CreatedBy – Terms of Service
Updated April 27, 2023
These Terms of Service (these “Terms”) govern the use of the CreatedBy iOS and Android mobile applications (the “CreatedBy App”) and the CreatedBy online authentication cloud-based software as a service (the “OA Product”), owned and made available by CreatedBy Inc., a Nevada corporation (hereinafter, “CreatedBy,” “we,” “us,” and/or “our”), which enables users to verify they meet certain requirements to access an event (including, in-person and online events, conferences, concerts, art shows, etc.), giveaway, product-drop, website, service, product, application, and/or other experience (each, a “Connected Good”), and to use certain interactive features that may be available through the CreatedBy App in connection with a Connected Good (collectively, the “Service”).
IMPORTANT — PLEASE READ THESE TERMS CAREFULLY. THESE TERMS SET FORTH THE LEGALLY BINDING TERMS AND CONDITIONS BETWEEN YOU (“YOU” AND/OR “YOUR”) AND CREATEDBY, INC. GOVERNING YOUR ACCESS AND USE OF THE CREATEDBY SERVICES.
NOTICE OF AGREEMENT TO ARBITRATE AND WAIVER OF CLASS ACTIONS: THESE TERMS CONTAIN AN AGREEMENT TO ARBITRATE WHICH, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT DISPUTES YOU HAVE AGAINST CREATEDBY TO BINDING AND FINAL ARBITRATION. YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST CREATEDBY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, PLEASE SEE SECTION 14 FOR ADDITIONAL INFORMATION.
NOTICE OF WARRANTY & LIABILITY DISCLAIMERS: PLEASE BE ADVISED THAT CREATEDBY DOES NOT PROVIDE ANY WARRANTIES TO YOU AND THESE TERMS LIMIT OUR LIABILITY TO YOU AS SET FORTH IN SECTION 11.
“Access Criteria” means the criteria set by a NFT Owner and Creator (for example, owning a specific NFT, purchase or received and/or having an email address registered with the NFT Creator, having received a proof of attendance NFT from a event, etc.) required to access, attend, and/or use the Creator’s Connected Good.
“CreatedBy Services” mean, collectively, the CreatedBy App, the OA Product, the Service, the Authentication Ecosystem , and any related services provided by us through or in connection with the use of any of the foregoing, and/or any other products, services, and/or sites that include an authorized link to these Terms.
“Authentication Ecosystem” means any ticket claiming, enrollment, registration, and/or other Authentication Ecosystem website, hosted either by a NFT Owner and Creator or by CreatedBy on behalf of a NFT Owner and Creator, that utilizes the Service in connection with a Connected Good.
“Verified Credential” means the credential issued to an end user of a Connected Good through the CreatedBy App who has verified they meet the Access Criteria for the Connected Good.
“NFT owner and Creator” means the person, entity, business, organization, and/or event organizer that has entered into an agreement with CreatedBy for the provision of the Service in connection with a Connected Good provided, hosted, organized, offered or made available by such person, entity, business, organization, and/or event organizer.
- ACCEPTANCE OF THESE TERMS. BY ACCESSING OR USING THE CREATEDBY SERVICES IN ANY MANNER, INCLUDING, BUT NOT LIMITED TO, USING THE OA PRODUCT THROUGH ANY AUTHENTICATION ECOSYSTEMS, DOWNLOADING THE CREATEDBY APP, AND/OR CREATING A USER ACCOUNT FOR THE CREATEDBY SERVICES (AN “ACCOUNT”): (1) YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND YOU AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS SET FORTH IN THESE TERMS, (2) YOU AFFIRM, REPRESENT AND WARRANT THAT YOU MEET ALL OF THE ELIGIBILITY REQUIREMENTS SET FORTH IN SECTION 2 OF THESE TERMS AND ARE FULLY ABLE AND COMPETENT TO ENTER INTO THE TERMS, CONDITIONS, OBLIGATIONS, AFFIRMATIONS, REPRESENTATIONS, AND WARRANTIES SET FORTH IN THESE TERMS, AND (3) YOU ACKNOWLEDGE AND AGREE THAT YOU ARE ENTERING INTO THESE TERMS WITH CREATEDBY INC., A NEVADA CORPORATION. YOU MAY NOT ACCESS OR USE THE CREATEBY SERVICES (OR ANY PART THEREOF) OR CREATE AN ACCOUNT IF YOU DO NOT AGREE TO THESE TERMS OR DO NOT MEET THE ELIGIBILITY REQUIREMENTS SET FORTH BELOW.
- ELIGIBILITY. In order to use, and create an Account for, the CreatedBy Services you: (a) must be at least 18 years old or the applicable age of majority in your jurisdiction; and (b) must not have been previously removed, terminated and/or suspended from accessing and/or using the CreatedBy Services. In addition, if you are the parent or legal guardian of a minor (as described below), you: (i) represent and warrant that you have given permission to the minor to use the CreatedBy Services and are directly monitoring and supervising the minor’s use of the CreatedBy Services; (ii) represent and warrant that you have read, understand, and agree to these Terms on your behalf and on behalf of the minor; and (iii) you acknowledge, agree, and understand that you are fully responsible and liable for the use of the CreatedBy Services by the minor and the minor’s compliance with these Terms.
