TERMS AND CONDITIONS
LAST UPDATED: September 26, 2023
Your acceptance of these Terms and Conditions (the “Terms”) form a binding agreement between you and The Topps Company, Inc. and its affiliated companies, including Topps Vault, Inc. (“Topps,” “we,” “us,” “our”), which provides all of the terms and conditions governing your access and use of www.toppsnfts.com and any related websites and/or applications (mobile or otherwise) (collectively, the “Platform”), as well as your creation of your Account (as defined herein), use and access of the Platform, any transactions or dealings with us or through the Platform in any way, and receipt or use of any of THE INFORMATION, CONTENT, FUNCTIONALITY AND RESOURCES PUBLISHED OR ENABLED VIA the Platform (collectively, the “Services”).
PLEASE NOTE THAT THESE TERMS INCLUDE A MANDATORY ARBITRATION PROVISION WHICH REQUIRES THAT ANY PAST, PENDING, OR FUTURE DISPUTES BETWEEN YOU AND US SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS, BASED SOLELY ON YOUR OR OUR OWN ALLEGED LOSSES AND NOT ON A CLASS-WIDE, COLLECTIVE, REPRESENTATIVE OR CONSOLIDATED BASIS. IF YOU DO NOT WISH TO BE SUBJECT TO ARBITRATION ON A RETROACTIVE BASIS AND AS TO ANY FUTURE CLAIMS AND YOU HAVE NOT PREVIOUSLY AGREED TO AN ARBITRATION PROVISION IN CONNECTION WITH YOUR USE OF THE PLATFORM, YOU MAY OPT OUT OF THE ARBITRATION PROVISION WITHIN 30 DAYS BY FOLLOWING THE INSTRUCTIONS PROVIDED IN THESE TERMS WITHIN THE SECTION ENTITLED “BINDING ARBITRATION AND CLASS WAIVER.”
FURTHERMORE, BY USING THE PLATFORM AND/OR ANY SERVICES AND, IN SO DOING, ACCEPTING THESE TERMS: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS FOR YOUR OWN LOSSES AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, COLLECTIVE, REPRESENTATIVE OR CONSOLIDATED PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
These Terms govern your use of the Platform and apply to all users visiting and/or using the Platform. By accessing any of the Services or using the Platform in any way, including by browsing the Platform or attempting to purchase goods or services offered for sale through the Platform (each, a “Product” or “Service”), including non-fungible tokens (“Topps NFTs”) and other digital collectibles, you represent that (1) you have read, understand, and agree to be bound by these Terms, (2) you are of legal age to form a binding contract with Topps, and (3) you are an individual user or, if registering for or on behalf of an entity, you have the authority to bind such entity to these Terms. If you do not agree to be bound by these Terms, you may not access or use this Platform. Your purchase or use of, and participation in, certain Products or Services may be subject to additional terms (collectively,“Supplemental Terms”) and such Supplemental Terms will either be listed in these Terms or will be presented to you for your acceptance when you purchase a relevant Product or use a relevant Service. If these Terms are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Product or Service only. These Terms and any applicable Supplemental Terms are referred to herein as the “Agreement.”
PLEASE NOTE THAT THESE TERMS ARE SUBJECT TO CHANGE BY TOPPS IN ITS SOLE DISCRETION AT ANY TIME. You agree that you will be bound by any such changes and that it shall be your responsibility to check the current Terms as posted on the Platform prior to accessing the Platform or participating in any Services. Your further use of the Platform and/or Services after any changes are posted shall constitute further consent and agreement to the Terms as changed or amended. We will keep current the “Last Updated” date at the top of these Terms. Any changes to these Terms will be effective immediately for all users of the Platform and/or Services. Topps may require you to provide consent to the updated Agreement in a specified manner before further use of the Platform and/or Services is permitted. If you do not agree to any change(s) after receiving notice of such change(s), you shall stop using the Platform and Services and your Account may be terminated at the sole discretion of Topps. PLEASE REGULARLY CHECK THE PLATFORM TO VIEW THE THEN-CURRENT TERMS.
1. About ToppsNFTs.com.
The Platform allows users the opportunity to purchase, collect, display, trade and sell Topps Products, including NFTs.
2. TOPPS NFTS ARE NOT A SECURITY OR INVESTMENT OPPORTUNITY.
Topps NFTs are offered solely as collectibles and are intended for use and enjoyment in the same way as physical trading cards or other collectibles. Topps NFTs are not (nor are they intended to be) securities, as defined by SEC v W.J. Howey Co., 328 U.S. 293 (1946), and are not offered for the purpose of investment. Topps is not an investment advisor, legal advisor, or a broker-dealer of any investment opportunity or security. Topps creates and sells the Topps NFTs in an “AS IS” condition and without any representation or warranty of any kind, implied or otherwise, including with respect to the current or future value of the Topps NFTs. No Product or Service offered for sale or published by Topps on the Platform or anywhere else should be construed as, and may not be used in connection with, an offer to sell, or a solicitation of an offer to buy or hold, an interest in any security or investment product. Accordingly, you understand, acknowledge, and agree any use by you of the Platform or any purchase, trade, or sale of any Topps NFT(s) by you will not be afforded the same benefits and protections of securities under applicable laws, rules and regulations governing the offering and/or sale of securities.
