TERMS OF SERVICE

Last Updated: 16 May 2024

These Terms of Service ("Terms of Service") govern your use of the https://motleys.xyz website, including your purchase of any MOTLEYs NFTs; by using this website or attempting to purchase a MOTLEYs NFT, you accept these Terms of Service in full. If you disagree with these Terms of Service or any part of these Terms of Service, you must not use the https://motleys.xyz website or attempt to purchase a MOTLEYs NFT.

These terms of service must be read in conjunction with and incorporate the NFT License.

1. Definitions

“395 Labs” means we, us, our, the creator, 395 Labs and its affiliates.

“Art” means any art, design, drawing, or other pictorial or graphic work of authorship embodied by a MOTLEYs NFT you own.

“Content” means text, images, audio material, video material, audio-visual material, or other forms of media.

“Licensed NFT” Means a non-fungible token that you Own and was originally minted from 395 Labs.

“NFT” means any blockchain-tracked, non-fungible token.

“Marketplace” means a secure marketplace where NFTs are sold, transferred, and recorded on the applicable blockchain and such transactions can be proven by the applicable blockchain.

“NFT License” refers to a separate document that outlines the NFT License agreement between 395 Labs and the Owner.

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

“Owner” means someone who been granted the rightful legal license to use the Licensed NFT.

2. Your Acceptance

These Terms of Service constitute an agreement ("Agreement") between 395 Labs (395) the owner and operator of the MOTLEYs website, https://motleys.xyz (the “Site” or “Website”), and you (“you”, “your” or “user(s)”), a user of the Site.

Throughout this Agreement, the words “395,” “us,” “we,” and “our,” refer to our entity, 395 Labs.

BY ACCESSING THIS WEBSITE, YOU AGREE TO AND ACCEPT THESE TERMS OF SERVICE IN FULL AND WITHOUT RESERVATION. IF YOU DISAGREE WITH THESE TERMS OF SERVICE, YOU MAY NOT USE THIS WEBSITE OR ATTEMPT TO PURCHASE ANY MOTLEYS NFTS.

We may amend this Agreement at any time so please come back and review these Terms of Service often.

3. 395 Ownership

Unless otherwise stated, 395 and/or its licensors and affiliates own the intellectual property rights published on this website, including all text, data, graphics, photographs, images, audio, video, trademarks, service marks, trade names, and other information, visual or other digital material, software (including source and object codes), and all other content or any description available on the Site or available via a link from Site to a page created by 395 on another website (collectively, the '395 Content'). The 395 Content is the sole property of 395 and/or its licensors, affiliates, or third-party service providers.

You acknowledge and agree that 395 and/or its licensors and affiliates own all legal rights, title, interest in the Art associated with any Licensed NFTs, and all intellectual property rights, including but not limited to, trademark and copyright rights, therein. Any rights provided to you upon purchase or ownership of a Licensed NFT are limited to those expressly stated in the NFT License. 395 reserves all rights and ownership to the Licensed NFTs and Art not specifically granted to the User in this Agreement.

Furthermore, it's important to emphasise that these terms do not confer upon you any additional rights or licenses, whether implied, estoppel, or otherwise, except for the limited rights expressly granted herein.

4. Purchase

Any payments of financial transactions that you conduct or engage in through our minting Site are final. You acknowledge and understand that the Site cannot and will not reverse any payments or transactions. All purchases of Licensed NFTs, as well as any associated charges, are non-refundable.

You shall be responsible for all applicable taxes including any sales or compensating use tax or equivalent tax wherever such tax may arise.

The user accepts and acknowledges that 395 and its Affiliates will not be responsible for any communication failures, disruptions, distortions, delays, or any other errors that may arise when you attempt to purchase any Licensed NFTs.

5. User Ownership

The NFT License grants users the right to use the associated Art without conferring ownership. Legal ownership, title, and intellectual property rights linked to the Art are retained by 395 and its licensors. User rights are governed by the terms specified in the NFT License agreement, with any additional rights explicitly reserved by 395. This ensures that 395 Labs maintains complete control and ownership of the Art while providing specific usage rights to NFT owners.

