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Terms of Service

Last updated: August 8, 2023

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CXIP Labs, Inc. (“Holograph,” “we,” “us,” “our”) provides its marketplace and services (described below) to you (“you” or “User”) through its website, application, platform, and marketplace located at https://www.app.holograph.xyz/ (the “Platform”), subject to the following Terms of Service (as amended from time to time, the “Terms”). 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. The Privacy Policy and all such additional terms, guidelines, and rules as set forth on the Platform are hereby incorporated by reference into these Terms and expressly agreed to and acknowledged by the User.

 

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 REQUIRES (WITH LIMITED EXCEPTION) 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 HOLOGRAPH 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, at our sole discretion, to change or modify portions of these Terms at any time.  If we do this, we will post the changes on this page and will indicate at the top of this page the date these Terms were last revised.  We will also notify you, either through the Platform user interface, in an email notification or through other reasonable means.  Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Platform will be effective immediately.  Your continued use of the Platform after the date any such changes become effective constitutes your acceptance of the new Terms of Service.

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1) What is Holograph?

Holograph provides a platform for Users, including artists and other creators (“Creators”) and collectors (“Collectors”) to sell, purchase, list for auction, make offers on, and bid on (each a “Transaction”) multichain NFTs (as defined below), including from open edition NFT collections.

 

a) Smart-Contract Enabled. “NFTs” on the Platform refer to non-fungible tokens that use multichain smart contracts (“Smart Contracts”).  The Platform currently supports the Ethereum, Polygon, Avalanche and Binance (BNB) blockchains.  Each blockchain provides an immutable ledger of all transactions that occur on the blockchain.  This means that all NFTs are outside of the control of any one party, including Holograph, and is subject to many risks and uncertainties.  We neither own nor control digital wallets, blockchain networks, Smart Contracts, 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 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.  You understand that your digital wallet address will be made publicly visible whenever you engage in a Transaction on the Platform.

 

b) Noncustodial.  While Holograph offers a marketplace for NFTs, it does not buy, sell, or ever take custody or possession of any NFTs. The Platform facilitates User collection of NFTs, but neither Holograph nor the Platform are custodians of any NFTs.  The User understands and acknowledges that the Smart Contracts do not give Holograph custody, possession, or control of any NFTs or cryptocurrency at any time for the purpose of facilitating Transactions on the Platform.  You affirm that you are aware and acknowledge that Holograph is a non-custodial service provider and has designed the Platform to be directly accessible by the Users without any involvement or actions taken by Holograph or any third-party.  Holograph facilitates Transactions between the Users on the Platform but is not a party to any agreement between any sellers, buyers, Creators, Collectors, and other Users.  As a marketplace, Holograph cannot make any representation or guarantee that Creators or Users will achieve any particular outcome as the result of listing their NFTs or engaging in any other Transaction on the Platform.

 

c)  No Securities.  The digital assets about which information is provided on the Platform and any information provided in connection with the Platform provided to you are not viewed by the issuer or sponsor of any such digital assets, or those buying or selling the digital asset, as securities under U.S. laws or relevant applicable laws. As a result it is unlikely that fulsome disclosures from the issuer or sponsor, or any executive officer associated with the digital asset or related protocol have been provided, and others may have better or more information than the information made available to you via the Platform or any information provided in connection with the Platform provided to you, or to which you may independently have access.

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2) How do I use Holograph?

a) Your Registration Obligations:  Anyone can browse the Platform without registering for an account. You may be required to register with Holograph in order to access and use certain features on the Platform, such as participating as a Creator or Collector.  If you choose to register for the Platform, you agree to provide and maintain true, accurate, current, and complete information about yourself as prompted by our registration form.  Registration data and certain other information about you are governed by our Privacy Policy.  You must be at least 13 years old to register for an account as a Creator, and at least 18 years old to place a bid on any NFTs. If you are between 13 and 18 years old, you must have the express permission of a parent or legal guardian who can accept these Terms on your behalf. You are responsible for anything that occurs when anyone is signed in to your account, as well as the security of the account.