Individuals who are under the age of 18 or the age of majority in such individual’s jurisdiction and at least 13 years of age or the applicable age of minority in such individual’s jurisdiction (e.g., 16 years of age if located in the European Economic Area) (hereinafter, a “minor”), are permitted to access and use the CreatedBy Services; solely on the condition that: (1) the minor has the appropriate permission from, and is under the direct supervision of, the minor’s parent or legal guardian who is 18 years old or the age of majority in the applicable jurisdiction, and (2) the minor’s parent or legal guardian has read and agrees to these Terms on the minor’s behalf, in which case “you” and “your” as used through these Terms shall refer to both the minor and their parent or legal guardian.
If you believe a minor is using the Services and does not have appropriate permission and/or is not under the direct supervision of their parent or legal guardian, please contact us immediately so that we can disable access to the Services.
- ADDITIONAL TERMS. When using particular services, features, and/or materials through or in connection with the CreatedBy Services, additional terms and conditions or other operating rules, policies and procedures may be applicable to, and govern, your use of such services, features, and/or materials, in addition to those in these Terms (collectively, the “Additional Terms”). You agree to comply with all such Additional Terms applicable to your use of the CreatedBy Services. All such Additional Terms are hereby incorporated into and made a part of these Terms by reference. In the event the provisions of any Additional Terms conflict with these Terms, the Additional Terms shall control solely with respect to the subject matter covered by such Additional Terms.
- MODIFICATIONS TO THESE TERMS. CreatedBy reserves the right to update or modify these Terms at any time. Except as otherwise stated in this Section 4, all updates and modifications to these documents will be effective from the day they are posted online at createdby.io as indicated by the “Last Updated” date set forth above. If we make any material changes to these Terms, we will provide you reasonable prior notice of these changes by posting a prominent notice on our website (the “CreatedBy Website”) and/or through the user-interface of the CreatedBy App. In addition, if we have an email address on file for you, we may notify you of these changes by sending a notification to such email address. Material changes to these Terms will become effective on the date set forth in the notice. It is your responsibility to regularly visit and review these Terms. If you do not agree to any updates or modifications to these Terms, do not use or access the CreatedBy Services and terminate your Account. Your continued use of the CreatedBy Services (or any part thereof) after the applicable effective date of the revised Terms (set forth above), signifies to us that you acknowledge and agree to be bound by the revised Terms.
- USER DATA; PRIVACY; GATED EXPERIENCES
- User Data. To the extent you post, transmit, submit, upload and/or otherwise provide any messages, photos, video, audio, images, data, information, text and/or any other content or materials in connection with the use of the CreatedBy Services, including, but not limited to any content, data or information you authorize to share with us, or otherwise provide to us, through or in connection with your use of Third-Party Services (as defined in Section 11.2 below) (collectively, “User Data”), you hereby grant CreatedBy a worldwide, non-exclusive, royalty-free, fully paid, transferable right and license (including through the use of subcontractors) to copy, reproduce, use, host, store, transfer, publicly display, publicly perform, transmit, reproduce, modify (for the purpose of formatting for display), and distribute your User Data, in whole or in part, in connection with your use of the CreatedBy Services, and as reasonably necessary to provide the CreatedBy Services to you, and, if you access or use the CreatedBy Services in connection with a Connected Good, to provide our services to the applicable Verifier Client pursuant to our agreement with such Verifier Client.
- Ownership; Responsibility for User Data. Subject to the licenses you grant us in these Terms, as between CreatedBy and you, you will retain ownership of User Data; provided that, notwithstanding the foregoing, you acknowledge and agree that CreatedBy may use and exploit any aggregated non-personally identifiable data or information collected or obtained from your use of CreatedBy Services for any purpose. You are solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all of your User Data and the consequences of transmitting and/or providing any User Data in connection with your use of the CreatedBy Services. You represent and warrant that (a) you have all the rights necessary to grant CreatedBy the licenses granted herein in and to your User Data, and (b) you are the legal owner of, and that you are authorized to provide us with your data and other information necessary to facilitate your use of the CreatedBy Services. Please be advised that, any User Data posted to public forums, message boards, or other communication tools or interactive features that we may make available through the CreatedBy App, including such features made available to interact with a Verifier Client or other users in connection with a Connected Good, will be considered non-confidential and non-proprietary.