6. Restrictions to Use

You understand and agree that you are required to incorporate all elements and traits of your Licensed NFT when producing any physical merchandise. The individual layers and traits of the Licensed NFTs belong solely to 395 and/or its licensors and affiliates. Commercialization rights are limited to the owned Licensed NFTs. Usage of the Art or creation of Derivatives promoting unlawful, defamatory, harassing, abusive, fraudulent, racist, hateful, vulgar, cruel, illegal, or obscene activity is strictly prohibited. Additionally, attempting to acquire additional intellectual property rights in your Licensed NFT is not allowed.

7. Transfer

When transferring your MOTLEYs NFTs, use approved marketplaces and include the NFT License. Note that the Creator Fee, while optional, may be applicable and can be paid at the time of transfer, depending on the platform. The License transfers to the new owner, relinquishing your rights to use the Art and Derivatives. Others may own and distribute physical embodiments authorised by you, but you cannot distribute or transact those in your possession or control. Please refer to our 'Transfer' clause of our NFT License for full details. 

8. Termination of License

The licensed rights granted to you under Section 5 of this Agreement shall automatically terminate if you perform any of the following actions: (1) you sell, trade, donate, or otherwise transfer your Licensed NFT in any manner; (2) you breach any terms of this Agreement or any Terms & Conditions for the designated NFT Trading Platform; or (3) you engage in or initiate any legal actions against 395 and/or any of their affiliates.

Upon termination of your licensed rights, you must immediately cease and desist all activities and rights granted to you under Section 5. This includes discontinuing all activities involving the Licensed NFT for your personal use and refraining from creating or selling physical merchandise that incorporates the Art of the Licensed NFT.

395 Labs (395) reserves the right to exercise this termination clause at its sole discretion and without prior notice or explanation.

9. Assumption of Risk

You understand and agree that the Licensed NFTs are made solely for entertainment purposes only. You agree and understand that: (1) the market and prices for a blockchain asset are extremely volatile and subjective and collectible blockchain assets, such as the Licensed NFTs, have no inherent or intrinsic value, and fluctuations in the price of such blockchain assets could materially and adversely affect the price and value of your Licensed NFTs; (2) there are risks involved with using internet-based currency and asset, including, but not limited to, risk of hardware, software, internet connection failure, risk of malicious software, and risk that unauthorised parties may gain access to your personal information including such information and assets contained in your digital wallet or elsewhere; (3) internet-based currency and assets are not currently regulated by any regulatory regimes, and new regulations or policies that may materially affect the value of any Licensed NFTs; (4) there is an inherent risk that you may lose access due to loss of private keys, custodial error, or even purchaser error; (5) there are risks related to taxation; and (6) 395 does not make any guarantees or representations about the availability of the Licensed NFTs or the art or that they will host the Licensed NFTs or the Art in any specific location for any specific period of time.

You agree that you have received sufficient information to make an informed decision regarding the decision to purchase or otherwise obtain the Licensed NFTs and that you understand and agree that you are solely responsible for determining the value, nature, and appropriateness of the above risks for yourself.

10. Limitation of Liability

All licensed NFTs are provided “as is” and “as available” without warranties of any kind either express or implied. 395 and its affiliates hereby disclaim all warranties, expressed or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement. In no event shall 395 be liable to you for any indirect, extraordinary, exemplary, punitive, special, incidental, or consequential damages (including loss of data, goodwill, work stoppage, diminution of value or any other intangible loss, technology failure, or malfunction, revenue, profits, use or other economic advantage related to any licensed NFT or otherwise) however arising, even if 395 knows there is a possibility of such damage.

11. Copyright

The Australian Copyright Council (the "ACC") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under the Australian copyright law. If you believe in good faith that materials hosted by 395 infringe your copyright please send us an email via motleysnft@hotmail.com

In addition, we respect intellectual property rights. We reserve the right, in our sole and absolute discretion, to issue a takedown request if we have reason to believe that intellectual property rights have been violated in accordance with our Terms of Service for compliance with Digital Millennium Copyright Act of 1998 (the "DMCA").