YOU AFFIRM THAT YOU ARE AN INDIVIDUAL OVER THE AGE OF 18 OR THE AGE OF LEGAL MAJORITY IN YOUR PLACE OF RESIDENCE. THE PLATFORM IS NOT INTENDED FOR ANYONE UNDER THE AGE OF AGE OF MAJORITY AND YOU MAY NOT USE THE PLATFORM IF YOU ARE UNDER THE AGE OF MAJORITY. IF WE LEARN OR SUSPECT THAT YOU ARE UNDER THE AGE OF MAJORITY, WE WILL CLOSE YOUR ACCOUNT.
4. Account Registration, Wallets and Blockchain.
5. Account Password and Security.
- 5.1. You acknowledge and agree that Topps is authorized to act on instructions received through use of your Credentials (defined below), and that Topps may, but is not obligated to, deny access or block any transaction made through use of your Credentials (defined below) without prior notice if we believe your password is being used by someone other than you, or for any other reason.
- 5.2. You are responsible for the security of your account and wallet. When registering for the Platform, you will be required to select a username and password that will be used to access your account. You are solely responsible for maintaining the confidentiality of your password, private keys or other access credentials (“Credentials”) and for any use of your Credentials, whether by you or others. You agree to (a) keep your Credentials confidential and not share them with anyone else; (b) immediately notify Topps of any unauthorized use of your Credentials or account or any other breach of security; and (c) use only your Credentials to access the applicable parts of the Platform. You acknowledge and agree that Topps is not and will not be liable for any loss or damage to you or anyone else arising from your failure to comply with this Section.
6. Purchasing, Selling, and Trading Topps NFTs.
- 6.1. All purchases made on the Platform are final and non-refundable. Purchases may be made by credit card or by using one or more cryptocurrencies that we may elect to accept from time to time. We retain the right in our discretion to limit the dollar (or equivalent in other currencies) amount of any transactions on the Platform, including, without limitation, to limit the amounts that may be charged to a credit card and the number of transactions. Topps 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 on the Platform are publicly visible when made. Currently, the Platform uses Sardine to process and complete payment transactions (“Sardine Checkout”). By completing a transaction on the Platform, you agree to the Sardine Checkout Terms of Service which can be found here.
- 6.2. Any transactions made through the Platform are managed and confirmed on the Avalanche Network, the Fortress wallet, Sardine Checkout, and we may use other third party vendors to process our transactions (the Avalanche Network and such third party vendors, collectively, the “Third Party Vendors”). By using the Platform, you acknowledge and agree to the terms and conditions and, where applicable, the privacy policies of such vendors.
- 6.3. If you purchase or sell Topps NFTs anywhere else other than through the Platform, you do so entirely at your own risk. We do not monitor or control any purchases or sales outside the Platform.
- 6.4. Once you set up your account and electronic wallet, you may purchase, collect, display, trade and sell your Topps NFTs, subject to these Terms. You may purchase Topps NFTs in two ways: (a) by buying Topps NFTs from Topps on the Platform, or (b) by buying Topps NFTs direct from other users in transactions on the Avalanche Network. Under either situation, you must have a Topps account, and you are subject to these Terms. The description of Topps NFTs available for purchase, including, without limitation, the availability and configuration of any Topps NFTs (packs, single, scarcity, etc.) will be available on the Platform prior to purchase. We reserve the right at any time in our discretion to determine and modify the types, configurations, prices and other components of any Topps NFTs.
- 6.5. You are responsible for all payments, fees and costs when engaging in any transactions involving Topps NFTs, including, without limitation, the purchase price, transaction fees and all other fees associated with you transacting on the Platform. There may be additional fees payable to Topps even if you transact outside the Platform, for example, on another blockchain network. You acknowledge and agree that there are existing smart contracts applicable to each Topps NFT under which Topps is paid an additional gross amount of each sale of your validly purchased Topps NFT through a secondary sale, whether on the Platform or on a third-party platform. 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 Platform and your purchase of Topps NFTs from any party. You are solely responsible for any tax reporting for transactions in which you may be a seller of Topps NFTs.
- 6.6. You have the limited right to sell or transfer your Topps NFTs provided that (a) the party acquiring your Topps NFTs accepts all these Terms and any other applicable Third Party Vendor terms, (b) Topps is paid the applicable transfer or other related compensation fees, and (c) You have not at any time breached this Agreement. You acknowledge and agree that the fees set forth in the preceding sentence may not include, and are not intended to cover, any additional fees that may be imposed or required by the platform through which You may be transferring the Topps NFTs.
