ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTIONS 11 or 12 BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND BIG BABY NFT WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
BY USING THE SITE OR SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE WITH THESE TERMS, YOU MAY NOT USE THE SITE OR SERVICES.
For clarity, these Terms do not govern your use of Big Baby NFT’s and its affiliates’ other websites (e.g., BIGBABYNFT.com) and associated mobile applications, nor any other product or service purchased from a Big Baby NFT website or application besides the Big Baby NFTs.
Purchasing Big Baby NFTs
You hereby expressly grant Big Baby NFT the right, power, and authority to transmit your information to such Third Party Vendors as reasonably necessary for Big Baby NFT to provide the Services to you. Big Baby NFT has no affiliation with any Third Party Vendors, and Big Baby NFT does not and will not collect or receive any of the information, including any personal information, that you provide to such Third Party Vendors, except for any information that may be publicly available on the Ethereum blockchain. Because Big Baby NFT has no control over Third Party Vendors, or their websites or mobile applications, you acknowledge and agree Big Baby NFT is not responsible for the availability of such external websites, mobile applications or resources accessible from those Third Party Vendors, and does not endorse and is not responsible or liable for any content, advertising, products, services, or other materials available from such websites or mobile applications, nor does Big Baby NFT endorse any such websites, mobile applications or resources, or the products or services assessable on such websites or mobile applications.
Purchase Terms. You may initiate a purchase of Big Baby NFT(s) by selecting “Mint” on the Site. As this is a blind drop, each buyer will receive a random Big Baby NFT from the collection that will be revealed upon the end of the minting period. For a more complete description of this sale, please see the Frequently Asked Questions.
All purchases effectuated through the Site are final and non-refundable, except as set forth in the prior section. Purchases may be made 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 (or equivalent in other currencies) amount and number of any transactions on the Site. Big Baby NFT is under no obligation to accept cryptocurrencies and we retain the right in our sole discretion to determine what currencies or payment option to accept at any time. You acknowledge and agree that all transactions effectuated through the Site are publicly visible on the Ethereum blockchain when made.
You are responsible for all payments, fees and costs when engaging in any transactions involving Big Baby NFTs, including, without limitation, the purchase price, transaction fees (e.g., “gas” fees) and all other fees associated with your use of the Services or the services of Third Party Vendors, including but not limited to purchasing, trading and “burning” a Big Baby NFT. You also are solely responsible for payment of all national, federal, state, local or other taxes of any jurisdiction, of whatever nature whether now in effect or imposed in the future by any national federal, state, local, international or any other governmental authority or taxing jurisdiction, including, without limitation, any income, sales, use, value-added (VAT), goods and services and other taxes and duties associated with your use of the Services, the services of Third Party Vendors, and your purchase of Big Baby NFTs from any party. You are solely responsible for any tax reporting for transactions in which you may be a seller of Big Baby NFTs.
Secondary Sales. You may have the limited right to sell or transfer your Big Baby NFTs on the OpenSea marketplace. We do not monitor or control any marketplace purchases or sales, or any other activity beyond that on the Site.
Limited License. In connection with your purchase of one or more Big Baby NFT and subject to your compliance with the terms of this Agreement, Big Baby NFT may grant you a limited license to display the original artwork that was minted as a Big Baby NFT and is associated with the Big Baby NFT(s) that you purchase (“Artwork”). The terms of said limited license, including restrictions on the use of any such Artwork and provisions related to the term and termination of same, can be found here (“Limited License”).
You acknowledge and agree that Big Baby NFT (or, as applicable, its licensors) owns all legal right, title and interest in and to the content of the Site, the Artwork, and all intellectual property rights therein. Any rights that you may have in and to the Artwork are limited to those expressly described in the Limited License. Big Baby NFT (on behalf of itself and, as applicable, its licensors) reserves all other rights in and to the Artwork, including all copyrights in and to the Artwork (e.g., the right to reproduce and make copies, to prepare derivate works, to distribute, sell, or transfer, to display, to perform, and to publicly display and publicly perform).
