This Murder Head Death Club NFT Purchase and License Agreement (this “Agreement”) is a legally binding agreement by and between NFT Studio Holdings, Inc. (“OPEN3” or “us”) and any owner of any Murder Head Death Club NFT (defined below) (“you” or “Purchaser”). OPEN3 and each Purchaser may be referred to throughout this Agreement collectively as the “Parties” or individually as a “Party”. By purchasing or otherwise owning a Murder Head Death Club NFT, you acknowledge that you have carefully read and agree to the terms of this Agreement.
WHEN YOU AGREE TO THESE TERMS, YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND OPEN3 THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTIONS 14 “DISPUTE RESOLUTION” BELOW FOR DETAILS REGARDING ARBITRATION. HOWEVER, IF YOU ARE A RESIDENT OF A JURISDICTION WHERE APPLICABLE LAW PROHIBITS ARBITRATION OF DISPUTES, THE AGREEMENT TO ARBITRATE IN SECTION 13 WILL NOT APPLY TO YOU BUT THE PROVISIONS OF SECTION 15 (GOVERNING LAW) WILL APPLY INSTEAD.
1. Agreement to Terms. “Murder Head Death Club NFT”refers to a non-fungible token (NFT) (i.e., a controllable electronic record recorded on a blockchain) that, as of its genesis issuance, is linked to an image of Art, as applicable. “Art” means the image of a cartoon severed head linked to a particular NFT. For avoidance of doubt, the Art is digital in nature and does not include, is not linked to, and is not sold together with, any items or representations that have physical dimensions such as mass or volume.
(a) Additional Terms: Murder Head Death Club NFTs may be available for purchase on one or more platforms, such as OpenSea (each, a “NFT Marketplace”), which is not owned or operated by us. The access and use of the NFT Marketplace are subject to the separate terms of the NFT Marketplace. In addition, OPEN3 may make various programs or benefits available to owners of Murder Head Death Club NFTs, which will be subject to separate terms as OPEN3 may promulgate from time to time.
2. Ownership of Murder Head Death Club NFT.
(a) When Purchaser acquires a Murder Head Death Club NFT, Purchaser owns all personal property rights to that Murder Head Death Club NFT (e.g., the right to freely sell, transfer, or otherwise dispose of that Murder Head Death Club NFT). Such rights, however, do not include the ownership of the intellectual property rights in the Art. Such rights are licensed pursuant to Section 3 below.
(b) Purchaser represents and warrants that it will not transfer a Murder Head Death Club NFT in any subsequent transaction to a Transferee that is (i) 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; or is (ii) listed on any U.S. Government list of prohibited or restricted parties (“Prohibited Transferees”). A “Secondary Transaction” means any transaction in which a Murder Head Death Club NFT is sold by one owner to another owner after the initial purchase of the Murder Head Death Club NFT.
(a) Non-Commercial License. Subject to your compliance with this Agreement, OPEN3 hereby grants to you, for so long as you own a Murder Head Death Club NFT (as recorded on the relevant blockchain), a non-exclusive, worldwide, royalty-free, revocable license, with no right to sublicense, to use, copy, display the Art linked to your purchased Murder Head Death Club NFT for the following purposes: (i) for your own personal, non-commercial use (e.g., personal display), including to create a reasonable number of back-up copies and a physical print out, each to be retained only for so long as you own the associated Murder Head Death Club NFT; (ii) to sell or otherwise transfer the associated Murder Head Death Club NFT consistent with the ownership of it (e.g., posting a sales listing on an NFT marketplace); and (iii) to use it in connection with any offering compatible with the Murder Head Death Club NFT. Each Murder Head Death Club NFT may be compatible with, or support entitlements offered by OPEN3 or a third party. Such entitlements may be provided to you pursuant to separate terms and conditions.
(b) Commercial License to Art. In addition, subject to your compliance with this Agreement and restrictions and limitations set forth in Section 4, OPEN3 and its licensors hereby grant to you, for so long as you own a Murder Head Death Club NFT that, as of its genesis issuance, is linked to an image of Art (as recorded on the relevant blockchain), a limited, royalty-free, worldwide, revocable license, with the right to sublicense, to use, copy, distribute, and display the Art linked to your purchased Murder Head Death Club NFT for Commercial Purposes. “Commercial Purposes” means the creating, selling, and marketing of: (i) physical goods (e.g., apparel) (but specifically excluding branded water products), or (ii) tangible or intangible media (e.g., comic books, e-books, video games, film and television productions), each that feature the Art. These rights do not include the right to create derivative works of the Art except to the extent reasonably necessary to depict the Murder Head Death Club NFT character in or on the goods or media created pursuant to the exercise of this license (e.g., showing the Murder Head Death Club NFT’s full body or back). The license in this Section 3(b) is exclusive, except as to OPEN3 and its licensors, who may also freely exploit the Art in any manner or medium whatsoever now and in the future without payment or consideration of any kind to you or any third party. Without limitation to Section 10, upon any termination of your commercial license to the Art in this Section 3(b), you shall cease all marketing, distribution, or sale of goods and media that feature the Art and shall cease all further use of the Art including without limitation, for Commercial Purposes.
