TERMS OF USE
Last Updated: November 13, 2021

The below terms of use (this “Agreement”) constitute a binding legal agreement between yourself and, if applicable, the company or other legal entity you represent (“User”, or “you”) and AllCertified Inc., a Pennsylvania corporation (“AllCertified”, “we”, or “us”), and govern your use of all portals, applications, APIs, and services associated with the website www.allcertified.ai, any mobile or desktop application that provides or links to this Agreement, or that are otherwise provided by AllCertified relating to User’s or User’s customers’ digital non-fungible tokens (“NFT Tokens”, and together with any content associated therewith, “NFTs”), NFT platform, digital autograph, or similar business processes (collectively, the “Services”). AllCertified and User may be individually referred to herein as a “Party” or collectively as the “Parties”.

BY ACCEPTING THESE TERMS, YOU ARE ENTERING INTO A MUTUALLY BINDING AGREEMENT BETWEEN USER AND ALLCERTIFIED AS TO THE TERMS SET FORTH BELOW AND REPRESENT THAT YOU HAVE SUCH AUTHORITY ON BEHALF OF USER. WITHOUT LIMITING THE FOREGOING, BY USING THE SERVICES, USER ACCEPTS AND AGREES TO BE BOUND BY THIS AGREEMENT. IF USER DOES NOT AGREE TO THE TERMS SET FORTH BELOW, USER MUST NOT ACCESS OR USE THE SERVICES.

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.

This Agreement provides that disputes arising between User and AllCertified will be resolved by binding arbitration, although User has a right to opt-out of that requirement. If User does not opt-out of that requirement as provided below, then to the fullest extent permitted under applicable law, BY ACCEPTING THESE TERMS, USER AND ALLCERTIFIED ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, AND USER AGREES TO GIVE UP ITS RIGHT TO GO TO COURT to assert or defend User’s rights under this contract (except for matters that may be taken to small claims court). User’s rights will be determined by an ARBITRATOR and NOT a judge or jury. Please review Section 11 for more detail regarding your agreement to arbitrate any disputes with AllCertified arising under this Agreement.

AllCertified may change any of the terms of this Agreement at any time, in AllCertified’s sole discretion. Please check periodically for updates to this Agreement so you are aware of any changes. We will notify you of any changes to this Agreement that materially modify your rights or obligations (“Material Modifications”) by e-mail to the address provided in User’s account profile or by posting a notice to the Services. Any Material Modifications will be effective upon User’s acceptance of the modified agreement, or upon User’s continued use of the Services after we send or post a notice of the changes, whichever is earlier. Changes to this Agreement that do not materially modify User’s rights or obligations will be effective immediately upon publication. However, any disputes arising under this Agreement will be resolved pursuant to the version of this Agreement in effect at the time the dispute arose.

The Parties agree as follows:
1. Definitions. Each initially capitalized term in this Agreement is used with the meaning ascribed to it below or where such term is first used (as applicable).
(a) “Aggregated Statistics” means data and information related to User’s use of the Services that is used by AllCertified in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
(b) “AllCertified Autograph Certificate” means the image, stamp, receipt, or certificate associated with an autograph or signature together with an associated NFT Token and created, issued, or generated by or on behalf of AllCertified through the Services.
(c) “AllCertified Materials” means the Services and any and all intellectual property provided to User, or to which User is given access, in connection with the foregoing. For the avoidance of doubt, AllCertified Materials includes AllCertified Autograph Certificates and Aggregated Statistics and any information, data, or other content derived from AllCertified’s monitoring of User’s access to or use of the Services, but does not include User Content.
(c) “User Content” means, except Aggregated Statistics, all information, data, audio, audio-visual, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of User to AllCertified through the Services.

