These terms and conditions constitute a legally binding agreement (“Agreement” or “Terms”) between you (“you,” “your,” and similar forms) and Pearproof, Inc. (“Pearproof,” we,” “us,” or similar forms), governing (a) your use of the website located at www.pearproof.com and embedded applications (“Website”) and (b) your receipt of NFTs as part of one or more of Pearproof's NFT Drops (“NFT Drop” and “Pearproof NFTs”) (collectively, the Website, NFT Drop, and Pearproof NFTs are referred to as “Services”). By using any Services and by accepting this Agreement, including by signing up for any NFT Drop, through participation in a proof of attendance protocol requiring acceptance of this Agreement, receipt of Pearproof NFTs, or otherwise, you expressly acknowledge that you have read, understand, and agree to be bound by these Terms. If you do not understand or agree to the terms of this Agreement, you may not use the Services or receive Pearproof NFTs.
PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE WEBSITE OR BEFORE RECEIVING, TRANSFERRING, OR SELLING PEARPROOF NFTS. IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO ACCEPT THESE TERMS ON THAT ENTITY'S BEHALF, IN WHICH CASE “YOU” WILL MEAN THAT ENTITY.
NOTE: THIS AGREEMENT CONTAINS PROVISIONS LIMITING LIABILITY AND REQUIRING YOU AND ANY SUBSEQUENT HOLDER OR PURCHASER OF PEARPROOF NFTS TO SUBMIT ANY DISPUTES WITH PEARPROOF PARTIES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES TO ARBITRATION ON AN INDIVIDUAL BASIS AND TO WAIVE ALL RIGHTS TO BRING SUCH DISPUTES IN COURT, BEFORE OR A JURY, OR AS A CLASS, COLLECTIVE, OR OTHER REPRESENTATIVE ACTION OR PROCEEDING. BY USING THE SERVICES OR HOLDING OR RECEIVING ANY PEARPROOF NFTS YOU ARE CONFIRMING THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY THE DISPUTE RESOLUTION AND ARBITRATION, LIMITATION OF LIABILITY AND DISCLAIMERS SECTIONS, AS WELL AS THE ENTIRETY OF THIS AGREEMENT.
We may modify these Terms. Please review the “Last Updated” date at the top of these Terms to see the date of last revision. You agree to periodically review these Terms for updates and revisions and agree to be bound by any such updates and revisions. We may notify you separately of updates and revisions, but such notifications are not a precondition to your agreement to them.
From time to time, Pearproof may conduct NFT Drops. Pearproof does not guarantee the number, frequency, or continued availability of NFT Drops and Pearproof may decide to cease conducting NFT Drops at any time. To participate, or to have an opportunity to participate, in the NFT Drops, you must have an existing and valid Pearproof account or you must create a free Pearproof account using a valid email address, in each case you will be required to login with your Pearpop credentials. In addition, you must have or must setup a valid blockchain address, including through a Phantom, Torus or other Solana-compatible wallet that is able to receive and hold Pearproof NFTs (a “Wallet”).
Pearproof will announce NFT Drops, if any, in an email to eligible Pearpop account holders (each, an “Email Announcement”). Each NFT Drop will begin at the time that the Email Announcement is sent and will end the earlier of: (i) when the “Cap” (as defined below) is reached; or (ii) at 11:59PM PST on the date that is one (1) calendar week after the Email Announcement is sent (the “NFT Drop Period”). Each NFT Drop will contain a limited number of Pearproof NFTs that are available (the “Cap”); the Cap for each NFT Drop will be included in the Email Announcement. The Email Announcement will contain a link to the Website where eligible users can claim a free Pearproof NFT through the Website. During the NFT Drop Period eligible entrants who click the link up to the Cap will receive one free Pearproof NFT, on a first come, first serve basis. Only one Pearproof NFT may be claimed per Pearproof account. The Pearproof NFTs will be delivered to each eligible user's Wallet. Once a Pearproof NFT is delivered to a user's Wallet, it will be a “Licensed NFT” and use will be subject to these Terms. All Pearproof NFTs are available while supplies last only.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR ACCESS TO AND USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THAT THE SERVICES ARE PROVIDED “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS” WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE PEARPROOF PARTIES MAKE NO EXPRESS WARRANTIES AND HEREBY DISCLAIM ALL IMPLIED OR STATUTORY WARRANTIES REGARDING THE SERVICES AND ANY PART OF IT, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, NON-INFRINGEMENT, CORRECTNESS, ACCURACY, OR RELIABILITY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE PEARPROOF PARTIES DO NOT REPRESENT OR WARRANT TO YOU THAT: (I) YOUR ACCESS TO OR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS; (II) YOUR ACCESS TO OR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED; (III) DATA PROVIDED THROUGH THE SERVICES WILL BE ACCURATE; (IV) THE SERVICES OR ANY ART, CONTENT, SERVICES, OR FEATURES MADE AVAILABLE ON OR THROUGH THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (V) THAT ANY DATA THAT YOU DISCLOSE WHEN YOU USE THE SERVICES WILL BE SECURE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN CONTRACTS WITH CONSUMERS, SO SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. WE DISCLAIM ALL EQUITABLE REMEDIES.
YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET AND AGREE THAT WE HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY BREACH OF SECURITY UNLESS IT IS DUE TO OUR GROSS NEGLIGENCE.
WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSSES YOU INCUR AS THE RESULT OF YOUR USE OF THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (I) USER ERROR, SUCH AS FORGOTTEN PASSWORDS, SEED PHRASES, OR INCORRECTLY CONSTRUED SMART CONTRACTS OR OTHER TRANSACTIONS; (II) SERVER FAILURE OR DATA LOSS; (III) CORRUPTED FILES; OR (IV) UNAUTHORIZED ACCESS OR ACTIVITIES BY THIRD PARTIES, INCLUDING, BUT NOT LIMITED TO, THE USE OF VIRUSES, PHISHING, BRUTE-FORCING OR OTHER MEANS OF ATTACK AGAINST THE SERVICES OR ANY BLOCKCHAIN WALLET OR ADDRESS.
NFTS ARE INTANGIBLE DIGITAL ASSETS THAT EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED ON A DIGITAL LEDGER THAT IS DECENTRALIZED OR MANAGED BY A THIRD PARTY. ALL SMART CONTRACTS ARE DEPLOYED TO AND OCCUR ON THE DIGITAL LEDGER. WE HAVE NO CONTROL OVER AND MAKE NO GUARANTEES OR PROMISES WITH RESPECT TO THE CONTINUED FUNCTIONING OVER ANY BLOCKCHAIN OR DIGITAL LEDGER, INCLUDING THOSE ASSOCIATED WITH THE LICENSED NFTS.
WE ARE NOT RESPONSIBLE FOR LOSSES DUE TO MALFUNCTION, DELAY, DISUSE, OR OTHER FAULT OF BLOCKCHAINS OR ANY OTHER PUBLIC NETWORK OR ANY ELECTRONIC WALLET. BLOCKCHAIN FORKS OR SIMILAR ACTIONS MAY RESULT IN MULTIPLICATION OF LICENSED NFTS. WE RESERVE THE RIGHT, IN OUR SOLE DISCRETION, TO DETERMINE WHICH BLOCKCHAIN FORK REPRESENTS THE DIGITAL LEDGER ASSOCIATED WITH ANY LICENSED NFTS.
YOU UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PEARPROOF PARTIES WILL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES WHICH YOU MAY INCUR, HOWSOEVER CAUSED OR ARISING AND UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF REVENUE, PROFITS OR OTHER ECONOMIC ADVANTAGE (WHETHER INCURRED DIRECTLY OR INDIRECTLY), LOSS OF GOODWILL OR BUSINESS REPUTATION, LOSS OF USE, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, DIMINUTION OF VALUE OR ANY OTHER INTANGIBLE LOSS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PEARPROOF PARTIES' AGGREGATE LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO TEN DOLLARS ($10.00).
YOU ACKNOWLEDGE AND AGREE THAT WE HAVE MADE THE SERVICES AVAILABLE TO YOU AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE REPRESENTATIONS AND WARRANTIES, DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN, WHICH REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN US AND YOU AND FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN US AND YOU. WE WOULD NOT BE ABLE TO PROVIDE THE SERVICES TO YOU WITHOUT THESE LIMITATIONS.