(c) Transfer. The licenses in Section 3 are non-transferrable, except that they will automatically transfer in connection with a permitted transfer of the Murder Head Death Club NFT.
4. Reservation of Rights.
(a) General. All rights in and to the Art not expressly provided for in this Agreement are hereby reserved by OPEN3. The Art is licensed, not sold. OPEN3 or its licensors owns and will retain all title, interest, ownership rights and intellectual property rights in and to the Art. Without limitation, Purchaser shall not, nor permit any third party to do or attempt to, do any of the following without express prior written consent from OPEN3 or its licensors: (i) modify the Art except as expressly permitted herein; (ii) use the Art as a brand or trademark or to advertise, market, or sell any product or service, except to market or sell any merchandise or works created from the exercise of your license to Art for Commercial Purposes as defined in Section 3(b) above; (iii) use the Art in connection with media or merchandise that promotes hate speech, illegal activities, vulgarity (e.g., pornography), offensive behavior, violence, cruelty or political statements, or would otherwise be deemed offensive to the community in OPEN3 or its licensors’ sole discretion; (iv) attempt to register any trademark, copyright, or otherwise acquire additional intellectual property rights in or to the Art; (vi) represent or imply that your exercise of the license in Section 3(b) is endorsed by or affiliated with OPEN3, its licensors, or any other party associated with the Murder Head Death Club NFTs; (vii) make defamatory or dishonest statements about OPEN3, OPEN3’s licensors, or the Murder Head Death Club NFTs or otherwise damage the goodwill, value or reputation of OPEN3, OPEN3’s licensors, or the Murder Head Death Club NFTs; or (viii) use the Art in a manner that infringes any third party’s intellectual property, publicity, privacy, or other right.
(b) Limitations. Without limitation of Section 4(a) above, the license in Section 3(b) does not include: (1) the right to use the Art to create additional non-fungible or fungible tokens or other digital assets accounted for on a distributed ledger; (2) the right to create derivative works of the Art comprising new characters, severed heads, or replicas of the Art featured in the Murder Head Death Club NFTs that you do not own; (3) the right to use the Art as a trademark or brand or for any other fundraising, advertising, marketing, or similar purposes (other than to advertise or market the works that have been made in accordance with Section 3(b)); or (4) sell the Art as a security.
(c) No Rights to Trademarks. For avoidance of doubt, the licenses in Section 3 do not include the right to, and you may not, use any OPEN3 or any of its licensors trademarks (e.g. OPEN3, an OPEN3 licensor, or the names of any Murder Head Death Club NFTs or any other trademarks or logos that are proprietary and included in the Art). No trademark or other rights based on designation of source or origin are licensed to you. You may not use or attempt to register any asset, including any domain names, social media accounts or related addresses, that contains or incorporates any artwork, other representation, name or mark that may be confusingly similar to such trademarks.
(d) Enforcement. OPEN3 and its licensors reserve the exclusive right to: (i) register and otherwise protect all intellectual property and other rights in the Art and in any OPEN3 or its licensors’ trademarks and (ii) enforce the intellectual property rights in the Art and in any OPEN3 and its licensors’ trademarks.
(e) Injunctive Relief. Purchaser hereby agrees that a breach or threatened breach of Sections 3 or 4 of this Agreement by Purchaser would cause OPEN3 or it’s licensors to suffer irreparable harm and that OPEN3 and/or it’s licensors will therefore be entitled to seek equitable relief to enforce this Agreement.