2. Access and Use.
(a) Provision of Access. Subject to and conditioned on User’s payment of Fees (as defined below), compliance with all other terms and conditions of this Agreement, and compliance with any other agreement executed by AllCertified and User or a party affiliated with User which is currently in full force and effect and which incorporate the terms of this Agreement therein (“Other Agreement”), AllCertified hereby grants User a non-exclusive, non-transferable right to access and use the Services in accordance with the terms and conditions herein. Such use is limited to User’s internal use.

(b) AllCertified Autograph Certificate License. Subject to the terms and conditions contained in this Agreement (including User’s payment of all Fees (as defined below) and compliance with all Other Agreements), AllCertified hereby grants to User a non-exclusive, non-sublicensable, non-transferable (except sales of the NFT Token associated with or attached to the applicable AllCertified Autograph Certificate and, in all cases, subject to compliance with the protocols of any smart contract embedded in the NFT Token associated with or attached to the applicable AllCertified Autograph Certificate and the terms of the service provider or platform that facilitates the sale or transfer of the applicable NFT) right to use, reproduce, store, transmit, distribute, publicly perform, publicly display, and exhibit the AllCertified Autograph Certificate. For the avoidance of doubt, the rights granted in this Section 2(b) do not grant any right to, and User agrees not to, alter, modify, create derivative works, or other derivatives, of any AllCertified Autograph Certificate. User agrees not to disassociate, and agrees not to enable or permit third parties to disassociate, the AllCertified Autograph Certificate from the NFT initially associated with or attached to the applicable AllCertified Autograph Certificate. Further, User agrees not to associate, and agrees not to enable or permit third parties to associate, any AllCertified Autograph Certificate with content, materials, or NFTs except as intended by AllCertified and as provided through the Services. For the avoidance of doubt, except for the AllCertified Autograph Certificate, AllCertified does not grant any right or license herein to any content, including content underlying the NFTs with which an AllCertified Autograph Certificate may be affixed or associated. Subject to User’s continued compliance with the terms and conditions contained in this Agreement, the license granted to User in this Section 2(b) shall survive any termination or expiration of this Agreement.

(c) Use Restrictions. User shall not use the AllCertified Materials for any purposes beyond the scope of the access expressly granted in this Agreement. User shall not at any time, directly or indirectly: (i) use the AllCertified Materials for any unlawful purpose or to solicit others to perform or participate in any unlawful acts; (ii) use the AllCertified Materials to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (iii) submit false or misleading information to the Services; (iv) copy, modify, or create derivative works or other derivatives of the AllCertified Materials in whole or in part; (v) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services; (vi) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the AllCertified Materials, in whole or in part; (vii) remove, alter, or conceal any proprietary notices of the AllCertified Materials; (viii) upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Services, third-party products and services, or the Internet; (ix) use any program or automated script to screen-scrape or “crawl” through the Services (in whole or in part); (x) use the AllCertified Materials for any obscene or immoral purpose; (xi) use the AllCertified Materials (in each case, in whole or in part) as the basis for developing competitive solutions, services or content (or contract or engage with a third party to do so); or (xii) use the AllCertified Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law (each a “Prohibited Act”).

(d) Reservation of Rights. AllCertified reserves all rights not expressly granted to User in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to User or any third party any intellectual property rights or other right, title, or interest in or to the AllCertified Materials.

(e) Suspension. Notwithstanding anything to the contrary in this Agreement, AllCertified may temporarily suspend User’s access to any portion or all of the Services if: (i) AllCertified reasonably determines that (A) there is a threat or attack on any of the AllCertified Materials; (B) User’s use of the AllCertified Materials disrupts or poses a security risk to the AllCertified Materials or to any other User or vendor of AllCertified; (C) User is using the AllCertified Materials for fraudulent or illegal activities; (D) subject to applicable law, User has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (E) User has committed a Prohibited Act; (F) User has breached any term of this Agreement or Other Agreement; or (G) AllCertified determines in good faith that AllCertified’s provision of the Services to User may be prohibited by applicable law; or (ii) any vendor of AllCertified has suspended or terminated AllCertified’s access to or use of any third-party services or products required to provide the Services or enable User to access the Services (any such suspension described in subclause (i) or (ii) a “Services Suspension”). AllCertified will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that User may incur as a result of a Services Suspension.