12. Site Availability and Modification

While we strive to maintain continuous availability of the Site for your convenience, we cannot guarantee that the Site will always be accessible or operational. We retain the right to make alterations, modifications, updates, or removals of specific parts of our Site at our discretion. Such changes may be implemented for various reasons, including security, protection of intellectual property, legal compliance, or other considerations. It's important to note that this section does not impose an obligation on us to make updates to the Site for security, legal, or any other reasons.

13. Unauthorised Conduct

When accessing or using our Site, you are solely responsible for your actions, and you agree to abide by the following rules of conduct:

You agree not to copy, distribute or disclose any part of the Site in any medium, including without limitation by any automated or non-automated “scraping;”

You agree not to attempt to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the servers running the Site;

You agree not to use any robot, spider, crawler, scraper or other automated means or interface not provided by us to access the Site or to extract or export data collected through the Site;

You agree not to take any action that imposes, or may impose at our sole discretion, an unreasonable or disproportionately large load on our infrastructure; You agree that you will not hold 395, any of its affiliates, or its third-party providers responsible for your use of the Site;

You agree not to violate any requirements, procedures, policies, or regulations of networks connected to 395;

You agree not to interfere with or disrupt the Site;

You agree not to post anything contrary to our public image, goodwill, or reputation;

You agree to not violate any Australian federal laws, state laws, or local laws while using the Site; and

You agree not to use the Site in any way that is: misleading, unlawful, defamatory, obscene, invasive, threatening, harmful, or harassing.

If you are discovered to be undertaking any of the aforementioned actions your privileges to use our Site may, at our discretion, be terminated or suspended. 395 reserves the right to suspend or terminate your access at any time without notice or explanation.

14. Indemnity

You agree to defend, indemnify and hold harmless 395, its officers, directors, employees, affiliates, third-parties, and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to solicitor's fees) arising from:

your use of any 395 Site;

your use of any 395’ affiliate services;

your violation of any term of this Agreement; or

arising out of any claim that you have breached any provision of these Terms of Service.

This defence and indemnification obligation will survive this Agreement. You also agree that you have a duty to defend us against such claims and we may require you to pay for a solicitor(s) of our choice in such cases.  You agree that this indemnity extends to requiring you to pay for our reasonable solicitor fees, court costs, and disbursements.  In the event of a claim such as one described in this paragraph, we may elect to settle with the party/parties making the claim and you shall be liable for the damages as though we had proceeded with a trial.

15. Choice of Law & Venue

This Agreement and any actions related to it shall be governed by the laws of New South Wales, Australia, and Australian Federal law, with foreign laws not applicable. The offer and acceptance of this contract are deemed to have occurred in Australia.

Any disputes or claims arising from this Agreement, including those related to the MOTLEYs website, the NFT License, and the purchase and ownership of MOTLEYs NFTs, shall be exclusively subject to the jurisdiction of the courts located within the state of New South Wales, Australia. By agreeing to this Agreement, you waive any objection to the venue of such courts and any claim that such courts are an inconvenient forum.

16. Forum

By using this Site, you agree that: (1) any claim, dispute, or controversy you may have against us, 395, or the Site arising out of, relating to, or connected in any way with this Agreement or any Licensed NFTs purchased shall be resolved exclusively by final and binding arbitration. This arbitration process will be administered by the Australian Competition and Consumer Commission ("ACCC"), an independent authority with expertise in dispute resolution, ensuring a fair and impartial resolution for all parties involved.

17. Project

395 Labs (395) reserves the rights permitted under this Agreement. In the event that the project does not sell out, certain aspects of the roadmap may need to be re-evaluated. We acknowledge that unforeseen circumstances beyond our reasonable control, such as acts of God, natural disasters, war, terrorism, strikes, labor disputes, government actions, internet disruptions, or other uncontrollable events ('Force Majeure Events'), may impact our ability to perform our obligations under these Terms of Service, the NFT License, or any associated agreements or policies.

During the occurrence of a Force Majeure Event, 395 Labs (395) will make reasonable efforts to mitigate the impact on its obligations. However, we shall not be held liable for any losses, damages, or consequences resulting from such events.