5. Transfers and Secondary Transactions.All Secondary Transactions of the Murder Head Death Club NFTs are subject to the following terms: (a) the Murder Head Death Club NFT transferee (the “Transferee”) shall, by purchasing, accepting, accessing or otherwise using the Murder Head Death Club NFT or Art, be deemed to accept all of the terms of this Agreement as a “Purchaser” hereof; and (b) OPEN3 shall be entitled to receive 6.66% of the gross amounts paid by the Transferee (the “Royalty Payment”). Notwithstanding the foregoing, additional fees may apply based on the structure of the Secondary Transaction in question and as determined by OPEN3 in its sole discretion. OPEN3 shall be paid the Royalty Payment on the same terms and at the same time as Transferor is paid by the Transferee. Purchaser further acknowledges and agrees that all subsequent transactions of the Murder Head Death Club NFT will be effected on the blockchain network governing the Murder Head Death Club NFT, and Purchaser will be required to make or receive payments exclusively through its cryptocurrency wallet.
(a) You further acknowledge and agree that all Secondary Transactions will be effected on the Ethereum blockchain, the blockchain network governing the Murder Head Death Club NFTs, and You will be required to make or receive payments exclusively through Your cryptocurrency Wallet.
(b) Without limitation of any other termination rights, OPEN3 may suspend or terminate the license to the Art if it has a reasonable basis for believing that You have engaged in an off-chain sale of the Murder Head Death Club NFT, or otherwise engaged in any off-chain transactions for the purchase or sale of the Murder Head Death Club NFT without making the applicable Royalty Payment. You, and all subsequent Transferees, shall be responsible for paying the Royalty Payment associated with the Secondary Transaction purchase price, regardless of where such purchase price is fulfilled on-chain, off-chain, or in a combination of the foregoing.
6. OPEN3’ Rights and Obligations to the Art and Murder Head Death Club NFTs.The Parties acknowledge and agree that OPEN3 is not responsible for repairing, supporting, replacing, or maintaining the website hosting the Art or other applications or entitlements which the Murder Head Death Club NFT is compatible with, nor does OPEN3 have the obligation to maintain any connection or link between a Murder Head Death Club NFT and the corresponding Art.
7. Warranty Disclaimers and Assumption of Risk.Purchaser represents and warrants that it (a) is the age of majority in Purchaser’s place of residence (which is typically 18 years of age in most U.S. states) and has the legal capacity to enter into this Agreement, (b) that Purchaser will use and interact with the Murder Head Death Club NFTs and Art only for lawful purposes and in accordance with this Agreement, and (c) that Purchaser will not use the Murder Head Death Club NFTs or Art to violate (and Purchaser will otherwise not violate) any law, regulation or ordinance or any right of OPEN3, its licensors or any third party, including without limitation, any right of privacy, publicity, copyright, trademark, or patent.
THE Murder Head Death Club NFTS ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, OPEN3 AND ITS LICENSORS EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. OPEN3 AND ITS LICENSORS MAKE NO WARRANTY THAT THE Murder Head Death Club NFTS WILL MEET PURCHASER’S REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. OPEN3 AND ITS LICENSORS MAKE NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY INFORMATION OR CONTENT ON THE Murder Head Death Club NFTS.
OPEN3 AND ITS LICENSORS WILL NOT BE RESPONSIBLE OR LIABLE TO PURCHASER FOR ANY LOSS AND TAKES NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO PURCHASER FOR, ANY USE OF THE Murder Head Death Club NFT, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (I) USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED WALLET ADDRESSES; (II) SERVER FAILURE OR DATA LOSS; (III) CORRUPTED CRYPTOCURRENCY WALLET FILES; (IV) UNAUTHORIZED ACCESS TO THE Murder Head Death Club NFT; OR (V) ANY UNAUTHORIZED THIRD PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK AGAINST BLOCKCHAIN NETWORK UNDERLYING THE Murder Head Death Club NFTS.
THE Murder Head Death Club NFTS ARE INTANGIBLE DIGITAL ASSETS. THEY EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE APPLICABLE BLOCKCHAIN NETWORK. ANY TRANSFER OF TITLE THAT MIGHT OCCUR IN ANY UNIQUE DIGITAL ASSET OCCURS ON THE DISTRIBUTED LEDGER WITHIN SUCH BLOCKCHAIN NETWORK, WHICH OPEN3 DOES NOT CONTROL. OPEN3 DOES NOT GUARANTEE THAT OPEN3 CAN EFFECT THE TRANSFER OF TITLE OR RIGHT IN ANY Murder Head Death Club NFT. PURCHASER BEARS FULL RESPONSIBILITY FOR VERIFYING THE IDENTITY, LEGITIMACY, AND AUTHENTICITY OF ASSETS PURCHASER PURCHASES THROUGH THE NFT MARKETPLACE. NOTWITHSTANDING INDICATORS AND MESSAGES THAT SUGGEST VERIFICATION, OPEN3 MAKES NO CLAIMS ABOUT THE IDENTITY, LEGITIMACY, OR AUTHENTICITY OF ASSETS ON THE NFT MARKETPLACE OR ANY PURPORTED SUBSEQUENT TRANSACTIONS.
