Last Updated: June 3, 2024
1. Background. XSweet™ (as defined below) is an online community, metaverse, and ecosystem where people come together to share experiences, events, expression and content, and to find mutual interests. Every XSweet Member (as defined below), has the rights and responsibilities as detailed below. The XSweet™ Offerings (as defined below) are owned and operated by Palace Creative LLC. (“PC,” “we,” “our” or “us”).
In order to become a Member of XSweet®, each end-user must first register for a unique XSweet™ blockchain token (“Sweet Identity”). Each prospective Member can register as either a “User” or “Creator.” Member shall be able to: (a) obtain, for a fee, Sweet Coin digital currency (“Sweet Coin”); (b) access Creator Content made available for free to Members; (c) purchase, using Sweet Coin exclusively, XSweet® Real Estate, Streaming Content, Merchandise and/or Digital Assets (as those terms are defined below); and/or (d) earn Referral Fees (as defined below) in connection with referring new Users to the Platform ("Referral Program”). In addition to the XSweet™ Offerings available to Members listed above, each Creator shall be able to: (i) access and personalize certain areas in the Platform’s metaverse (“Creator Locations”); (ii) upload content which may include text (including comments and hashtags), images, video, photos, audio (for example music and other sounds), livestream material, data, metadata, interactive features, emojis, GIFs, memes and other content and material (collectively, “Creator Content”); (iii) host virtual events for other Members within the designated Creator Locations (“Virtual Creator Events”); (iv) list various Creator-owned and produced products and/or services for sale by and through the applicable Creator Locations including: (A) streaming video and/or music subscriptions and/or one-off sales of same (“Creator Streaming Content”); and/or (B) digital art, photos, videos and other digital assets (“Creator Digital Assets”); (v) list, for sale in the Creator Locations, various sponsored third-party products and/or services provided by third-parties in connection with branding agreements with Creator (“Sponsored Offerings,” and together with the Creator Streaming Content, Creator Merchandise and Creator Digital Assets, the “Creator Product and Service Offerings,” and together with the Creator Content, the “Creator Offerings”).
2. Scope. This XSweet™ Mobile Application End-User License Agreement and Website Terms and Conditions (“Terms”) are inclusive of the XSweet™ Privacy Policy (“Privacy Policy”), the XSweet® Creator Terms of Use, and any and all other applicable XSweet® operating rules, policies, price schedules and other supplemental terms and conditions or documents that may be published from time to time, which are expressly incorporated herein by reference (collectively, the “Agreement”).
NOTICE: THE AGREEMENT CONTAINS DISCLAIMERS OF WARRANTIES, LIMITATIONS OF LIABILITY, RELEASES, INDEMNIFICATION PROVISIONS, A BINDING ARBITRATION AGREEMENT AND WAIVERS OF CLASS ACTION AND TRIAL BY JURY.
THE AGREEMENT CONTAINS DISCLAIMERS OF WARRANTIES, LIMITATIONS OF LIABILITY, RELEASES, A CLASS-ACTION WAIVER, AND THE REQUIREMENT TO ARBITRATE ANY AND ALL CLAIMS THAT MAY ARISE HEREUNDER AGAINST PC AND/OR ITS THIRD PARTY TECHNOLOGY PROVIDERS (AS DEFINED BELOW), AS WELL AS THEIR RESPECTIVE PARENTS, SUBSIDIARIES AND RELATED PARTIES, AND PC’S SERVICE PROVIDERS AND MARKETING PARTNERS (COLLECTIVELY, “COVERED PARTIES”), WHO ARE EXPRESS THIRD-PARTY BENEFICIARIES OF THE MANDATORY ARBITRATION PROVISION.
THE AFOREMENTIONED PROVISIONS ARE AN ESSENTIAL BASIS OF THE AGREEMENT. NEW JERSEY STATE RESIDENTS ARE ENCOURAGED TO REVIEW THEIR RIGHTS UNDER THE AGREEMENT, AS PROVIDED UNDER THE NEW JERSEY TRUTH-IN-CONSUMER CONTRACT WARRANTY AND NOTICE ACT (“TCCWNA”).
3. Your Consent to the Agreement. You agree to the terms and conditions contained in the Agreement, in their entirety, when you: (a) access and/or use the XSweet™ website located at XSweet.io (the “Site”); (b) download, attempt to download and/or use the XSweet™ mobile application (the “App,” and together with the Site, “XSweet™”) and associated Software (as defined below), as made available on the iPhone®, iPad® and iPod Touch®, as well as Android® and other mobile devices, where and to the extent available (collectively, “Mobile Devices”) by and through the Apple® App Store, the Google Play® store and other applicable venues, where and to the extent available (collectively, “Download Venues”); (c) access certain text, images, video, audio and other content and information relating to the XSweet™ Offerings as made available by: (i) PC (collectively, “XSweet™ Content”); and/or (ii) Creators (“Creator Content,” and together with the XSweet™ Content, the “Content”); (d) register for a Sweet Identity as an end-user of the App and/or Site (“Member”), as either a User or Creator; (e) purchase Sweet Coin; (f) purchase, in exchange for Sweet Coin, Creator Offerings; (g) purchase, in exchange for Sweet Coin, various PC-provided products and/or services including: (i) streaming video and/or music (“XSweet™ Streaming Content,” and together with the Creator Streaming Content, the “Streaming Content”); (ii) apparel, merchandise and other products (“XSweet™ Merchandise,” and together with the Creator Merchandise, the “Merchandise”); (iii) digital assets, including skins, avatars, and other customizations (“XSweet™ Digital Assets,” and together with the Creator Digital Assets, the “Digital Assets”); (iv) designated exclusive areas of the XSweet™ Environment visual interface (“XSweet™ Real Estate”; and (v) avatar fashion and accessory features digital art, ,” and together with the XSweet™ Streaming Content, XSweet™ Merchandise, XSweet™ Digital Assets and XSweet™ Real Estate, the “XSweet® Product Offerings”); (h) access certain message boards, comment sections, messaging functionality and other interactive features of the XSweet™ Offerings (“Interactive Services”); (i) access links to the XSweet™ and/or Member social media pages/accounts appearing on third-party social media websites (collectively, “Social Media Pages”), such as Discord®, Facebook®, Instagram®, TikTok®, YouTube®, and X® (collectively, “Social Media Websites,” and together with the Site, App (and associated Software), Content, Sweet Identity, Sweet Coin, Referral Program, Creator Product and Service Offerings, XSweet™ Product Offerings, Profile Verification Services and Interactive Services, the “XSweet™ Offerings”); and/or (j) otherwise affirmatively consent to these Terms and/or the Agreement.
These Terms are effective as of the date set forth above. Please print the Agreement for your records. A printed version of the Agreement will be valid, enforceable, and admissible in judicial or administrative proceedings based upon or relating to the Agreement to the same extent and subject to the same conditions as a paper agreement that you sign manually. Violations of the Agreement may result in suspension or termination of your Account.
Apple®, Apple Pay®, Apple TV®, iTunes®, iPhone®, iPad® and iPod Touch® are registered trademarks of Apple, Inc. (“Apple”). TikTok® is a registered trademark of Bytedance Ltd.l (“Bytedance”). Discord® is a registered trademark of Discord Inc. (“Discord”). Facebook® and Instagram® are registered trademarks of Facebook, Inc. (“Facebook”). Android®, Google Play®, YouTube® and Google Wallet®, are registered trademarks of Google, Inc. (“Google”). X® is a registered trademark of X Corp. (“X”). Please be advised that PC is not in any way affiliated with Apple, Discord, Facebook, Google, Bytedance or X, and the XSweet™ Offerings are not endorsed, administered or sponsored by any of the foregoing entities.
Disclaimers
Please be advised that PC does not itself manufacture, produce, sell, distribute or otherwise offer the Creator Offerings. The Creator Offerings contain descriptions that are provided directly by the applicable Creators, as well as the manufacturers of the subject Creator Offerings. PC does not represent or warrant that the descriptions of such Creator Offerings are accurate or complete. Further, the Creator Offerings may contain third party intellectual property rights. PC does not represent or warrant that any applicable Creator has secured all necessary third party intellectual property rights. As a result of the foregoing, PC has no control over the quality, safety or legality of the Creator Offerings.
