Specific Rules for Photographs and Images. You may not Make Available a photograph or image to the Services of one or more persons without that person’s permissions and you hereby grant such persons and their administrators, guardians, heirs, and trustees, if any, an irrevocable, perpetual, royalty free, fully paid-up, worldwide license to reproduce, distribute, and publicly display that photograph for personal use and through any online platform or service, including the Services; notwithstanding the foregoing, this only applies to the extent there is not a conflicting agreement between the photographer and the subject(s) of the photo and you and the subject of any photograph or other original work of authorship are free to negotiate terms and conditions to supersede the provisions.
  2. Specific Rules for Musical Works and Recording Artists. If you are a composer or author of a musical work and have granted non-exclusive rights to a Performing Rights Organization (“PRO”), then you must notify your PRO of the royalty-free license you grant through this Agreement to Highlight. You are solely responsible for ensuring your compliance with the relevant PRO’s reporting obligations. If you have assigned your rights to a music publisher or a PRO, then you must obtain the consent of that music publisher or PRO to grant the royalty-free license(s) set forth in this Agreement or have that music publisher or PRO enter into this Agreement with Highlight. Just because you authored a musical work (e.g., wrote a song) does not mean you have the right to grant Highlight the licenses in this Agreement. If you are a recording artist under contract with a record label, then you are solely responsible for ensuring that your use of the Services is in compliance with any contractual obligations you have to your record label, including if you create any new recordings through the Services that may be claimed by your label. Finally, if you wish to perform a cover song and post it to the Services, you are responsible for securing all rights in and to the underlying musical work before posting your recording or performance of that musical work to the Services.
5. Username. Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments, or any other area on the Services, you hereby expressly permit us to identify you by your username (which may be a pseudonym) as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content. Your username may be publicly displayed on the Services when using the Services and you consent to such public display.
6. Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Highlight through our suggestion, feedback, wiki, forum, or similar pages (“Feedback”) is at your own risk and that we have no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Highlight 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, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services and/or Highlight’s business.
USER CONDUCT. As a condition of use, you agree not to use the Services for any purpose that is prohibited by this Agreement or by applicable law.
1. You agree that you are solely responsible for your conduct in connection with using the Services and that you shall not (and shall not permit any third party to) (a) take any action or (b) Make Available any Content on or through the Services that: (i) infringes or violates any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening (including but not limited to promoting suicide or self-harm, inciting hate or violence against others, or doxing another individual), abusive, harassing, defamatory, libelous, deceptive (including but not limited to posing as another person or entity to engage in a transaction via the Services), fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane or otherwise in violation of Highlight’s then-current Agreement or use the Services in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Services; (iii) constitutes unauthorized or unsolicited spam, advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without our prior written consent, including but not limited to data collected from our Services for any advertising or direct marketing activity (including without limitation, email marketing, SMS marketing, and telemarketing); (v) impersonates (including without limitation claiming a username for the purpose of reselling it, confusing others, deriving others’ goodwill, or otherwise engage in name squatting) any person or entity, including but not limited to any Highlight Party; (vi) interferes with or attempt to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by this Agreement; (vii) attempts to engage in or engages in, any potentially harmful acts that are directed against the Services, including but not limited to violating or attempting to violate any security features of the Services, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in the Services, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Services; (viii) engages in or knowingly facilitates any “front-running,” “wash trading,” “pump and dump trading,” “ramping,” “cornering” or fraudulent, deceptive or manipulative trading activities, including: (w) trading a Token at successively lower or higher prices for the purpose of creating or inducing a false, misleading or artificial appearance of activity in such Token, unduly or improperly influencing the market price for such Token trading on the Services or establishing a price which does not reflect the true state of the market in such Token; (x) executing or causing the execution of any transaction in a Token which involves no material change in the beneficial ownership thereof; (y) entering any order for the purchase or sale of a Token with the knowledge that an order of substantially the same size, and at substantially the same price, for the sale of such Token, has been or will be entered by or for the same or different parties; or (z) participating in, facilitating, assisting or knowingly transacting with any pool, syndicate or joint account organized for the purpose of unfairly or deceptively influencing the market price of an a Token; (ix) uses the Services to carry out any financial activities subject to registration or licensing, including but not limited to using the Services to create, offer, sell, buy and/or otherwise transact in securities, commodities futures, debt instruments, trading of commodities on a leveraged, margined, or financed basis, binary options (including prediction-market transactions), real estate or real estate leases, equipment leases, debt financings, equity financings, or other similar transactions; (x) uses the Services to participate in fundraising for a business, protocol, or platform, including but not limited to creating, listing, or buying assets that (a) are redeemable for financial instruments; (b) give owners any rights to participate in an ICO or any securities offering, or (c) entitle owners to financial rewards, including but not limited to DeFi yield bonuses, staking bonuses, and burn discounts; (xi) access the Services from a different address if we’ve blocked any of your other addresses from accessing the Services, unless you have our written permission first; (xii) is for any illegal or unauthorized purpose, or engages in, encourages, or promotes any activity that violates any applicable law (including without limitation any anti-money laundering or anti-terrorism laws or regulations) or these Terms and/or (xiii) involves acting, directly or indirectly, for, on behalf of, for the benefit of, or in connection with (a) any activity in violation of regulations administered by the US Foreign Asset Control or any natural or legal person that is the subject of sanctions administered by an agency of the U.S. government or the United Nations; (b) any natural or legal person located in, ordinarily resident in, or organized under the laws of, any jurisdiction that is subject to a comprehensive U.S. government embargo; or (c) any legal person owned or controlled, directly or indirectly, by any natural or legal person located in, ordinarily resident in, or organized under the laws of, any jurisdiction that is subject to a comprehensive U.S. government embargo.