OPEN3 AND ITS LICENSORS ARE NOT RESPONSIBLE ANY KIND OF FAILURE, ABNORMAL BEHAVIOR OF SOFTWARE (E.G., WALLET, SMART CONTRACT), BLOCKCHAINS OR ANY OTHER FEATURES OF THE Murder Head Death Club NFTS. OPEN3 AND ITS LICENSORS ARE NOT RESPONSIBLE FOR CASUALTIES DUE TO LATE REPORT BY DEVELOPERS OR REPRESENTATIVES (OR NO REPORT AT ALL) OF ANY ISSUES WITH THE BLOCKCHAIN SUPPORTING THE Murder Head Death Club NFTS, INCLUDING FORKS, TECHNICAL NODE ISSUES OR ANY OTHER ISSUES HAVING FUND LOSSES AS A RESULT.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN CONTRACTS WITH CONSUMERS, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
8. Assumption of Risk.Purchaser accepts and acknowledges all risks associated with the following:
(a) Purchasers will be responsible for NFT minting / “gas” costs. Purchaser is solely responsible for determining what, if any, taxes apply to Purchaser’s purchase, sale, or transfer of the Murder Head Death Club NFTs. OPEN3 is not responsible for determining or paying the taxes that apply to such transactions.
(b) OPEN3 does not store, send, or receive cryptocurrency assets. Any transfer of cryptocurrency assets occurs within the supporting blockchain that is not controlled by OPEN3. Transactions of the Murder Head Death Club NFTs may be irreversible, and, accordingly, losses due to fraudulent or accidental transactions may not be recoverable. Some transactions of the Murder Head Death Club NFTs shall be deemed to be made when recorded on a public blockchain ledger, which is not necessarily the date or time that Purchaser initiated the transaction.
(c) There are risks associated with using an Internet based digital asset, 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 Wallet. OPEN3 will not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience when effecting Murder Head Death Club NFT transactions, however caused.
(d) Transactions involving the Murder Head Death Club NFTs may rely on third-party platforms to perform transactions. If OPEN3 is unable to maintain a good relationship with such platform providers; if the terms and conditions or pricing of such platform providers change; if OPEN3 violates or cannot comply with the terms and conditions of such platforms; or if any of such platforms loses market share or falls out of favor or is unavailable for a prolonged period of time, access to and interactions of the Murder Head Death Club NFTs will suffer.
9. Links to Third Party Websites or Resources.Use and interaction of the Murder Head Death Club NFTs and Art may allow Purchaser to access third-party websites (including websites that host the Art) or other resources. OPEN3 provides access only as a convenience and is not responsible for the content, products or services on or available from those resources or links displayed on such websites. Purchaser acknowledges sole responsibility for and assumes all risk arising from Purchaser’s use of any third-party resources. Under no circumstances shall Purchaser’s inability to view Art on a third-party website serve as grounds for a claim against OPEN3.
10. Termination of License to Art.Purchaser’s licenses to the Art shall automatically terminate and all rights shall revert to OPEN3 if at any time: (a) Purchaser breaches any portion of this Agreement or (b) Purchaser engages in any unlawful activity related to the Murder Head Death Club NFT (including transferring the Murder Head Death Club NFT to a Prohibited Transferee). Upon any termination, discontinuation or cancellation of Purchaser’s licenses to the Art, OPEN3 may disable Purchaser’s access to the Art and Purchaser shall delete, remove, or otherwise destroy any back up or single digital or physical copy of the Art. Upon any termination, discontinuation or cancellation of the license in this Agreement, the following Sections will survive: 2, 4 through 15.
11. Indemnity.Purchaser shall defend, indemnify, and hold OPEN3, its licensors and affiliates (the “Indemnified Parties”) harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought by a third party (including any person who accesses or transacts using the Murder Head Death Club NFTs whether or not such person personally purchased the Murder Head Death Club NFTs) against the Indemnified Parties, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with (a) your access to or use of the NFT Marketplace, (b) your breach of this Agreement, and (c) your exercise of the licenses in Section 3.