- NFTs (Non-fungible Tokens). Please note that NFTs are not owned, controlled, operated, or provided by CreatedBy, and your use or interaction with any NFT, whether separately or in connection with the use of the CreatedBy Services, is governed by the terms and conditions, terms of service, and/or similar end user agreements for the applicable NFT, which shall be solely between you and the NFT Owner and Creator. CreatedBy shall not be a party to any agreement you have entered into with any NFT Owner and Creator, or have any responsibility or liability for the performance of the NFT of its obligations under or in connection with any agreements between you and the NFT Owner and Creator with respect to such Connected Good. You acknowledge and agree that your interactions and dealings with the NFT Owner and Creator and/or any other users of attendees of a Connected Good, are solely between you and the applicable NFT Owner and Creator and/or such other users. You acknowledge and agree that any problems or disputes between you and the NFT Owner and Creator and/or any other user with respect to any agreements, interactions, dealings, and/or communications must be resolved solely between you and the NFT Owner and Creator and/or such other user (as applicable). CREATEDBY IS NOT RESPONSIBLE FOR ANY LOSS, HARM OR DAMAGE OF ANY SORT INCURRED AS A RESULT OF YOUR USE OR INTERACTION WITH ANY CONNECTED GOOD AND/OR ANY INTERACTIONS, DEALINGS OR DISPUTES BETWEEN YOU AND ANY NFT OWNER AND CREATOR AND/OR OTHER USERS, AND CREATEDBY HAS NO OBLIGATION TO BECOME INVOLVED IN ANY RESULTING DISPUTE. ON BEHALF OF YOURSELF AND YOUR SUCCESSORS, ASSIGNS, REPRESENTATIVES, AGENTS, AND ANYONE ELSE CLAIMING BY OR THROUGH YOU, YOU HEREBY EXPRESSLY RELEASE, DISCHARGE, AND HOLD CREATEDBY AND ITS EMPLOYEES, AGENTS, REPRESENTATIVES, SHAREHOLDERS, OFFICERS, DIRECTORS, AFFILIATES, CONTRACTORS, SUCCESSORS OR ASSIGNEES (THE “RELEASED PARTIES”), HARMLESS FROM, AND WAIVE, ANY AND ALL CLAIMS (INCLUDING BUT NOT LIMITED TO CLAIMS FOR PROPERTY DAMAGE, PERSONAL INJURY, OR DEATH), DEMANDS, AND DAMAGES OF EVERY KIND OR NATURE, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, DISCLOSED OR UNDISCLOSED, ARISING OUT OF OR IN ANY WAY RELATED TO YOUR USE OF OR INTERACTION WITH ANY GATED EXPERIENCES AND/OR YOUR INTERACTIONS, DEALINGS, TRANSACTIONS, ENGAGEMENTS AND/OR DISPUTES WITH ANY VERIFIER CLIENTS AND/OR OTHER USERS. IF YOU ARE A CALIFORNIA RESIDENT, YOU SHALL AND HEREBY WAIVE, ON BEHALF OF YOURSELF AND YOUR SUCCESSORS, ASSIGNS, REPRESENTATIVES, EMPLOYEES, AGENTS, CLIENTS, AND ANYONE ELSE CLAIMING BY OR THROUGH YOU, CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS/HER/THEIR FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM/HER/THEM MUST HAVE MATERIALLY AFFECTED HIS/HER/THEIR SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY(IES).”
6. ACCOUNTS; COMMUNICATIONS
- Accounts. To access and use certain features of the CreatedBy Services you may need to create and register an Account. In registering an Account, you agree to provide and maintain information that is true, accurate, current, up to date, and complete. You agree that you will not (a) create an Account using a false identity or information, or (b) create an Account or use the CreatedBy Services if you have been previously removed, suspended or banned by us from use of the CreatedBy Services, or any part thereof. CreatedBy reserves the right to limit the number of Accounts that can be created from any one computer or mobile device and the number of computer or mobile devices that can access an individual Account.
- Account Security. You understand and agree that you are solely responsible for maintaining the confidentiality and security of your passwords and/or login credentials, and protecting access, to your Account. You are solely responsible for any activity originating from your Account, regardless of whether such activity is authorized by you. You agree to notify us immediately of any unauthorized use of your Account.
- Electronic Communications. By using the CreatedBy Services, you consent to receiving electronic communications from CreatedBy, including, but not limited to, communications sent via email or notifications posted on the CreatedBy Website, through the user-interface of the CreatedBy App, and/or push notifications via the CreatedBy App. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to your use of the CreatedBy Services. These electronic communications are part of your relationship with CreatedBy and you receive them as part of your purchase. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.
7. ACCESS AND USE OF THE CREATEDBY SERVICES
- Right to Access to the CreatedBy Services. Subject to your compliance with these Terms, CreatedBy hereby grants you a personal, non-exclusive, non-transferable, non-sublicensable, revocable, limited right and license to: (a) access and use the OA Product, over the internet, solely through Authentication Ecosystem, and (b) install and use the CreatedBy App (in object code only) on a mobile device and/or tablet owned and/or controlled by you, in each case, solely to use the Service for your personal, non-commercial use, and otherwise in accordance with these Terms.