DISCLAIMER OF WARRANTIES
IF YOU CHOOSE TO USE THE SITES OR SERVICES, YOU DO SO VOLUNTARILY AND AT YOUR SOLE RISK. THE SITES AND SERVICES ARE PROVIDED “AS IS” AND TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, WE DISCLAIM ALL WARRANTIES OR OTHER TERMS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OR TERMS OF SATISFACTORY QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT: THAT THE SITES OR SERVICES, OR ANY OF THEIR FUNCTIONS, WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; THAT ANY PART OF THE SITES OR SERVICES, OR THE SERVERS THAT MAKE THEM AVAILABLE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SITES OR SERVICES WITH REGARD TO CORRECTNESS, ACCURACY, TIMELINESS, RELIABILITY, APPROPRIATENESS FOR ANY PURPOSE, OR OTHERWISE. DUE TO THE NATURE OF THE INTERNET, BIG BABY NFY CANNOT GUARANTEE THE CONTINUOUS AND UNINTERRUPTED AVAILABILITY AND ACCESSIBILITY OF THE SITES OR SERVICES. BIG BABY NFT MAY RESTRICT THE AVAILABILITY OF THE SITES OR SERVICES OR CERTAIN AREAS OR FEATURES IF NECESSARY, IN VIEW OF CAPACITY LIMITS, THE SECURITY OR INTEGRITY OF ITS SERVERS, OR TO CARRY OUT MAINTENANCE MEASURES THAT ASSIST IN THE PROPER OR IMPROVED FUNCTIONING OF THE SITES OR SERVICES. IF YOU ARE DISSATISFIED WITH ANY OF THE MATERIALS CONTAINED IN THE SITES OR SERVICES, OR WITH ANY OF THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF OUR SITES OR SERVICES.
You agree that the Big Baby NFTs are not and shall not be based upon or redeemable for any tangible or physical item, fractionalized, or capable of use as a coupon, investment, security or other financial instrument or knowingly marketed in any other manner that would cause transactions to be governed by any applicable securities laws, including but not limited to the Securities Act of 1933, and are not convertible virtual currencies.
You acknowledge and agree that the characterization and regulatory scheme governing NFTs, cryptocurrencies, and blockchain technology is uncertain and continually evolving, and is accompanied by inherent risks, including risks related to faulty or insufficient hardware, software, or internet connections; introduction or intrusion of malicious code or software; hacking or unauthorized access to your digital wallet or information stored therein, or of theft or diversion of funds therefrom; volatility and unstable or unfavorable exchange rates; and the risk of unfavorable regulatory intervention and/or tax treatment in relation to transaction in cryptocurrency. You further acknowledge and agree that digital assets are highly experimental, risky, and volatile, and your use of the Site and Services to purchase digital assets may carry substantial financial risk, including the risk of loss in trading digital assets. By using the Site or Services, you represent that you have sufficient knowledge, sophistication, and experience with respect to NFTs, cryptocurrency, and blockchain technology, to make your own evaluation of the merits and risks of any transaction conducted via the Site or Services or any digital asset associated with such transaction. Under no circumstances will the operation of all or any portion of the Site or Services by Big Baby NFT be deemed to create a relationship that includes the provision or tendering of investment advice.
You shall indemnify, defend (at Big Baby NFT’s request) and hold harmless Big Baby NFT, its affiliates and licensors, and its and their respective officers, agents, directors, representatives, contractors, and employees, from and against any and all claims, suits, demands, actions, losses, liabilities, damages, judgements, penalties, fines, expenses and other costs (including reasonable attorneys’ fees) arising from your breach or alleged breach of this Agreement. Big Baby NFT will also have the right to provide our own defense additionally or alternatively at our own expense.
Limitation of Liability.
In no event will Big Baby NFT be liable to you for any special, incidental, exemplary, indirect, punitive, or consequential damages (including loss of profits) with respect to the subject matter of this Agreement, whether such liability arises from any claim based upon contract, warranty, tort (including negligence), strict liability or otherwise, and whether or not you have been advised of the possibility of such loss or damage. Big Baby NFT’s aggregate liability under this Agreement shall not exceed the net revenues actually received by Big Baby NFT in connection with any transaction in which you purchased or sold your Big Baby NFT. The foregoing limitation of liability shall only apply to the extent permitted by applicable law. In no event will Big Baby NFT be liable for any inability for you to access the Artwork for any reason, including as a result of any downtime, failure, obsolescence, removal, termination or other disruption relating to (a) the servers upon which the Artwork is stored; (b) any Third Party Vendor; or (c) any other NFT platform.
Big Baby NFT will have the unrestricted right to assign this Agreement and to assign, subcontract, license and sublicense any or all of its rights and obligations hereunder. This Agreement is personal to you and shall not be assigned or transferred by you. Any other attempt by you to assign, sub-license, or transfer your rights under this Agreement shall be null and void.
