LAST UPDATED – 5/18/22
Welcome to The Broadway Exchange website, owned and operated by MuseWorks Labs, a limited liability company, d/b/a MuseWorks Labs Inc. (“MuseWorks Labs Inc.,” “we,” “us,” “our”). MuseWorks Labs Inc. is a platform for artists (“Creators”) and collectors (“Collectors”) to sell, purchase, list for auction, make offers, and bid (each a “Transaction”) on digital art and collectibles represented with non-fungible tokens (“Digital Artwork”, “Item”). MuseWorks Labs and its partners provide the marketplace and services (described below) to you (“you,” “You,” “User”) through the website, platform, and marketplace located at www.bwayx.com (the “Platform”), subject to the following Terms of Service (as amended from time to time, the “Terms”). These Terms also apply to all related websites, tools, mobile applications, web applications, decentralized applications, smart contracts and APIs located or accessed through any of MuseWorks Lab’s websites, including without limitation, successor website(s) or application(s). By signing up for an account on the Platform or otherwise using or accessing the Platform, you acknowledge that you have read and agree to these Terms.
PLEASE READ THESE TERMS CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE WILL REQUIRE, WITH LIMITED EXCEPTIONS, THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST MUSEWORKS LABS INC. ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.
We reserve the right, in our sole discretion, to change or modify these Terms at any time. If we do this, we will provide notice of such changes, such as by sending an email notification, providing notice through the Platform or updating the “Last Updated” date at the beginning of these Terms. Any such changes will become effective immediately unless otherwise stated. Your continued use of the Platform after the effective date of any such changes constitutes your acceptance of the new Terms.
3. Account Registration
By using the Platform, you affirm that you are of legal age to enter into these Terms, and you accept and are bound by these Terms. You affirm that if you are using the Platform on behalf of an organization or company, you have the legal authority to bind any such organization or company to these Terms. You may not use the Platform if you: (i) do not agree to these Terms; (ii) are not of the age of majority in your jurisdiction of residence; or (iii) are prohibited from accessing or using the Platform or any of the Platform’s contents, products or services by applicable law.
You are responsible for maintaining the confidentiality of your account and password, if any, and are fully responsible for any and all activities that occur with your account. You agree to (i) immediately notify MuseWorks Labs Inc. of any unauthorized use of your password or account, or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing The Broadway Exchange. MuseWorks Labs Inc. will not be liable for any loss or damage arising from your failure to comply with this Section.
4. User Conduct
You understand and agree that access to your The Broadway Exchange account is limited solely to you. You agree that you will not sell, rent, lease, or grant access to your Platform account to any person without our prior written permission.
In our sole and absolute discretion, we reserve the right to terminate, suspend or restrict your access to any account(s) if there is reasonable suspicion by us that the person logged into your account(s) is not you or if we suspect that the account(s) have been or will be used for any illegal, fraudulent, or unauthorized purposes. Under no circumstance shall MuseWorks Labs Inc. or indemnified persons in accordance with these Terms be responsible or liable for any direct or indirect losses (including loss of profits, business or opportunities), damages or costs suffered by you or any other person or entity due to any such termination, suspension or restriction of access to any account(s).
You agree to use the Platform only for purposes that are legal, proper and in accordance with these Terms and any applicable laws or regulations. You agree that you will not use the Platform to (each of the following a “Prohibited Activity”):
- create user accounts by automated means or under false or fraudulent pretenses;
- impersonate another person;
- purchase, sell, or transfer a User account to another person or entity in exchange for something of value outside of a manner authorized by the Platform;
- use, employ or operate a computer program as a bot or to simulate user behavior, whether to engage in activity or a transaction, or otherwise;
- manipulate market prices, including by bidding on your own work;
- make purchases through the Platform through inappropriate or illegal means, including using stolen payment mechanisms to purchase items on the Platform;
- engage in any deceptive conduct that may prevent competitive or fair bidding;
- conceal economic activity;
- distribute unlawful, defamatory, harassing, abusive, or otherwise objectionable content;
- distribute any viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or any other items of a destructive or deceptive nature;
- infringe upon the intellectual property rights of any party;
- violate the legal rights of others;
- engage in, promote, or encourage illegal activity;
- interfere with other users’ use or enjoyment of the Platform;
- exploit the Platform for any unauthorized purpose;
- reformat, reframe, duplicate, or retransmit any portion of the Platform;
- retrieve or index any portion of the Platform, or collect information about users for any unauthorized purpose;
- abuse, harass, or threaten another user of the Platform or any of our authorized representatives.
