Terms of Service
Last Updated: March 13, 2021
These Terms of Service (the "Terms") set forth the terms and conditions that govern access to, and use of, the websites made available by Byte3, Inc. ("Byte3", "we," or "us") that enable a user to purchase goods, and receive the other services from Byte3 as described herein (collectively, the "Services"). These Terms are a legal agreement between you ("you," or "your") and Byte3. By clicking to "Accept" these Terms where this option is made available to you and/or by using our Services, you agree to be bound by these Terms. These Terms do not alter in any way the terms or conditions of any other agreement you may have with any other party for products, services or otherwise.
Byte3 reserves the right to change or modify these Terms at any time and in our sole discretion. If Byte3 makes changes to these Terms, we will provide notice of such changes, by providing notice through the Services, by electronic means and/or by updating these Terms (as indicated by the "Last Updated" date found at the top of these Terms) on the Terms of Service page on the Byte3 website. You agree to receive notifications through these means and your continued use of the Services will indicate your acceptance of the revised Terms. If you do not agree to any amended Terms, you must stop using the Services.
IF YOU DO NOT AGREE TO THESE TERMS, IMMEDIATELY STOP USING THE SITE AND DO NOT USE ANY SERVICE OR PURCHASE OR RECEIVE ANY PRODUCT, GOOD, OR SERVICE OFFERED THROUGH THE SITE.
PLEASE REVIEW THE FOLLOWING SECTIONS OF THESE TERMS OF SERVICE CAREFULLY: (A) LIMITATION OF LIABILITY, (B) INDEMNIFICATION, AND (C) ARBITRATION CLAUSE AND CLASS ACTION WAIVER DESCRIBED IN SECTION 16 BELOW TO RESOLVE ANY DISPUTES WITH BYTE3 (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL-CLAIMS COURT).
If you purchase products (e.g. NFTs) from Byte3, our Terms of Sale will apply. Those terms are subject to change at any time and in our sole discretion, so you should review them each time you make a purchase.
Our Services are intended solely for users who are 18 years of age or older. If you are under the age of 18, then you are not permitted to register or have use of an account with Byte3. By using the Services, you represent and warrant that you are 18 years of age or older.
In order to use the Services, you will be required to create an account with Byte3. You may only register for one account and you agree to: (i) provide accurate, current and complete information; (ii) maintain and promptly update your account information to keep it accurate, current and complete; (iii) maintain the security of your account and accept all risks of unauthorized access to your account; and (iv) promptly notify Byte3 if you discover or otherwise suspect that your account has been subject to hacking or other unauthorized use.
Byte3 retains the right, at our sole discretion, to deny service or use of the Services or an account to anyone at any time and for any reason. Although we use reasonable efforts to keep the Services and your account accessible, the Services and/or your enrollment may be unavailable from time to time. You understand and agree that there may be interruptions in service or events, Services access, or access to your enrollment due to circumstances both within our control (e.g., routine maintenance) and outside of our control. You agree that Byte3 will not be liable to you or to any third party for any modification, suspension or discontinuance of the Site or the services offered through it.
Buy Byte Cubes. You may buy Byte Cube NFTs for yourself, for the sole purpose of personal, family or household use and not for resale. The Terms of Sale will apply to the purchase of such NFTs and you agree to comply with such Terms of Sale.
Unless otherwise indicated by Byte3, the Services and all content and other materials therein, including, without limitation, the Byte3 logo, the Terms of Sale and all other designs, text, graphics, pictures, information, data, software, sound files, other files made available within the Services and the selection and arrangement thereof, and any documentation or other ancillary material provided to you by or behalf of Byte3 (collectively, "Byte3 Content") are the proprietary property of Byte3 or our licensors or users and are protected by U.S. and international intellectual property laws.
Byte3 hereby grants you a limited, nonexclusive, non-sublicensable license to access and use the Services and Byte3 Content solely for the purpose of purchasing goods, or receiving other services under these Terms; however, such license is subject to these Terms and you are not permitted to (a) sell, rent, lease, lend, redistribute, sublicense or make commercial use of the Services or the Byte3 Content; (b) copy, reverse engineer, decompile, disassemble or attempt to discover the source code of our Services or Byte3 Content; (c) modify, alter or otherwise make any derivative uses of the Services or the Byte3 Content, or any portion thereof; (d) remove, alter or obscure any copyright, trademark or other proprietary rights notice included in the Services or Byte3 Content; (e) use any data mining, robots or similar data gathering or extraction methods; (f) download (other than the page caching) any portion of the Services or the Byte3 Content, except as expressly permitted via the Services; and (g) use the Services or the Byte3 Content other than for their intended purposes. Any use of the Services or the Byte3 Content other than as specifically authorized herein, without the prior written permission of Byte3, is strictly prohibited and will terminate the license granted in this Section 7. Such unauthorized use may also violate applicable laws, including without limitation, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated by Byte3, nothing in these Terms shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time.