12. Limitation of Liability.
(a) TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER OPEN3 NOR ITS LICENSORS OR SERVICE PROVIDERS, INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE Murder Head Death Club NFTS WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE Murder Head Death Club NFTS OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR ANY Murder Head Death Club NFT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT OPEN3 OR ITS SERVICE PROVIDERS HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
(b) TO THE MAXIMUM EXTENT PERMITTED BY THE LAW OF THE APPLICABLE JURISDICTION, IN NO EVENT WILL OPEN3’S OR ITS LICENSORS’ OR SERVICE PROVIDERS’ TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR ANY Murder Head Death Club NFT OR ACCESS THE ART EXCEED $500.
(c) THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN OPEN3 AND PURCHASER.
13. Governing Law and Forum Choice.This Agreement and any action related thereto will be governed by the laws of California, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 14 “Dispute Resolution,” the exclusive jurisdiction for all Disputes (defined below) that Purchaser and OPEN3 are not required to arbitrate will be the courts located in Los Angeles County, California, and Purchaser and OPEN3 each waive any objection to jurisdiction and venue in such courts.
14. Dispute Resolution.
(a) Mandatory Arbitration of Disputes. The Parties each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof of the Murder Head Death Club NFTs transaction (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and OPEN3 agree that the Federal Arbitration Act governs the interpretation and enforcement of this Agreement, and that you and OPEN3 are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
(b) Exceptions. As limited exceptions to Section 14(a) above: (i) both Parties may seek to resolve a Dispute in small claims court if it qualifies; and (ii) both Parties each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of OPEN3 (or its licensors’) intellectual property rights.
(c) Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by JAMS under its JAMS Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”) then in effect, except as modified by these Terms. The JAMS Rules are available at https://www.jamsadr.com/. A party who wishes to start arbitration must submit a written Demand for Arbitration to JAMS and give notice to the other party as specified in the JAMS Rules. JAMS provides a form Demand for Arbitration at https://www.jamsadr.com/.
Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location but any such arbitration will be conducted remotely to the extent permitted by the JAMS Rules. The Parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability, and scope of this arbitration agreement.
(d) Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules, and OPEN3 won’t seek to recover the administration and arbitrator fees OPEN3 is responsible for paying, unless the arbitrator finds your Dispute frivolous. If OPEN3 prevails in arbitration OPEN3 will pay for all of its attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
(e) Injunctive and Declaratory Relief. Except as provided in Section 14(b) above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the extent that you or OPEN3 prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
(f) Class Action Waiver. YOU AND OPEN3 AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ Dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
(g) Severability. With the exception of any of the provisions in Section 14(f) of these Terms (“Class Action Waiver”), if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
15. General Terms.This Agreement will transfer and be binding upon and will inure to the benefit of the parties and their permitted successors and assigns, in particular any Transferee. This Agreement constitutes the entire agreement, and supersedes any and all prior or contemporaneous representations, understandings and agreements, between the Parties with respect to the subject matter of this Agreement, all of which are hereby merged into this Agreement. Without limitation, the terms of any other document, course of dealing, or course of trade will not modify this Agreement, except as expressly provided in this Agreement or as the Parties may agree in writing. No amendment to this Agreement or waiver of any provision hereof will be valid or binding unless reduced to writing and duly executed by the Party or Parties to be bound thereby. Failure to promptly enforce a provision of this Agreement will not be construed as a waiver of such provision. Nothing contained in this Agreement will be deemed to create, or be construed as creating, a joint venture or partnership between the parties. Neither Party is, by virtue of this Agreement or otherwise, authorized as an agent or legal representative of the other Party. Neither Party to this Agreement is granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf or in the name of the other party, or to bind such other Party in any manner. Each of the Parties acknowledges that it has had the opportunity to have this Agreement reviewed or not by independent legal counsel of its choice. If any one or more of the provisions of this Agreement should be ruled wholly or partly invalid or unenforceable, then the provisions held invalid or unenforceable will be deemed amended, and the court or other government body is authorized to reform the provision(s) to the minimum extent necessary to render them valid and enforceable in conformity with the parties’ intent as manifested herein. The headings to Sections of this Agreement are for convenience or reference only and do not form a part of this Agreement and will not in any way affect its interpretation. Neither Party will be afforded or denied preference in the construction of this Agreement, whether by virtue of being the drafter or otherwise. For purposes of this Agreement, the words and phrases “include,” “includes”, “including” and “such as” are deemed to be followed by the words “without limitation”. Purchaser may give notice to OPEN3 by contacting OPEN3 at support@Open3.co. Notice is effective upon receipt. The Parties have agreed to contract electronically, and accordingly, electronic signatures will be given the same effect and weight as originals. The parties agree that OPEN3’s licensors are intended third party beneficiaries of this Agreement and may enforce the provisions hereof as if it were a party hereto.