18 U.S.C. 2257 Record-Keeping Requirements/Compliance Notice for XSweet™
(a) PC makes every effort to comply with the age verification and record-keeping requirements of 18 U.S.C. §§2257, 2257A and/or 28 C.F.R. §75 (“Section 2257”). PC’s Section 2257 Compliance Notice is attached. Questions or comments regarding this notice should be sent to us using the contact methods set forth in the “Contact Us” section below.
(b) In connection with opening an Account as a Creator, and obtaining a Sweet Identity in connection with same, each prospective Creator will be required to complete the “know-your-customer” ("KYC”) and “anti-money laundering” (“AML”) identity-verification process with PC’s third party KYC/AML service provider (“KYC Provider”). In connection with the KYC/AML process, each prospective Creator will be asked to provide the KYC Provider with: (i) a valid government issued identification (“ID”) as required by 18 U.S.C. §§2257, 2257A and/or 28 C.F.R. §75 (“Section 2257”), which ID shall include, at a minimum, Creator’s legal name, picture, address and phone number, as well as the issuing authority and ID number; (ii) Creator’s date of birth and other personally identifiable information; and (iii) Creator’s full legal name, nickname(s), maiden name(s), stage name(s), professional name(s) and/or any other aliases or name variations used (past and present) by, and applicable to, Creator (collectively, “2257 Data”).
(b) Each prospective Creator acknowledges and agrees that the 2257 Data is provided in connection with compliance with Section 2257, as well as other applicable state and federal laws, and that any false, misleading and/or incomplete information provided could subject Creator to civil and criminal penalties. IN LIGHT OF THE FOREGOING, UNDER 28 U.S.C. §1746 AND THE PENALTIES OF PERJURY UNDER THE LAWS OF THE UNITED STATES, CREATOR HEREBY SWEARS THAT ALL INFORMATION PROVIDED IN CONNECTION WITH THE KYC/AML PROCESS, INCLUDING THE SECTION 2257 DATA, IS TRUE AND CORRECT, AND THE IDS PROVIDED ARE TRUE COPIES AND HAVE NOT BEEN ALTERED OR FORGED.
(c) Each Creator further represents and warrants that Creator shall not include any person, or otherwise permit any person to appear, in any Creator Product and Service Offerings that contains the visual depiction of any actual or simulated sexually explicit conduct unless that person has: (i) previously successfully completed the KYC/AML process as a Creator; and (ii) an active Sweet Identity in good standing. Creator acknowledges and agrees that a breach of this Subsection (c) could subject Creator to civil and criminal penalties.
4. Modification We may amend the Agreement from time to time in our sole discretion, without specific notice to Members; provided, however, that: (i) any amendment or modification to the arbitration provisions, prohibition on class action provisions or any other provisions applicable to dispute resolution (collectively, “Dispute Resolution Provisions”) shall not apply to any disputes incurred prior to the applicable amendment or modification; and (ii) any amendment or modification to pricing and/or billing provisions (“Billing Provisions”) shall not apply to any charges incurred prior to the applicable amendment or modification. The latest Agreement will be posted on the Site and by and through the App, and Members should review the Agreement in its entirety prior to using any XSweet™ Offerings. By a Member’s continued use of any XSweet™ Offerings, that Member hereby agrees to comply with all of the terms and conditions contained within the Agreement effective at that time (other than with respect to disputes arising prior to the amendment or modification of the Dispute Resolution Provisions, or charges incurred prior to the amendment or modification of the Billing Provisions, which shall be governed by the Dispute Resolution Provisions and/or Billing Provisions then in effect at the time of the subject dispute or incurred charges, as applicable).
5. Requirements; Necessary Equipment; Data Charges. The XSweet™ Offerings are available only to individuals who: (a) can enter into legally binding contracts under applicable law; (b) are eighteen (18) years of age or older (or the applicable age of majority, if greater than eighteen (18) years of age in their jurisdiction); and (c) are either acting in their individual capacity or are acting in their capacity as duly authorized representatives of a valid business entity (“Entity”) (collectively, “Usage Requirements”). The XSweet™ Offerings are not intended for individuals who do not satisfy the Usage Requirements, including individuals under eighteen (18) years of age (or the applicable age of majority, if greater than eighteen (18) years of age in their jurisdiction), individuals who cannot enter into legally binding contracts under applicable law and/or individuals attempting to register on behalf of an Entity who are not duly authorized representatives of that Entity. If a user does not satisfy the Usage Requirements in their entirety, that user does not have permission to access or use the XSweet™ Offerings. If you do not satisfy all of the Eligibility Requirements, you may not access the XSweet™ Offerings.
You shall be responsible, at all times, for ensuring that you have an Internet connection, computer/Mobile Device, mobile telephone number, up-to-date Internet browser versions, a functioning e-mail account, applicable software, applicable hardware and/or other equipment necessary to access the XSweet™ Offerings. PC does not guarantee the quality, speed or availability of the Internet connection associated with your mobile device and/or computer. PC does not guarantee that the XSweet™ Offerings can be accessed: (i) on all Mobile Devices; (ii) through all wireless service plans; (iii) in connection with all Internet browsers; and/or (iv) in all geographical areas. Standard messaging, data and wireless access fees may apply to your use of the App and other XSweet™ Offerings. You are fully responsible for all such charges and PC has no liability or responsibility to you, whatsoever, for any such charges billed by your wireless carrier.
Further, in order to obtain a Sweet Identity and/or purchase Sweet Coin you may need to open and maintain a functioning account with some or all of the following third party entities: (A) Ondato UAB (“Ondato”), which shall perform certain “know your customer” functions in connection with obtaining a Sweet Identity; (B) XSweet™ platform, where purchasing Sweet Coin; (C) any cryptocurrencies and/or wallets necessary to purchase Sweet Coin and/or otherwise utilize the XSweet™ Offerings.
In addition to the foregoing, individuals are not permitted to access the XSweet™ Offerings with a “Jail-Broken Mobile Device.” For purposes of the Agreement, a Jail-Broken Mobile Device is a Mobile Device that runs: (I) Apple’s® iOS operating system (including the iPhone®, iPod touch®, iPad® and second-generation Apple TV®) that has had any of its iOS-based software restrictions removed via any procedure that is not fully endorsed and authorized by Apple®; and/or (II) the Android® operating system that has had any of its Android®-based software restrictions removed via any procedure that is not fully endorsed and authorized by the applicable Mobile Device manufacturer.
Ondato® is a registered trademark of Ondato. Ondato or XSweet, and the XSweet™ Offerings are not endorsed, administered or sponsored by any of the foregoing entities.
6. Registration; Sweet Identity; Termination of Accounts. In order to open an account (“Account”), obtain a Sweet Identity and utilize certain of the XSweet™ Offerings (including the App), each prospective Member will be required to complete the “know-your-customer” ("KYC”) process with Ondato.
In connection with the KYC process associated with obtaining a Sweet Identity token, prospective Members may be required to provide some or all of the following to Ondato: (a) full name; (b) e-mail address; (c) mailing address; (d) telephone number; (e) identification documents (such as passport, driving license or similar) (f) date of birth; and/or (g) any other information requested by Ondato on the applicable form (collectively, “Sweet Identity Registration Data”). The Sweet Identity is autonomous and sovereign node encrypted and contained on a blockchain to provide an identity for the persona and assets of a Member who has passed the required KYC process. This identity is entirely on the blockchain and exists in a true zero trust environment. This means that neither PC, Ondato, nor any affiliated entity has access to the Sweet Identity Registration Data or other personal data associated with the applicable Sweet Identity token. Although the Sweet Identity address is exclusive to XSweet™ as a tokenized end-user, Sweet Identity Registration Data and other personal data (tokenized or otherwise) represented by the Sweet Identity is not owned or accessible by PC.
In order to obtain access to the XSweet™ Offerings as a Creator, PC may (in certain select instances) collect some or all of the following: (i) full name/Entity’s name; (ii) e-mail address; (iii) mailing address/Entity’s mailing address; (iv) telephone number Entity’s telephone number; and/or (v) any other information requested by PC (collectively, “Creator Registration Data”).
Where you purchase any PC Product Offerings, PC may collect some or all of the following: (A) full name; (B) e-mail address; (C) mailing address; (D) Payment Method (as defined below); and/or (E) any other information requested by PC (collectively, “PC Product Payment Data”).