7. User Conduct (“Rules of Conduct”).
- 7.1. You agree that you will not use the Platform to do any of the following:
- access any content not intended for your use or log onto a server or account that you are not authorized to access;
- attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising, or in any way making up, any part of the Platform or Services;
- attempt to probe, scan, or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization;
- forge headers or otherwise manipulate identifiers to disguise the origin of any content transmitted through the Platform;
- impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
- intentionally or unintentionally violate any applicable local, state, national or international law or regulation;
- interfere with or disrupt the Platform or Services or servers or networks connected to the Platform, or disobey any requirements, procedures, policies or regulations of networks connected to the Services;
- make available, distribute, re-upload or share any video, photos, downloads or other content provided by Topps or through the Platform to any other website, streaming technology, peer-to-peer software, or similarly unauthorized distribution channel unless expressly authorized to do so by Topps;
- post spam or other advertisements or solicitations, solicit funds, promote commercial entities, or otherwise engage in commercial activity except as explicitly authorized herein;
- post, e-mail, transmit, upload, or otherwise make available any material that contains software viruses or any other computer code, files or programs which (by design or function) interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
- post, e-mail, transmit, upload, or otherwise make available content that (i) contains any other party’s intellectual property unless you have the express right to do so or (ii) violates the privacy, publicity or other personal rights of others;
- post, e-mail, transmit, upload, or otherwise make available content that harasses, abuses, defames, or threatens other users, which contains profanity, or obscene or otherwise objectionable content, or that degrades others based on gender, race, class, ethnicity, national origin, religion, sexual orientation, disability or other classification;
- promote or facilitate illegal gambling or wagering;
- stalk or otherwise harass any other person or entity;
- use any computer program or other function to simulate human activity (“bots”) or engage in any transaction on the Platform using bots; and/or
- use any meta tags or any other hidden text using Topps’ name or trademark.
- 7.2. By accessing and using the Platform, it is your responsibility to know, understand and abide by all applicable laws and regulations and our Rules of Conduct. The Rules of Conduct are not meant to be exhaustive, and Topps reserves the right to determine what types of conduct it considers to be inappropriate use of the Platform and to take such measures as it sees fit in its sole discretion. Topps reserves the right to add to or amend the Rules of Conduct at any time and without advance notice.
- 7.3. If you violate any of the Rules of Conduct, we may, in our sole discretion and without any notice or liability to you, immediately suspend or terminate your account which may limit or prevent your access to your NFTs. Without limiting the foregoing, if we determine, in our sole discretion, that you obtained any Topps NFTs by unlawful or illegal means or by using bots or other similar functionality, we retain the absolute right in our discretion, and without any liability to you, to void any transactions and retain/recapture any Topps NFTs that were purchased through such activities. You acknowledge and agree that Topps is not and will not be liable for any loss or damage to you or anyone else arising from your failure to comply with this Section.
- 7.4. With respect to User Materials (as defined in the last paragraph of this provision) that you directly submit or make available on the Platform or Services, you grant Topps an irrevocable, fully sub-licensable, perpetual, world-wide, royaltyfree, non-exclusive license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such User Materials (in whole or in part) and to incorporate such User Materials into other works in any format or medium now known or later developed, and for any commercial or non-commercial purposes.
- 7.5. You acknowledge that Topps may or may not pre-screen User Materials, but that Topps and its designees have the right (but not the obligation) in their sole discretion to pre-screen, refuse, permanently delete, and/or move any User Materials that are available via the Platform or Services. Without limiting the foregoing, Topps and its designees shall have the right to remove any User Materials that violate these Terms or are otherwise objectionable at Topps’ sole and absolute discretion. You understand that by using the Platform and Services, you may be exposed to User Materials that you may consider to be offensive or objectionable. You agree that you must evaluate, and bear all risks associated with, the use or disclosure of any User Materials. You further acknowledge and agree that you will not rely on any content available on or through the Platform or Services.
- 7.6. You understand that all postings and content submitted to the Platform or any of the Services by users (“User Materials”), whether privately transmitted or made publicly available, are the sole responsibility of the person from which such User Materials originated. This means that you, not Topps, are entirely responsible for all User Materials that you upload, post, share, e-mail, transmit, or otherwise make available via the Platform or Services. You acknowledge and agree that Topps is not and will not be liable in any way for any User Materials uploaded, posted, shared, e-mailed, transmitted or otherwise made available via the Platform or Services.
8. Ownership Rights and Licenses.
- 8.1. Certain Further Restrictions. You may use your Topps NFTs only for your personal, non-commercial use and in connection with the Platform and any platform or marketplace whereby you are able to engage in transaction relating to your Topps NFT. You agree that you are not permitted to (and will not permit any third party to) take any of the following actions:
- alter, change or modify the content of your Topps NFT in any manner;
- attempt to obtain any copyright, trademark, right of publicity or other intellectual property rights in the content of your Topps NFT; or
- create and sell for commercial gain any other products or merchandise that includes content of your Topps NFTs;
- set, alter or attempt to set or alter the terms and conditions of any resale of any Topps NFTs, including those contained in these Terms.
- use your Topps NFTs to (a) violate these Terms or promote any of the activities prohibited by our Rules of Conduct set forth in Section 7 above, or (b) otherwise infringe upon any other person’s rights;
- use your Topps NFTs to advertise, market or sell any other products or services other than the Platform;
- 8.2. The Platform and Services. All title, ownership and intellectual property rights in and to the Platform and the Services and the data, information, materials, trademarks, service marks, copyrights, software, photos, videos, images, and other content (collectively, the “Content”) made available through the Platform and Services are owned by Topps or its licensors, as applicable. Unless noted otherwise, you should assume that all Content made available through the Platform and Services are protected by copyright, trademark and other applicable intellectual property law and may not be used except as permitted in these Terms. You acknowledge and agree that the Platform and Services contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Except as expressly authorized by Topps, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Content, the Platform and the Services, in whole or in part. Under no circumstances will you obtain any ownership or other rights in the Platform or the Services.