Your rights and remedies in the event of any breach of this Agreement are strictly limited to the right, if any, to recover damages, and you acknowledge that your remedy of money damages is adequate. You will not be entitled by reason of any such breach, and you will not seek, any equitable relief, whether injunctive or otherwise.
Arbitration / Dispute Resolution For U.S. Residents.
Governing Law. These Terms shall be governed by and construed in accordance with the laws of the State of New York without application of conflict of laws rules, except that these Arbitration provisions shall be governed by the Federal Arbitration Act.
Resolution of Any Dispute. In the event a dispute arises between you and Big Baby NFT (“Dispute”), we want to provide you with an efficient, neutral and cost-effective means of resolving the dispute. Most customer concerns can be resolved quickly and to the customer’s satisfaction by contacting us by writing to Big Baby NFT, 1095 Sixth Avenue, New York, NY 10036, United States. If, however, the Dispute cannot be resolved by the personnel directly involved, the parties shall first attempt in good faith to resolve the Dispute promptly by negotiation between duly appointed executive officers or other representatives of such parties, with full authority to negotiate and settle the Dispute. If a Dispute has not been resolved by negotiations within 90 days as provided hereinabove, such Dispute shall be submitted to JAMS, or its successor (collectively, “JAMS”), for mediation as provided hereinbelow. Any party involved in the Dispute may commence mediation by providing to JAMS and each other party involved in the Dispute a written request for mediation, setting forth the subject of the Dispute and the relief requested. The parties will cooperate with JAMS and with one another in selecting a mediator from JAMS’ panel of neutrals and in scheduling the mediation proceedings. The parties covenant that they will participate in the mediation in good faith, and that they will share equally in its costs. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator and any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any litigation or other proceeding involving the parties; provided, however, that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. None of the parties may commence arbitration or a civil action with respect to the matters submitted to mediation until after the completion of the initial mediation session, or 30 business days after the date of filing the written request for mediation, whichever occurs first. Mediation may continue after the commencement of arbitration or a civil action, if the parties so desire.
Limitation of Legal Remedies. If there is a Dispute that remains unresolved after mediation, INSTEAD OF SUING IN COURT, YOU AND BIG BABY NFT EACH AGREE TO THE FULLEST EXTENT PERMITTED BY LAW TO ARBITRATE DISPUTES THROUGH BINDING ARBITRATION PURSUANT TO THE JAMS ARBITRATION RULES AND PROCEDURES, ON AN INDIVIDUAL BASIS, WITHOUT CLASS RELIEF, EXCEPT FOR DISPUTES PERTAINING TO BIG BABY NFT’S INTELLECTUAL PROPERTY RIGHTS AND STATUTORY CLAIMS THAT PURSUANT TO LAW ARE NOT ARBITRABLE. This agreement to arbitrate is intended to be broadly interpreted. It includes claims based in-contract, tort, statute, fraud, misrepresentation or any other legal theory (“Claim(s)”). The arbitrator's decision and award are final and binding, with some exceptions under the Federal Arbitration Act, 9 U.S.C. 1, et seq., and judgment on the award may be entered in any court with jurisdiction.
Jury Trial Waiver. YOU AND BIG BABY NFT EACH VOLUNTARILY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESOLVING ANY DISPUTE BETWEEN US ARISING OUT OF THESE TERMS OR THE SITES OR SERVICES.
Class Action Waiver. YOU AND BIG BABY NFT EACH AGREE THAT CLAIMS AGAINST THE OTHER MAY ONLY BE BROUGHT IN AN INDIVIDUAL CAPACITY AND NOT IN A CLASS ACTION OR REPRESENTATIVE PROCEEDING. All arbitrations under these Terms must be conducted on an individual (and not a class-wide) basis, and an arbitrator will have no authority to award class-wide relief. You acknowledge and agree that these Terms specifically prohibit you from commencing any legal proceedings as a representative of others, participating in a class, representative, or collective action as a class representative, class member or an opt-in party, acting as a private attorney general, or joining or consolidating Claims with claims or proceedings brought by any other person ("Class Action Waiver").