 

b) Member Account, Password, and Security: 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 under your password or account.  You agree to (a) immediately notify Holograph 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 Platform.  Holograph will not be liable for any loss or damage arising from your failure to comply with this Section.

 

c) Connecting your Wallet: In order to participate as a Creator or Collector on the Platform, you must connect your account to your digital wallet as allowed on the Platform (“Digital Wallet”).  Such Digital Wallets allow you to engage in Transactions.

 

d) Modifications to the Platform: Holograph reserves the right to modify or discontinue, temporarily or permanently, the Platform (or any part thereof) with or without notice.  You agree that Holograph will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Platform.

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3) What are the rules for using Holograph?

a) Restrictions

When using the Platform, you will not directly or indirectly:

  • engage in deceptive or manipulative trading activities in any way, including bidding on your own items, preventing bidding, placing misleading bids or offers, or using the Platform to conceal economic activity;

  • email, upload, or otherwise distribute any content, including User Content (as defined below), that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to do so under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person or entity; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests” or “sweepstakes” (other than lawful Promotions as allowed by these Terms), or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable (including any sexual depictions of minors); or (vii) in the sole judgment of Holograph, is objectionable or which restricts or inhibits any other person from using or enjoying the Platform, or which may expose Holograph or its Users to any harm or liability of any type;

  • interfere with or disrupt the Platform or servers or networks connected to the Platform in any manner that could negatively affect or inhibit other Users from fully enjoying the Platform or that could damage, disable, overburden or impair the functioning of the Platform in any manner;

  • disobey any requirements, procedures, policies or regulations of networks connected to the Platform;

  • violate any applicable local, state, national or international law, or any regulations having the force of law, including but not limited to the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”), or which would involve proceeds of any unlawful activity;

  • create or list counterfeit items or assets;

  • impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;

  • solicit personal information from anyone under the age of 18;

  • harvest or collect email addresses or other contact information of other Users from the Platform by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;

  • advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;

  • further or promote any criminal activity or enterprise or provide instructional information about illegal activities, including for the purpose of concealing economic activity, laundering money, or financing terrorism;

  • obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Platform;

  • use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Platform or the content posted on the Platform, or to collect information about its Users for any unauthorized purpose;

  • create user accounts by automated means or under false or fraudulent pretenses;

  • access or use the Platform to carry out financial activities subject to registration or licensing, including but not limited to creating, listing, or buying securities, commodities, options, real estate, or debt instruments;

  • access or use the Platform to participate in fundraising for a business, protocol, or platform, including but not limited to creating, listing, or buying assets that are redeemable for financial instruments, assets that give Creators, Collectors, or Users rights to participate in an ICO or any securities offering, or assets that entitle Creators, Collectors, or Users to financial rewards, including but not limited to, DeFi yield bonuses, staking bonuses, and burn discounts, provided that the foregoing will not restrict the legal use of any proceeds resulting from your permitted use of the Platform; or

  • access or use the Platform for the purpose of creating a product or service that is competitive with any of our products or services.

 

b) Promotions

If you use the Platform to communicate or administer sweepstakes, contests, and other promotions (each, a “Promotion”), you are solely responsible for complying with, and will ensure that your Promotion, including its rules, terms, and requirements (“Promotion Rules”), complies with, all applicable laws and regulations and these Terms. The Promotion Rules must contain, at a minimum, a set of official rules that are consistent with these Terms and that include (i) a complete release of Holograph by each participant of such Promotion, and (ii) an acknowledgement stating that the Promotion is not sponsored, endorsed, administered by, or otherwise associated with Holograph or our Affiliates (as defined below). You agree that your Promotion will be fully conducted in accordance with the Promotion Rules. Holograph will not assist you with the administration or operation of your Promotion, or provide you with any advice in connection therewith. You assume all risk associated with your use of the Platform to administer your Promotion. Holograph reserves the right, at its sole discretion, to restrict, limit, or deny any Promotions and associated sales or auctions for any reason, at any time.