- 8.3. Topps NFTs. Subject to the limitations below, each Topps NFT is managed through the Avalanche Network and therefore all Topps NFTs purchased in accordance with these Terms are owned by you, subject to the restrictions below, and any additional terms and restrictions imposed by the Avalanche Network. Therefore, subject to these Terms, you may sell, trade or otherwise dispose of your validly purchased Topps NFTs. Unless otherwise acquired in violation of these Terms or as otherwise set forth in these Terms, Topps will not alter, recapture or otherwise change your Topps NFTs.
- 8.4. Content of Topps NFTs. The copyright and other intellectual property contained in any Topps NFTs (including, without limitation, any artwork in whatever form (e.g., photographs, video, graphics, logos, images, designs or otherwise)) may be owned by Topps and/or a third party (or third parties). Your purchase of a Topps NFT does not confer on you any such intellectual property rights and you acknowledge and agree that you do not have the right to use such content in any way except as specifically set forth in these Terms. Subject to your compliance at all times with these Terms, your valid purchase of a Topps NFT comes with a limited, worldwide, non-exclusive, non-transferable, royalty-free sublicense to display the content in your NFTs exclusively for your own personal, non-commercial use and in connection with the Platform and any platform or marketplace whereby you are able to engage in transactions relating to your Topps NFT. Because the content may be licensed by a third party other than Topps, there may be additional restrictions associated with the use of any such content and Topps reserves the right to impose any additional restrictions on your ability to use and display such content. You agree to always comply with any such additional restrictions. The licenses and other provisions of this Section apply to the extent that you continue to own the Topps NFT. If you sell, transfer or otherwise dispose of your Topps NFT at any time, all licenses held by you in said NFT set forth in these Terms will expire upon such sale, transfer or other disposal by you and you will not have any rights in any content of such Topps NFT, and rather the licenses subject to these Terms shall be deemed assigned and transferred to the transferee or assignee.
You agree to indemnify, defend and hold harmless Topps, its parent companies, subsidiaries, and affiliates, and each of their officers, directors, employees, agents, partners, suppliers, consultants, advertisers, payment services promoters, and licensors, and their agents, employees, officers, directors, successors, and assigns (collectively, the “Indemnified Parties”) from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees and costs of suit) relating to or arising out of any and all of the following: (a) your account and use of, or inability to use the Platform and/or Services; (b) your violation of these Terms; (c) your violation of any rights of another party (including another user); or (d) your violation of any applicable laws, rules or regulations. Topps reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Topps in asserting any available defenses. This provision does not require you to indemnify any of the Indemnified Parties for such party’s fraud or willful misconduct in connection with the Platform or any Services provided hereunder. You agree that the provisions in this section will survive any termination of these Terms and/or your access to the Platform and/or Services.
10. Modifications to Platform.
Topps reserves the right to modify or discontinue, temporarily or permanently, the Platform (or any part thereof), with or without notice at any time. You acknowledge and agree that Topps shall not be liable to you or any third party for any modification, suspension or discontinuance of the Platform.
You agree that Topps may, in its sole and absolute discretion and without notice or liability to you or any third party, immediately terminate your access to the Platform. Grounds for such termination shall include, but not be limited to, (a) any breach or violation of this Agreement or other Topps agreements or guidelines, (b) any breach or violation of terms or privacy polices of any applicable Third Party Vendors (c) requests by law enforcement or government agencies, (d) a request by you (self-initiated account deletions), (e) discontinuance or material modification of the Platform (or any part thereof), (f) unexpected technical or security issues or problems, (g) your failure to pay any applicable fees (h) extended periods of inactivity and (i) any other grounds provided in these Terms. Termination of your account(s) may include (i) removal of access to the Platform, (ii) at Topps’ sole discretion, the deletion of all your account information on the Platform, User Materials, and other content associated with your account(s) on the Platform (or any part thereof), and (iii) barring your further use of the Platform. Sections 2, 6 through 9, 11, 13, 14, 16, and 18 through 20 will survive the termination or expiration of these Terms for any reason.
The Platform may provide links to other sites or resources. Because Topps has no control over such sites and resources, you acknowledge and agree that Topps is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that Topps shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