If you engage in any of the Prohibited Activities, we may, at our sole and absolute reasonable discretion, without notice or liability to you, and without limiting any of our other rights or remedies at law or in equity, immediately:
- suspend or terminate your User account;
- restrict access to, modify, or delete Items or Item description or metadata held by your User account;
- deem any Transaction that took place via or as the result of such activities to be void ab initio; and/or
- immediately confiscate any items that were purchased or acquired as the result of such activities.
5. Creating MuseWorks Labs Inc. Items
Artists require an invitation or authorization from MuseWorks Labs to become a Creator on the Platform. MuseWorks Labs maintains complete discretion in selecting artists which will participate in its marketplace and makes no guarantees or promises that any artists will be approved as Creators even if MuseWorks Labs solicited the request. MuseWorks Labs reserves the right to change the method of Creator acceptance as we see fit. Such changes would be communicated in updated Terms. If you are interested in partnering with us to become a Creator, you may contact us at [email protected].
6. Collector Rights
Once you set up your User account, you may purchase, collect, display, trade and sell your Digital Artwork, subject to these Terms. The description of Digital Artwork available for purchase, including, without limitation, the availability and configuration of any Digital Artwork will be available on the Platform prior to purchase. We reserve the right at any time in our discretion to determine and modify the types, configurations, prices and other components of any Digital Artwork.
All purchases made on the Platform are final and non-refundable. Purchases may be made by credit card, bank transfer, or by using one or more cryptocurrencies that we may elect to accept from time to time. We retain the right in our discretion to limit the dollar amount of any transactions on the Platform, including, without limitation, to limit the amounts that may be charged to a credit card. Purchases made via credit card may be subject to a fourteen (14) day holding period after purchase, where you will be unable to list the purchased items for resale, and will be unable to export the purchased items away from the Platform.
Purchases made with cryptocurrency are irreversible. If your cryptocurrency wallet does not contain sufficient funds, if you initiate but do not complete a cryptocurrency payment within the anticipated timeframe, or if you otherwise improperly pay for an item with cryptocurrency, your cryptocurrency transaction may fail and you may pay transaction or network fees without receiving a corresponding Digital Artwork. Users expressly assume this risk by choosing to pay with cryptocurrency. MuseWorks Labs is under no obligation to accept cryptocurrencies and we retain the right in our sole discretion to determine what currencies or payment options to accept at any time. You acknowledge and agree that all cryptocurrency transactions on the Platform are publicly visible when made.
By participating in a Transaction on the Platform, Collectors may purchase a non-fungible token representation of the Creator’s Digital Artwork. Ownership of this non-fungible token does not grant the Collector ownership of the underlying creative work(s) itself. The copyright and other intellectual property contained in any Digital Artwork or non-fungible tokens (including, without limitation, any artwork in whatever form (e.g., photographs, video, graphics, logos, music, images, designs or otherwise)) may be owned by MuseWorks Labs and/or a third party (or third parties). Your purchase of a Digital Artwork does not confer on you any such intellectual property rights and you acknowledge and agree that you do not have the right to use such content in any way except as specifically set forth in these Terms.
Subject to your compliance at all times with these Terms, your valid purchase of a Digital Artwork comes with a limited, worldwide, non-exclusive, non-transferable, royalty-free license to display the content in your Digital Artwork for your own personal, non-commercial use and in connection with the Platform and any platform or marketplace whereby you are able to engage in transactions relating to your Digital Artwork or access other content which is made available to holders of Digital Artwork through the Platform. Because the content may be licensed by a third party other than MuseWorks Labs, there may be additional restrictions associated with the use of any such content and MuseWorks Labs Inc. reserves the right to impose any additional restrictions on your ability to use and display such content. You agree to comply at all times with any such additional restrictions. Any additional benefits that are conferred directly by a Creator to a holder of a Digital Artwork (including but not limited to access to additional content or delivery of physical media) are provided “AS IS” by Creator, and such benefits are without warranty from MuseWorks Labs.
The Collector’s limited license to display the Digital Artwork includes, but is not limited to, the right to, in an individual and non-commercial manner, to display the Digital Artwork privately or publicly: (i) for the purpose of promoting or sharing the Collector’s purchase, ownership, or interest, (ii) for the purpose of sharing, promoting, discussing, or commenting on the Digital Artwork; (iii) on third party marketplaces, exchanges, platforms, or applications in association with an offer to sell, purchase, or trade, the Digital Artwork; and (iv) within the metaverse, including decentralized virtual or augmented environments, virtual worlds, virtual galleries, virtual museums, or other navigable and perceivable virtual environments.