 

c) Perks

If you sell, promise, administer, or otherwise provide special perks, discounts, coupons, experiences, or opportunities (“Perks”) in connection with your sale or auction of NFTs on the Platform, you are solely responsible for complying with, and will ensure that your Perks comply with, all applicable laws and regulations and these Terms. If you attempt to purchase or purchase, NFTs associated with any Perks, you acknowledge that Holograph makes no guarantee, representation, warranty or recommendation and provides no investment or other advice in connection with any Perks or otherwise as a result of holding or owning the NFT(s) associated with any Perks.

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Holograph will not assist you with the administration, operation, redemption, exercise, enforcement or other use of Perks, or provide you with any advice in connection therewith. You assume all risk associated with Perks, including your use of the Platform in connection with Perks. Holograph reserves the right, at its sole discretion, to restrict, limit, or deny any NFT sales or auctions associated with Perks for any reason, at any time.

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4) What are the intellectual property rights on the Platform?

a) Creator Rights

The Creator owns all legal right, title, and interest in all intellectual property rights of the content underlying the NFTs minted on the Platform (such underlying content, the “Art Content”), including but not limited to copyrights and trademarks in the Art Content, unless the Creator expressly transfers any such right, title or interest to a Collector or other third party. As the copyright owner, the Creator has the right to reproduce, prepare derivatives of, distribute, and display or perform the Art Content.

 

The Creator hereby acknowledges, understands, and agrees that selling such NFTs on the Platform constitutes an express representation, warranty, and covenant that the Creator (a) has not sold, tokenized or created another cryptographic token, (b) will not, and will not cause another to, sell, tokenize, or create another cryptographic token, in each case representing a digital collectible for the same Art Content underlying such NFTs, and (c) will not make any erroneous or misleading statements regarding any NFTs, Art Content or Collections (including in connection with any sales thereof).

 

By launching any NFTs on the Platform, the Creator hereby expressly and affirmatively grants to the Collector and, to the extent applicable, any subsequent Collector in a secondary sale a license pursuant to Section 4(c)(ii) below, unless the Creator expressly grants different rights to the Collector.

 

Creator expressly represents and warrants that its Art Content underlying any NFTs launched on the Platform contain only original content otherwise authorized for use by the Creator, and do not contain unlicensed or unauthorized copyrighted content, including any imagery, design, audio, video, human likeness, or other unoriginal content not created by the Creator, not authorized for use by the Creator, not in the public domain, or otherwise without a valid claim of fair use. The Creator further represents and warrants that it has permission to incorporate the unoriginal content, to the extent such permission is legally required.

 

On the Platform, a Creator can create a collection of NFTs (a “Collection”) using a unique smart contract (“Collection Smart Contract”).  The individual NFTs in a Collection can be sold in accordance with these Terms.

 

b) Holograph Rights to Art Content and Non-Holograph Content

User hereby acknowledges, understands, and agrees that by launching, listing, or selling any NFTs (including Non-Holograph Artwork) on the Platform, User hereby expressly and affirmatively grants to Holograph, and its Affiliates (as defined below) and its and their successors, a non-exclusive, worldwide, transferable, sublicensable, perpetual, irrevocable, and royalty-free license to (a) reproduce, display, perform, distribute and transmit the Art Content or Non-Holograph Content underlying such NFTs for the purpose of operating and developing the Platform, and (b) use and incorporate the Art Content or Non-Holograph Content underlying such NFTs or derivative works of any of the foregoing, on any marketing materials, and to reproduce, display, perform, display and transmit such marketing materials on any media whether now known or later discovered for the purposes of operating, promoting, sharing, marketing, and advertising the Platform.  The foregoing licenses include, without limitation, the express rights to: (i) display or perform the Art Content or Non-Holograph Content underlying such NFTs on the Platform, a third party platform, social media posts, blogs, editorials, advertising, market reports, virtual galleries, museums, virtual environments, editorials, or to the public; (ii) index the Art Content, Non-Holograph Content in electronic databases, indexes, and catalogues; and (iii) host, store, distribute, and reproduce one or more copies of such Art Content within a distributed file keeping system, node cluster, or other database (e.g., IPFS) or cause, direct, or solicit others to do so.  For purposes hereof, “Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with Holograph.