13. DISCLAIMERS AND LIMITATIONS OF DAMAGES.
13.1. LIMITATION OF LIABILITY. BY ACCESSING THE PLATFORM, USING THE SERVICES OR DOWNLOADING THE PLATFORM, YOU ACKNOWLEDGE AND AGREE THAT SUCH USE IS AT YOUR OWN RISK AND THAT NONE OF THE PARTIES INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR ANY OF TOPPS, ITS AFFILIATES, SUBSIDIARIES OR ANY OF THEIR EMPLOYEES, AGENTS OR CONTRACTORS (COLLECTIVELY, “RELEASED PARTIES”) ARE LIABLE FOR ANY DIRECT, INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES, OR ANY OTHER LOSSES, COSTS, OR EXPENSES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF DATA, LEGAL FEES, EXPERT FEES, COST OF PROCURING SUBSTITUTE SERVICES, LOST OPPORTUNITY, OR OTHER DISBURSEMENTS) WHICH MAY ARISE, DIRECTLY OR INDIRECTLY, THROUGH THE ACCESS TO, USE OF, RELIANCE ON ANY MATERIAL OR CONTENT ON THE PLATFORM AND/OR SERVICES, OR BROWSING OF THE PLATFORM AND/OR SERVICES OR THROUGH YOUR DOWNLOADING OF ANY MATERIALS, DATA, TEXT, IMAGES, VIDEO OR AUDIO FROM THE PLATFORM AND/OR SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, THE TOTAL LIABILITY OF THE RELEASED PARTIES IS LIMITED TO THE TOTAL AMOUNT YOU HAVE PAID TOPPS IN THE 180 DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM. WITHOUT LIMITING THE FOREGOING, THE RELEASED PARTIES ASSUME NO RESPONSIBILITY, AND WILL NOT BE LIABLE, FOR ANY DAMAGES RELATING TO OR CAUSED BY ANY VIRUSES, BUGS, HUMAN ACTION OR INACTION OF ANY COMPUTER SYSTEM, PHONE LINE, HARDWARE, SOFTWARE OR PROGRAM MALFUNCTIONS, OR ANY OTHER ERRORS, FAILURES OR DELAYS IN COMPUTER TRANSMISSIONS OR NETWORK CONNECTIONS ON ACCOUNT OF YOUR ACCESS TO OR USE OF THE PLATFORM. THE RELEASED PARTIES CANNOT AND DO NOT GUARANTEE CONTINUOUS, UNINTERRUPTED, OR SECURE ACCESS TO THE PLATFORM.
- 13.2. DISCLAIMER OF WARRANTIES. THE PLATFORM, IN WHOLE AND IN PART (INCLUDING, WITHOUT LIMITATION, ALL CONTENT, SERVICES, AND USER MATERIALS), ARE PROVIDED, TRANSMITTED, DISTRIBUTED, AND MADE AVAILABLE “AS IS” AND “AS AVAILABLE” WITHOUT EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE MAKE NO WARRANTY: (A) THAT THE PLATFORM AND/OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; (B) THAT DEFECTS OR ERRORS IN THE PLATFORM AND/OR SERVICES WILL BE CORRECTED; (C) THAT THE PLATFORM AND/OR SERVICES WILL BE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS; (D) AS TO THE QUALITY, ACCURACY, COMPLETENESS AND VALIDITY OF ANY INFORMATION OR MATERIALS IN CONNECTION WITH THE PLATFORM AND/OR SERVICES; (E) THAT YOUR USE OF THE PLATFORM AND/OR SERVICES WILL MEET YOUR REQUIREMENTS; OR (F) THAT TRANSMISSIONS OR DATA WILL BE SECURE.
13.3. EXCEPTIONS. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER, EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES, LIABILITIES AND DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, OUR WARRANTIES AND LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. Under California Civil Code Section 1789.3, California consumers are entitled to the following specific consumer rights notice:
The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N – 112, Sacramento, CA 95834, or by telephone at 1 (800) 952-5210.
- 13.4. NO LIABILITY FOR CONDUCT OF THIRD PARTIES. YOU ACKNOWLEDGE AND AGREE THAT THE INDEMNIFIED PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD ANY OF THE INDEMNIFIED PARTIES LIABLE, FOR THE CONDUCT, CONTENT AND COMMERCIAL ACTIVITY OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, OTHER USERS, MERCHANTS, EVENT SPONSORS AND ANY PUBLISHERS ON THE PLATFORM AND/OR SERVICES, AND THAT THE RISK OF INJURY FROM YOUR INTERACTIONS WITH SUCH THIRD PARTIES ON OR AS A RESULT OF THE PLATFORM AND/OR SERVICES RESTS ENTIRELY WITH YOU.
14.ASSUMPTION OF RISK.
YOU ACKNOWLEDGE, UNDERSTAND AND AGREE THAT THERE ARE RISKS ASSOCIATED WITH USING THE PLATFORM AND PURCHASING, HOLDING, TRADING OR SELLING TOPPS NFTS, INCLUDING, WITHOUT LIMITATION, THE FOLLOWING:
- Cryptocurrency Risk. Cryptocurrencies are a relatively new form of nongovernment issued digital asset. They are inherently volatile and speculative, and their value may fluctuate wildly. Purchasing and selling assets, including Topps NFTs, with cryptocurrencies may expose the purchaser and seller to fluctuations in the cryptocurrency separate and apart from fluctuations in the asset value itself. The market for cryptocurrencies is developing and government and financial regulators (as well as private companies) may impose restrictions and/or limitations on the use of cryptocurrencies that could impact your ability to use the Platform or on the value of Topps NFTs.
- Regulations and Laws. Regulations and laws covering blockchain transactions, technologies, and cryptocurrency are uncertain and still evolving. There is substantial uncertainty as to the characterization and treatment of NFTs and other digital assets under applicable law, including applicable securities, commodities, and derivatives laws. New regulations and laws may come into effect that may have an impact on the value and use of your Topps NFTs.