"Byte3" and the Byte3 logo and any other Byte3 product or service names, logos or slogans are Byte3's trademarks in the United States and in other countries, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Byte3. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Services are the property of their respective owners and may not be used without permission of the applicable trademark holder. Reference to any products, services, processes or other information, by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by Byte3.
In accordance with the Digital Millennium Copyright Act ("DMCA") and other applicable laws, Byte3 has adopted a policy of terminating, in appropriate circumstances and at Byte3's sole discretion, users who are deemed to be repeat infringers. Byte3 may also, in our sole discretion, limit access to the Services and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement. If you believe that anything on the Services infringes upon any copyright which you own or control, you may file a notification of such infringement with our Designated Agent as set forth below: Address: Byte3, Inc. Attn: General Counsel, 651 N Broad St #206, Middletown, DE 19709 Email: email@example.com. Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. If you knowingly misrepresent in your notification that the material or activity is infringing, you will be liable for any damages, including costs and attorneys' fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
Byte3 may provide links to third-party websites, apps, mobile services or other third-party services ("Third-Party Services") and may also display, link to or otherwise make available third-party content, data, information, events, apps or materials ("Third-Party Materials") on the Services. Byte3 does not endorse or control, and makes no representations or warranties of any kind, regarding any Third-Party Services or Third-Party Materials including, but not limited to, the content, accuracy, quality, nature, appropriateness, decency, functionality, performance, reliability, completeness, timeliness, validity, safety, legality or any other aspect thereof. Your use of Third-Party Services and Third-Party Materials is at your own risk. Byte3 is not responsible for any issues, legal or otherwise, that may result from your use of the Third-Party Services or Third-Party Materials, including any loss, damage or harm of any sort incurred as a result of your use of Third-Party Services or Third-Party Materials. If you access or use any Third-Party Services or Third-Party Materials, Byte3's terms and policies, including these Terms, no longer govern. You should review the applicable terms and policies including, but not limited to, privacy and data gathering practices, of any Third-Party Service to which you navigate from the Services. For the avoidance of doubt the terms and policies for Third-Party Services are solely between you and the Third-Party Services provider and not Byte3.
As conditions of your use of the Site, and in addition to other conditions set forth in these Terms, you agree that:
You are solely responsible for all content you post, upload to, transmit, distribute, store, create or otherwise publish through the Services ("User Content"). The User Content you provide must comply with the rules set forth below. These rules do not create any private right of action on the part of any third-party or any reasonable expectation that the Services will not contain any content that is prohibited by such rules.
You agree not to post, upload to, transmit, distribute, store, create or otherwise publish through the Services any of the following:
Although Byte3 does not control and has no obligation to screen, edit or monitor any of the User Content posted, stored or uploaded on (or otherwise made available via) the Services, Byte3 reserves the right, and has absolute discretion, to remove, screen or edit any User Content posted, stored or uploaded on the Services at any time and for any reason without notice, and you are solely responsible for creating backup copies of and replacing any User Content you post, store or upload on (or otherwise make available via) the Services at your sole cost and expense. Byte3 takes no responsibility and assumes no liability for any User Content posted, stored or uploaded on (or otherwise made available via) the Services.
Except for any Feedback you provide with respect to the Services, you retain ownership of the User Content you post, store or upload on (or otherwise make available via) the Services. You hereby grant Byte3 and our affiliates a non-exclusive, royalty-free, perpetual, irrevocable and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such User Content throughout the world in any manner or media, on or off the Services. You represent and warrant that: (i) you own and control all of the rights to the User Content that you post, store or upload on (or otherwise make available via) the Services or you otherwise have the right to make available such User Content via the Services and grant the rights granted in these Terms; (ii) the User Content that you post, store or upload on (or otherwise make available via) the Services is accurate and not misleading; and (iii) Byte3's use of the User Content you supply does not violate these Terms and will not violate any rights of, or cause injury to, any person or entity.
You are solely responsible for your conduct and the conduct of anyone who uses your account with respect to the Services, and you agree that you will not and will not permit anyone using your account to do any of the following in connection with the Services:
If your account is disabled, you, or anyone acting under your discretion, is/are strictly prohibited from creating another account with Byte3.
Byte3 takes no responsibility and assumes no liability for any user conduct, mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter while using the Services. Your use of the Services is at your own risk. Any use of the Services in violation of the foregoing violates these Terms and may result in, among other things, termination or suspension of your rights to use the Services.
You can submit questions, comments, suggestions, ideas, plans, notes, drawings, original or creative materials or other information or materials about Byte3 and the Services (collectively, "Feedback"). Feedback, whether submitted through the Services or otherwise, is non-confidential and shall become the sole property of Byte3. Byte3 shall own exclusive rights, including all intellectual property rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICES AND BYTE3 CONTENT IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, SAFETY, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND BYTE3 CONTENT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. BYTE3 DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SERVICES AND THE BYTE3 CONTENT CONTAINED THEREIN, INCLUDING ANY AND ALL: (I) IMPLIED WARRANTIES OF MERCHANTABILITY; (II) IMPLIED WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT BYTE3 KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); AND (III) WARRANTIES OF NON-INFRINGEMENT OR CONDITION OF TITLE. BYTE3 DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICES WILL BE ACCURATE OR MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY DEFECTS IN THE SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION, GUIDELINES OR ADVICE GIVEN BY BYTE3 OR OUR AUTHORIZED REPRESENTATIVE WILL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS, SO SOME OR ALL OF THE DISCLAIMERS IN THIS SECTION MAY NOT APPLY TO YOU.