 

c) Collector Rights

i) The Collector receives a cryptographic token representing the Creator’s Art Content as a piece of property, but does not own the Art Content itself or any intellectual property rights therein.  The Collector may display and share the Art Content, but the Collector does not have any legal ownership, right, or title to any copyrights, trademarks, or other intellectual property rights to the Art Content, except the limited license to the Art Content granted by these Terms or other rights that may be expressly granted to the Collector by the Creator.

 

ii) Upon legally collecting and obtaining ownership of any NFTs launched on the Platform, unless the Creator expressly grants different rights to the Collector, the Collector receives from the seller of such NFTs a limited, worldwide, non-assignable and non-transferable (except as expressly set forth below), non-sublicensable, royalty-free license to display the Art Content underlying such NFTs solely for the Collector’s non-commercial purposes, including the right to display such Art Content privately or publicly: (i) for the purpose of promoting or sharing the Collector’s purchase of, ownership of, or interest in such NFTs, (ii) for the purpose of sharing, promoting, discussing, or commenting on such Art Content; (iii) on third party marketplaces, exchanges, platforms, or applications in association with an offer to sell, or trade, the NFTs; and (iv) within decentralized virtual environments, virtual worlds, virtual galleries, virtual museums, or other navigable and perceivable virtual environments (the “Collector License”).  Upon any sale or transfer of the NFTs to another collector, (a) the foregoing license will automatically transfer to such other collector, and such other collector will be deemed the “Collector” (for purposes of such NFTs and the Collector License to the underlying Art Content) and will be subject to these Terms and (b) the seller or transferor of such NFTs will cease to have any further rights to such Art Content.

 

iii) While the Collector has the right to sell, trade, transfer, or use their NFTs, the Collector may not make commercial use of the NFTs or its underlying Art Content, unless the Creator expressly grants such rights separately to the Collector.

 

iv) If a Collector sells, trades or transfers its NFTs to a subsequent Collector off the Platform, such Collector represents and warrants that it will (i) notify the subsequent Collector of these Terms and (ii) require the subsequent Collector to comply with these Terms.

 

v) The Collector agrees that it will not, and will not 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 Art Content which would be prejudicial to the Creator’s honor or reputation; (ii) use the NFTs or underlying Art Content to advertise, market, or sell any third party product or service; (iii) use the NFTs or underlying Art Content in connection with images, videos, or other forms of media that depict hatred, intolerance, violence, cruelty, or anything else that could reasonably be found to constitute hate speech or otherwise infringe upon the rights of others; (iv) incorporate the NFTs or underlying Art Content 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 NFTs or underlying Art Content; (vi) attempt to trademark, copyright, or otherwise acquire additional intellectual property rights in or to the NFTs or underlying Art Content; (vii) attempt to mint, tokenize, or create an additional cryptographic token representing the same NFT(s) or underlying Art Content, whether on or off of the Platform; (viii) falsify, misrepresent, or conceal the authorship of the NFTs or underlying Art Content; or (ix) otherwise utilize any Art Content or, except as expressly permitted under these Terms, the NFTs for the Collector’s or any third party’s commercial benefit.

 

vi) Collector irrevocably releases, acquits, and forever discharges Holograph and its Affiliates and it and their officers and successors of any liability for direct or indirect copyright or trademark infringement for Holograph’s use of any NFTs or underlying Art Content in accordance with these Terms.