Once fully minted, a percentage of any secondary creator fees earned will be set aside as part of the MOTLEYverse treasury to fund further project development. Additionally, 395 has the option to offer more features, content, items, or other benefits exclusively to MOTLEYs NFT holders ('Additional Features'). It is important to note that 395 is not obligated to provide any Additional Features, and obtaining a MOTLEYs NFT does not guarantee their receipt. If any Additional Features become available, they may be subject to their own set of terms of service, which will be presented to you at the time of their availability.

18. Marketing and promotional rights

395 Labs explicitly reserves the exclusive and indefinite right to employ any NFT minted from the MOTLEYs collection for the specific purpose of promoting the MOTLEYs project. This promotion may occur directly or indirectly, across various platforms, including but not limited to the website https://motleys.xyz and all associated social media pages. Such promotional activities may involve the display, sharing, and endorsement of NFTs minted from the MOTLEYs collection, with the primary goal of actively engaging our community and enhancing awareness of the MOTLEYs project.

By participating in the MOTLEYs project and minting and/or owning NFTs from the MOTLEYs collection, you explicitly acknowledge and consent to our utilisation of these NFTs for marketing purposes, as defined herein.

Furthermore, you acknowledge that all intellectual property rights associated with the MOTLEYs NFTs, including the underlying artwork, remain the exclusive property of 395 Labs and its licensors. Ownership of an NFT does not confer ownership of the intellectual property rights.

Should you have any questions or concerns regarding the use of NFTs minted from the MOTLEYs collection for marketing purposes or any other aspect of our project, please feel free to contact our team.

19. Class Action Waiver

You and 395 agree that any proceedings to resolve or litigate any dispute whether through a court of law or arbitration shall be solely conducted on an individual basis.  You agree that you will not seek to have any dispute heard as a class action, representative action or collective action.

EACH PARTY HEREBY EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BROUGHT BY OR AGAINST EITHER PARTY IN CONNECTION WITH THIS LICENSE.

20. Severability

If a provision of this Agreement is found to be unlawful, conflicting with another provision of the Agreement, or otherwise unenforceable, the Agreement will remain in force as though it had been entered into without that unenforceable provision being included in it.

If two or more provisions of this Agreement or any other agreement you may have with 395 are deemed to conflict with each other’s operation, you agree that 395 shall have the sole right to elect which provision remains in force.

21. Waiver

We maintain all rights granted to us under this Agreement and applicable laws. Our decision not to enforce a specific provision of the Agreement or any applicable law does not mean we waive the right to enforce that provision in the future, under the same or different circumstances. We retain the ability to enforce our rights at any time in the future, regardless of past non-enforcement.

22. No Joint Venture

This Agreement shall not constitute a joint venture, partnership, employment, or agency relationship between 395 and MOTLEYs NFT holders ('Parties'). The Parties expressly acknowledge and agree that they are entering into this Agreement as independent entities, each maintaining their separate legal identities and responsibilities. This Agreement outlines the terms of their collaboration and does not create any business entity, joint enterprise, or shared ownership. 

23. Survival

All provisions of this Agreement that, by their nature, should survive termination shall indeed continue to be in effect following termination. These provisions include, but are not limited to, ownership provisions, warranty disclaimers, indemnity, and limitations of liability. It's important to understand that we retain the right to terminate your access to our Site at any time and for any reason. You acknowledge and agree that we are not obligated to provide you with continued access to our Site, and such termination may occur at our sole discretion.

24. Age

All users who access the site or purchase Licensed NFTs must be 18 years of age or older. By using this site and acquiring Licensed NFTs, you affirm and represent that you meet this age requirement. We prioritise the safety and compliance of our users, and adherence to this age requirement is essential to ensure a secure and legally compliant user experience.

25. Amendments

We may occasionally update these Terms of Service and/or NFT License, and if any material changes are made, we will make this available on our website. However, it is your responsibility to regularly review these Terms of Service and applicable NFT License for any such updates. If you continue to access or use the MOTLEYs NFTs or MOTLEYs NFT Art after the Terms of Service and/or NFT License has been modified, you will be deemed to have accepted the updated Terms of Service and/or NFT License.