Where a Member purchases Sweet Coin, Members may be required to provide their preferred Payment Method and related information (“Sweet Coin Payment Data,” and together with the Initial Registration Data, Sweet Identity Registration Data, Creator Registration Data and PC Product Payment Data, the “Registration Data”).
Where a Member purchases a Creator Product and Service Offering, certain payment and/or delivery-related Registration Data may be collected by the Creator that is providing the subject Creator Product and Service Offerings. Each Creator represents and warrants that it will only use the Registration Data of other Members to fulfill an applicable Creator Product and Service Offering purchase, and for no other reason.
Each prospective Member agrees to provide true, accurate, current and complete Registration Data, as necessary, in order to maintain it in an up to date and accurate fashion. PC may reject a prospective Member’s attempt to open an Account and/or terminate a Members Account at any time and for any reason, in its sole discretion. Such reasons may include, without limitation, where: (x) PC believes that such prospective end-user/Member, as applicable, is in any way in breach of the Agreement; (y) PC believes that such prospective end-user/Member, as applicable, is engaged in any improper and/or unauthorized conduct in connection with the XSweet™ Offerings; and/or (z) PC believes that such prospective end-user/Member, as applicable, is, at any time, engaged in any activity by and/or through the XSweet™ Offerings that may violate any applicable law.
As part of the registration process, Members will be provided with, or must select, a user-name and/or password for both the Site and the App. If the user-name(s)/password(s) that a Member requests is/are not available, that Member will be asked to supply another user-name/password. If PC provides a Member with a user-name/password, that Member can change that user-name and/or password, or the one that the Member selected during registration, at any time through her/his Site and/or App Account settings, as applicable. We may, in our sole discretion, reject, change, suspend and/or terminate any user-name. Profanity, obscenities, or the use of **asterisks** or other “masking” characters to disguise such words, is not permitted. Impersonating other Members is prohibited. Each Member agrees to notify PC of any known or suspected unauthorized use(s) of her/his Account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of her/his user-name(s)/password(s). Each Member shall be responsible for maintaining the confidentiality of her/his user-name(s)/password(s) and Account. Each Member agrees to accept responsibility for all activities that occur through use of her/his user-name(s)/password(s) and Account, including any charges incurred therethrough. Any fraudulent, abusive or otherwise illegal activity engaged in by any Member, or any entity or person with access to that Member’s user-name(s)/password(s) and/or Account may be grounds for termination of that Member’s Account, in PC’s sole discretion, and that Member may be reported to appropriate law enforcement agencies.
7. Compliance with Applicable Law. Each Member represents and warrants that it, its use of the XSweet™ Offerings, its participation in the XSweet™ ecosystem, as well as its business practices in general, shall fully comply with all applicable local, state, national, federal and international laws (collectively, “Applicable Law”).
8. Creator Locations; Creator Product and Service Offerings; XSweet™ Product Offerings; Tokens; Sweet Coin Transactions; Members and Creators.
(a) Creator Locations. Members that enter into Creator Terms of Uses with PC shall be permitted to create personalized areas within the XSweet™ ecosystem which may: (i) include various Creator Content and links to Creator Social Media Pages; (ii) list various Creator Product and Service Offerings for sale (including streaming music and video), in exchange for Sweet Coin, by and through the applicable Creator Locations; and (iii) provide information pertaining to Virtual Creator Events. You understand and agree that PC is not responsible or liable in any manner whatsoever for your inability to access and/or use any Creator Location.
(b) Creator Product and Service Offerings; Virtual Creator Events. All purchases of Creator Product and Service Offerings, as well as the terms, conditions and restrictions associated with your ownership and use of same, and all Virtual Creator Events, shall at all times be subject to a separate agreement between you and the applicable Creator (“Creator and Customer Agreements”). Each Creator is required by PC to represent and warrant, in the applicable Creator Terms of Use between PC and the applicable Creator, that: (A) she/he/it is legally able to sell each Creator Product and Service Offering included on the applicable Creator’s Creator Location(s), and that it is lawful to sell such Creator Product and Service Offering to US residents or (if the Customer is an overseas resident) that it is lawful to sell and export such Creator Product and Service Offering to the applicable Customer; (B) she/he/it has the right to use all Creator Content posted by that Creator in connection with her/his/its Creator Product and Service Offerings and/or Virtual Creator Events, and that PC has the right to make same available by and through the XSweet™ Offerings; and (C) Creator has a reasonable basis for any and all claims made within the Creator Content posted by that Creator in connection with her/his/its Creator Product and Service Offerings and/or Virtual Creator Events and possesses appropriate documentation to substantiate such claims. Notwithstanding the foregoing, PC undertakes no responsibility to monitor or otherwise police the Creator Offerings and/or Virtual Creator Events promoted by Creators by and through the XSweet™ Offerings. We have made every effort to display as accurately as possible the colors of the Creator Product and Service Offerings made available by and through the XSweet™ Offerings. However, as the actual colors you see will depend on your monitor/screen and other factors associated with your computer, Mobile Device or other device used to access the Site, as applicable, we cannot guarantee that the depiction of any color as viewed by you through your monitor/screen will be accurate.
Please be advised that PC does not itself manufacture, produce, sell, distribute or otherwise offer the Creator Product and Service Offerings. The Creator Product and Service Offerings contain descriptions that are provided directly by the applicable Creators, as well as the manufacturers of the subject Creator Product and Service Offerings. PC does not represent or warrant that the descriptions of such Creator Product and Service Offerings are accurate or complete. Further, the Creator Product and Service Offerings and Creator Content may contain third party intellectual property rights. PC does not represent or warrant that the applicable Creator has secured all necessary third party intellectual property rights. As a result of the foregoing, PC has no control over the quality, safety or legality of the Creator Product and Service Offerings and/or Creator Content
USE OF THE CREATOR PRODUCT AND SERVICE OFFERINGS AND VIRTUAL CREATOR EVENTS IS SOLELY AT YOUR OWN RISK. PC disclaims any and all liability for any loss, damage or injury (including personal injury) arising from or related to any Creator Offering and/or Virtual Creator Event. You agree that PC shall have no obligations and incur no liabilities to you in connection with: (I) any modification, suspension or discontinuation of any Creator Offerings and/or Virtual Creator Events; (II) your use of, or inability to use and/or acquire, any Creator Offerings; (III) your attendance, or inability to attend, any Virtual Creator Event(s); or (IV) any other matter relating to the Creator Product and Service Offerings, Virtual Creator Events and/or any Creator Content appearing on any Creator Location. You understand and agree that refusal to use the PC Offerings is your sole right and remedy with respect to any dispute with PC.
(c) Additional Terms Applicable to Virtual Creator Events. Members shall have the opportunity, from time-to-time, to participate in live virtual events, as same are offered by Creators by and through XSweet™. Details pertaining to each Virtual Creator Event shall be made available by each applicable Creator by and through that Creator’s Creator Location(s). You are solely responsible for your interactions with Creators, other Members and third-parties at all Virtual Creator Events. Please be advised that PC does not itself oversee, conduct or otherwise participate in any Virtual Creator Events. The Virtual Creator Events are conducted exclusively by Creators. As a result of the foregoing, PC has no control over the quality, safety or legality of the Virtual Creator Events. PC does not represent or warrant that the applicable Virtual Creator Events are safe and/or legal. PARTICIPATION IN ANY VIRTUAL CREATOR EVENT IS SOLELY AT YOUR OWN RISK. PC disclaims any and all liability for any loss, damage or injury (including personal injury) arising from or related to any Virtual Creator Event.
(d) XSweet™ Product Offerings. Members may, from time-to-time, be able to purchase XSweet™ Product Offerings by and through the XSweet™ ecosystem. PC does not warrant that the XSweet™ Product Offering descriptions are accurate, complete, reliable, current or error free. We have made every effort to display as accurately as possible the colors of the XSweet™ Product Offerings that appear in the XSweet™ ecosystem. However, as the actual colors you see will depend on your monitor/screen and other factors associated with your computer, Mobile Device or other device used to access the Site, as applicable, we cannot guarantee that the depiction of any color as viewed by you through your monitor/screen will be accurate.