If a Collector wishes to discuss with MuseWorks Labs Inc. a license for “commercial use” of the Digital Artwork, they may contact MuseWorks Labs Inc at [email protected]
The Collector agrees that it may not, nor permit any third party to, do or attempt to do any of the foregoing without the Creator’s express prior written consent in each case:
(i) modify, distort, mutilate, or perform any other modification to the Digital Artwork which would be prejudicial to the Creator’s honor or reputation;
(ii) use the Digital Artwork to advertise, market, or sell any third party product or service;
(iii) use the Digital Artwork in connection with images, videos, or other forms of media that depict hatred, intolerance, violence, cruelty, pornography or anything else that could reasonably be found to constitute hate speech or otherwise infringe upon the rights of others;
(iv) incorporate the Digital Artwork in movies, videos, video games, or any other forms of media for a commercial purpose, except to the limited extent that such use is expressly permitted by these Terms or solely for Collector’s personal, non-commercial use;
(v) sell, distribute for commercial gain, or otherwise commercialize merchandise that includes, contains, or consists of the Digital Artwork;
(vi) attempt to trademark, copyright, patent, or otherwise acquire additional intellectual property rights in or to the Digital Artwork;
(vii) attempt to mint, tokenize, or create an additional cryptographic token representing the same Digital Artwork, whether on or off of the Platform;
(viii) falsify, misrepresent, or conceal the authorship of the Digital Artwork; or
(ix) otherwise utilize the Digital Artwork for the Collector’s or any third party’s commercial benefit.
The licenses and other provisions of this Section apply to the extent that you continue to own the Digital Artwork. If you sell, transfer, burn, lose access, or otherwise dispose of your Digital Artwork at any time, all licenses set forth in these Terms will expire upon such sale, transfer, burn or other disposal and you will not have any rights in any content of such Digital Artwork. Similarly, you may lose access to any content to which you are granted access to by virtue of your ownership of the Digital Artwork.
You have the limited right to sell or transfer your Digital Artwork provided that
(i) the party acquiring your Digital Artwork accepts all of these Terms and any other applicable third-party terms;
(ii) MuseWorks Labs Inc. is paid the applicable transfer or other related compensation fees; and
(iii) You have not at any time breached these Terms.
If you purchase or sell your Digital Artwork anywhere else other than through the Platform, you do so entirely at your own risk. We do not monitor or control any purchases or sales outside the Platform.
Any User who creates an account on the Platform may be eligible to purchase NFTs on the Platform. This may include MuseWorks Labs Inc. employees as well as any affiliates, licensors, and sponsors, and each of their respective directors, officers, agents, contractors, partners, advisors, employees, licensors, licensees content creators, and suppliers.
Collectors irrevocably release, acquit, and forever discharge MuseWorks Labs Inc. and its subsidiaries, affiliates, officers, and successors of any liability for direct or indirect copyright, patent or trademark infringement for Creator’s use of a Digital Artwork in accordance with these Terms.
7. The User Acknowledges the Functionality and Inherent Risks of the Platform
You acknowledge that the Platform is subject to security risks and flaws and acknowledge that you are solely responsible for evaluating any code provided by the Platform. You expressly acknowledge and assume all risks including, but not limited to: forgotten passwords; inability to access or use your digital wallet for any reason; mistyped addresses or improperly constructed instructions when transmitting or receiving an NFT or any cryptocurrency; errors in the NFTs or NFT smart contracts; errors in our Platform or Services; inability to access or transfer an NFT; inability to use, access, copy, or display any NFT, or to access, stream or view any associated media; blockchain malfunctions or other technical errors; server failure or data loss; telecommunications failures; unfavorable regulatory determinations or actions (including with respect to NFTs or cryptocurrencies); taxation of NFTs or cryptocurrencies; uninsured losses; unanticipated risks; volatility risks in the value of NFTs and cryptocurrencies; cybersecurity attacks; personal information disclosure; unauthorized access to applications; unauthorized third-party activities, including, without limitation, the introduction of viruses or other malicious code; and the use of phishing, sybil attacks, 51% attacks, bruteforcing, or other means of attack that affect, in any way, the NFTs or the associated media (the foregoing, collectively, “Platform Risks”).
You acknowledge that you have a sufficient understanding of the functionality, usage, storage, transmission mechanisms and other material characteristics of, blockchain technology, NFTs, digital assets, digital wallets, and cryptocurrencies to understand these Terms and to appreciate the risks and implications of purchasing an NFT.