(f) Additional Terms. You acknowledge and agree that AllCertified may enter into certain arrangements with third-party platforms and sites and that some products or services offered through the Services may have additional terms and conditions, including third-party terms and conditions (“Additional Terms”). By using that product or service, you agree to the Additional Terms. For purposes of this Agreement, such third-party products or services are subject to Additional Terms and the applicable flow-through provisions. If User does not agree to abide by the applicable terms for any such third-party products, then User should not use such third-party products or services. To the extent that the Additional Terms conflict with this Agreement, this Agreement will govern to the extent applicable to the Services.
Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, AllCertified may monitor User’s use of the Services and collect and compile Aggregated Statistics. As between AllCertified and User, all right, title, and interest in Aggregated Statistics, including all intellectual property rights therein, belong to and are retained solely by AllCertified, and, to the extent User has or obtains any such right, title or interest in or to Aggregated Statistics, User hereby assigns all such right, title and interest to AllCertified. User acknowledges that AllCertified may compile Aggregated Statistics based on User Content input into the Services. User agrees that AllCertified may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law.

3. User Responsibilities.
(a) General. User shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of, or obtaining, or providing the right to use all User Content. User is responsible and liable for all uses of the Services resulting from access provided by User, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement.

(b) User Representations and Warranties. You represent and warrant that you are an individual of legal age to form a binding contract (or if not, you’ve received your parent’s or guardian’s permission to use the Services and have gotten your parent or guardian to agree to these Terms on your behalf). If you cannot represent and warrant to the foregoing, you may not use the Services. If you are entering into this Agreement on behalf of a corporate entity, you represent and warrant that you have the legal authority to bind such corporate entity to the terms and conditions of this Agreement. You represent and warrant that User owns all right, title and interest in or to, or has obtained a valid license from any applicable third parties to use, all User Content and to grant the rights contemplated hereunder.

(c) Export Control. You may not use, export, import, or transfer any part of the Services except as authorized by U.S. law, the laws of the jurisdiction in which you use or access the Services, or any other applicable laws. In particular, but without limitation, no part of the Services may be exported or re-exported: (a) into any country embargoed by the U.S.; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Persons List or Entity List. By using the Services, you represent and warrant that: (x) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (y) you are not listed on any U.S. Government list of prohibited or restricted parties. You acknowledge and agree that products, services, and technology provided by AllCertified are subject to the export control laws and regulations of the U.S. You will comply with those laws and regulations and will not, without prior U.S. government authorization, export, re-export, or transfer the AllCertified Materials either directly or indirectly, to any country in violation of those laws and regulations.

4. Fees and Payment.
(a) Fees. User shall pay AllCertified the fees and charges displayed to User at the time of signing up for a subscription or making a purchase through the Service (“Fees”). We will notify you if the price of paid subscriptions increase. Your continued use of the Service after being notified of any price increase will constitute your agreement to pay such increased price. If User is not willing to pay any and all Fees, User should not use the Services. For clarity, additional fees may apply for third-party products and payment processing fees and costs charged by third parties (e.g., gas fees). All Fees are nonrefundable.

(b) Taxes. All Fees and other amounts payable by User under this Agreement are exclusive of taxes and similar assessments. User is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by User hereunder, other than any taxes imposed on AllCertified’s income.

(c) Payment by User. User may not return or exchange an AllCertified Autograph Certificate and no refunds will be issued. AllCertified reserves the right (but is under no obligation) to cancel a request for an AllCertified Autograph Certificate if User’s payment method is declined. AllCertified also reserves the right at any time to change its Fees and payment procedures, including its payment options and terms, either immediately upon posting on the Services or by other notice to User.