We reserve the right, but are not obligated, to limit the sale of our XSweet™ Product Offerings to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any XSweet™ Product Offerings that we offer. All descriptions of XSweet™ Product Offerings, as well as XSweet™ Product Offering pricing, are subject to change at any time, without notice, in our sole discretion. We reserve the right to discontinue any XSweet™ Product Offerings at any time. Any offer for any XSweet™ Product Offerings is void where prohibited.
The XSweet™ ecosystem contains XSweet™ Product Offerings inventory information. This information can be used to estimate the likelihood that the applicable XSweet™ Product Offerings will be shipped immediately after you place your order. Unfortunately, we cannot guarantee that XSweet™ Product Offerings listed as “in stock” will actually ship right away, as inventory can change significantly from day-to-day, and hour-to-hour. In rare cases, XSweet™ Product Offerings may be in stock when you place your order and sold out by the time that your order is processed. Should this happen, we will notify you via email. If, for any reason, we determine that backordered XSweet™ Product Offerings are no longer available, we will cancel your order, notify you immediately via email and provide you with a refund.
In the event that XSweet™ Product Offerings are listed at an incorrect price point due to a typographical error or an error in pricing information received from our suppliers, PC shall have the right to refuse or cancel any orders placed for the XSweet™ Product Offerings so listed at the incorrect price. PC shall have the right to refuse or cancel any order whether or not the order has been confirmed and whether or not the applicable Member paid for such XSweet™ Product Offerings. If a Member has already paid for XSweet™ Product Offerings and that order is canceled, PC shall immediately issue a Sweet Coin credit in the amount of the subject charge.
(e) Sweet Coin Transactions. All sales and purchases conducted by and through the XSweet® Offerings shall be consummated using the Sweet Coin digital currency, by and through the Sweet Identity wallets of the applicable Creator and/or Member. Sweet Coin can be purchased with fiat currency, or with certain accepted cryptocurrencies, such as Ethereum, Bitcoin and Solana cryptocurrency. PC will assist Members by converting prices into Sweet Coin in order to facilitate the subject transactions. Members can obtain Sweet Coin from the third party operated XSweet platform, and exchange Sweet Coin for fiat currency and other currencies, subject to any rules, terms, conditions, policies and transaction fees imposed by XSweet. The XSweet platform records all Member Sweet Coin transactions. All Sweet Coin transactions may be subject to transaction fees imposed by XSweet. Sweet Coin may not be used to make purchases outside of the XSweet™ ecosystem. Members agree that PC shall not be liable in any respect in connection with: (i) the conversion and/or transaction fee information made available by and through the XSweet network; (ii) PCs reliance on the conversion and/or transaction fee information made available by and through the XSweet network; and (iii) any conversion calculations performed by PC and/or transaction fees added in connection with same.
No element of the Sweet Coin qualifies or is intended to be an offering of securities in any jurisdiction, nor does it constitute an offer or an invitation to purchase shares, securities or other financial products. Each Member is solely and exclusively responsible for assuring that the purchase and sale of Sweet Coin, and the use of Sweet Coin in connection with commercial transactions, complies with the laws and regulations in Member’s jurisdiction.
Each Member assumes all risks associated with using Sweet Coin, an Internet-based digital currency, and the risks associated with owning a currency that resides on a blockchain including, but not limited to, the risk of hardware, software and Internet connections, the risk of malicious software introduction, the risk of hacking, and the risk that third parties may otherwise obtain unauthorized access to such Member’s: (A) wallet; (B) Sweet Identity; and/or (C) Sweet Coin.
Digital currencies and blockchain technology are relatively new and the regulatory landscape is unsettled. New regulations could negatively impact such technologies which may, in turn, impact the value of Sweet Coin. Each Member understands and accepts all risk in that regard. Without limiting the foregoing, each Member assumes all responsibility for any adverse effects of disruptions or other issues impacting Sweet Coin, the XSweet platform, any applicable blockchain and/or any other third party technology.
PC IS NOT RESPONSIBLE FOR SWEET COIN THAT ARE LOST, MISDIRECTED OR DAMAGED, OR FOR YOUR FAILURE, AT ANY TIME, TO CONSUMMATE A PURCHASE OF ANY CREATOR PRODUCT AND SERVICE OFFERING AND/OR XSweet™ PRODUCT OFFERINGS.
(g) Customer/Creator Relationship; Non-Endorsement. Members that purchase Creator Product and Service Offerings and/or participate in a Virtual Creator Event by and through the XSweet™ Offerings (“Customers”) shall not be deemed to be the customers and/or patrons of PC, but rather of the applicable Creator selling the subject Creator Product and Service Offering or operating/running the subject Virtual Creator Event. All purchases of Creator Product and Service Offerings, as well as the terms, conditions and restrictions associated with your ownership and use of same, and all Virtual Creator Events, shall at all times be subject to separate Creator and Customer Agreements between the subject Customers and the subject Creators. PC has no liability or responsibility to review, endorse, police or enforce any such Creator-Customer relationship(s), including the terms of any Creator and Customer Agreements. PC shall have no obligation to resolve any dispute between Customers, Creators or any third parties. PC operates the Site, App and other XSweet™ Offerings as a neutral host, and PC does not regularly monitor, regulate or police the use of the Site, App and other XSweet™ Offerings by any of its participants. The participation in Site, App and other XSweet™ Offerings by a Creator, Customer or other third party does not constitute an endorsement by PC of that Creator, Customer or other third party. PC is not responsible or liable for the acts, omissions, agreements, promises, content, Creator Product and Service Offerings, Virtual Creator Events, Creator Content, links, other products, services, comments, opinions, advice, statements, offers and other information of any Creator, Customer or other third party using the Site, App and other XSweet™ Offerings.
9. Account and Billing Provisions.
(a) Purchasing Profile Verification Services. Where you purchase Sweet Coin, your credit card, debit card, cryptocurrency account and/or any other payment method accepted by XSweet and provided by you (as permitted by PC in its sole discretion) (collectively, “Payment Method”) will be charged the applicable amount. Charges will appear on your Payment Method statement through the identifier “GC Brush LLC.” By providing XSweet with a Payment Method, you: (i) represent that you are authorized to use the Payment Method that you provided and that any payment information you provide is true and accurate; and (ii) authorize XSweet™ to charge you for the requested Sweet Coin using your Payment Method. Any attempt to defraud through the use of any Payment Method, regardless of the outcome, or any failure by you to honor legitimate charges or requests for payment, will result in immediate termination of your Account and Sweet Identity, and could result in the pursuit of civil litigation and/or criminal prosecution. UNLESS OTHERWISE INDICATED, ALL SALES OF SWEET COIN ARE FINAL AND NON-REFUNDABLE.
(b) General Billing Provisions. Subject to the conditions set forth herein, you agree to be bound by the Billing Provisions of PC in effect at any given time. Upon reasonable prior written notice to you (with e-mail sufficing), PC reserves the right to change its Billing Provisions whenever necessary, in its sole discretion. Subsequent purchase of Sweet Coin after receipt of such notice shall constitute consent to any and all such changes; provided, however, that any amendment or modification to the Billing Provisions shall not apply to any charges incurred prior to the applicable amendment or modification. PC’s authorization to bill for purchases is obtained by way of your electronic signature. Once an electronic signature is submitted, the electronic order constitutes an electronic letter of agency. PC’s reliance upon your electronic signature was specifically sanctioned and written into law when the Uniform Electronic Transactions Act and the Electronic Signatures in Global and National Transactions Act were enacted in 1999 and 2000, respectively. Both laws specifically preempt all state laws that recognize only paper and handwritten signatures.
(c) Tax Liability. Creators will be solely responsible for any tax liability (including sales tax, where applicable) associated with the sale of Creator Product and Service Offerings and/or collection of fees in connection with any Virtual Creator Event.
(d) Cancellation of Your Account. You may cancel your Account at any time and for any reason by requesting closure of your Account by using the options in your Account interface. Upon cancellation or termination of your Account for any reason, you must immediately cease all use of the XSweet™ Offerings and uninstall and delete all copies of the App and associated proprietary software (together with the content included therein, any associated documentation, and any application program interfaces, license keys, and patches, updates, upgrades, improvements, enhancements, fixes and revised versions of any of the foregoing, collectively the “Software”). Upon cancellation or termination of your Account for any reason, all licenses and rights granted to you under the Agreement automatically terminate. All terms and conditions contained in the Agreement that are unrelated to XSweet™ Offerings including, without limitation, disclaimers, limits of liability, dispute resolution, indemnity, copyright notice, and your obligation to pay any amounts due hereunder, will survive any cancellation or termination of your Account. PC will retain pertinent Account information for as long as required by law.