You acknowledge that NFTs purchased through our Platform have no inherent or intrinsic value. The value or perceived value of NFTs, may be subject to significant price volatility, including risk of complete loss of value. In addition, a lack of use or public interest in NFTs could negatively impact the potential utility or value of your NFTs. We cannot guarantee that any NFT will retain its original value, as its value is inherently subjective and factors occurring both on and outside of the Platform may materially impact the value and desirability of any particular NFT. In particular, the ability to stream or view any associated media may become limited, limited in functionality, non-functional or obsolete and may negatively impact the value or perceived value of an NFT purchased through the Platform.
This warning and others provided in these Terms by MuseWorks Labs in no way evidence or represent an ongoing duty to alert you to all of the potential risks of utilizing or accessing the Platform. The Platform may experience sophisticated cyber-attacks, unexpected surges in activity or other operational or technical difficulties that may cause interruptions to or delays on the Platform. You agree to accept the risk of the Platform failure resulting from unanticipated or heightened technical difficulties, including those resulting from sophisticated attacks, and you agree not to hold us accountable for any related losses. We will not bear any liability, whatsoever, for any damage or interruptions caused by any viruses that may affect your computer or other equipment, or any phishing, spoofing or other attack.
Digital Artwork initially minted and sold on The Platform is represented by smart contracts on a private blockchain that provides a ledger of all transactions that occur on The Platform. Users may be able to export certain Digital Artworks from their MuseWorks wallet to other blockchains at a future point. Once a user initiates an export away from their MuseWorks wallet, all Digital Artwork is outside of the control of any one party, including MuseWorks Labs Inc., and is subject to many risks and uncertainties. Your sending Digital Artworks off of The Platform may also prevent you from using the Digital Artwork to access any media on The Platform. We neither own nor control any other blockchain, any cryptocurrency wallet or address, your browser, or any other third-party site, product, or service that you might access, visit, or use for the purpose of enabling you to use the various features of the Platform. We will not be liable for the acts or omissions of Users or any such third parties, nor will we be liable for any damage that you may suffer as a result of your transactions or any other interaction with any such third parties. User understands that User’s public cryptocurrency address may be made publicly visible whenever you engage in a Transaction on the Platform.
8. Payment, Gas Fees, Site Fees, and Taxes
Users can make purchases on The Platform using a cryptocurrency or credit card, which must be paid at the time of purchase. Cryptocurrency purchases are made possible by connecting your preferred wallet. Credit card purchases will be processed via Stripe. Note that funds from credit cards may be held, and purchases using credit cards may be subject to a holding period on resales and transfers out of The Platform. Users understand that any use of any of these payment service providers may be subject to separate fees, terms and conditions provided through each of those services. When applicable, by using The Platform, you acknowledge and agree to the terms and conditions, and the privacy policies of such services. If you decide to use one of the services, you expressly grant them the right, power, and authority to access and transmit your information as reasonably necessary for them to provide services to you in connection with your use of The Platform.
We have no control over these payments services, nor do we have the ability to reverse transactions (especially in the case of cryptocurrency payments). With that in mind, we will have no liability to you or to any third party for any claims or damages that may arise because of any payment or transaction that you engage in via The Platform, or using Smart Contracts, or any other transactions that you conduct via The Platform or any other blockchain. MuseWorks Labs Inc. is not responsible for buyers who are unable to complete payment transactions.
Buyers on The Platform will generally pay a Transaction Fee of 2.5% on primary sale purchases. Sellers on The Platform will generally pay a 6% Platform Fee to sell Digital Artwork in the Marketplace. Buyers on The Platform will generally pay a Royalty on secondary sale purchases made in the Marketplace. Royalties may vary by production with 100% of the proceeds going back to the creators. MuseWorks Labs Inc. or outside blockchain networks may additionally require the payment of a transaction fee (a “Gas Fee”) for transactions that occur on the Platform. You may need to pay a Gas Fee for each such transaction that occurs via our Platform or to export Digital Artwork off of the Platform. In addition to the Gas Fee, each time you utilize a Smart Contract to conduct a transaction with another user via the Platform, you authorize us to collect a commission or other fee for certain events (a “Commission”). These events include purchasing, selling, or trading Digital Artwork on the Platform. Other fees include cryptocurrency conversion fees and payment processing fees, the applicability of which depend on the payment method used.