(d) Payment to User. If and to the extent that User engages with Services that entitle User to a payment from AllCertified, User agrees to the following: You agree to register with the third-party payment provider selected by AllCertified, which AllCertified may change in its sole discretion. You may not use a payment provider other than the one selected by AllCertified. You will provide the payment provider any information required in order to receive payments via the payment provider, e.g., information about the bank account that you own at a regulated financial institution. Any payments due to you from AllCertified will be made via the payment provider. If available, you may transfer funds from your AllCertified account to your bank account by submitting a payment request. Your request will be processed by the payment provider. If not available, AllCertified will submit the payment request for processing by the payment provider. In addition, AllCertified may, in its sole discretion, transfer funds from your AllCertified account to your bank account especially in the case of account inactivity. If you do not provide the payment provider with all required information, you may not be able to receive the payments due to you. AllCertified will not be responsible for any damages, delays, losses, costs, expenses, or liabilities arising out of or in connection with your inability to receive payments as a result of your failure to provide such information. You acknowledge and agree that AllCertified does not operate, own, or control the payment provider; and your use of any payment provider is subject to the terms and privacy policies of that payment provider. You agree that we are not responsible for any delay, failure, damage, or liability caused by a payment provider, any other third party, a force majeure, or your failure to timely or properly set up an account with the payment provider or otherwise provide requested information for payment. Unless otherwise agreed by AllCertified in writing, you acknowledge and agree that you are solely responsible for any other fees, costs, and expenses, including with respect to your bank account and foreign exchange fees. Notwithstanding anything to the contrary contained in this Agreement, if AllCertified, in its sole discretion, believes that any fraud, money laundering, or other violation of law or regulation is taking place on or in connection with the Services, you acknowledge and agree that we may withhold, delay, or seek repayment of any payments we believe, in our sole discretion, are related to the violation.

5. Intellectual Property Ownership; Feedback.
(a) AllCertified Materials. User acknowledges that, as between User and AllCertified, AllCertified owns all right, title, and interest, including all intellectual property rights, in and to AllCertified Materials and, with respect to third-party products or services, either AllCertified or the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to such third-party products or services. As between User and AllCertified, to the extent User has or obtains any right, title or interest in or to AllCertified Materials, User hereby assigns all such right, title and interest to AllCertified.

(b) User Content. AllCertified acknowledges that, as between AllCertified and User, User owns all right, title, and interest, including all intellectual property rights, in and to the User Content. As between User and AllCertified, and subject to the licenses granted herein, to the extent AllCertified has or obtains any right, title or interest in or to User Content, AllCertified hereby assigns all such right, title and interest to User. User hereby grants to AllCertified a non-exclusive, royalty-free, worldwide, license to use, store, transmit, reformat, perform, display, reproduce, distribute, create derivative works or other derivatives of and otherwise exploit the User Content and perform all acts with respect to the User Content as may be necessary for AllCertified to provide the Services, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to use, modify store, transmit, reformat, perform, display, reproduce, distribute, create derivative works or other derivatives of and otherwise exploit User Content to the extent associated with an AllCertified Autograph Certificate or incorporated within (but not reasonably discernible from) the Aggregated Statistics. AllCertified may, but has no obligation to, monitor and review the User Content submitted or created using AllCertified’s Services by User. Without limiting any representations or warranties herein, AllCertified has the right, though not the obligation, to, in AllCertified’s own sole discretion, refuse or remove any User Content that, in AllCertified’s reasonable opinion, violates any of AllCertified’s policies or is in any way harmful or objectionable. User acknowledges and agrees that User Content may be uploaded, stored, or hosted using InterPlanetary Filing System (“IPFS”) by or on behalf of AllCertified. User acknowledges that User Content stored using IPFS may not be removable, alterable, or able to be deleted.