10. The App.
(a) Installation. PC believes in providing end-users with clear, concise and complete disclosure before end-users download and install the App, including a description of the primary functions of the App. The App requires Member consent prior to installation. PC does not believe that end-users should be deceived into downloading or installing the App. In order to download the App, as made available on the iOS® and Android® mobile platforms, you must either utilize the options made available: (i) on the Site; or (ii) via participating Download Venues.
(b) Uninstall. The App can be completely uninstalled in a straightforward manner and without requiring undue effort or skill, in most cases by using the traditional “add/remove” programs function contained within your Mobile Device. Please be advised that in some instances, you may be required to restart your Mobile Device before all remnants of the App are completely uninstalled and removed from your Mobile Device. If you experience any problems installing and/or uninstalling the App, please contact us via e-mail at: support@xsweet.io.
THE APP IS NOT SPYWARE OR ADWARE. THE APP WILL NOT DELIVER ADVERTISEMENTS TO YOUR MOBILE DEVICE.
(c) Download Venues. The Agreement is entered into by and between you and PC, and not with the applicable Download Venue that you use to access the App. As between PC and any participating Download Venue, PC is solely responsible for the App. No Download Venue has any obligation to furnish any maintenance and/or support services with respect to the App. The Download Venues are third-party owned and operated websites. Use of those stores shall be governed by the applicable venue’s agreements, terms and conditions. PC does not control the Download Venues or any of the actions, policies or decisions made by the operators of those venues. If you accessed or downloaded the App from the Apple® Store, then you agree to use the App only: (i) on an Apple®-branded product or device that runs iOS (Apple’s® proprietary operating system software); and (ii) as permitted by the “Usage Rules” set forth in the Apple® Store Terms of Service, as applicable.
(d) Remote Access, Updates and Bug Fixes. PC reserves the right (but is not obligated) to add additional features or functions to the existing App, and to provide technical support including bug fixes, error corrections, patches, new releases or any other component not specified within these Terms, from time-to-time. When installed on an end-user’s Mobile Device, the App periodically communicates with PC servers. PC may require the updating of the App residing on an end-user’s Mobile Device when PC releases a new version of the App, or when PC makes new features available. The aforementioned technical support and/or updates may occur automatically without prior notice through remote access to your Mobile Device, or upon prior notice to you and may occur all at once or over multiple sessions, in PC’s sole and absolute discretion. By downloading the App, you hereby consent to this remote access and these update/technical support services. Our access to your Mobile Device will be limited to providing support and/or updating the App. Where we are denied access for these purposes, your ability to utilize App-based XSweet™ Offerings may be limited. Each end-user understands that we may require that end-user’s review and acceptance of our then-current Agreement before that end-user will be permitted to use any subsequent versions of the App. Each end-user acknowledges and agrees that PC has no obligation to make any subsequent versions of the App available to that end-user, or to provide bug fixes, error corrections, patches, new releases or any other component not specified within the Agreement.
(e) Third-Party Software. ANY THIRD-PARTY SOFTWARE, AS WELL AS ANY THIRD-PARTY PROVIDED PLUG-INS, THAT MAY BE PROVIDED WITH THE APP ARE MADE AVAILABLE FOR USE AT EACH END-USER’S SOLE OPTION AND RISK. IF AN END-USER CHOOSES TO USE SUCH THIRD-PARTY SOFTWARE, THEN SUCH USE SHALL BE GOVERNED BY SUCH THIRD-PARTY'S LICENSING AGREEMENT(S), TERMS AND CONDITIONS AND PRIVACY PRACTICES. PC IS NOT RESPONSIBLE FOR ANY THIRD-PARTY SOFTWARE AND SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY END-USER’S USE OF, OR INABILITY TO USE, THIRD-PARTY SOFTWARE.
(f) App License Grant/Termination. Subject to the restrictions set forth in the Agreement, we grant to you a personal, non-exclusive, limited, non-transferable, non-assignable, non-sublicensable, limited license to install and run the App and related Software, in object code format only, on Mobile Devices owned or controlled by you, solely for the purpose of accessing and using the XSweet® Offerings in accordance with the Agreement, and solely for so long as your Account is in good standing. You acknowledge that you are receiving licensed rights only. The licenses set forth in this Section 10 shall be in effect unless and until this license is terminated by PC. PC may terminate the licenses set forth in this Section 10 and/or disable, remove or change the App and/or any portion thereof in its sole discretion at any time, with or without notice, by remote updates or otherwise. In addition, this license will terminate immediately with respect to a Member if that Member fails to comply with any term or condition of the Agreement. Each end-user agrees upon expiration or termination of this license to immediately un-install the App. You may not network the App and/or Software among multiple Mobile Devices. You may not directly or indirectly, or authorize any person or entity to: (i) reverse engineer, decompile, disassemble, re-engineer or otherwise create or attempt to create or permit, allow, or assist others to create the source code of the App, Software and/or their structural framework; (ii) create derivative works of the App and/or Software; (iii) use the App and/or Software in whole or in part for any purpose except as expressly provided herein; or (iv) disable or circumvent any access control or related device, process or procedure established with respect to the App and/or Software. You acknowledge that you have access to sufficient information such that you do not need to reverse engineer the App and/or Software in any way to permit other products or information to interoperate with the App and/or Software. You are responsible for all use of the App and/or Software that is under your possession or control.
(g) Export Restrictions. Each end-user agrees that the App may not be transferred or exported into any other country or used in any manner prohibited by U.S. or other applicable export laws and regulations.
11. Interactive Services and Creator Content.
(a) Subject to the restrictions contained herein including, without limitation, those contained below: (i) the Interactive Services may allow Members to post comments, text, video, content and engage in other interactive communication, by and through the XSweet™ Offerings; and (ii) Creators can post Creator Content in their respective Creator Locations. In connection with the Interactive Services, each Member/Creator shall be solely responsible for the comments, opinions, statements, offers, propositions, feedback and other content (collectively, “Feedback”) and Creator Content posted by and through the Interactive Services and/or Creator Locations, as applicable. PC reserves the right to prohibit any conduct by Members and/or Creators, or to remove any Creator Content, materials or Feedback posted by and through the Interactive Services and/or Creator Locations, as applicable, that PC deems, in its sole and absolute discretion, to be in violation of the Agreement and/or which PC believes to be illegal, potentially harmful to others, otherwise objectionable or that same may expose PC to harm, damage to reputation or liability. Notwithstanding the foregoing, PC undertakes no responsibility to monitor or otherwise police the actions of Members, Creators, Feedback, Creator Content and/or other material posted by Members, Creators and/or other third parties. PC shall have no obligation and incur no liability to any Members in connection with any Feedback and/or Creator Content. Members may find certain Feedback and/or Creator Content to be outdated, harmful, inaccurate and/or deceptive. Please use caution, common sense and safety when viewing Feedback and/or Creator Content. You agree to use the Interactive Services in a manner consistent with, and in full compliance with, any and all applicable laws and regulations.
(b) In connection with the posting of and/or Creator Content, your use of the Interactive Services and/or your use other of the XSweet™ Offerings, you agree not to: (i) display any telephone numbers, street addresses, last names, URLs, e-mail addresses or any confidential information of any third party; (ii) display any audio files, text, photographs, videos or other images containing confidential information; (iii) display any audio files, text, photographs, videos or other images that may be deemed indecent or obscene in your community, as defined under applicable law; (iv) impersonate any person or entity; (v) “stalk” or otherwise harass any person; (vi) engage in unauthorized advertising to, or commercial solicitation of, other Members; (vii) transmit any chain letters, spam or junk e-mail to other Members; (viii) express or imply that any statements that you make are endorsed by PC, without PC’s specific prior written consent; (ix) harvest or collect personal information of other Members whether or not for commercial purposes, without their express consent; (x) use any robot, spider, search/retrieval application or other manual or automatic device or process to retrieve, index, “data mine” or in any way reproduce or circumvent the navigational structure or presentation of the XSweet™ Offerings; (xi) post, distribute or reproduce in any way any copyrighted material, trademarks or other proprietary information without obtaining the prior consent of the owner of such proprietary rights; (xii) remove any copyright, trademark or other proprietary rights notices contained on the Site and/or App; (xiii) interfere with or disrupt the XSweet™ Offerings and/or the servers or networks connected to same; (xiv) post, offer for download, e-mail or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (xv) post, offer for download, transmit, promote or otherwise make available any software, product or service that is illegal or that violates the rights of a third party including, but not limited to, spyware, adware, programs designed to send unsolicited advertisements (i.e. “spamware”), services that send unsolicited advertisements, programs designed to initiate “denial of service” attacks, mail bomb programs and programs designed to gain unauthorized access to mobile networks; (xvi) “frame” or “mirror” any part of the XSweet™ Offerings without PC’s prior written authorization; (xvii) use metatags or code or other devices containing any reference to any XSweet™ Offerings in order to direct any person to any other mobile application or website for any purpose; and/or (xviii) modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the XSweet™ Offerings or any software used in or in connection with the XSweet™ Offerings. PC reserves the right to pursue any and all legal remedies against Members that engage in the aforementioned prohibited conduct.