Users are solely responsible to pay any and all applicable Gas Fees, minting fees, sales, use, value-added and other taxes, duties, and assessments now or hereafter claimed or imposed by any governmental authority associated with your use of our Platform. You hereby authorize us to deduct any reasonable or necessary fee or tax as part of a transaction on the Platform. Except for income taxes levied on MuseWorks Labs Inc., you: (i) will pay or reimburse us for all national, federal, state, local or other taxes and assessments of any jurisdiction, including value added taxes and taxes as required by international tax treaties, customs or other import or export taxes, and amounts levied in lieu thereof based on charges set, services performed or payments made hereunder, as are now or hereafter may be imposed under the authority of any national, state, local or any other taxing jurisdiction; and (ii) shall not be entitled to deduct the amount of any such taxes, duties or assessments from payments made to us pursuant to these Terms.
9. Marketplace and Auctions
The Platform allows users to sell and purchase Digital Artwork within the The Platform. Users that own Digital Artwork may list such items for sale at a set price, with such listing remaining active until the Digital Artwork is sold or the listing is cancelled. The Platform may also allow for Users to bid on items in an auction format. Users that own Digital Artwork may list such items in an auction. Users may set a minimum reserve price for an auction sale or elect to run the auction with no reserve price set. If no reserve price is set, the work will go to the highest bidder at the end of the auction, whether or not the seller or buyer is satisfied with the final price.
Once an auction is initiated, it cannot be stopped. If an auction is not cancelled before the start time, the auction will automatically be initiated and the auctioned work will be sold as long as the minimum reserve price is met, if such a price was set. Bids placed during an auction are irrevocable. Bids will only be returned if a higher bid is placed. Auctions may be extended in order to accommodate last minute bids. MuseWorks Labs Inc. applies the same fee structure to works sold in auctions as other methods. We reserve the right to screen bidders or require deposit payments towards large auction items.
Once an item is sold, the sales proceeds due to User will be indicated in the User’s account. The sales proceeds may take up to thirty (30) days to clear so that they may be disbursed from MuseWorks Labs Inc. to the User. Upon eligibility to cash out funds, Users will be prompted with a choice to cash out via check or cryptocurrency payment, and a form to provide MuseWorks Labs Inc. with User’s cash out information, where they User can provide mailing address or cryptocurrency address. User agrees to provide correct payment information to MuseWorks Labs Inc., and User’s failure to provide correct information is at User’s own risk. If a User provides an incorrect cryptocurrency address, or a non-Ethereum based address, they may permanent and irreversibly lose access to both their Digital Artwork and corresponding cryptocurrency payment.
10. No Representations
MuseWorks Labs Inc. makes no representations or warranties, express or implied, written or oral, made by or on behalf of MuseWorks Labs Inc. in connection therewith, including any representations or warranties of title, non-infringement, functionality, merchantability, usage, security, suitability or fitness for any particular purpose, workmanship or technical quality of any MuseWorks Labs Inc. Item or work, smart contract code, or software.
MuseWorks Labs Inc. shall not be liable to you for contract, tort, or any other types of damages, including indirect, special, incidental, consequential, punitive or exemplary damages arising out of or related to participation in or the outcome of a MuseWorks Labs Inc. auction or smart contract-enabled transaction, whether or not MuseWorks Labs Inc. has been advised or knew of the possibility of such damages. MuseWorks Labs Inc.’s liability for damages under these Terms shall in all cases be limited to, and under no circumstances shall exceed, the amount of auction proceeds actually received by MuseWorks Labs Inc. as profit after deducting all costs, fees and liabilities incurred by or on behalf of MuseWorks Labs Inc.
11. Additional Ownership Rights and Storage
MuseWorks Labs Inc. partners with third-party blockchain developers to develop and maintain the Platform, to maintain various Platform features, and aims to keep Digital Artworks stored and exchanged on our Platform safe. When a Digital Artwork is conceived, listed for sale, or minted, either in a private sale or through an auction, that transaction will be recorded on the until the Digital Artwork is sold to another User or transferred off the MuseWorks Labs Inc. Platform.
MuseWorks Labs Inc. may allow conversion of Items to the Ethereum compatible ERC 721 or ERC 1155 format. Once converted, these Digital Artworks can leave the Platform and be held in a User’s private wallet. As soon as the transfer of an Item is initiated away from The Platform, MuseWorks Labs Inc. is not responsible nor liable for the receipt, security, or continued functionality of the Item. User understands that transfer of the Item away from The Platform may disable certain functions of the Item, and any such transfer is conducted at User’s own risk. Furthermore, MuseWorks Labs Inc. makes no representations and is absolved of all liability arising from the transfer process.