You agree, at your sole expense, to defend, indemnify and hold us, our parent company and its subsidiaries, our merchants, payment processors, payment card networks, financial institutions, our service providers and consultants, and our and their respective directors, employees and agents, harmless from and against any and all actual or threatened suits, actions, proceedings (at law or in equity), claims, damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorney fees, costs, penalties, interest and disbursements) caused by, arising out of, resulting from, attributable to or in any way incidental to: (i) your use of the Services or Byte3 Content; (ii) your violation of these Terms or the rights of any third-party; or (iii) any User Content you post, upload, use, distribute, store or otherwise transmit on or through the Services.
If you are a California resident, you waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL BYTE3 BE LIABLE TO YOU OR ANY THIRD-PARTY FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THE SERVICES AND THE CONTENT THEREIN, INCLUDING BUT NOT LIMITED TO, THE GOODS, RELATED PRODUCTS AND SERVICES (INCLUDING, BUT NOT LIMITED TO, THE REDEEMABILITY OF GOODS), USER CONTENT, BYTE3CONTENT, THIRD-PARTY SERVICES AND/OR THIRD-PARTY MATERIALS, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY) AND EVEN IF BYTE3HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT WILL BYTE3'S TOTAL LIABILITY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICES EXCEED FIFTY DOLLARS ($50.00) (AS OPPOSED TO ANY OTHER FEES/COSTS INCLUDING, BUT NOT LIMITED TO, ANY FEES ASSOCIATED WITH YOUR DEVICE, THE COST TO PURCHASE AND OPERATE YOUR DEVICE, THE COST OF ANY GOODS OR THE COST OF ANY PRODUCTS OR SERVICES PURCHASED THROUGH BYTE3).
The validity, construction, and interpretation of these Terms, and the rights and duties of the parties hereto, will be governed by and construed in accordance with the laws of the State of Delaware in the United States, excluding its conflicts of laws principles. However, as explained below, the agreement to arbitrate in the following paragraph is governed by United States federal law.
You agree that any dispute, claim or controversy arising out of or in connection with Byte3's business or these Terms or relating in any way to the Services shall be determined by binding arbitration. You further agree that the U.S. Federal Arbitration Act and federal arbitration law shall govern the interpretation and enforcement of this Agreement to arbitrate, and any such arbitration hearing shall be heard in San Mateo, California.
Arbitration uses a neutral arbitrator instead of a judge or jury, and is more informal than a lawsuit in state or federal court. Discovery in arbitration is more limited than is generally available in the courts and the arbitrator's decision is also subject to very limited appellate review by the courts.
You also agree to waive the right to a trial by jury or to participate in a class action. These waivers are mutual as between you and Byte3, and Byte3 waives its right to a trial by jury or to participate in a class action against you. This means that neither you nor Byte3 can seek to assert class or representative claims against each other either in court or in arbitration and no relief can be awarded on a class or representative basis. The arbitrator also may not consolidate or join another person's claim with your claim or issue an order that would achieve the same result. You and Byte3 further agree that if the provisions of this paragraph are found to be unenforceable, then the entire provision compelling arbitration shall be null and void.
You also agree that all issues are for the arbitrator to decide. This includes all issues related to the scope, application, interpretation and enforceability of this Agreement and this arbitration provision. The arbitrator shall also decide whether any claim is subject to arbitration.
The arbitration will be governed by the Commercial Arbitration Rules (the "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this Agreement, and will be administered by the AAA. The AAA Rules are available online at www.adr.com. The arbitrator is bound by the terms of this Agreement. If your claim in arbitration is for less than $10,000, Byte3 will reimburse you for filing fees at the conclusion of the proceeding unless your claim is found to be frivolous by the arbitrator.
In lieu of arbitration, you may also elect to have your claims decided in small-claims court, so long as the small-claims court does not permit class, representative, or consolidated actions, or the award of relief in favor of any person or entity that is not a named party to the small-claims action.
Byte3 reserves the right to change, suspend, remove, discontinue or disable access to the Services at any time and without notice. In no event will Byte3 be liable for the removal of or disabling of access to any portion or feature of the Services.
If any provision of these Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
Enforcement of the Terms is solely in our discretion and our failure to enforce a provision in some instances does not constitute a waiver of our right to enforce such provision in other instances.
Byte3 may assign these Terms and its rights or delegate its obligations under without your consent. All provisions contained in these Terms shall extend to and be binding upon you and Byte3's successors and assigns. You may not assign these Terms to another person or entity.
If you have any questions or concerns regarding these Terms or our Services, please contact us at firstname.lastname@example.org or: Byte3, Inc. Attn: General Counsel, 651 N Broad St #206, Middletown, DE 19709.