 

vii) NFTs on the Platform that were minted on or by a third party platform or service (“Non-Holograph Artwork”) and the intellectual property rights of the content underlying such Non-Holograph Artwork (“Non-Holograph Content”) may be subject to separate license or other terms granted in connection with the initial sale of such Non-Holograph Artwork (“Non-Holograph Artwork Terms”), in which case those Non-Holograph Artwork Terms will govern in connection with such content and materials, provided that in the event of any conflict between the Non-Holograph Artwork Terms and these Terms that are not specific to a Collector’s rights to use or otherwise exploit the Non-Holograph Content, these Terms shall govern and control as between you and Holograph.  Subject to the foregoing, if you purchase any Non-Holograph Artwork, you agree to comply with the Non-Holograph Artwork Terms.

 

d) 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 Holograph, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, 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 Holograph 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).  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 Holograph, 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 Holograph.

 

The Holograph name and logos are trademarks and service marks of Holograph (collectively the “Holograph 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 Holograph. Nothing in these Terms or the Platform should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Holograph Trademarks displayed on the Platform, without our prior written permission in each instance. All goodwill generated from the use of Holograph Trademarks will inure to our exclusive benefit.

 

e) Third Party Content

Under no circumstances will Holograph be liable in any way for any NFTs, Art Content, Non-Holograph Artwork, Non-Holograph Content, Collection, or any other content or materials of any third parties (including Users), including, but not limited to, (i) for any errors or omissions in any content or materials, (ii) for infringement or violation of intellectual property or other rights in relation to such content or materials, (iii) for any promises, purported promises, or commitments made by other Users, or (iv) for any loss or damage of any kind incurred as a result of the use of any such content or materials or as a result of reliance on any such promises or commitments.  You acknowledge that Holograph does not pre-screen content, but that Holograph has the right (but not the obligation) in our sole discretion to refuse or remove any content that is available via the Platform. Without limiting the foregoing, Holograph has the right to remove any content (and to terminate any licenses granted with respect thereto) that is deemed by Holograph, in our sole discretion, to violate these Terms or otherwise be objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content and the purchase of any NFTs (including Non-Holograph Artwork), including any reliance on the accuracy, completeness, or usefulness of such content.

 

f) User Content Transmitted Through the Platform

With respect to the NFTs, Art Content, Non-Holograph Artwork, Non-Holograph Content, Collection, or any other content or materials you upload through the Platform or share with other users or recipients (collectively, “User Content”), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein, or otherwise have all necessary rights under applicable law to all materials incorporated in the User Content to engage in Transactions.  Excluding Art Content (which is licensed in Section 4(b) above), by uploading any User Content you hereby grant Holograph and its Affiliates its and their successors a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify, transmit and otherwise use your User Content in connection with the operation of the Platform or the promotion, advertising or marketing thereof in any form, medium or technology now known or later developed.

 

Any questions, comments, suggestions, ideas, feedback or other information about the Platform (“Submissions”), provided by you to Holograph are non-confidential and Holograph will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

 

Holograph may preserve User Content and may also disclose such 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; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Holograph, its Users and the public. You understand that the technical processing and transmission of the Platform, including User Content, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.

 

g) Copyright Complaints:

Holograph respects the intellectual property of others, and we ask our Users to do the same.  If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify Holograph of your infringement claim in accordance with the procedure set forth below.

 

Holograph will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement.  A notification of claimed copyright infringement should be emailed to Holograph’s Copyright Agent at hello@cxip.io  (Subject line:  “DMCA Takedown Request”).

 

To be effective, the notification must be in writing and contain the following information:

 

  • an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;

  • a description of the copyrighted work or other intellectual property that you claim has been infringed;

  • a description of where the material that you claim is infringing is located on the Platform, with enough detail that we may find it on the Platform;

  • your address, telephone number, and email address;

  • a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;

  • a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

 

h) Counter-Notice

If you believe your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent:

 

  • your physical or electronic signature;

  • identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;

  • a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and

  • your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within Northern District of California and a statement that you will accept service of process from the person who provided notification of the alleged infringement.

 

If a counter-notice is received by the Copyright Agent, Holograph will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.