2. You may only use any User Content, whether as embedded in or otherwise comprising a Token or otherwise available on the Services, in accordance with the terms of this Agreement and with the terms of any additional right or license granted expressly by the creator of such User Content and, in the case of Tokens and Limited Content, as set forth at point of sale and solely if as applicable to you as a Buyer. In all cases, except as expressly permitted by this Agreement: (i) you may not sell, re-sell, or encumber your rights in any User Content; (ii) you may not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any User Content; (iii) you may not edit, change, modify, or create any derivative work of any User Content or assist or encourage any third party to do so; and (iv) you agree that we may terminate all or part of your licenses to User Content at any time for any reason, including for any breach of this Agreement. In the event that we terminate your license to any User Content, you must promptly remove all copies of such User Content in your possession or control, including on any social media platform, and take any other action we reasonably request to assist in locating and removing the User Content, including identifying each recipient of such User Content.
3. The value of the Services rests in its thriving marketplace for Buyers and Sellers. You acknowledge and agree that it is a material breach of this Agreement to arrange for the sale of listed Tokens or Collectibles from, or the payment of fees to, Sellers outside the context of the Marketplace for the purposes of circumventing the obligation to pay Highlight Fees (as defined below) for Tokens or Collectibles purchased through the Marketplace.
4. To protect our community and comply with our legal obligations, we reserve the right to take action, with or without advance notice, if we believe in our sole discretion that you have violated this Agreement or that you may use our Services for unlawful activity.
INTERACTIONS WITH OTHER USERS.
1. User Responsibility. You are solely responsible for your interactions with other Members and any other parties with whom you interact; provided, however, that we reserve the right, but have no obligation, to intercede in such disputes. You agree that Highlight will not be responsible for any liability incurred as the result of such interactions.
2. Content Provided by Other Users. The Services may contain User Content provided by other Members. Highlight is not responsible for and does not control User Content. Highlight has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to, User Content. You use all User Content and interact with other Members at your own risk.
FEES AND PURCHASE TERMS.
1. Pricing and Fees. All pricing and payment terms are as indicated at point of sale or otherwise on the Services, and any payment obligations you incur are binding at the time of purchase. You may not substitute any other currency, whether cryptocurrency or fiat currency, for the currency in which you have contracted to pay at the time of purchase. For clarity, no fluctuation in the value of any currency, whether cryptocurrency or otherwise, shall impact or excuse your obligations with respect to any purchase. Creators use a variety of methods to sell Goods, and in the event any funds paid need to be remitted to you as a result of the settlement resulting from such sale (e.g., sale via Dutch or English auction), it is your responsibility to claim any funds through the use of the minter contract associated with the sale. Highlight may charge certain fees for your use of the Services (“Highlight Fees”) as set forth at point of sale or otherwise on the Services. Other than Highlight Fees, Highlight does not set, collect, or determine other applicable costs, fees, and expenses associated with buying and selling Goods, including but not limited to any creator earnings or transaction fees. These costs, fees, and expenses are paid directly to the seller, creator, payment processor, blockchain validator, or other third party, as applicable. Because these costs, fees, and expenses are not collected by Highlight, it cannot refund them. Highlight is under no obligation to accept cryptocurrencies and we retain the right in our discretion to determine what currencies or payment options to accept at any time. You acknowledge and agree that transactions effectuated on a blockchain may be publicly visible on the applicable protocol, or other blockchain or distributed ledger network, as may be selected and used for the Services. Highlight reserves the right to revise Highlight Fees at any time prior to accepting your purchase.
2. Payment. You agree to pay any fees or charges incurred by your Account in accordance with the fees, charges and billing terms then-currently in effect. You may be required to provide us or our Payment Processor(s) (as defined below) with a valid credit card, Digital Wallet address, bank account information, or other payment provider account (“Payment Provider”) as a condition to accessing certain Services. Your Payment Provider agreement governs your use of the designated credit card or other account, and you must refer to that agreement, not this Agreement, to determine your rights and liabilities related thereto. By providing us with your credit card number or Payment Provider account and associated payment information, you agree that Highlight is authorized to immediately invoice your Account for all fees and charges due and payable to us hereunder and that no additional notice or consent is required. You agree to immediately notify us of any change in your billing address or the credit card or Payment Provider account used for payment hereunder. We reserve the right at any time to change Highlight Fees, prices, and/or billing methods, either immediately upon posting on the Services or by e-mail delivery to you.