7.2 Prohibited Uses. By using the CreatedBy Services (or any part thereof), you agree that you will not, and will not permit any other person to:
- Modify, adapt, translate or create derivative works based on the CreatedBy Services (or any part thereof), or any related documentation;
- Reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the CreatedBy Services (or any part thereof), except as expressly permitted by applicable law;
- Distribute, license, sublicense, assign, transfer or otherwise make available to any third party the CreatedBy Services, or any related documentation;
- Remove, alter, or obscure in any way any proprietary rights notices (including copyright notices) of CreatedBy or its suppliers on or within the CreatedBy Services, or related documentation;
- Use the CreatedBy Services to store or transmit malicious code or infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights;
- Interfere with or disrupt the integrity or performance of the CreatedBy Services (or any part thereof) or any system, network or data;
- Attempt to gain unauthorized access to the CreatedBy Services (or any part thereof), or its related systems or networks, including, without limitation, bypassing any “captcha” requirements or similar precautions;
- Frame or utilize framing techniques to enclose the CreatedBy Services or any portion thereof;
- Use any meta tags, “hidden text”, queries, robots, spiders, crawlers, or other tools, whether manual or automated, to collect, scrape, index, mine, republish, redistribute, transmit, sell, license or download the CreatedBy Services, or any content, or the personal information of others without our prior written permission or authorization;
- Create an Account using a false identity or information, or impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with any person or entity;
- Operate to defraud CreatedBy, other users, our partners, customers, or any other person, or provide false, inaccurate or misleading information;
- Access and/or use the CreatedBy Services (or any part thereof) for the purpose of developing competitive products or services;
- Violate any contract, rules or policies that govern the use of your mobile and/or tablet devices, as directed by the applicable wireless carrier and/or manufacturer of your mobile and/or tablet device;
- Use the CreatedBy Services (or any part thereof) other than in accordance with these Terms and any applicable Additional Terms; and/or
- Use the CreatedBy Services in violation of any applicable local, state, national or international law, including, without limitation, any and all applicable export laws, or otherwise engage in, promote, encourage, and/or undertake any unlawful or illegal activity including, without limitation, tax evasion, money laundering, terrorism, including, raising funds for the known terrorist organizations listed on https://www.state.gov/foreign-terrorist-organizations/) which would violate, or assist in violation of, any law, statute, ordinance, or regulation, sanctions program administered in any relevant country, including but not limited to the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”), or which would involve proceeds of any unlawful activity.
- Open Source Components. The CreatedBy App may contain third party software, including, without limitation, open source software components (collectively, “Open Source Components”). Open Source Components are not licensed under these Terms, but are instead licensed under the terms of the applicable license agreement for such Open Source Components. Your use of Open Source Components is subject to the terms of each applicable license which are available to you on request from CreatedBy. Notwithstanding any provision herein to the contrary, you are solely responsible for your compliance with such licenses. As used in these Terms, the term “CreatedBy App” does not include Open Source Components.
- Third Party Integrations. The Service may offer integration’s and/or the ability to connect with certain third party products, services or software (including, without limitation, data products and services) which are subject to separate terms and conditions (collectively, “Third Party Integration’s”). For example, we integrate with certain Crypto wallet providers (which are deemed Third Party Integration’s) to enable users to connect their Crypto wallet accounts with the CreatedBy App to verify ownership of an NFT or token held by such user in its wallet. If you decide to access and use such Third Party Integration’s, your use of such Third Party Integration’s is governed solely by the terms and conditions of such Third Party Integration’s, and CreatedBy does not endorse, is not responsible for, and makes no representations as to, such Third Party Integration’s, their content or the manner in which they handle your data. CreatedBy is not liable for any damage or loss caused or alleged to be caused by or in connection with your access or use of any such Third Party Integration’s, or your reliance on the privacy practices or other policies of such Third Party Integration’s. YOU ARE SOLELY RESPONSIBLE FOR REVIEWING AND FOR COMPLYING WITH THE APPLICABLE TERMS OF SERVICE AND PRIVACY NOTICES FOR SUCH THIRD PARTY INTEGRATIONS. FAILURE TO COMPLY MAY RESULT IN THE TERMINATION OF YOUR ACCOUNT WITH THE PROVIDER OF THE THIRD PARTY SERVICES AND INABILITY TO USE A PARTICULAR FEATURE WE OFFER.
- CreatedBy Proprietary Rights. Subject to your rights in and to User Data, as between you and CreatedBy, CreatedBy and its licensors retain all right, title and interest in and to the CreatedBy Services and any and all content, messages, data, text, graphics, images, photos, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the CreatedBy Services, and any and all modifications, enhancements and updates to any of the foregoing. All CreatedBy trademarks are strictly owned by CreatedBy, and nothing in these Terms will be construed to transfer ownership rights or grant any permission, license or other rights to any CreatedBy trademark without written authorization from CreatedBy. The trademarks, service marks, logos, and/or names of individuals, companies and/or products mentioned through the CreatedBy Services may be the trademarks of their respective owners. CreatedBy reserves all rights and licenses not expressly granted to you in these Terms and no implied license is granted by CreatedBy. The CreatedBy Services (and its underlying technology) are protected by copyright, trademark, patent, intellectual property, and other laws of the United States and foreign countries.