 

i) Repeat Infringer Policy

In accordance with the DMCA and other applicable law, Holograph has adopted a policy of terminating, in appropriate circumstances and at Holograph's sole discretion, Users who are deemed to be repeat infringers.  Holograph may also at its sole discretion (i) limit access to the Platform and/or terminate the memberships of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement and (ii) terminate any Collector License related to a DMCA takedown notice.

 

j) User Agrees to Cooperate with Holograph

Creator expressly agrees to refund to the Collector and/or Holograph, at Holograph’s direction, the entire portion of Fees (as defined below) received from the sale of any NFTs that was subsequently removed from the Platform pursuant to an effective DMCA request to which the Creator failed to timely submit an effective DMCA Counternotification. Holograph will not be held liable to any User for removing allegedly infringing works from the Platform or otherwise fulfilling its legal obligations under the DMCA.

 

Creators, Collectors, and all Users expressly agree to cooperate and timely respond to Holograph’s investigations, requests, and inquiries related to DMCA disputes or allegations of infringement.

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5) What Fees does Holograph charge?

Royalties and Fees. You agree and understand that all transaction or other fees, commissions, royalties, and other compensation (“Fees”) are in consideration of Holograph's provision of the Platform hereunder (including facilitating the minting and/or listing of NFTs) and such Fees will be transferred, processed, or initiated directly through one or more of the Smart Contracts on the applicable blockchain network. Holograph will notify you of the applicable Fees at the time of minting or sale, or through other reasonable means.

 

Holograph cannot guarantee any royalty for a secondary sale outside the Platform of NFTs launched on the Platform.

 

Holograph does not collect any Fees for transactions occurring outside of the Platform. With respect to any Fees which are to be received by a Creator with respect to any NFTs, Holograph is not responsible for the Creator's ability to collect any Fees for transactions occurring outside of the Platform. Users irrevocably releases, acquits, and forever discharges Holograph and its Affiliates and its and their officers and successors of any liability for royalties, fines, or fees not received from any transaction outside of the Platform.

 

All Transactions on the Platform, including without limitation minting, tokenizing, bidding, listing, offering, purchasing, or confirming, are facilitated by Smart Contracts existing on the applicable network. Blockchain networks require the payment of a transaction fee (a “Gas fee”) for every transaction that occurs on the applicable network, and thus every Transaction occurring on the Platform. The value of the Gas Fee changes, often unpredictably, and is entirely outside of the control of Holograph. The User acknowledges that under no circumstances will a contract, agreement, offer, sale, bid, or other Transaction on the Platform be invalidated, revocable, retractable, or otherwise unenforceable on the basis that the Gas Fee for the given transaction was unknown, too high, or otherwise unacceptable.

 

Taxes. Users are responsible to pay any and all 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 the Platform (including, without limitation, any taxes that may become payable as the result of Promotions, Perks or your ownership, transfer, purchase, sale, or creation of any artworks).

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6) What about my privacy?

Our privacy policy is a part of these Terms. Please review the Holograph Privacy Policy, which also governs the Platform and informs Users of our data collection practices.

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7) Other Legal Terms

a) Indemnity and Release: To the extent permitted under applicable law, you agree to release, indemnify and hold Holograph and its Affiliates and their officers, employees, 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 (including but not limited to your participation in any sales, auctions, minting, Promotions, Perks and other activities on the Platform), any User Content, your connection to the Platform, your violation of these Terms or your violation of any rights of another. You further agree that Holograph shall have control of the defense or settlement of any third party claims.  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.

 

b) Disclaimer of Warranties: Transactions, including but not limited to all sales of NFTs on the Platform, listings, offers, bids, acceptances, and other operations 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 bugs, malfunctions, timing errors, hacking and theft, or changes to the protocol rules of the applicable blockchain(s) (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 NFTs, or lost opportunities to buy or sell NFTs.  YOUR USE OF THE PLATFORM IS AT YOUR SOLE RISK. THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. YOU AGREE THAT HOLOGRAPH AND ALL INDEMNITEES WILL HAVE NO RESPONSIBILITY OR LIABILITY TO YOU IF (A) YOU ARE UNABLE TO LOCATE OR USE YOUR CREDENTIALS, (B) YOUR RIGHTS TO ANY NFTS, ART CONTENT ARE TERMINATED OR (C) ANY THIRD PARTY MAKES ANY CLAIM AGAINST YOU IN RELATION TO ANY NFTS, ART CONTENT, INCLUDING ANY CLAIM OF INFRINGEMENT OR VIOLATION OF INTELLECTUAL PROPERTY OR OTHER RIGHTS. HOLOGRAPH 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.