3. Taxes. Any payments required may not include any Sales Tax that may be due in connection with the Services provided. If Highlight determines it has a legal obligation to collect a Sales Tax from you, Highlight shall collect such Sales Tax in addition to the other payments required. If any Services or products, or payments for any Services or products, are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Highlight, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Highlight for any liability or expense Highlight may incur in connection with such Sales Taxes. Upon Highlight’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax. You are solely responsible for determining what, if any, taxes apply to transactions involving Your Content, other User Content, Tokens, Collectibles, and/or any other use of the Services that you undertake. Neither Highlight nor any Highlight Party is responsible for determining the taxes that may apply to such transactions. You are solely responsible for paying any such taxes and Highlight shall have no liability to you or any third party with respect thereto. Highlight shall issue a Form 1099 and/or any other documentation reasonably required in connection with taxes that may be applicable to your use of the Services. Highlight is not responsible for determining, withholding, collecting, reporting or remitting any taxes that apply to your use of the Services and/or the sale or purchase of Goods.
4. Free Trials and Other Promotions. Any free trial or other promotion must be used within the specified time of the trial. At the end of the trial period, your use of that Service will expire and any further use of the Service is prohibited unless you pay the applicable fees.
ASSUMPTION OF RISK RELATED TO BLOCKCHAIN TECHNOLOGY. You acknowledge and agree that:
1. The prices and value of digital assets are extremely volatile and subjective. Fluctuations in the price of other digital assets could materially and adversely affect the Goods, which may also be subject to significant price volatility. We cannot and do not guarantee that any purchasers of Goods, including Tokens, will not lose money.
2. You are solely responsible for determining what, if any, taxes apply to transactions involving your Tokens. Neither Highlight nor any other Highlight entity is responsible for determining the taxes that may apply to transactions involving Tokens.
3. Tokens exist and can be transferred only by virtue of the ownership record maintained on the blockchain supporting such Tokens. Any transfer of Tokens occurs within the supporting blockchain. Highlight makes no representations or warranties about the quality or availability of any supporting blockchain.
4. There are risks associated with using Tokens and cryptocurrency, 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 Highlight Wallet and/or Digital Wallet.
5. The legal and regulatory regime governing blockchain technologies, cryptocurrencies, and tokens is uncertain, and new regulations or policies may materially adversely affect the development of the Services and the utility of Tokens.
6. There are risks associated with purchasing user-generated User Content, including but not limited to, the risk of purchasing counterfeit assets, mislabeled assets, assets that are vulnerable to metadata decay, assets on smart contracts with bugs, and assets that may become untransferable. Highlight has no responsibility for any counterfeit assets that mimic Highlight assets.
7. Highlight reserves the right to hide Tokens, Limited Content, and other assets that Highlight suspects or believes may violate this Agreement. Tokens or Limited Content you purchase may become inaccessible on the Services in the event that Highlight reasonably suspects or believes such Tokens or Limited Content violate this Agreement or applicable law, or may otherwise harm Highlight, the Services, or any of our users. Under no circumstances shall the inability to view any assets on the Services serve as grounds for a claim against Highlight.
8. Highlight has no responsibility for the Goods, sold, bought or traded on the Services. Highlight does not investigate and cannot endorse, approve, guarantee, warrant or take any responsibility for the authenticity, originality, uniqueness, marketability, legality or value of any Good created or traded on the Services. For the avoidance of doubt, Highlight shall have no responsibility for any failure of any Member or Creator to comply with any terms regarding the authenticity, originality, uniqueness, scarcity or other description or characteristics of the Good furnished by or on behalf of that Member or Creator and available via the Services.
9. A lack of use or public interest in the creation and development of distributed ecosystems could negatively impact the development of those ecosystems and related applications, and could therefore also negatively impact the potential utility of the Goods.
10. Hackers may seek to access your Highlight Wallet and/or Digital Wallet through multiple means, including, but not limited to, phishing and other fraudulent communications. YOU ARE SOLELY RESPONSIBLE FOR ANY LOSSES THAT ARISE FROM YOUR CLICKING ON ANY LINKS FROM A THIRD PARTY, EVEN IF SUCH THIRD PARTY APPEARS TO BE HIGHLIGHT, AND YOU ARE SOLELY RESPONSIBLE FOR ANY LOSSES ARISING FROM THE THEFT OR UNAUTHORIZED USE OF YOUR HIGHLIGHT WALLET AND/OR DIGITAL WALLET CREDENTIALS.