- Taxes. You are solely responsible for paying any applicable taxes that apply to your transactions on the Platform and for determining whether there may be any additional taxes due and payable by You. Such taxes may include, but not be limited to income, sales, use, value-added (VAT), goods and services, stamp, excise, transfer, and other taxes and duties imposed by any governmental authority and associated with your use of the Platform and your purchase of Topps NFTs from any party.
- Value of Topps NFTs. Topps NFTs are collectibles. The prices of all collectibles, including blockchain collectibles, are volatile and unpredictable, and collectibles, including blockchain collectibles, have no inherent or intrinsic value. Significant fluctuations in the value of collectibles, including blockchain collectibles, could affect the value of your Topps NFTs. Topps does not, in any manner, make any representations of any kind that the value of your collectibles, including blockchain collectibles or Topps NFTs, will retain the value of their original purchase price or attain any future value. Any fluctuation in the value of your collectibles, including blockchain collectibles or Topps NFTs, is not depending on the efforts of Topps or the Platform. The value of collectibles is subjective, and factors, events, and market forces outside of Topps and the Platform, including, without limitation, can impact the value and demand for any particular Topps NFTs.
- Assumption of Risk. In addition to assuming the risks outlined above in this Section, by purchasing, holding, selling, trading, and/or using Topps NFTs, you assume all other risks including, but not limited to, risk of losing access to the Topps NFTs due to loss of private key(s); risk of not being able to sell, transfer or dispose of the Topps NFTs; custodial error or purchaser error; risk of mining attacks; risk of hacking and security weaknesses; risk of unfavorable regulatory treatment or intervention by regulators in one or more jurisdictions; risks related to taxation of NFTs; risks of potential information disclosure; risks of uninsured losses; liquidity risks; other unanticipated risks; and volatility risks.
15. No Third-Party Beneficiaries.
You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to this Agreement.
Topps may provide you with notices, including those regarding changes to these Terms, by e-mail, regular mail, or postings on the Platform; provided, however, that this Section places no requirements on Topps not already expressly set forth herein.
17. Trademark Information.
Nothing contained on the Platform or Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademark displayed on the Platform or Services without the written permission of Topps or any third party that may own the trademarks. Your misuse of any trademarks displayed on the Platform or the Services, except as provided in these Terms, is strictly prohibited. You are also advised that Topps will aggressively enforce its intellectual property rights to the fullest extent of the law, including by seeking criminal prosecution.
18. Copyright Infringement Claims; Digital Millennium Act (DMCA) Notice.
18.1. If you believe that your work has been copied and posted on the Platform in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the Platform of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Before you file your notice, please carefully consider whether the use of the copyrighted material at issue is protected by the Fair Use doctrine. If you file a notice when there is no infringing use, you could be liable for costs and attorneys’ fees. Contact information for Topps’s Copyright Agent for notice of claims of copyright infringement is:
The Topps Company, Inc.
95 Morton Street, 4th Floor
New York, NY 10014
Attn: Legal Department
Email: [email protected] with subject line DMCA
- 18.2. If content that you have uploaded to the Platform has been removed or disabled due to a third-party’s complaint of copyright infringement, you may file a counter-notification. To be effective, the counter-notification must be a written communication sent to the Copyright Agent address listed above that includes the following: (a) your physical or electronic signature; (b) identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled; (c) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and (e) your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located or, if your address is outside of the United States, for any judicial district in which Topps may be found, and that you will accept service of process from the person who provided the initial infringement notification or an agent of such person. If you have a claim related to trademarks, patents, intellectual property, or any other matter other than copyright, please contact us at [email protected]. Please provide detailed information regarding the nature of your complaint, including but not limited to your name and contact information, the subject matter of the complaint, and any additional information that we may require to review the matter and act (or take no action) as may be appropriate. Please be advised that we may share the details of your complaint with the user that owns the content that is the subject of your complaint, or with appropriate authorities (including law enforcement authorities) if Topps in its sole discretion believes that such action is necessary, or if we are obligated to do so by law.
19.Arbitration Agreement; Dispute Resolution.
Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Topps and limits the ways you can seek relief from Us. For purposes of the Federal Arbitration Act and state law, the parties agree that this Section is an agreement to arbitrate separate from the Terms and enforceable on its own.
- 19.1. BINDING ARBITRATION AND NON-INDIVIDUAL CLAIMS WAIVER. PLEASE READ THESE “BINDING ARBITRATION” AND “CLASS WAIVER” PROVISIONS CAREFULLY, BECAUSE THEY REQUIRE YOU TO ARBITRATE ALL DISPUTES WITH TOPPS AND LIMIT THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION REQUIRES THAT ANY PAST, PENDING, OR FUTURE DISPUTES BETWEEN YOU AND US SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS, BASED SOLELY ON YOUR OR OUR OWN ALLEGED LOSSES AND NOT ON A CLASS-WIDE, COLLECTIVE, REPRESENTATIVE OR CONSOLIDATED BASIS. THIS PROVISION APPLIES TO ANY CLAIMS YOU MAY CURRENTLY POSSESS AND ANY CLAIMS YOU MAY RAISE IN THE FUTURE. WHILE YOU MUST AGREE TO THESE TERMS IN ORDER TO USE THE SERVICES, IF YOU HAVE NOT PREVIOUSLY AGREED TO AN ARBITRATION PROVISION IN CONNECTION WITH YOUR USE OF OUR SERVICE THERE IS AN OPTION, DESCRIBED BELOW, TO OPT OUT OF THE ARBITRATION AND CLASS WAIVER PROVISIONS. THE OPTION TO OPT-OUT IS TIME-LIMITED TO 30 DAYS AND REQUIRES YOUR IMMEDIATE ATTENTION.