(c) Feedback. If User or any of its employees or contractors sends or transmits any communications or materials to AllCertified by mail, email, telephone, or otherwise, suggesting or recommending changes to the AllCertified Materials, including new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), AllCertified is perpetually and irrevocably free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. To the extent User has or obtains any rights in Feedback, User hereby grants to AllCertified a non-exclusive, royalty-free, fully paid, unlimited, world-wide, sublicensable (through multiple tiers of sublicenses), perpetual, and irrevocable license, in any and all manner and media, whether now known or hereinafter invented or devised, to reproduce, license, distribute, modify, adapt, publicly perform, publicly display, create derivative works and other derivatives of, and otherwise use and exploit in any manner (including commercially), any and all Feedback.

6. DMCA Notices for Claims of Copyright Infringement.
(a) Takedown Requests. AllCertified will respond to notices of alleged copyright infringement under the United States Digital Millennium Copyright Act. If a User or other person believes that their intellectual property rights have been infringed, please notify us immediately. For AllCertified to respond, the complaint must provide the following information:
(i) a physical or electronic signature of the copyright owner or of a person authorized to act on behalf of the copyright owner;
(ii) a clear identification of the copyrighted work that is claimed to be infringing;
(iii) identification of the online content that is claimed to be infringing, including, if possible, a URL representing a link to the content on the Services;
(iv) information sufficient to permit AllCertified to contact the complainant, such as email address, physical address, or telephone number;
(v) a statement that the complainant has a good-faith belief that the relevant content is being used in a way that is not authorized by the copyright owner, its agent, or under the law; and
(vi) a statement, made under penalty of perjury, that the above information is accurate, and the complainant is the copyright owner or is authorized to act on behalf of the copyright owner.

(b) Submission of Takedown Requests. Users may submit their takedown requests using the following contact information:

AllCertified Inc.
Attn. DMCA Notice
233 S 6th Street, Suite 1309
Philadelphia, PA 19106
Email: [email protected]

(c) DMCA Counter-Notices. If you believe that your content has been removed by mistake or misidentification, the User may provide AllCertified with a written counternotification containing the following information:
(i) the User’s name, address, telephone number, and email address;
(ii) a description of the content that was removed, along with the URL where the content was posted in the Services prior to its removal;
(iii) the following statement: “I swear, UNDER PENALTY OF PERJURY, that I have a good-faith belief that the content was removed or disabled due to a mistake or misidentification of the content to be removed or disabled”;
(iv) a statement that the User consents to the jurisdiction of the Federal District Court for the judicial district in which User’s address is located, or if the User’s address is outside of the United States, any jurisdiction in which the User may be properly served, and that the User will accept service of process from the person (or their agent) who filed the original DMCA notice; and
(v) the User’s electronic or physical signature.

Upon receipt of a valid counter notification, AllCertified will forward it to the party who submitted the original DMCA notification. The original party (or their representative) will then have ten (10) days to notify us that such party has filed legal action relating to the allegedly infringing content. If AllCertified does not receive any such notification within ten (10) days, AllCertified may restore the content to the Services.

(d) Repeat Infringers. AllCertified reserves the right to terminate the accounts or block usage of the Services of any party who is a repeat infringer or who is repeatedly charged with infringement.

7. Privacy. Your privacy is important to us. AllCertified’s Privacy Policy explains how we collect, use, and share personal information and other data. By using the Services, you acknowledge AllCertified’s Privacy Policy.

8. Warranty Disclaimer.
(a) THE ALLCERTIFIED MATERIALS ARE PROVIDED “AS IS” AND ALLCERTIFIED HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. ALLCERTIFIED SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. ALLCERTIFIED MAKES NO WARRANTY OF ANY KIND THAT THE ALLCERTIFIED MATERIALS, THE SERVICES OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET USER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

(b) AllCertified makes no representations or warranties about the accuracy or completeness of content available on the Services or the content of any social media platform or third-party website associated with, linked to, or integrated with the Services. AllCertified shall have no liability for any: (i) errors, mistakes, or inaccuracies of content; (ii) personal injury, property damage, or other harm resulting from access to or use of the Services; (iii) any unauthorized access to or use of AllCertified servers, any personal information, or User Content; (iv) any interruption of transmission to or from the Services; (v) any bugs, viruses, trojan horses, or the like that may be transmitted on or through the Services; or (vi) any damages, losses, costs, expenses, or liabilities of any kind incurred as a result of any content or the use of any content posted or shared through the Services.