RELEASE. Highlight expressly disclaims any liability that may arise between users of its Services. The Marketplace is only a venue for connecting Buyers with Sellers. Because Highlight is not a party to the actual contracts and agreements between Buyers and Sellers, in the event that you have a dispute with one or more users, you release Highlight and its respective past, present and future parents, subsidiaries, affiliates, officers, employees, investors, agents, partners and licensors, but excluding any users (each a “Highlight Party” and collectively the “Highlight Parties”) from and against any and all actual or alleged claims, damages, awards, judgments, losses, liabilities, obligations, taxes, penalties, interest, fees, expenses (including, without limitation, attorneys’ fees and expenses), and costs (including, without limitation, court costs, costs of settlement, and costs of pursuing indemnification and insurance), of every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract, or otherwise (collectively, “Claims”) which you may know or suspect to exist in your favor at the time of agreeing to this release. In entering into this release you expressly waive any protection (whether statutory or otherwise) that would otherwise limit the coverage of this release to include those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
INDEMNIFICATION. You agree to the fullest extent permitted by applicable law indemnify, defend and hold harmless Highlight and the Highlight Parties from and against any and all actual or alleged Claims that are caused by, arise out of or are related to any and all of the following: (a) Your Content; (b) your use or misuse of, or inability to use, any Services; (c) your violation or breach of the Agreement; (d) your violation of any rights of another party, including any Members; (e) your purchase or attempt to purchase Goods on or through the Services; (f) your sale or attempt to sell Goods on or through the Services; (g) your violation of any applicable laws, rules or regulations, (h) any Feedback you provide and/or (i) your negligence or willful misconduct. You agree to promptly notify Highlight of any Claims and cooperate with the Highlight Parties in defending such Claims. Highlight reserves the right, at its own cost, to assume the exclusive defense, settlement and/or control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Highlight in asserting any available defenses. This provision does not require you to indemnify any of the Highlight 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 your Account, the Agreement and/or your access to the Services. THIS INDEMNITY IS IN ADDITION TO, AND NOT IN LIEU OF, ANY OTHER INDEMNITIES SET FORTH IN A WRITTEN AGREEMENT BETWEEN YOU AND HIGHLIGHT.
DISCLAIMER OF WARRANTIES AND CONDITIONS.
1. 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. THE HIGHLIGHT 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. WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSSES YOU SUSTAIN AS A RESULT OF YOUR USE OF THE SERVICES. WE TAKE NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO YOU FOR, ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM YOUR USE OF THE SERVICES INCLUDING WITHOUT LIMITATION: (I) USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED ADDRESSES; (II) SERVER FAILURE OR DATA LOSS; (III) CORRUPTED DIGITAL WALLET FILES; (IV) UNAUTHORIZED ACCESS TO APPLICATIONS; OR (V) ANY UNAUTHORIZED THIRD PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK AGAINST THE SERVICE OR TOKENS.
  1. HIGHLIGHT 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.
  2. ANY CONTENT DOWNLOADED FROM OR OTHERWISE 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.
  3. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. HIGHLIGHT MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF THE SERVICES.
  4. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM HIGHLIGHT OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. THE SERVICES ARE NOT INTENDED TO PROVIDE LEGAL, TAX, INVESTMENT OR INSURANCE ADVICE. NOTHING ON THE SERVICES SHOULD BE CONSTRUED AS AN OFFER TO SELL, A SOLICITATION OF AN OFFER TO BUY, OR A RECOMMENDATION FOR ANY FINANCIAL INSTRUMENT BY US OR ANY THIRD PARTY. YOU ARE SOLELY RESPONSIBLE FOR DETERMINING WHETHER ANY INVESTMENT, INVESTMENT STRATEGY OR RELATED TRANSACTION IS APPROPRIATE FOR YOU BASED ON YOUR INVESTMENT OBJECTIVES, FINANCIAL CIRCUMSTANCES AND RISK TOLERANCE. YOU ARE SOLELY RESPONSIBLE FOR DETERMINING WHAT, IF ANY, TAXES APPLY TO YOUR TRANSACTIONS USING THE SERVICES. YOU SHOULD CONSULT YOUR LEGAL, INVESTMENT OR TAX PROFESSIONAL REGARDING YOUR SPECIFIC SITUATION. WE DO NOT MAKE ANY REPRESENTATIONS REGARDING THE BENEFITS OR RESULTS THAT YOU OR ANY THIRD PARTY SHALL RECEIVE FROM THE SERVICES.
  5. FROM TIME TO TIME, HIGHLIGHT 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 HIGHLIGHT’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
  6. WE DO NOT GUARANTEE THAT ANY TOKEN OR LIMITED CONTENT WILL BE AVAILABLE AT ALL TIMES, IN ALL LOCATIONS, OR AT ANY GIVEN TIME, OR THAT WE WILL CONTINUE TO OFFER A PARTICULAR SERVICE, TOKEN, OR LIMITED CONTENT FOR ANY PARTICULAR LENGTH OF TIME. WE DO NOT GUARANTEE THAT TOKENS OR LIMITED CONTENT WILL BE INTEROPERABLE WITH OR ACCESSIBLE THROUGH ANY THIRD-PARTY SERVICE PROVIDERS.