- Feedback. You acknowledge that any ideas, inventions, suggestions for improvement or discussions submitted by you regarding any aspect of the CreatedBy Services, including, without limitation, the functioning, features, and other characteristics thereof (or any component thereof) (“Feedback”) may be used by CreatedBy without compensation or attribution to you, and you hereby grant CreatedBy, its subsidiaries, affiliates and partners a worldwide, irrevocable, royalty free, non-exclusive, sublicensable and transferable license under all your intellectual property rights in and to such Feedback, for CreatedBy to use and exploit for any purpose.
- FEES, CHANGES TO THE CREATEDBY SERVICES. CreatedBy does not currently charge any fees for the access and/or use of the CreatedBy Services; provided that, CreatedBy reserves the right however, upon prior notice to you, to charge a fee for the CreatedBy Services (including, without limitation, charging fees to download the CreatedBy App). In addition, CreatedBy reserves the right to either temporarily or permanently modify, suspend or discontinue the CreatedBy Services (or any part thereof) with or without notice. You agree that CreatedBy will not be liable to you or to any third party for any modification, suspension or discontinuance of the CreatedBy Services (or any part thereof).
9. TERM; TERMINATION
- Term. These Terms will remain in full force and effect as long as you continue to access or use the CreatedBy Services (or any part thereof), or until terminated in accordance with the provisions of these Terms.
- Termination. You may terminate at any time by terminating your Account (if applicable), permanently uninstalling and deleting the CreatedBy App from your mobile and/or tablet devices, and ceasing all use of the CreatedBy Services. At any time, CreatedBy may (a) suspend or terminate your rights to access or use the CreatedBy Services (or any part thereof), or (b) terminate these Terms with respect to you if CreatedBy, in good faith, believes that you have used the CreatedBy Services (or any part thereof) in violation of these Terms, and/or any Additional Terms or other incorporated policies, guidelines, terms or rules set forth in these Terms.
- Effect of Termination. Upon termination of these Terms, your Account and your right to use the CreatedBy Services will automatically terminate, and you agree to cease all use of the CreatedBy Services and permanently uninstall and delete the CreatedBy App from your mobile and/or tablet devices. The rights and obligations applicable to you and/or CreatedBy under the following Sections shall survive any termination of these Terms: 1, 5, 6.3, 7.2, 7.3, 7.4, 7.5, 7.6, 7.7, 9.3, and 10 through 16.
- INDEMNIFICATION. You agree to defend CreatedBy, its employees, contractors, service providers, and/or agents, and hold us harmless from and against any and all claims, actions, demands, liabilities, losses, damages, expenses, and costs (including reasonable attorney fees) arising from (a) your breach of these Terms and/or any Additional Terms; (b) your violation of any terms and conditions, terms of service, or other agreement applicable to any Third Party Services, (c) your use or misuse of the CreatedBy Services (or any part thereof), (d) your User Data, (e) your violation of any law or the intellectual property and/or privacy rights of a third party; and/or (f) your use of or interaction with any Gated Experiences, including, but not limited to, any interactions, dealings, and/or disputes between you and any NFT Owner and Creator or other users of any Connected Good. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you hereunder, in which case, you agree to cooperate with us in the defense of the claim. Some jurisdictions limit consumer indemnities, so some portions or all of this indemnity provision may not apply to you.
11. DISCLAIMERS OF WARRANTIES & LIMITATIONS ON OUR LIABILITY
- Disclaimer of Warranties. THE CREATEDBY SERVICES AND ANY OTHER MATERIALS OR SERVICES PROVIDED BY CREATEDBY ARE PROVIDED “AS IS” AND “AS AVAILABLE.” CREATEDBY AND ITS LICENSORS AND SUPPLIERS HEREBY EXPRESSLY DISCLAIM ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, SATISFACTORY PURPOSE, ACCURACY, OR NON-INFRINGEMENT.
ALL INFORMATION AND/OR MATERIALS PROVIDED AND/OR MADE AVAILABLE THROUGH OR IN CONNECTION WITH THE CREATEDBY SERVICES REGARDING YOUR DIGITAL ASSETS, INCLUDING, WITHOUT LIMITATION, ANY AUTHENTICATION OF OWNERSHIP, IS PROVIDED FOR INFORMATIONAL PURPOSES AND PERSONAL USES ONLY. CREATEDBY ASSUMES NO LIABILITY WHATSOEVER FOR INACCURACIES, MISSTATEMENTS, OR OMISSIONS RELATED TO ANY OF YOUR DIGITAL ASSETS AND/OR AUTHENTICATIONS OF OWNERSHIP. YOUR USE OF OR RELIANCE UPON ANY AUTHENTICATION OF OWNERSHIP IS ENTIRELY AT YOUR OWN RISK, FOR WHICH CREATEDBY WILL NOT BE LIABLE.