(c) Although the Services may link to other resources (such as websites, mobile applications, etc.) or reference third-party intellectual property (such as the trademarks, logos, copyrighted works, etc. of an underlying NFT to which an AllCertified Autograph Certificate may be associated or affixed), AllCertified is not, directly or indirectly, implying any approval, association, sponsorship, endorsement, or affiliation with any linked or referenced resource, unless specifically stated herein. AllCertified is not responsible for examining or evaluating, and does not warrant the services of, any businesses or individuals or the content of their resources.

9. Indemnification. User shall indemnify, hold harmless, and, at AllCertified’s option, defend AllCertified from and against any and all losses, damages, liabilities, fines, penalties and costs (including reasonable attorneys’ fees) (“Losses”) resulting from any third-party claim, suit, action, investigation, or proceeding (“Third-Party Claim”) (a) based on, relating to or arising from User Content, or any use of the User Content in accordance with this Agreement, actually or allegedly infringing, misappropriating or otherwise violating a third-party’s intellectual property or other proprietary rights and (b) based on, relating to or arising from User’s (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement or any breach of this Agreement by User (including any violation of Section 2(c)); (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by AllCertified or authorized by AllCertified in writing; or (iv) modifications to the Services not made by AllCertified, provided that User may not settle any Third-Party Claim against AllCertified unless AllCertified consents to such settlement, and further provided that AllCertified will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.

10. Limitations of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL ALLCERTIFIED, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (i) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (ii) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (iii) LOSS OF GOODWILL OR REPUTATION; (iv) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (v) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER ALLCERTIFIED WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL ALLCERTIFIED’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO ALLCERTIFIED BY USER UNDER THIS AGREEMENT IN THE 3-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $1,000, WHICHEVER IS LESS.

11. Dispute Resolution and Arbitration.
(a) Generally. In the interest of resolving disputes between User and AllCertified in the most expedient and cost effective manner, User and AllCertified agree that every dispute arising in connection with this Agreement will be resolved by binding arbitration, except as otherwise provided in this Section 11. Arbitration is less formal than a lawsuit in court. Arbitration uses an arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. The arbitrator shall decide all issues regarding the arbitrability of a dispute relating to Agreement, including the scope of matters to be arbitrated and the waiver or unconscionability of arbitration. USER UNDERSTANDS AND AGREES THAT, BY ENTERING INTO THESE TERMS, USER AND ALLCERTIFIED ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

(b) Exceptions. Despite the provisions of Section 11(a), nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either Party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; or (c) seek injunctive relief in a court of law.

(c) Arbitrator. Any arbitration between User and AllCertified will be settled under the Federal Arbitration Act, and governed by the Consumer Arbitration Rules (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879.

(d) Notice; Process. A Party who intends to seek arbitration must first send a written notice of the dispute to the other Party by certified U.S. Mail or by Federal Express (signature required) or, only if such other Party has not provided a current physical address, then by electronic mail (“Arbitration Notice”). AllCertified’s address for Arbitration Notice is: AllCertified Inc., 233 S 6th Street, Suite 1309, Philadelphia, PA 19106. The Arbitration Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The Parties will make good faith efforts to resolve the claim directly, but if the Parties do not reach an agreement to do so within 30 days after the Arbitration Notice is received, User or AllCertified may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by User or AllCertified must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in User’s favor, subject to the limitations of liability in Section 10, AllCertified will pay User the lowest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by AllCertified in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.