  7. YOU ARE SOLELY RESPONSIBLE FOR DETERMINING WHAT, IF ANY, TAXES APPLY TO YOUR TRANSACTIONS ON OR THROUGH THE SERVICES. THE HIGHLIGHT PARTIES ARE NOT RESPONSIBLE FOR DETERMINING ANY TAXES THAT MAY APPLY TO SUCH TRANSACTIONS.
  8. THERE ARE RISKS ASSOCIATED WITH USING DIGITAL ASSETS, 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 YOUR INFORMATION.
  9. THE LEGAL AND REGULATORY REGIME GOVERNING DIGITAL ASSETS, AND NEW REGULATIONS OR POLICIES MAY MATERIALLY ADVERSELY AFFECT THE DEVELOPMENT OF THE SERVICES AND THE UTILITY AND AVAILABILITY of ANY TOKENS AND/OR LIMITED CONTENT.
  10. TOKENS ARE INTANGIBLE DIGITAL ASSETS. THEY EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE SUPPORTING BLOCKCHAIN. ANY TRANSFER OF TITLE THAT MIGHT OCCUR IN ANY TOKENS OCCURS ON THE DECENTRALIZED LEDGER WITHIN THE APPLICABLE BLOCKCHAIN PLATFORM. WE DO NOT GUARANTEE THAT HIGHLIGHT OR ANY HIGHLIGHT PARTY CAN EFFECT THE TRANSFER OF TITLE OR RIGHT IN ANY ITEMS. WE CANNOT AND DO NOT GUARANTEE THAT ANY TOKEN WILL HAVE OR RETAIN ANY INHERENT VALUE, OR THAT YOU WILL BE ABLE TO SELL OR RESELL ANY TOKEN PURCHASED THROUGH THE SERVICES.
2. No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT HIGHLIGHT PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD HIGHLIGHT PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
  1. Highlight makes no warranty that the Goods provided by third parties will meet your requirements or be available on an uninterrupted, secure, or error-free basis. Highlight makes no warranty regarding the quality of any such Goods, or the accuracy, timeliness, truthfulness, completeness or reliability of any User Content obtained through the Services.
  2. We are not involved in the actual transaction between Buyers and Sellers. While we may help facilitate the resolution of disputes through various programs, we have no control over and do not guarantee the quality, safety or legality of Items advertised, the truth or accuracy of User Content or listings, the ability of Sellers to sell Goods, the ability of Buyers to pay for Goods, or that Buyer or Seller will actually complete a transaction or return all Goods.
  3. We do not transfer legal ownership of Goods from the Seller to the Buyer. California Commercial Code § 2401(2) and Uniform Commercial Code § 2-401(2) apply to the transfer of ownership between the Buyer and the Seller, unless the Buyer and the Seller agree otherwise. Further, we cannot guarantee continuous or secure access to the Services and operation of the Services may be interfered with by numerous factors outside of our control. Accordingly, to the extent legally permitted, we exclude all implied warranties, terms and conditions.
  4. We cannot guarantee the Services will be available at all times. We may experience hardware, software, or other problems or need to perform maintenance related to the Services, resulting in interruptions, delays, or errors. We reserve the right to change, revise, update, suspend, discontinue, or otherwise modify the Services at any time or for any reason without notice to you. You agree that we have no liability whatsoever for any loss, damage, or inconvenience caused by your inability to access or use the Services during any downtime or discontinuance of the Services. Nothing in these Terms will be construed to obligate us to maintain and support the Services or to supply any corrections, updates, or releases in connection therewith
3. No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES. YOU UNDERSTAND THAT HIGHLIGHT DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SERVICES. HIGHLIGHT 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. HIGHLIGHT MAKES NO WARRANTY REGARDING THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER CONTENT OBTAINED THROUGH THE SERVICES.
4. Third-Party Materials. As a part of the Services, you may have access to materials that are hosted by another party. You agree that it is impossible for Highlight to monitor such materials and that you access these materials at your own risk.
LIMITATION OF LIABILITY.
1. Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL HIGHLIGHT PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE 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 HIGHLIGHT 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 GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED; OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE SERVICES; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; (e) YOUR USE OF TOKENS; OR (f) 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 HIGHLIGHT PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A HIGHLIGHT PARTY’S NEGLIGENCE; OR (ii) ANY INJURY CAUSED BY A Highlight PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
2. Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, HIGHLIGHT PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a) THE TOTAL AMOUNT PAID TO HIGHLIGHT BY YOU DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; (b) $100; OR (c) 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 HIGHLIGHT PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A HIGHLIGHT PARTY’S NEGLIGENCE; OR (ii) ANY INJURY CAUSED BY A HIGHLIGHT PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
3. User Content. EXCEPT FOR HIGHLIGHT’S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN HIGHLIGHT’S PRIVACY POLICY, HIGHLIGHT ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT, USER CONTENT, TOKENS OR LIMITED CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
4. 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.
5. Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN US AND YOU.
PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT OR TRADEMARK INFRINGEMENT. Highlight will take down works in response to Digital Millennium Copyright Act (“DMCA”) applicable to Internet service providers (17 U.S.C. § 512, as amended) takedown notices and/or other intellectual property infringement claims and it is Highlight’s policy to terminate membership privileges of any Member who repeatedly infringes intellectual property rights upon prompt notification to Highlight by the owner or the owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Services in a way that constitutes infringement, or violates your publicity or other intellectual property rights please provide our copyright agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the interest; (b) identification and a description of the copyrighted work(s), trademark, publicity rights, or other intellectual property rights that you claim has been infringed; (c) identification and a description of the location on the Services (e.g. urls) of the material that you claim is infringing; (d) your contact information including address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the owner or authorized to act on the owner’s behalf that is allegedly being infringed. Contact information for our dedicated copyright agent for notice of claims of copyright infringement is as follows: legal@highlight.xyz. Please note that we may forward your notice of infringement, including your contact information, to the party who will have their content removed so they understand why it is no longer available on Highlight and can also contact you directly to resolve any dispute.
MONITORING AND ENFORCEMENT. You acknowledge and agree that Highlight does not control and does not have the obligation to monitor any and all (i) User Content, (ii) any content made available by third parties, (iii) the use of the Services by its users and/or (iv) any and all information transmitted or received through the Services for operational and other purposes. If at any time Highlight chooses to monitor such use and content, then Highlight still assumes no responsibility or liability for content or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Policy. You acknowledge and agree that Highlight reserves the right to: (a) remove or refuse to post any of Your Content for any or no reason in our sole discretion; (b) take any action with respect to any of Your Content that we deem necessary or appropriate in our sole discretion, including if we believe that such Content violates this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Services or the public, or could create liability for Highlight; (c) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; (d) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services; and/or (e) terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of this Agreement. If we become aware of any possible violations by you of the Agreement, we reserve the right to investigate such violations. If, as a result of the investigation, we believe that criminal activity has occurred, we reserve the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Highlight is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Services, including Your Content, in our possession in connection with your use of the Services, to (i) comply with applicable laws, legal process or governmental request; (ii) enforce the Agreement, (iii) respond to any claims that Your Content violates the rights of third parties, (iv) respond to your requests for customer service and/or (v) protect the rights, property or personal safety of Highlight, its Members or the public, and all enforcement or other government officials, as Highlight in its sole discretion believes to be necessary or appropriate.
1. Privacy Policy. We care about data privacy and security. By using the Services, you agree to be bound by our Privacy Policy, which is incorporated into the Agreement. Please be advised the Services are hosted in the United States. If you access the Services from any other region of the world with laws or other requirements governing personal data collection, use, or disclosure that differ from applicable laws in the United States, then through your continued use of the Services, you are transferring your data to the United States, and you agree to have your data transferred to and processed in the United States. We will maintain certain data that you transmit to the Services for the purpose of managing the performance of the Services, as well as data relating to your use of the Services. Although we perform regular routine backups of data, you are solely responsible for all data that you transmit or that relates to any activity you have undertaken using the Services. You agree that we shall have no liability to you for any loss or corruption of any such data, and you hereby waive any right of action against us arising from any such loss or corruption of such data.
TERM AND TERMINATION.
1. Term. The Agreement commences on the date when you accept these Terms of Service (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.
2. Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used the Services or (b) the date you accepted these Terms of Service, and will remain in full force and effect while you use any Services, unless earlier terminated in accordance with the Agreement.
3. Termination of Services by You. If you violate any provision of the Agreement, then your authorization to access the Services and the Agreement automatically terminate. If you want to terminate the Services provided by Highlight, you may do so by (a) notifying us at any time and (b) closing your Account for all of the Services that you use, provided, however, that notwithstanding any such termination and for the avoidance of doubt, the terms of this Agreement shall continue to apply with respect to any Token or other digital asset obtained hereunder. Your notice should be sent, in writing, to our address set forth below. Without limiting any other provision of the Agreement, we reserve the right to, in our sole discretion and without notice or liability, deny access to and use of the Services (including without limitation blocking certain IP or device addresses), to any person for any reason or for no reason, including without limitation for breach of any representation, warranty, or covenant contained in the Agreement or of any applicable law or regulation. We may terminate your use or participation in the Services or delete any User Content or information that you post at any time, without warning, in our sole discretion.
4. Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases, including without limitation any access to Limited Content. Highlight will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. 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.
5. No Subsequent Registration. If your registration(s) with, or ability to access, the Services or any other Highlight community, is discontinued by us due to your violation of any portion of the Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Services or any Highlight community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Services to which your access has been terminated. In the event that you violate the immediately preceding sentence, Highlight 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.