Arbitration Procedures. A party who intends to seek arbitration must first send to the other a written Notice of Dispute describing the nature and basis of the Claim and setting forth the specific relief sought ("Notice"). All Notices to Big Baby NFT must be sent to the following address: Big Baby NFT USA LLC, 1095 Sixth Avenue, New York, NY 10036, United States. Our notice to you will be sent to you based on the most recent contact information that you provide us but if no such information exists or if such information is not current, then we have no obligation under this Section. Upon receipt of such Notice, the receiving party will have a 60-day period in which it may satisfy the Claim against it by fully curing the Claim, providing all the relief requested in the Notice, or entering into a settlement to resolve the Claim to the mutual satisfaction of the parties. After the expiration of such 60-day cure period, you or Big Baby NFT may commence an arbitration proceeding. Unless otherwise agreed to by you and Big Baby NFT in writing, the arbitration will be governed and conducted by JAMS before a single arbitrator with substantial experience in the internet industry and shall follow substantive law in adjudicating the Dispute. This Section shall be construed as a written agreement to arbitrate pursuant to the Federal Arbitration Act (“FAA”). You and Big Baby NFT agree that this Section satisfies the writing requirement of the FAA. The arbitration of any claim will be conducted in the State of New York, and for any non-frivolous claim that does not exceed $5,000.00, you shall have the choice as to whether the hearing is conducted in person or by telephone. Each party will pay the fees and costs of its own counsel, experts and witnesses. The JAMS rules are available on its website at www.jamsadr.com. To the extent that this dispute resolution Section conflicts with JAMS minimum standards for procedural fairness, the JAMS rules and/or minimum standards for arbitration procedures in that regard shall control. Neither party shall sue the other party other than as provided herein or for enforcement of this clause or for the arbitrator’s award; and any such suit may be brought only in Federal District Court or, if any such court lacks jurisdiction, in any state court that has jurisdiction. The arbitrator, and not any federal, state, or local court, shall have exclusive authority to resolve any Dispute relating to the interpretation, applicability, unconscionability, arbitrability, or enforceability of these Terms including any claim that all or any part of these Terms are void or voidable. However, the preceding sentence shall not apply to the clause entitled “Class Action Waiver”.
Exception to Arbitration. Only disputes or actions pertaining to Big Baby NFT’s intellectual property rights, or statutory claims that pursuant to law are not arbitrable, are exempt from arbitration.
Survival. This arbitration provision shall survive termination of these Terms.
Severability. If any provision of this Section is declared or found by a court of competent jurisdiction or arbitrator to be unlawful, unenforceable or void, such provision will be ineffective only to the extent that it is found unlawful, unenforceable or void, and the remainder of the provision and all other provisions will remain fully enforceable, except that if the Class Action Waiver for any Claim cannot be enforced, then the provision to arbitrate will not apply.
Dispute Resolution Non-U.S. Residents
In the event of any dispute you and we agree to send a written notice to the other providing a reasonable description of the dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us but if no such information exists or if such information is not current, then we have no obligation under this section. Your notice to us must be sent to us at email@example.com or to Big Baby NFT USA LLC, 1095 Sixth Avenue, New York, NY 10036, United States. For a period of 60 days from the date of receipt of notice from the other party, Big Baby NFT and you will engage in a dialogue in order to attempt to resolve the dispute, though nothing will require either you or Big Baby NFT to resolve the dispute on terms either you or Big Baby NFT, in each of our sole discretion, are unsatisfactory. Nothing in this section will prevent a party from pursuing their claims in court or another complaint process.
If your country of residence or establishment is outside the U.S., these Terms will be governed by and interpreted in accordance with English law. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded. This choice of law does not impact your rights as a consumer according to the consumer protection laws of your country of residence. If you are a consumer, you may be able to bring judicial proceedings against us arising from or in connection with these Terms in a court within a jurisdiction according to the laws of your country of residence or the English courts. if you are acting as a business, you agree to submit to the exclusive jurisdiction of the English courts.
If you have any comments, queries or complaints about these Terms or our Services, please contact us at firstname.lastname@example.org.
No Rights Of Third Parties.
You agree that there are no third-party beneficiaries to these Terms.
This Agreement constitutes the complete understanding and agreement of you and Big Baby NFT with respect to the Articles and supersedes any and all prior or contemporaneous written or oral agreements between you and Big Baby NFT with respect to all Articles. Prior agreements between Big Baby NFT and you relating to any article(s) will continue to govern those prior article(s). The language of any clause or term of this Agreement will not be construed for or against the drafter. No right or term of this Agreement will be deemed waived, and no breach of this Agreement excused, unless the waiver or consent is in writing and signed by you and Big Baby NFT. Any modification or amendment to this Agreement must be made in writing and signed by you and Big Baby NFT.