 

HOLOGRAPH 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 (INCLUDING WITH RESPECT TO ANY NFTS AND ART CONTENT).

 

c) Limitation of Liability:  YOU EXPRESSLY UNDERSTAND AND AGREE THAT HOLOGRAPH 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 NFTS, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF HOLOGRAPH 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 NFTS, 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 HOLOGRAPH’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID HOLOGRAPH IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).

 

d) Beta Platforms. Certain features on the Platform may be offered while still in “beta” form (“Beta Platforms”). Holograph will use good faith 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.

 

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 “INDEMNITY AND RELEASE”, “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY.  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.

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8) Here are our termination rights.

You agree that Holograph, 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 Holograph believes that you have violated or acted inconsistently with the letter or spirit of these Terms. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of the Platform may be referred to appropriate law enforcement authorities. Holograph 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 may be effected without prior notice, and acknowledge and agree that Holograph 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 Holograph will not be liable to you or any third party for any termination of your access to the Platform.

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9) We do not get involved with User disputes.

You agree that you are solely responsible for your interactions with any other Users (including Creators and Collectors) in connection with the Platform and Holograph will have no liability or responsibility with respect thereto.  Without limiting the foregoing, as a Collector, you agree that Holograph has no responsibility for the nature, quality or method of any NFT sale, NFT auction, Promotion or Perk that a Creator may implement.  Holograph reserves the right, but has no obligation, to become involved in any way with disputes between you and any other User of the Platform.

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10) General Legal Terms

These Terms constitute the entire agreement between you and Holograph and govern your use of the Platform, superseding any prior agreements between you and Holograph 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. These Terms will be governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Holograph agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Kent County, Delaware. The failure of Holograph to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. If any provision of these Terms 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 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 the Terms without the prior written consent of Holograph, but Holograph 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. Holograph 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.

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11) 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 CXIP Labs, Inc., 16950 Via De Santa Fe, Suite 101, Rancho Santa Fe, California 92067or [phone].

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12) Dispute Resolution By Binding Arbitration: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.

 

  • Agreement to Arbitrate.  This Dispute Resolution by Binding Arbitration section is referred to in these Terms as the “Arbitration Agreement.”  You agree that any and all disputes or claims that have arisen or may arise between you and Holograph, 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 Holograph 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 YOU AND HOLOGRAPH 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 HOLOGRAPH 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 Holograph 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 hello@cxip.io.  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 Holograph should be sent to 16950 Via De Santa Fe, Suite 101, Rancho Santa Fe, California 92067 (“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 Holograph and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Holograph may commence an arbitration proceeding.  During the arbitration, the amount of any settlement offer made by Holograph or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Holograph is entitled.

 

  • 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 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 these Terms and applicable law.  Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. Unless Holograph and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances.  If the parties are unable to agree on a location, the determination shall be made by AAA.  If your claim is for $10,000 or less, Holograph agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic 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.

 

  • Costs of Arbitration Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement.  To the extent any Arbitration Fees are not specifically allocated to either Holograph or you under the AAA Rules, Holograph and you shall split them equally; provided that if you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of such Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of any Arbitration Fees, Holograph will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Holograph will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.

 

  • 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.

 

  • Severability 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 these Terms will continue to apply.

 

  • Future Changes to Arbitration Agreement Notwithstanding any provision in these Terms to the contrary, Holograph 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 Platform, you may reject any such change by sending Holograph 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 (or accepted any subsequent changes to these Terms).

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