12. Social Media Pages. The Site and App contain links to the various PC Social Media Pages. The Social Media Pages are hosted and made available on third-party Social Media Websites by third-party entities. Your use of Social Media Pages and Social Media Websites shall be governed by those Social Media Websites’ applicable agreements, terms and conditions. You understand and agree that PC shall not be liable to you, any other Member or any third-party for any claim in connection with your use of, or inability to use, the Social Media Pages and/or Social Media Websites.
13. Content.
(a) General Terms. Subject to the terms and conditions of the Agreement, Members that possess the requisite technology shall have the opportunity to view, download and/or interact with all or some of the Content made available by and through the App, Site and/or other XSweet™ Offerings. The Content is compiled, distributed and displayed by PC, as well as third-party content providers, such as Creators, Members and third-party service providers (collectively, “Third-Party Providers”). PC does not control the Content provided by Third-Party Providers that is made available by and through the XSweet™ Offerings. Such Third-Party Providers are solely responsible for the accuracy, completeness, appropriateness, safety and/or usefulness of such Content. The Content should not necessarily be relied upon. PC does not represent or warrant that the Content and other information posted by and/or through the XSweet™ Offerings is accurate, complete, up-to-date or appropriate. Members understand and agree that PC will not be responsible for, and PC undertakes no responsibility to monitor or otherwise police, Content provided by Third-Party Providers. Members agree that PC shall have no obligation and incur no liability to such Members in connection with any Content. Members may find certain Content to be outdated, harmful, inaccurate and/or deceptive. Please use caution, common sense and safety when using the Content.
(b) Feedback License. Each Member who posts Feedback by and through the XSweet™ Offerings hereby irrevocably grants to PC, for good and valuable consideration, the receipt of which is hereby acknowledged, the worldwide right and license to use, reuse and publish any and all Feedback, in any and all forms of marketing and promotional material including, without limitation, print advertisements (“ads”), online ads, ads and other promotions appearing on PC’s Social Media Pages and other Social Media Websites, email ads, television ads, radio ads, interactive media, as well as printed extracts and reproductions of any portion thereof (collectively, “Ads”), and for any and all other uses. Each Member who posts Feedback represents and warrants to PC that: (i) such Member has all of the rights and authority necessary to submit the Feedback for the uses contemplated hereunder, including the right to publish the Feedback; and (ii) the publication of the Feedback by such Member, as well as PC as contemplated hereunder, will not infringe upon or violate the rights of any third-party. Each Member who posts understands and agrees that: (A) the Feedback, in whole or in part, may be edited and/or dramatized, and that any part of the Feedback may be used without compensation to such Member; and (B) no Ad or other material incorporating or making reference to the Feedback need be submitted to such Member for approval and PC shall be without liability to such Member for any distortion or illusionary effect resulting from its publication of the Feedback. Each Member who posts Feedback expressly: (I) releases PC from any and all claims that such Member has or may have for breach of right of publicity, invasion of privacy, defamation, copyright infringement or any other claim or cause of action arising out of or in connection with any production, distribution, duplication, broadcast, exhibition, publication, Ad or promotion utilizing or incorporating the subject Feedback, or any other use of the subject Feedback whatsoever; and (II) acknowledges and agrees that PC shall not be liable for any causes of action or claims related to the applicable Member’s decision to provide the Feedback to PC.
14. Ownership. The XSweet™ Offerings, as well as the organization, graphics, design, compilation, magnetic translation, digital conversion, software, services and other matters related to same, and all PC logos, symbols, expansion names and symbols, play level symbols, trade dress or "look and feel,” and all derivative works or modifications of/to any of the foregoing, and all related and underlying intellectual property (including, without limitation, patents, trademarks, trade secrets and copyrights), are the sole and exclusive property of PC. We reserve all rights not expressly granted herein. Except as expressly set forth herein, no right or license is granted hereunder, express or implied or by way of estoppel, to any intellectual property rights and your use of the XSweet™ Offerings does not convey or imply the right to use the XSweet™ Offerings in combination with any other information or products. The posting of information or material by and through the XSweet™ Offerings does not constitute a waiver of any right in or to such information and/or materials. The “XSweet” name and logo are trademarks of Palace Creative LLC. The use of any PC trademark without PC’s express written consent is strictly prohibited.
15. License. Each Member is granted a non-exclusive, non-transferable, revocable and limited license to access and use the XSweet™ Offerings. PC may terminate this license at any time for any reason. Unless otherwise expressly authorized by PC in writing in each instance, Members may only use the XSweet™ Offerings for their own personal, non-commercial use. No part of the XSweet™ Offerings may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical. No Member or other third-party may use any automated means or form of scraping or data extraction to access, query or otherwise collect material from the XSweet™ Offerings except as expressly permitted by PC. No Member or other third-party may use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, reverse engineer or transfer the XSweet™ Offerings, or any portion thereof. No Member or other third-party may create any “derivative works” by altering any aspect of the XSweet™ Offerings. No Member or other third-party may use the XSweet™ Offerings in conjunction with any other third-party content. No Member or other third-party may exploit any aspect of the XSweet™ Offerings for any commercial purposes not expressly permitted by PC. Each Member further agrees to indemnify and hold PC harmless for that Member’s failure to comply with this Section 15. PC reserves any rights not explicitly granted in the Agreement.
16. Prohibited Conduct.
(a) Abuse. In accessing the XSweet™ Offerings, you represent and warrant to us that you: (i) will not engage in any activity that interrupts or attempts to interrupt the operation of the XSweet™ Offerings; (ii) will not engage in any money laundering or similar behavior; (iii) will not engage in the sale or brokering of any securities, debt instruments, investment opportunities or similar commercial endeavors; and (iv) will comply with the rules, regulations and policies applicable to the cryptocurrency and any applicable Social Media Websites.
(b) Hacking, Tampering or Unauthorized Access. Any attempt to gain unauthorized access to our systems or any other Member’s Account and/or Sweet Identity, interfere with procedures or performance of any XSweet™ Offerings, or deliberately damage or undermine any XSweet™ Offerings is subject to civil and/or criminal prosecution and will result in immediate termination of your Account. You acknowledge that we are not responsible for any damage, loss, or injury resulting from hacking, tampering, or other unauthorized access to or use of the XSweet™ Offerings or your Account.
(c) Restrictions. Any use, reproduction or redistribution of the XSweet™ Offerings, or related services not expressly authorized by the Agreement is expressly prohibited. You may not engage in, or assist others in engaging in, conduct that would damage or impair our property including, without limitation: (i) copying, distributing, transmitting, displaying, performing, framing, linking, hosting, caching, reproducing, publishing, licensing, or creating derivative works from any information, software, products or services obtained from us; (ii) providing unauthorized means through which others may use the XSweet™ Offerings, such as through server emulators; (iii) taking actions that impose an unreasonable or disproportionately large load on our or our suppliers' network infrastructure, or that could damage, disable, overburden or impair the XSweet™ Offerings; (iv) interfering with any other party's use and/or enjoyment of the XSweet™ Offerings; and/or (v) attempting to gain unauthorized access to third-party Accounts and/or the XSweet™ Offerings.