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 Highlight intends to announce such Services or Content in your country. The Services are controlled and offered by Highlight from its facilities in the United States of America. Highlight 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.
SANCTIONS POLICY. Highlight must comply with economic sanctions and trade restrictions, including, but not limited to, those implemented by the Office of Foreign Assets Control ("OFAC") of the US Department of the Treasury. This means that Highlight or anyone using our Services cannot take part in transactions that involve designated people, places, or items that originate from certain places, as determined by agencies like OFAC, in addition to trade restrictions imposed by related laws and regulations. This policy applies to anyone that uses our Services, regardless of their location. By using our Services, you represent that you; any of your affiliates; any other person having a common economic or beneficial interest with you, or if you are an entity, in you; or any person or entity for whom you are acting as agent or nominee in connection with these Terms is not: (A) a country, territory, entity or individual named on an Office of Foreign Assets Control of the United States Treasury Department (“OFAC”) list as provided and updated from time to time at http://www.treas.gov/ofac, or a Person or entity prohibited under the OFAC programs, regardless of whether or not they appear on the OFAC list; nor (B) a senior foreign political figure, or any immediate family member or close associate of a senior foreign political figure.
DISPUTE RESOLUTION. Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Highlight and limits the manner in which you can seek relief from us. This section does not govern disputes between users or between users and third parties. Highlight does not provide dispute resolution services for such disagreements and the parties must resolve those disputes directly.
1. Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Services, to any products sold or distributed through the Services, or to any aspect of your relationship with Highlight, 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, the claims remain only in such court, and the claims remain on an individual, non-representative, and non-class basis; and (b) you or Highlight may seek injunctive or 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 the avoidance of doubt, this Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
2. Dispute resolution process. You and Highlight both agree to engage in good-faith efforts to resolve disputes prior to either party initiating an arbitration, small claims court proceeding, or equitable relief for intellectual property infringement. You must initiate this dispute resolution process by sending a letter describing the nature of your claim and desired resolution to: legal@highlight.xyz. Both parties agree to meet and confer personally, by telephone, or by videoconference (hereinafter “Conference”) to discuss the dispute and attempt in good faith to reach a mutually beneficial outcome that avoids the expenses of arbitration or, where applicable, litigation. If you are represented by counsel, your counsel may participate in the Conference as well, but you agree to fully participate in the Conference. Likewise, if Highlight is represented by counsel, its counsel may participate in the Conference as well, but Highlight agrees to have a company representative fully participate in the Conference. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process and Conference required by this paragraph. If the parties do not reach agreement to resolve the dispute within thirty (30) days after initiation of this dispute resolution process or the parties mutually agree to forego this dispute resolution process, either party may commence arbitration, file an action in small claims court, or file a claim for injunctive or equitable relief in a court of proper jurisdiction for matters relating to intellectual property infringement, if the claims qualify.
3. Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding after participating in the dispute resolution process, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to us at arbitration-notice@highlight.xyz. The arbitration will be conducted by Judicial Arbitration and Mediation Services, Inc. (“JAMS”), an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, claimed punitive or other damages, or any claim in excess of the bona fide verifiable value of actual lost property shall be subject shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and and the JAMS Consumer Minimum Standards then in effect; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures and the JAMS Consumer Minimum Standards then in effect. JAMS’s rules are available at jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Highlight will pay them for you if you complied with the dispute resolution process set forth above. In addition, we will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless (i) a resolution of your claim results in a smaller monetary judgment than Highlight may have offered you to settle the claim, at any point, (ii) the arbitrator determines the claims are frivolous or (iii) you did not comply with the dispute resolution process set forth above, except that if you have initiated the arbitration claim, you will still be required to pay the lesser of $250 or the maximum amount permitted under the JAMS Rules for arbitration claims initiated by you. You are still responsible for all additional costs that you incur in the arbitration, including without limitation, fees for attorneys or expert witnesses. You may choose to have the arbitration conducted by telephone, videoconference, based on written submissions, or in person in your home town location (if you live in the United States) where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
4. Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and us. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
5. Waiver of Jury Trial. YOU AND HIGHLIGHT 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 we are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 19.1 (Application of Arbitration Agreement) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
6. Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A REPRESENTATIVE (INCLUDING, WITHOUT LIMITATION, PAGA) CLASS OR COLLECTIVE BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE PERSON, CUSTOMER, USER OR ENTITY CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER PERSON, CUSTOMER, USER OR ENTITY. Accordingly, under the arbitration procedures outlined in this section, an arbitrator shall not combine or consolidate more than one party’s claims without the written consent of all affected parties to an arbitration proceeding. Without limiting the generality of the foregoing, you and Highlight agree that no dispute shall proceed by way of class arbitration without the written consent of all affected parties. If a decision is issued stating that applicable law precludes enforcement of any of this section’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts in San Francisco County or Alameda County of the State of California, in the sole discretion of Highlight. All other disputes, claims, or requests for relief shall be arbitrated.