Please read this provision (the “Provision”) carefully. It affects your legal rights.
This Provision facilitates the prompt and efficient resolution of any dispute (e.g., claim or controversy, whether based in contract, statute, regulation, ordinance, tort – including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence – or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below) that may arise between you and the Pearproof Parties. Effectively, then, “dispute” is given the broadest meaning enforceable by law and includes any claims against other parties relating to Services provided to you (such as our licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against the Pearproof Parties in the same proceeding.
This Provision provides that all disputes between you and the Pearproof Parties shall be resolved by binding arbitration because acceptance of these Terms constitutes a waiver of your right to litigation claims and all opportunity to be heard by a judge or jury. We prefer this because we believe arbitration is less drama-filled than litigation. To be clear, there is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow these Terms and can award the same damages and relief as a court (including attorney's fees). You may, however, opt-out of this Provision which means you would have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions).
EACH OF YOU AND THE PEARPROOF PARTIES AGREES THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution.
For all disputes, whether pursued in court or arbitration, you must first give the Pearproof Parties an opportunity to resolve the dispute which is first done by emailing to the Pearproof Parties at [email protected] the following information: (1) your name, (2) your address, (3) a written description of your Claim, and (4) a description of the specific relief you seek. If the Pearproof Parties do not resolve the dispute within 45 days after receiving your notification, then you may pursue your dispute in arbitration.
You may pursue your dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out.
Notwithstanding the above, you or the Pearproof Parties may choose to pursue a dispute in court and not by arbitration if: (a) the dispute qualifies for initiation in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THESE TERMS (the “Opt-Out Deadline”).
You may opt-out of this Provision by emailing the Pearproof Parties at [email protected] the following information: (1) your name; (2) your address; (3) a clear statement that you do not wish to resolve disputes with the Pearproof Parties through arbitration. Either way, the Pearproof Parties will not take any decision you make personally. In fact, the Pearproof Parties promise that your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with the Pearproof Parties. But, the Pearproof Parties do have to enforce the Opt-Out Deadline so keep in mind that any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your dispute in arbitration or small claims court.
If this Provision applies and the dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or the Pearproof Party may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, will arbitrate all disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration only and shall in no event be commenced as a class arbitration or a consolidated or representative action or arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For disputes of less than $75,000, the AAA's Supplementary Procedures for Consumer-Related Disputes will apply; for disputes involving $75,000 or more, the AAA's Commercial Arbitration Rules will apply. In either instance, the AAA's Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action or representative procedures or rules apply to the arbitration.
Because the Services and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award. The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party or if required by applicable law. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA or other applicable law, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration. You or the Pearproof Parties may initiate arbitration in either California or the federal judicial district that includes your billing address.
Payment of Arbitration Fees and Costs. So long as you place a request in writing prior to commencement of the arbitration, the Pearproof Party will pay all arbitration filing fees and AAA hearing fees and any arbitrator's hearing fees, costs and expenses upon your written request to the arbitrator given at or before the first evidentiary hearing in the arbitration. However, you will still be responsible for all additional fees and costs that you incur in the arbitration which include but are not limited to attorneys' fees or expert witnesses. In addition to any fees and costs recoverable under applicable law, if you provide notice and negotiate in good faith with the Pearproof Parties as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney's fees and costs as determined by the arbitrator.
Class Action Waiver.
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action, representative action, or private attorney general action) unless both you and the Pearproof Parties specifically agree to do so in writing following initiation of the arbitration. If you choose to pursue your dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the Services can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
You understand and agree that by accepting this Provision in these Terms, you and the Pearproof Parties are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and the Pearproof Parties might otherwise have had a right or opportunity to bring disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court (e.g., the rights to both appeal and certain types of discovery) may be more limited or may also be waived.
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision whose remainder will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the dispute will be decided by a court.
This Provision shall survive any termination of this Agreement, the Services, your License rights, or your account with the Pearproof Parties. Notwithstanding any provision in these Terms to the contrary, the Pearproof Parties agree that if the Pearproof Parties make any change to this Provision (other than a change to the Notice Address), you may reject any such change and require the Pearproof Parties to adhere to the present language in this Provision if a dispute between you and the Pearproof Parties arises.