(d) Reporting Prohibited Conduct. You may report prohibited conduct by forwarding all evidence of abuse to: support@xsweet.io. All such evidence and your messages become our property and we may use them for the purposes set forth hereunder. Please report responsibly. In addition to the foregoing, we reserve the right to disclose or report any money laundering or similar illegal activity to law enforcement and regulatory authorities. Without limiting our other available remedies, we may institute or seek any injunctive relief, civil and/or criminal proceedings against any Member and/or any co-conspirators arising out of or related to any violation of the Agreement including, without limitation, recovering all of our fees and expenses (including reasonable attorneys’ fees) in connection with such efforts.
17. Disclaimers. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: WE MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE LEGALITY OF YOUR USE OF THE XSWEET™ OFFERINGS, OR RELATED SERVICES, AND NO PERSON AFFILIATED, OR CLAIMING AFFILIATION, WITH US SHALL HAVE THE AUTHORITY TO MAKE ANY SUCH REPRESENTATIONS OR WARRANTIES.
THE XSWEET™ OFFERINGS, AND ALL RELATED DOWNLOADS, SERVICES, PRODUCTS, INFORMATION, IN-APP FEATURES AND DATA PROVIDED OR MADE AVAILABLE BY OR THROUGH THE XSWEET™ OFFERINGS ARE "AS IS" AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, OR FREEDOM FROM VIRUS OR OTHER DISABLING ROUTINE, OR INTERRUPTION, OR NON-INFRINGEMENT, AND YOU ASSUME THE ENTIRE RISK WITH RESPECT THERETO. USE OF THE INTERNET AND TELECOMMUNICATIONS SYSTEMS IS INHERENTLY RISKY AND YOU DO SO AT YOUR OWN RISK.
WITHOUT LIMITING THE FOREGOING, PC MAKES NO WARRANTY THAT: (A) THE XSWEET™ OFFERINGS WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (B) ANY INFORMATION OBTAINED THROUGH THE XSWEET™ OFFERINGS (INCLUDING CONTENT) WILL BE ACCURATE OR RELIABLE; (C) ANY DEFECTS IN THE XSWEET™ OFFERINGS WILL BE CORRECTED; (D) THE APP WILL BE AVAILABLE FOR INSTALLATION OR REINSTALLATION WITH ALL MOBILE DEVICES OR THAT THE XSWEET™ OFFERINGS WILL BE COMPATIBLE WITH ANY SPECIFIC PC, HARDWARE, MOBILE DEVICE, WIRELESS NETWORK OR SERVICE; (E) THE XSWEET™ OFFERINGS WILL BE FREE FROM TECHNICAL ERROR, OR OTHER ERROR OF ANY KIND, WHETHER HUMAN, MECHANICAL OR ELECTRONIC; (F) THE XSWEET™ OFFERINGS WILL RESULT IN ANY ECONOMIC BENEFIT OR GAIN; OR (G) THE XSWEET™ OFFERINGS WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NO INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PC AND/OR THROUGH THE XSWEET™ OFFERINGS SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.
FURTHER, EACH MEMBER UNDERSTANDS AND AGREES THAT OWNERSHIP OF, AND TRANSACTIONS INVOLVING, SWEET COIN MAY REQUIRE OR RELY ON THIRD-PARTY TECHNOLOGY AND/OR PLATFORMS INCLUDING, WITHOUT LIMITATION, DIGITAL WALLETS, BLOCKCHAINS OR RELATED TECHNOLOGY, SMART CONTRACTS, INTERNET SERVICE PROVIDERS, MARKETPLACES, EQUIPMENT OR OTHER INFRASTRUCTURE (COLLECTIVELY, “THIRD PARTY TECHNOLOGY”). EACH MEMBER UNDERSTANDS AND AGREES THAT THE EXISTENCE AND PERFORMANCE OF THIRD PARTY TECHNOLOGY ARE OUTSIDE OF PC’S CONTROL. TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, PC DISCLAIMS ALL LIABILITY FOR THE USE, UNAVAILABILITY AND/OR FAILURE OF ANY THIRD PARTY TECHNOLOGY.
WE ARE NOT RESPONSIBLE OR LIABLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM, RELATING TO OR ARISING OUT OF VIOLATIONS OF THE AGREEMENT BY OTHER MEMBERS OR THIRD PARTIES AND WE HAVE NO RESPONSIBILITY TO ENFORCE THE AGREEMENT FOR THE BENEFIT OF ANY MEMBER OR THIRD PARTY.
SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES. AS SUCH, THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU IN ITS ENTIRETY.
18. Limitations of Liability. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, NEITHER WE, NOR OUR SUPPLIERS OR LICENSORS, WILL BE LIABLE TO YOU OR ANY THIRD-PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST DATA OR LOSS OF GOODWILL), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF WE OR OUR THIRD-PARTY SUPPLIERS OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY, ARISING OUT OF OR RELATING TO THE AGREEMENT, THE XSWEET™ OFFERINGS, OR ANY INFORMATION, SERVICES, PRODUCTS OR SOFTWARE MADE AVAILABLE OR ACCESSIBLE TO YOU BY AND THROUGH SAME, INCLUDING, BUT NOT LIMITED TO, FOR: (A) THE USE OR THE INABILITY TO USE THE XSWEET™ OFFERINGS; (B) THE INABILITY TO INSTALL, OR REINSTALL, THE APP ON ANY MOBILE DEVICE; (C) UNAUTHORIZED ACCESS TO, OR ALTERATION OF, YOUR REGISTRATION DATA AND/OR ACCOUNT; (D) ANY ISSUE RELATED TO THE TIMELINESS, ACCURACY OR RELIABILITY OF THE XSWEET™ OFFERINGS; (E) UNAUTHORIZED ACCESS TO SWEET COIN (F) ANY UNAUTHORIZED THIRD PARTY ACTIVITIES INCLUDING, WITHOUT LIMITATION, THE USE OF VIRUSES, PHISHING, BRUTE FORCING OR OTHER MEANS OF ATTACK AGAINST A BLOCKCHAIN NETWORK UNDERLYING SWEET COIN, (G) A MEMBER’S FAILURE TO MAINTAIN THE SECURITY OF HER/HIS/ITS SWEET IDENTITY; (H) A MEMBER’S FAILURE TO REALIZE ANY ECONOMIC BENEFIT OR GAIN; (I) THE CANCELLATION OF ANY CREATOR PRODUCT AND SERVICE OFFERING AND/OR VIRTUAL CREATOR EVENT; (J) ANY TECHNICAL ERROR OR OTHER ERROR OF ANY KIND, WHETHER HUMAN, MECHANICAL OR ELECTRONIC, ASSOCIATED WITH ANY OF THE XSWEET™ OFFERINGS; (K) ANY POTENTIAL PAYMENT OR OTHER AMOUNT DELIVERED TO YOUR ACCOUNT IN ERROR UNDER ANY CIRCUMSTANCES; OR (L) ANY OTHER MATTER RELATING TO THE XSWEET™ OFFERINGS.
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, OUR MAXIMUM LIABILITY TO YOU ARISING OUT OF OR IN ANY WAY CONNECTED TO THE AGREEMENT, THE XSWEET™ OFFERINGS, OR ANY INFORMATION, SERVICES, PRODUCTS OR SOFTWARE MADE AVAILABLE OR ACCESSIBLE TO YOU BY AND THROUGH SAME SHALL NOT EXCEED ONE THOUSAND DOLLARS ($1,000.00). THE EXISTENCE OF ONE OR MORE CLAIMS BY YOU WILL NOT INCREASE OUR LIABILITY. IN NO EVENT SHALL OUR SUPPLIERS OR LICENSORS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO OUR PRODUCTS, INFORMATION OR SERVICES.
CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL OR CERTAIN OTHER TYPES OF DAMAGES. AS SUCH, THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS SECTION 18 MAY NOT APPLY TO YOU.
19. Miscellaneous.
(a) Technical Difficulties. We are not responsible for delays, disruptions, malfunctions or other technical interruptions that affect the XSweet™ Offerings including, without limitation, problems with Mobile Devices, the App, the Site, computer systems, telephone carriers, or Internet service providers or the quality of coverage, strength of signal, delays or outages in service.
(b) Linked Sites. You may be able to access third-party websites or services via the Site and/or App including, without limitation, Social Media Websites, the XSweet platform, the Ondato website and the websites of Creators. We are not responsible for third-party websites, services or content available through those third-party websites. You are solely responsible for your dealings with third-parties (including advertisers). Your use of third-party software, websites or services may be subject to those third-parties’ terms and conditions and privacy policies. Please review those legal policies before using any linked websites.