CREATEDBY AND ITS LICENSORS AND SUPPLIERS DO NOT WARRANT OR MAKE ANY GUARANTEE THAT DEFECTS WILL BE CORRECTED OR THAT THE CREATEDBY SERVICES (OR ANY PART THEREOF), AND/OR ANY OTHER MATERIALS OR SERVICES PROVIDED BY CREATEDBY: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE COMPATIBLE WITH YOUR HOME NETWORK, COMPUTER, OR ANY THIRD PARTY PRODUCTS OR SERVICES (INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY INTEGRATIONS AND/OR CONNECTED GOOD); (C) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; OR (D) WILL BE ACCURATE OR RELIABLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM CREATEDBY, ANY THIRD PARTY, OR THROUGH THE CREATEDBY SERVICES, SHALL CREATE ANY WARRANTY.
- Disclaimer – Third Party Integration & Connected Good. CREATEDBY DOES NOT ENDORSE, IS NOT RESPONSIBLE FOR, AND MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES OF ANY KIND, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, SATISFACTORY PURPOSE, ACCURACY OR QUALITY, AS TO ANY THIRD-PARTY INTEGRATIONS AND/OR CONNECTED GOOD (COLLECTIVELY, “THIRD PARTY SERVICES”), THEIR CONTENT OR THE MANNER IN WHICH THE PROVIDERS OF SUCH THIRD PARTY SERVICES HANDLE YOUR DATA. IN ADDITION, CREATEDBY IS NOT AND WILL NOT BE A PARTY TO, OR IN ANY WAY MONITOR, ANY TRANSACTION BETWEEN YOU AND ANY PROVIDERS OF ANY THIRD-PARTY SERVICES. CREATEDBY IS NOT AND SHALL NOT LIABLE FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR ACCESS OR USE OF ANY THIRD PARTY SERVICES, OR YOUR RELIANCE ON THE PRIVACY PRACTICES OR OTHER POLICIES OF SUCH THIRD-PARTY SERVICES.
- Limitations on CreatedBy’s Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CREATEDBY BE LIABLE OR OBLIGATED, WITH RESPECT TO THESE TERMS, ANY ADDITIONAL TERMS, THE CREATEDBY SERVICES (OR ANY PART THEREOF) AND ANY OTHER MATERIALS AND/OR SERVICES PROVIDED BY CREATEDBY, WHETHER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY AND EVEN IF CREATEDBY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY OR OBLIGATION: (A) IN THE AGGREGATE, FOR ANY AMOUNTS IN EXCESS OF ONE HUNDRED DOLLARS ($100.00); (B) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; © FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, RELIANCE, OR CONSEQUENTIAL DAMAGES; (D) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA; OR (E) FOR ANY MATTER BEYOND CREATEDBY’S REASONABLE CONTROL. THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY EVEN IF THESE TERMS OR ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. CREATEDBY DISCLAIMS ALL LIABILITY OF ANY KIND OF CREATEDBY’S AFFILIATES, LICENSORS AND SUPPLIERS.
- Application of disclaimers and limitations to Consumers. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages with respect to consumers (i.e., a person acquiring goods otherwise than in the course of a business), so the disclaimers, exclusions and limitations set forth in this Section 11 may not apply to you if you are a consumer. The limitations or exclusions of warranties and liability contained in these Terms do not affect or prejudice the statutory rights of a consumer. The limitations or exclusions of warranties and remedies contained in these Terms shall apply to you as a consumer only to the extent such limitations or exclusions and remedies are permitted under the laws of the jurisdiction where you are located.
- Basis of the Bargain. The warranty disclaimer and limitation of liability set forth above in this Section 11 are fundamental elements of the basis of the agreement between CreatedBy and you. CreatedBy would not be able to provide the CreatedBy Services on an economic basis without such limitations. The warranty disclaimer and limitation of liability inure to the benefit of CreatedBy’s suppliers.
- AVAILABILITY OF THE CREATEDBY SERVICES. Information describing the CreatedBy Services is accessible worldwide but this does not mean the CreatedBy Services, or certain portions thereof, are available in your country. CreatedBy may restrict access to the CreatedBy Services, or portions thereof, in certain countries in its sole discretion. It is your responsibility to make sure your use of the CreatedBy Services is legal in your country of residence. The CreatedBy Services may not be available or accessible in all languages.
13. APP STORE RIGHTS – THIRD PARTY BENEFICIARIES
- Third Party Rights. You acknowledge and agree that certain distributors (such as app store providers) are intended beneficiaries of these Terms and have the right to enforce these Terms directly against you. Other than as set out in this Section 13, these Terms are not intended to grant rights to anyone except you and CreatedBy, and in no event shall these Terms create any third party beneficiary rights. Furthermore, the rights to terminate, rescind, or agree to any variation, waiver, or settlement of these Terms are not subject to the consent of any other person.