- 19.2. PROCEDURE TO OPT OUT OF ARBITRATION. IF YOU DO NOT WISH TO AGREE TO THIS ARBITRATION AND CLASS ACTION WAIVER AGREEMENT AND YOU HAVE NOT PREVIOUSLY AGREED TO AN ARBITRATION PROVISION IN CONNECTION WITH YOUR USE OF THE PLATFORM, YOU MUST, WITHIN 30 DAYS OF ACCEPTING THE TERMS AND ENTERING THIS ARBITRATION AGREEMENT, SEND AN E-MAIL FROM THE EMAIL ADDRESS ASSOCIATED WITH YOUR ACCOUNT TO THE FOLLOWING ADDRESS: THE TOPPS COMPANY, INC., 95 MORTON STREET, 4TH FLOOR, NEW YORK, NY 10014, ATTN: LEGAL DEPARTMENT CONTAINING YOUR FULL NAME, ADDRESS, AND THE WORDS “OPT OUT” IN THE SUBJECT LINE OF THE EMAIL AND AN UNEQUIVOCAL STATEMENT THAT YOU WANT TO OPT-OUT OF THIS ARBITRATION AGREEMENT. IF YOU OPT OUT OF THIS ARBITRATION AGREEMENT, ALL OTHER PARTS OF THESE TERMS WILL CONTINUE TO APPLY TO YOU. OPTING OUT OF THIS ARBITRATION AGREEMENT HAS NO EFFECT ON ANY OTHER ARBITRATION AGREEMENTS THAT YOU MAY CURRENTLY HAVE, OR MAY ENTER IN THE FUTURE, WITH US. EMAILS SENT TO OPT-OUT MORE THAN 30 DAYS AFTER ACCEPTING AND ENTERING THIS ARBITRATION AGREEMENT SHALL NOT BE EFFECTIVE.
- 19.3. Scope of Arbitration Provision. You and Topps agree that any past, pending, or future dispute, claim or controversy arising out of or relating to your access to or use of any Topps Platform and/or Services or to these Terms (including without limitation any dispute concerning the breach, enforcement, construction, validity, interpretation, enforceability, or arbitrability of these Terms) (a “Dispute”), shall be determined by arbitration, including claims that arose before acceptance of any version of these Terms containing an arbitration provision, except that you and Topps are NOT required to arbitrate any Dispute in which either party seeks equitable and other relief for the alleged improper or infringing use of copyrights, trademarks, trade names, logos, trade secrets, or patents. In addition, in the event of any dispute relating to the Terms—including validity, interpretation, enforceability, or arbitrability—were to be determined in arbitration under the Arbitration Provisions of these Terms, you and Topps agree that the arbitrator exclusively shall have the power to rule on his or her own jurisdiction over the Dispute, including any objections with respect to the existence, scope or validity of the arbitration agreement or to the arbitrability of the claims or counterclaims presented as part of the Dispute.
- 19.4. Severability. The parties acknowledge that the agreement in this Section to arbitrate any Disputes on an individual and case-by-case basis is a separate agreement for purposes of the Federal Arbitration Act in addition to the Terms. The alleged invalidity of the Terms shall have no effect upon the validity of our mutual agreement to arbitrate any Disputes under this Section. In addition, if any portion of this section entitled “Dispute Resolution” is determined by a court to be inapplicable or invalid, then the remainder shall still be given full force and effect.
- 19.5. Waiver of Class Relief. Whether the Dispute is heard in arbitration or in court, you agree that you and Topps will not commence against the other a class action, class arbitration, mass action or other representative action or proceeding, and shall not otherwise participate in such actions. The parties agree only to assert claims for their own individual losses. The parties waive all claims by and on behalf of other persons, including actions asserting rights by statute or otherwise as private attorney general. You and Topps are each waiving respective rights to participate in a class action. By accepting this agreement, you give up your right to participate in any past, pending, or future class action or any other consolidated or representative proceeding, including any existing as of the date you agreed to these Terms. Whether to agree to arbitration is an important decision. It is your decision to make and you are not required to rely solely on the information provided in these Terms. You should take reasonable steps to conduct further research and to consult with counsel regarding the consequences of your decision.
- 19.6. Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to us at Topps, 95 Morton Street, 4th Floor, New York, NY 10014, ATTN: Legal Department. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures currently available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, currently available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also currently available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Topps will pay them for you. In addition, Topps will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- 19.7. Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement including, but not limited to, any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Topps. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and/or these Terms (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Us.
- 19.8. Waiver of Jury Trial. YOU AND TOPPS WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Topps are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 19.2 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
- 19.9. Survival of Arbitration Agreement. This Arbitration Agreement will survive the termination of your relationship with Topps.