Some Collectors may also be eligible to receive promotional physical displays for their Items. Collectors agree that MuseWorks Labs Inc. does not warrant that the quality of any promotional products or services purchased or obtained by you will meet your expectations, or that they will arrive or continue to function in an error free manner. Any promotional physical displays are provided “AS IS.” We do not guarantee the functionality of the displays or that the colors displayed on your monitor will be accurate. Shipping of physical displays is an automatic process. It is the sole responsibility of the Collector to ensure that the shipping information associated with the account is updated and accurate. MuseWorks Labs Inc. also has no liability for displays lost or damaged during the shipping process. Physical displays may not be resold. By confirming an order for a physical display, you certify that you are purchasing it for personal use only and not for resale. Purchase of displays for public or commercial use is strictly prohibited.
12. Platform Content, Software, and Trademarks
You acknowledge and agree that the Platform may contain content or features (“Platform Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by MuseWorks Labs Inc., you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, infringe, distribute or create derivative works based on the Platform or the Platform Content, in whole or in part. In connection with your use of the Platform you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by MuseWorks Labs Inc. from accessing The Platform (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). You agree that you will not use the Platform from a country sanctioned by the government of the United States.
Any use of the Platform or the Platform Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying The Platform or distributed in connection therewith are the property of MuseWorks Labs Inc., our affiliates and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by MuseWorks Labs Inc.
MuseWorks Labs Inc. name and logos are trademarks and service marks of MuseWorks Labs Inc. (collectively the “MuseWorks Labs Inc. Trademarks”). Other company, product, and service names and logos used and displayed via The Platform may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to MuseWorks Labs Inc. Nothing in these Terms of Service or The Platform should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of MuseWorks Labs Inc. Trademarks displayed on The Platform, without our prior written permission in each instance. All goodwill generated from the use of MuseWorks Labs Inc. Trademarks will inure to our exclusive benefit.
13. Third-Party Material
Under no circumstances will MuseWorks Labs Inc. be liable in any way for any content or materials of any third parties (including users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. MuseWorks Labs Inc. and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via The Platform. Without limiting the foregoing, MuseWorks Labs Inc. and its designees will have the right to remove any content that violates these Terms of Service or is deemed by The Platform, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content and the purchase of any Digital Artwork, including any reliance on the accuracy, completeness, or usefulness of such content.
14. User Content
MuseWorks Labs Inc. may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of MuseWorks Labs Inc., its users and the public. You understand that the technical processing and transmission of The Platform, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
15. Filing DMCA “Take Down” Notifications
If you are a copyright owner or an agent thereof and believe that any content on MuseWorks Labs Inc. Platform infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (DMCA) by providing us with the following information in writing (see 17 U.S.C. § 512 for further detail) A notification of claimed copyright infringement should be emailed to MuseWorks Labs Inc.’s Copyright Agent at [email protected] (Subject line: “DMCA Takedown Request”):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works, a representative list of such works on that site.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material. *Providing URLs in the body of your DMCA notification is the best way to help us locate content quickly*
- Information reasonably sufficient to permit us to contact you (the complaining party), such as an address, telephone number, and an electronic mail address at which you (the complaining party) may be contacted.
- A statement that you (the complaining party) have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that you (the complaining party) are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- **(Optional) Provide information, if possible, sufficient to permit us to notify the user(s) who posted the content that allegedly contains infringing material.
Any person who knowingly materially misrepresents that Content or an activity is infringing or that any material or activity was removed or disabled by mistake or misidentification, shall be liable to us and possibly others for any damages, including costs and attorneys’ fees incurred by us in removing or disabling access to the material or activity claimed to be infringing or in replacing the removed material or enabling access to it.
Users expressly agree to cooperate and timely respond to MuseWorks Labs Inc.’s investigations, requests, and inquiries related to DMCA disputes or allegations of infringement. Users agree to initiate a “burn” transaction upon MuseWorks Labs Inc.’s request for Digital Artwork that have been permanently removed from the MuseWorks Labs Inc. marketplace pursuant to a valid DMCA Take-Down Notice, or that are otherwise alleged to be infringing.
16. Beta Platforms
Certain features on The Platform may be offered while still in “beta” form (“Beta Platforms”). MuseWorks Labs Inc. will utilize best efforts to identify the Beta Platforms by labeling on its Platform. By accepting these Terms or using the Beta Platforms, you understand and acknowledge that the Beta Platforms are being provided as a “Beta” version and made available on an “As Is” or “As Available” basis. The Beta Platforms may contain bugs, errors, and other problems. YOU ASSUME ALL RISKS AND ALL COSTS ASSOCIATED WITH YOUR USE OF THE BETA PLATFORMS, INCLUDING, WITHOUT LIMITATION, ANY INTERNET ACCESS FEES, BACK-UP EXPENSES, COSTS INCURRED FOR THE USE OF YOUR DEVICE AND PERIPHERALS, AND ANY DAMAGE TO ANY EQUIPMENT, SOFTWARE, INFORMATION OR DATA. In addition, we are not obligated to provide any maintenance, technical, or other support for the Beta Platforms.