(c) Privacy Policy. The XSweet™ Privacy Policy, located at [INSERT URL], is hereby incorporated into these Terms by reference. Please read the Privacy Policy carefully prior to installing the App and/or utilizing the Site and/or any other of the XSweet™ Offerings.
(d) Representations and Warranties. Each Member hereby represents and warrants to PC as follows: (i) the Agreement constitutes such Member’s legal, valid and binding obligation which is fully enforceable against such Member in accordance with its terms; (ii) such Member understands and agrees that such Member has independently evaluated the desirability of utilizing the XSweet™ Offerings and that such Member has not relied on any representation and/or warranty other than those set forth in the Agreement; (iii) the execution, delivery and performance by such Member of the Agreement will not conflict with or violate: (A) any order, judgment or decree applicable to such Member; or (B) any agreement or other instrument applicable to such Member; (iv) such Member’s performance under the Agreement, Feedback, use of the XSweet™ Offerings, Creator Product and Service Offerings, Creator Virtual Events and Creator Content, if any, will not: (A) invade the right of privacy or publicity of any third person; (B) involve any libelous, obscene, indecent or otherwise unlawful material; (C) violate any Applicable Law; and/or (D) otherwise infringe upon the rights of any third-parties including, without limitation, those of copyright, patent, trademark, trade secret or other intellectual property right, false advertising, unfair competition, defamation, invasion of rights of celebrity, violation of any anti-discriminatory law or regulation, or any other right of any person or entity; and (v) such Member shall not “stalk” or otherwise harass any person.
(e) Our Rights and Remedies; No Waiver. No PC right or remedy shall be exclusive of any other, whether at law or in equity including, without limitation, damages, injunctive relief, attorneys' fees and expenses. Our failure to require or enforce strict performance by you of any of the terms and conditions contained in the Agreement, or to exercise any right under same, shall not be construed as a waiver or relinquishment of our right to assert or rely upon any such provision or right in that or any other instance.
(f) Assignment. We may assign the Agreement, and any rights and obligations hereunder, in whole or in part, at any time without notice to you. You may not assign the Agreement or transfer any rights to use the XSweet™ Offerings.
(g) Severability. The Agreement is intended to be severable. If, for any reason, any terms and/or conditions contained in the Agreement are held invalid or unenforceable in whole or in part by any court of competent jurisdiction, such terms and/or conditions shall, in such jurisdiction, be ineffective to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of the Agreement, which shall continue to be binding.
(h) No Third-Party Beneficiaries. The Agreement is solely for your and our benefit, and not for the benefit of any other person, except for our successors and assigns.
(i) Indemnification. You agree, at your own cost and expense, to indemnify and hold us and our members, directors, officers, employees and agents harmless from and against any and all claims, disputes, liabilities, judgments, settlements, actions, debts or rights of action, losses of whatever kind, and all costs and fees, including reasonable legal and attorneys' fees, arising out of or relating to: (i) your breach of the Agreement; (ii) any unauthorized or improper use of your Account, Sweet Identity, the XSweet™ Offerings and related services by any person including yourself; (iii) your violation of Applicable Law; (iv) any failure by you to provide accurate and up-to-date Registration Data; (v) your Feedback, if any; and/or (vi) your negligence or misconduct. If we instruct you in writing, you will, at your cost and expense, defend us from any of the foregoing using counsel reasonably acceptable to us.
(j) California Member Consumer Rights. In accordance with Cal. Civ. Code Sec. 1789.3, California State resident Members may file grievances and complaints with the California Department of Consumer Affairs, 400 R Street, Ste. 1080, Sacramento, CA 95814; or by phone at 916-445-1254 or 800-952-5210; or by email to dca@dca.ca.gov.
(k) Notice to U.S. Government Members. The App is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government Members acquire the App with only those rights set forth therein.
(l) Conflicting Terms. To the extent that anything in or associated with the XSweet™ Offerings is in conflict or inconsistent with the Agreement, the Agreement shall take precedence. The parties do not intend that any agency or partnership relationship be created through operation of the Agreement. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
(m) Headings. All section headings and captions have been inserted for convenience only and shall not affect the interpretation of the Agreement.
20. Copyright Policy/DMCA Compliance. PC reserves the right to terminate the account of any Member who infringes upon third-party copyrights. If any Member or other third-party believes that a copyrighted work has been copied and/or posted via the XSweet™ Offerings in a way that constitutes copyright infringement, that party should provide PC with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyrighted work; (b) an identification and location of the copyrighted work that such party claims has been infringed upon; (c) a written statement by such party that it has a good faith belief that the disputed use is not authorized by the owner, its agent or the law; (d) such party’s name and contact information, such as telephone number or e-mail address; and (e) a statement by such party that the above information in such party’s notice is accurate and, under penalty of perjury, that such party is the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for PC’s Copyright Agent for notice of claims of copyright infringement is as follows:
Klein Moynihan Turco LLP
Attn: Copyright Attorney
450 Seventh Avenue, 40th Floor
New York, NY 10123
info@kleinmoynihan.com
Fax: (212) 216-9559
21. Dispute Resolution, Class Action Waiver and Arbitration. The Agreement shall be treated as though it were executed and performed in the State of Delaware and shall be governed by and construed in accordance with the laws of the State of Delaware (without regard to conflict of law principles). The parties (and Covered Parties) hereby agree to arbitrate all claims that may arise under and/or relate to the Site Offerings and/or the Agreement. Without limiting the foregoing, should a dispute arise concerning the XSweet™ Offerings, the terms and conditions of the Agreement or the breach of same by any party hereto: (a) the parties/Covered Parties agree to submit their dispute for resolution by arbitration before a reputable arbitration organization as mutually agreed upon by the parties; and (b) you agree to first commence a formal dispute proceeding by completing and submitting an Initial Dispute Notice which can be found here. The Covered Party(ies) named in your Initial Dispute Notice (collectively, the “Named Parties”) may choose to provide you with a final written settlement offer after receiving your Initial Dispute Notice (“Final Settlement Offer”).
If the applicable Named Party(ies) provide(s) you with a Final Settlement Offer and you do not accept it, or such Named Party(ies) cannot otherwise satisfactorily resolve your dispute and you wish to proceed, you must submit your dispute for resolution by arbitration before JAMS, in your county of residence, by filing a separate Demand for Arbitration, which is available here. For claims of Ten Thousand Dollars ($10,000.00) or less, you can choose whether the arbitration proceeds in person, by telephone or based only on submissions. If the arbitrator awards you relief that is greater than the applicable Final Settlement Offer, then the Named Party(ies) will pay all filing, administration and arbitrator fees associated with the arbitration and, if you retained an attorney to represent you in connection with the arbitration, the Named Party(ies) will reimburse any reasonable attorneys' fees that your attorney accrued for investigating, preparing and pursuing the claim in arbitration. Any award rendered shall be final and conclusive to the parties and a judgment thereon may be entered in any court of competent jurisdiction. Although the Named Party(ies) may have a right to an award of attorneys' fees and expenses if Named Party(ies) prevail(s) in arbitration, the Named Party(ies) will not seek such an award from you unless the arbitrator determines that your claim was frivolous.
To the extent permitted by law, you agree that you will not bring, join or participate in any class action lawsuit as to any claim, dispute or controversy that you may have against any of the Covered Parties. You agree to the entry of injunctive relief to stop such a lawsuit or to remove you as a participant in the suit. You agree to pay the attorney's fees and court costs that any Covered Party incurs in seeking such relief. This provision preventing you from bringing, joining or participating in class action lawsuits: (i) does not constitute a waiver of any of your rights or remedies to pursue a claim individually and not as a class action in binding arbitration as provided above; and (ii) is an independent agreement. You may opt-out of these dispute resolution provisions by providing written notice of your decision within thirty (30) days of the date that you first access the Site and/or App, as applicable.
22. Contact Us. Please send any questions or comments regarding the XSweet™ Offerings, or any other related matter (including all inquiries unrelated to copyright infringement): (a) by mail to: Suite 214, 3019 Ocean Park Blvd., Santa Monica, CA 90405 or by email to: support@xsweet.io. Please print these Terms for your records.