- 19.10. Confidentiality. You and Topps shall maintain the confidential nature of the arbitration proceedings and the arbitration award, including the arbitration hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision.
- 19.11. Modification. Notwithstanding any provision in these Terms to the contrary, you agree that if Topps makes any future material change to this Arbitration Agreement, you may reject that change within 30 days of such change becoming effective by writing Topps at the following address: The Topps Company, Inc., ATTN: Legal, 95 Morton Street, 4th Floor, New York, NY 10014.
20. General Provisions.
- 20.1. Electronic Communications. The communications between you and Topps may take place via electronic means, whether you visit the Platform or send Topps e-mails, or whether Topps posts notices on the Platform and/or via the Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Topps in an electronic form; and (b) agree that all terms and conditions, terms, agreements, notices, disclosures, and other communications that Topps provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including, but not limited to, the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. § 7001 et seq.
- 20.2. Release. You release the Topps Parties and their successors from any and all claims, demands, losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that may be either directly or indirectly related to or arise from your use of the Platform and/or Services, including, but not limited to, any interactions with third parties of any kind arising in connection with or as a result of these Terms or your use of the Platform and/or Services. If you are a California resident, you waive California Civil Code §1542, which states, “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.” The foregoing release does not apply to any claims, demands, losses, damages, rights or actions of any kind, including personal injuries, death or property damage, for any unconscionable commercial practice by a Topps or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression, or omission of any material fact in connection with the Platform and/or Services or any Platform provided hereunder
- 20.3. Assignment. These Terms and your rights and obligations hereunder may not be assigned, delegated, or transferred by you, either in whole or in part, without the express prior written consent of Topps, and any purported assignment, delegation, or transfer in violation hereof shall be void. Topps may freely assign these Terms.
- 20.4. Force Majeure. The occurrence of any event beyond the control of a party, which prevents either party from complying with any of its obligations hereunder, including but not limited to: acts of God, such as, but not limited to, fires, floods, explosions, earthquakes, drought, war, embargoes, invasions, epidemics, pandemics, rebellion, revolution, civil war, nuclear contamination, riot, strikes, civil unrest, acts or threats of terrorism, or compliance with the laws of the United States or with the orders or policies of any governmental authority, shall be considered “Force Majeure”. In such event, neither party shall be considered in breach of their obligations hereunder. The party that is prevented from carrying out its obligations hereunder as a result of an event of Force Majeure shall give notice to the other party of the event of Force Majeure upon it being foreseen by, or becoming known to, the affected party. If an event of Force Majeure occurs and its effect continues for a period of 60 days, either party may give written notice of termination to the other party.
- 20.5. Complaints, Claims. If you have any questions, complaints or claims with respect to the Platform, please contact us by completing the “contact us” form found at https://thetoppscompany.helpshift.com/hc/en/17-topps-nfts/contact-us/ or by sending written notices to the following address: The Topps Company, Inc., 95 Morton Street, 4th Floor, New York, NY 10014, ATTN: Legal Department. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
- 20.6. One Year Statute of Limitations. To the extent permitted by law, you and Topps agree that any claims, regardless of form, arising out of or related to the Platform, Services, and/or these Terms must BE FILED within ONE YEAR of the action, omission, event or occurrence giving rise to the claim or suit, after which such claims will be time-barred and prohibited, without regard to any longer period of time which may be provided by any period of limitation or repose by law or statute.
- 20.7. Governing Law and Jurisdiction. Any obligation based upon these Terms has been entered into, and shall be construed, enforced, and governed in accordance with the laws of the State of New York, without regard to conflicts of laws principles. Except as may be set forth in the Arbitration Agreement (Section 19), venue and jurisdiction for any proceedings arising out of any obligation based upon these Terms shall lay exclusively in the state and federal courts of New York, New York, United States of America. The United Nations Convention on Contracts for the international sale of goods is expressly excluded from these Terms.
- 20.8. Choice of Language. It is the express wish of the parties that these Terms and all related documents have been drawn up in English Where Topps requires that you provide an e-mail address, you are responsible for providing Topps with your most current e-mail address. If the last e-mail address you provided to Topps is not valid, or for any reason is not capable of delivering to you any notices permitted by these Terms, Topps’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Topps at the following address: The Topps Company, Inc., 95 Morton Street, 4th Floor, New York, NY 10014, ATTN: Legal Department. Such notice shall be deemed given when received by Topps by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
- 20.9. Waiver. Any waiver of failure to enforce any term or provision of these Terms shall not be construed as a waiver of any subsequent breach, and shall not in any way affect, limit, or waive a party’s right thereafter to enforce or compel strict compliance with every term, condition, and specification hereof.
- 20.10. Severability. In the event any provision of these Terms is held unenforceable, such provision will be ineffective but shall not affect the enforceability of the remaining provisions. To the fullest extent allowable by law and equity, the parties agree that any such provision may be blue-penciled or otherwise revised by the forum presiding over any dispute to give effect to the intent of the parties and consistent with the overall purpose and intent of the agreement, and may be replaced by an enforceable provision that comes closest to the intention underlying the unenforceable provision. If that is not possible, the parties agree that the subject provision shall be stricken from the agreement and the agreement shall otherwise be deemed enforceable.
- 20.11. Violations. These Terms are the final, complete, and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.