- iOS App. The following additional terms and conditions apply with respect to any CreatedBy App provided or made available to you by CreatedBy hereunder designed for use on an Apple iOS-powered mobile device (an “iOS App”): You acknowledge that these Terms are between you and CreatedBy only, and not with Apple, Inc. (“Apple”). Your use of the iOS App must comply with Apple’s then-current App Store Terms of Service. You acknowledge and agree that: (a) CreatedBy, and not Apple, is solely responsible for the iOS App and related content available thereon; (b) Apple has no obligation to provide maintenance and support services with respect to the iOS App; (c) CreatedBy, and not Apple, is responsible for addressing any claims by you relating to the iOS App or your possession and/or use of the iOS App, including, but not limited to, (i) product liability claims, (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement, and (iii) claims arising under consumer protection or similar legislation, and all such claims are governed solely by these Terms and any law applicable to CreatedBy as the provider of the iOS App; and (c) CreatedBy, and not Apple, shall be responsible, to the extent required by these Terms, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to the iOS App or your possession and use of the iOS App. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to the iOS App. You represent and warrant that you: (i) 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) are not listed on any U.S. Government list of prohibited or restricted parties. You agree to comply with all applicable third-party terms of agreement when using the iOS App (e.g., you must not be in violation of its wireless data service terms of agreement when using the iOS App). The parties agree that Apple and Apple’s subsidiaries are third-party beneficiaries to these Terms as it relates to the license granted herein to you to use the iOS App. Upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as they relate to the license granted herein to you to use the iOS App as a third-party beneficiary thereof.
- Android App. The following additional terms and conditions apply with respect to the CreatedBy App provided or made available to you by CreatedBy, designed for use on an Android-powered mobile device and/or tablet (an “Android App”): you acknowledge that these Terms are between you and CreatedBy only, and not with Google, Inc. (“Google”). Your use of the Android App must comply with Google’s then-current Android Market Terms of Service. Google is only a provider of the Android Market where you have obtained the Android App. CreatedBy, and not Google, is solely responsible for the Android App and the related content available thereon. Google has no obligation or liability to you with respect to the Android App or these Terms. You acknowledge and agree that Google is a third-party beneficiary to these Terms as it relates to the Android App.
14. GOVERNING LAW AND DISPUTE RESOLUTION
- Governing Law. These Terms shall be governed in all respects by and construed in accordance with the laws of the State of Nevada, without regard to its conflicts of laws principles. The United Nations Convention on Contracts for the International Sale of Goods in its entirety is expressly excluded from these Terms. Furthermore, neither these Terms (including, without limitation, the CreatedBy App and OA Product) will be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA) or any other act derived from or related to UCITA.
- Disputes. You agree that any dispute between you and CreatedBy arising out of or relating to these Terms, the CreatedBy Services (or any part thereof), and/or any content, materials, and/or services provided by CreatedBy hereunder (collectively, “Disputes”) shall be governed by the provisions set forth in this Section 14.
- Notice of Disputes. A party who intends to seek arbitration or bring other action permitted under this Section 14 with respect to any Dispute, must first send a written notice of the Dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Dispute Notice”). CreatedBy’s address for Dispute Notices is: CreatedBy Inc., Attention: Notice of Dispute, 3600 E Saddle Ave Las Vegas, NV 89121. The Dispute Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought.
- Informal Resolution. You and CreatedBy agree to use good faith efforts to resolve the Dispute directly, but if we do not reach an agreement to do so within 30 days after the Dispute Notice is received, you or CreatedBy may commence an arbitration proceeding or other permitted action, as set forth in this Section 14.
- Agreement to Arbitrate. In the interest of resolving Disputes between you and CreatedBy in the most expedient and cost-effective manner, and except as described in Section 14.9, you and CreatedBy agree that every dispute arising in connection with these Terms will be resolved by binding individual (not class) arbitration (the “Agreement to Arbitrate”). Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This Agreement to Arbitrate includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. THIS AGREEMENT TO ARBITRATE MEANS YOU AND CreatedBy WAIVE YOUR/ITS RESPECTIVE RIGHTS TO A JURY TRIAL. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. THE AGREEMENT TO ARBITRATE AND THE ARBITRATION PROVISIONS SET FORTH IN THIS SECTION 14 ARE GOVERNED BY THE FEDERAL ARBITRATION ACT.
- Arbitration. Any arbitration between you and CreatedBy will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules in effect at time the claim is submitted (the “Rules”) as modified by this Section 14.6. You and we agree that the following rules will apply to the proceedings: (a) the arbitration will be heard and determined by a single, neutral arbitrator selected in accordance with the Rules; (b) the arbitration will take place in the county where you live or at another mutually agreed location; (c) the arbitration will be conducted by telephone, online, or based solely on written submissions (at the choice of the party seeking relief); (d) the arbitration must not involve any personal appearance by the parties or witnesses (unless we and you agree otherwise), and provided that, Disputes that involve a claim of more than $10,000 USD must be resolved per the Rules about whether the arbitration hearing has to be in-person; and (e) any judgment on the arbitrator’s rendered award may be entered in any court with competent jurisdiction. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement. The arbitrator shall have the authority to grant all relief that a court of competent jurisdiction could order, including awards of attorney’s fees and costs. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. A party electing arbitration must initiate proceedings by filing an arbitration demand with the AAA. The Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879.