17. Other Legal Terms:
17.1 Indemnity and Release: You agree to release, indemnify and hold MuseWorks Labs Inc. and its affiliates and their officers, employees, contractors, partners, directors and agents (collectively, “Indemnitees”) harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of The Platform, any User Content, your connection to the Platform, your violation of these Terms of Service or your violation of any rights of another. Notwithstanding the foregoing, you will have no obligation to indemnify or hold harmless any Indemnitee from or against any liability, losses, damages or expenses incurred as a result of any action or inaction of such Indemnitee. If you are a California resident, you waive 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 or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
17.2 Disclaimer of Warranties: The Platform may enable transactions, including but not limited to primary sales, secondary market sales, listings, offers, bids, acceptances, and other operations that utilize experimental smart contract and blockchain technology, including non-fungible tokens, cryptocurrencies, consensus algorithms, and decentralized or peer-to-peer networks and systems. Users acknowledge and agree that such technologies are experimental, speculative, and inherently risky and may be subject to loss in value, obsolescence, bugs, malfunctions, timing errors, hacking, exploits and theft, or changes to the protocol rules of the Ethereum blockchain (i.e., “forks”), which can adversely affect the smart contracts and may expose you to a risk of total loss, forfeiture of your digital currency or Digital Artwork, or lost opportunities to buy or sell Digital Artwork. YOUR USE OF THE PLATFORM IS AT YOUR SOLE RISK. THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. MUSEWORKS LABS INC. EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
MUSEWORKS LABS INC. MAKES NO WARRANTY THAT (I) THE PLATFORM WILL MEET YOUR REQUIREMENTS, (II) THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PLATFORM WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, PLATFORMS, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE PLATFORM WILL MEET YOUR EXPECTATIONS.
17.3 Limitation of Liability: YOU EXPRESSLY UNDERSTAND AND AGREE THAT MUSEWORKS LABS INC. WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, LOSS IN VALUE OF ANY DIGITAL ARTWORK, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF MUSEWORKS LABS INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE PLATFORM; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND PLATFORMS RESULTING FROM ANY DIGITAL ARTWORK, GOODS, DATA, INFORMATION OR PLATFORMS PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE PLATFORM; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE PLATFORM; OR (V) ANY OTHER MATTER RELATING TO THE PLATFORM. IN NO EVENT WILL MUSEWORKS LABS INC.’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID MUSEWORKS LABS INC. IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE PLATFORM OR WITH THESE TERMS OF PLATFORM, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE PLATFORM.
IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF DELAWARE. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
17.4 Termination Rights. You agree that MuseWorks Labs Inc., in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Platform and remove and discard any content within the Platform, for any reason, including, without limitation, for lack of use or if MuseWorks Labs Inc. believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive, infringing, or illegal activity that may be grounds for termination of your use of Platform, may be referred to appropriate law enforcement authorities. MuseWorks Labs Inc. may also in its sole discretion and at any time discontinue providing the Platform, or any part thereof, with or without notice. You agree that any termination of your access to the Platform under any provision of these Terms of Service may be effected without prior notice, and acknowledge and agree that MuseWorks Labs Inc. may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Platform. Further, you agree that MuseWorks Labs Inc. will not be liable to you or any third party for any termination of your access to the Platform.
17.5 User Disputes. You agree that you are solely responsible for your interactions with any other Users in connection with the Platform and MuseWorks Labs Inc. will have no liability or responsibility with respect thereto. MuseWorks Labs Inc. reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Platform.
17.6 General Legal Terms. These Terms of Service constitute the entire agreement between you and MuseWorks Labs Inc. and govern your use of the Platform, superseding any prior agreements between you and MuseWorks Labs Inc. with respect to the Platform. You also may be subject to additional terms and conditions that may apply when you use affiliate or third-party services, third party content or third-party software.
17.7 Governing Law. These Terms of Service will be governed by the laws of the State of Delaware without regard to its conflict of law provisions. The failure of MuseWorks Labs Inc. to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Platform or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign these Terms without the prior written consent of MuseWorks Labs Inc., but MuseWorks Labs Inc. may assign or transfer these Terms, in whole or in part, without restriction. The section titles in these Terms are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Platform may also provide notices to you of changes to these Terms or other matters by displaying notices or links to notices generally on the Platform.