7. 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: arbitration-notice@highlight.xyz within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your username (if any), the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of 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.
8. Severability. Except as provided in this section, 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.
9. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with us.
10. Modification. We reserve the right to change or modify this Agreement at any time and in our sole discretion. Notwithstanding any provision in this Agreement to the contrary, we agree that if we make any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing us at the following address: arbitration-notice@highlight.xyz. By continuing to access or use the Service, you confirm your acceptance of the revised Terms and all of the terms incorporated therein by reference effective as of the date these Terms are updated. It is your sole responsibility to review the Agreement from time to time to view such changes and to ensure that you understand the terms and conditions that apply when you access or use the Service.
THIRD-PARTY SERVICES.
1. Third-Party Payment Processing. Payment processing for the Services will be performed by Highlight’s third-party payment processors or other third-party as applicable (each, a “Payment Processor”) (e.g., card acceptance, merchant settlement, Digital Wallet management, and related services). Your use of the Services and the payment processing provided by the Payment Processor is subject to your agreement(s) with the Payment Processor for such Services and payment processing, as may be modified by the Payment Processor from time to time (collectively, “Payment Processor Agreement”). As a condition of using the Payment Processor’s payment processing, you must provide accurate and complete information, and you authorize us to share this information with the Payment Processor and to charge your payment method for all amounts that may become due under this Agreement. All bank, credit card, or other payment information is sent directly to and stored with the Payment Processor using its security protocols. Highlight does not store your payment information on its systems and shall not have any responsibility for the safety or security of that information. Your use of the Payment Processor’s payment processing is conditioned upon your compliance with the Payment Processor Agreement, and if the Payment Processor Agreement is terminated by the Payment Processor, you may not be able to use the Services, or you may have your use of the Services suspended or terminated. We may change or add other payment processing services at any time upon notice to you, which may be subject to additional terms or conditions.
2. Third-Party Websites, Applications and Ads. The Services may contain links to third-party websites (“Third-Party Websites”), applications (“Third-Party Applications”), advertisements for third parties (“Third-Party Ads”) or otherwise display, include, or make available content, data, information, services, applications, or materials from third parties (“Third-Party Materials”). When you click on a link to, or access and use, a Third-Party Website, Third-Party Application, Third-Party Ad or Third-Party Materials, 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 Website, Third-Party Application, Third-Party Ad or Third-Party Materials are not under the control of Highlight and may be “open” applications for which no recourse is possible. Highlight is not responsible or liable for any Third-Party Website, Third-Party Application, Third-Party Ad or Third-Party Materials. Highlight provides links to these Third-Party Websites, Third-Party Applications, Third-Party Ads or Third-Party Materials only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to any Third-Party Website, Third-Party Application, Third-Party Ad or Third-Party Materials, or any product or service provided in connection therewith. You use all links in Third-Party Website, Third-Party Application, Third-Party Ad or Third-Party Materials at your own risk. When you leave our Website, 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 Website, Third-Party Application, Third-Party Ad or Third-Party Materials, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction.
GENERAL PROVISIONS.
1. Electronic Communications. The communications between you and Highlight may take place via electronic means, whether you visit or use the Services or send Highlight e-mails, or whether Highlight posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from us in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide 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”).
2. Release. You hereby release Highlight 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 Members 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, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Highlight Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Services.
3. Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without our prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
4. Force Majeure. Highlight shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, elements of nature or acts of God, war, government, fire, flood, explosion, civil commotion, armed hostilities, terrorism, riot, revolution, blockade, embargo, or lock-out, strike, sit-in, adverse weather, disease, risk to public health, shortage of any material, labor, transport, electricity or other supply, regulatory intervention, general advice or recommendation of any government including any government agency or department, regulatory authority, or international agency, or other factors beyond Highlight’s reasonable control.
5. Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at: legal@highlight.xyz. We will do our best to address your concerns. If you feel that your concerns have been addressed inadequately, we invite you to let us know for further investigation.
6. Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and we 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 San Francisco County, California or Alameda County, California, in the sole discretion of Highlight.
7. Governing Law. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, 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.
8. Choice of Language. It is the express wish of the parties that the Agreement and all related documents have been drawn up in English.
9. Notice. Where Highlight requires that you provide an e-mail address, you are responsible for providing us with your most current e-mail address. In the event that the last e-mail address you provided to us is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to us at the following address: legal@highlight.xyz. Such notice shall be deemed given when received by Highlight by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
10. 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.
11. 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.
12. 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. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on any U.S. government list of prohibited or restricted parties, including without limitation the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Persons List or Entity List. By using the Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country and (ii) you are not listed on any U.S. government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law, including without limitation the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by us are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer our products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
13. Consumer Complaints. If you are a California resident, 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.
14. Support. We are under no obligation to provide support for the Services. In instances where we may offer support, the support will be subject to published policies.
15. 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.