(e) Fees. If User commences arbitration in accordance with this Agreement, AllCertified will reimburse User up to one hundred fifty dollars ($150) of User’s payment of the filing fee, unless User’s claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Notwithstanding anything to the contrary herein, AllCertified’s reimbursement of the filing fee set forth in the immediately preceding sentence shall be limited to one (1) arbitration proceeding per every twelve (12) months. Any arbitration hearing will take place at a location to be agreed upon in the County of Philadelphia, Commonwealth of Pennsylvania, but if the claim is for $10,000 or less, User may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) based on a telephone hearing; or (c) by an in-person hearing at a location to be agreed upon in the County of Philadelphia, Commonwealth of Pennsylvania. If the arbitrator finds that either the substance of User’s claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, User agrees to reimburse AllCertified for all monies previously disbursed by it that are otherwise User’s obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either Party made within fourteen (14) days of the arbitrator’s ruling on the merits.

(f) No Class Actions. USER AND ALLCERTIFIED AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN USER’S OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both User and AllCertified agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

(g) Enforceability. If one or more provisions in this Section 11 are found to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this Section 11 and this Agreement generally will not be impaired thereby.

(h) Opt-out. User may opt-out of the mutual agreement to arbitrate disputes provided in this Section 11 if User delivers notice to us within sixty (60) days of initially agreeing to this Agreement. To opt-out, send a written request containing User’s name, address, phone number, to AllCertified’s address for notices listed in Section 11(d) above. If User opts-out, then the entirety of this Section 11 will be null and void and, in that case, the Parties agree that the exclusive jurisdiction and venue described in Section 12(f) below will govern any action arising out of or related to this Agreement.

(i) Filing Period. TO THE FULLEST EXTENT PERMITTED BY LAW, ANY DISPUTE UNDER THIS AGREEMENT MUST BE FILED WITHIN ONE (1) YEAR IN AN ARBITRATION PROCEEDING. The one-year period begins when the events giving rise to the dispute first occur. If a claim is not submitted within one year, it is permanently barred. This period can only be extended by the written consent of both Parties. No statutes or provisions of law that would toll or otherwise affect the time in which a Party may bring a claim shall operate to extend the period limited in this Section, and any such statutes and provisions are hereby waived, to the fullest extent permitted by law.

12. Miscellaneous.
(a) Interpretation. The conjunction “or” will be understood in its inclusive sense (and/or). The words “e.g.”, “such as”, “include”, “includes” and “including” are not limiting and will be deemed to be followed with the phrase “without limitation”. The headings contained in this Agreement are inserted for convenience of reference only and will not affect the meaning or interpretation of this Agreement. The words “herein”, “hereof”, “hereby”, “hereto” and “hereunder” refer to this Agreement as a whole.
(b) Entire Agreement. Except for any Other Agreement, this Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any conflict between this Agreement and an Other Agreement, the terms of the Other Agreement shall govern, except to the extent such applicable Other Agreement expressly states that this Agreement shall control.

(c) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and delivered by email. User shall send Notices for AllCertified to [email protected] AllCertified shall send Notices for User to the email address for User associated with User’s account profile on the Services.

(d) Force Majeure. In no event shall AllCertified be liable to User, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond AllCertified’s reasonable control, including acts of God, pandemic, epidemic (inclusive without limitation of COVID-19, viral outbreaks, public health crises, or global health emergencies), flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns, unavailability of third-party technology products or services necessary for the Services, or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

(e) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

(f) Governing Law. This Agreement is governed by and will be construed in accordance with the internal laws of the Commonwealth of Pennsylvania without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the Commonwealth of Pennsylvania.

(g) Assignment. AllCertified may, at any time, assign its rights and obligations under this Agreement, including to an affiliated entity or in connection with a sale of assets, merger, acquisition, reorganization, bankruptcy, other transaction, or by operation of law. Except as set forth in Section 2(b), User may not assign any of User’s rights or delegate any of User’s obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of AllCertified. Any purported assignment or delegation in violation of this Section will be null and void. No transfer or assignment of an NFT associated with an AllCertified Autograph Certificate by User will relieve the User of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.

(h) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by User of Section 2(c) would cause AllCertified irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, AllCertified will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.