17.8 Notice for California Users. Under California Civil Code Section 1789.3, users of the Platform from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Platforms of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at [email protected].
17.9 Dispute Resolution By Binding Arbitration: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
- Agreement to Arbitrate 1. This Dispute Resolution by Binding Arbitration section is referred to in these Terms of Service as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and MuseWorks Labs Inc., whether arising out of or relating to these Terms (including any alleged breach thereof), the Platforms, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into these Terms, you and MuseWorks Labs Inc. are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
- Prohibition of Class and Representative Actions and Non-Individualized Relief
OU AND MUSEWORKS LABS INC. AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND MUSEWORKS LABS INC. AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
- Pre-Arbitration Dispute Resolution
MuseWorks Labs Inc. is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at [email protected] . If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to MuseWorks Labs Inc. should be sent to 311 W 43rd Street, New York, NY 10036 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If MuseWorks Labs Inc. and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or MuseWorks Labs Inc. may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by MuseWorks Labs Inc. or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or MuseWorks Labs Inc. is entitled.
- (i) Arbitration Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/ as may be updated from time to time. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
- (ii) Unless MuseWorks Labs Inc. and you agree otherwise, any arbitration hearings will take place at the MuseWorks Headquarters in NY, NY. If your claim is for $10,000 or less, MuseWorks Labs Inc. agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or videoconference hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
- 4. Confidentiality
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of the Terms of Service will continue to apply.
- Future Changes to Arbitration Agreement
Notwithstanding any provision in these Terms of Service to the contrary, MuseWorks Labs Inc. agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Platforms, you may reject any such change by sending MuseWorks Labs Inc. written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
The regulatory environment for NFTs is not settled, and there is a risk that they are deemed fungible, as opposed to non-fungible, and are some sort of currency or commodity and/or that they are deemed securities, and that the US securities laws were not complied with, as well as non-US securities laws and local jurisdiction regulations. If the MUSEWORKS LABS INC. platform were to become non-functional, due to technical problems, cybersecurity breaches, lack of funding or other reasons, your rights to view your content may be limited or blocked. This is a new technology and method of delivery for artists and their commercial vendors, and there can be no assurance of the value, nonfungibility, securities law compliance, long term viability, or other factors related to this new technology or method of delivery for artists.
Please print a copy of these Terms for your records and PLEASE check the site frequently for any changes to these Terms.
- MUSEWORKS LABS INC. Marketplace Code of Conduct
The purpose of this document is to provide a general overview of best practices for engaging with the MuseWorks Labs Inc. Marketplace. This document is intended to help you get the most out of your experience, and will be updated continuously as new community feedback is received.
(i) We strongly urge users to only transact on the MUSEWORKS LABS INC. Marketplace. Any private transaction is at your own risk and it is highly unlikely that we will be able to help you in any way if something goes wrong. No MuseWorks Labs Inc. employee or representative will ever ask you for the password to your account nor will they ever ask for a seed phrase to a third-party wallet.
(ii) If you are ever unsure about whether MuseWorks Labs Inc. is trying to contact you, please reach out to support directly through our website so that we can verify. If you feel you have been contacted maliciously by someone portraying themselves as an employee of MuseWorks Labs Inc., please let us know so that we can forward that information to the proper authorities.
(iii) Each user may only have one account. This is to ensure fairness for limited drops and to avoid confusion within our system. If a user is suspected to have multiple accounts, we reserve the right to freeze that account while an internal investigation takes place. If, after such an investigation, it is determined that a user has violated the one account policy, we may close all of the user’s accounts permanently and confiscate any NFTs in those accounts.
(iv) Bot usage of any kind is strictly prohibited on the MuseWorks Labs Inc. platform. This includes using a bot to create additional user accounts or to gain an advantage for NFT releases. If our software determines that you are using a bot to pursue an unfair competitive advantage, we reserve the right to freeze your account without any warning and confiscate any items that were acquired as the result of such activities.
(v) You may not purchase, sell, or transfer a user account to another person or entity in exchange for cash or cryptocurrency outside of a manner authorized by MuseWorks Labs Inc.. This includes selling any funds in your account as well as selling an account that wins any random draw we may potentially run for a release.
(v) You may not impersonate any celebrity or athlete on the MuseWorks Labs Inc. Platform.
(vi) Entering into agreements with other users to buy each other’s NFTs to manipulate prices is strictly prohibited, as is any other form of market manipulation. This includes conspiring in the creation of or participating in an organized “pump and dump” or other similar scheme.