- Fees. You are responsible for paying your portion of the fees set forth in the AAA fee schedule and CreatedBy will be responsible for the remainder of the fees. If you believe you cannot afford the AAA fees, you may apply to AAA for a fee waiver. If the arbitrator finds that either the substance of your claim or the relief sought in the demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the Rules. In that case, you agree to reimburse CreatedBy for all monies previously disbursed by it that are otherwise your obligation to pay under the Rules.
- Opting-Out of Arbitration. If you do not wish to resolve disputes by binding arbitration, you may opt out of the Agreement to Arbitrate within 30 days after the date that you first agree to these Terms by sending a letter to CreatedBy Inc., Attention: Arbitration Opt-Out, 3600 E Saddle Ave Las Vegas, NV 89121, that specifies: your full legal name, the email address used to register an Account (if applicable), and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once CreatedBy receives your Opt-Out Notice, the Agreement to Arbitrate will be void and the parties agree that the exclusive jurisdiction and venue described in Section 14.10 will govern any action arising out of or related to these Terms. The remaining provisions of this Section 14 will not be affected by your Opt-Out Notice.
- Exception to Arbitration. Notwithstanding anything in these Terms to the contrary to the extent you have in any manner violated or threatened to violate any of CreatedBy’s intellectual property rights, CreatedBy may seek injunctive or other appropriate relief in any state or federal court with competent jurisdiction in any country, including in the State of Nevada, United States of America, without first engaging in arbitration or the informal dispute process set forth in this Section, and you hereby consent to the personal jurisdiction and exclusive venue in such courts. In addition, despite the Agreement to Arbitrate, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; or (c) seek injunctive relief in a court of law in aid of arbitration.
- Enforceability; Venue. If the Agreement to Arbitrate is found not to apply to your or our claim, you and CreatedBy agree that any judicial proceeding will be brought in the federal or state courts located in Clark County, Nevada. Both you and CreatedBy consent to venue and personal jurisdiction there.
- Prevailing Party. Subject to Section 11, in the event that either party institutes any arbitration, legal suit, action or proceeding against the other party arising out of or relating to these Terms and/or the CreatedBy Services (or any part thereof), the prevailing party in the suit, action or proceeding shall be entitled to receive in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action or proceeding, including reasonable attorneys’ fees and expenses and court costs.
- No Class Actions. YOU MAY ONLY RESOLVE DISPUTES WITH CREATEDBY ON AN INDIVIDUAL BASIS, AND MAY NOT BRING A CLAIM AS A PLAINTIFF OR A CLASS MEMBER IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION. CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS AREN’T ALLOWED UNDER THESE TERMS.
- Time Limitation to Bring Claims. Notwithstanding any statute or law to the contrary, you expressly acknowledge and agree that any claim or cause of action arising out of or related to your use of CreatedBy Services (or any part thereof) or these Terms must be filed within one (1) year after such claim or cause of action arose, otherwise that claim or cause of action will be barred forever.
- NOTICES TO CREATEDBY. Except as otherwise expressly required in these Terms, any notices permitted under these Terms must be sent to CreatedBy by (1) email: firstname.lastname@example.org, Subject Line: Legal Notice; or (2) certified U.S. Mail or by Federal Express (signature required) to CreatedBy Inc., Attention: Legal Department, 3600 E Saddle Ave Las Vegas, NV 89121.
- The parties acknowledge and agree that they are dealing with each other as independent contractors and nothing in these Terms and/or its performance shall be construed as creating a joint venture or agency between CreatedBy and you.
- Neither the rights nor the obligations arising under these Terms are assignable by you, and any such attempted assignment or transfer shall be void and without effect. CreatedBy may freely assign these Terms and/or delegate the performance of any services hereunder to its affiliates, employees and contractors.
- Any waiver of any provision of these Terms must be in writing and executed by both parties. The failure of either party to exercise any right provided for by these Terms shall not be deemed a waiver of that right.
- If any term or provision of these Terms is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, that provision shall be stricken from these Terms and shall not affect the legality, enforceability or validity of the remainder of the provisions set forth in these Terms.
- Any delay in performance of any duties or obligations of either party will not be considered a breach of these Terms if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, telecommunications or Internet failure, plague, epidemic, pandemic, outbreaks of infectious disease or any other public health crisis, including quarantine or other employee restrictions, or any other event beyond the reasonable control of such party.
- The headings of Sections of these Terms are for convenience and are not to be used in interpreting these Terms. As used in these Terms, the word “including” means “including but not limited to.” You agree that these Terms will not be construed against CreatedBy by virtue of having drafted them. The official text of these Terms (and any notice submitted hereunder) will be in English. The parties acknowledge that they require that these Terms be drawn up in the English language only. Les parties reconnaissent qu’elles ont exigé que la présente convention soit rédigée en language anglaise seulement. In the event of any dispute concerning the construction or meaning of these Terms, reference will be made only to these Terms as written in English and not to any translation into another language.