Terms and Conditions of Website Use
Effective Date: July 19, 2021
Terms and Conditions of Website Use
Effective Date: July 19, 2021
The Website (defined below) is provided by Tafi, Inc., and its subsidiaries, including, without limitation, Daz 3D, Inc. (collectively, "Tafi", "we", "our", or "us"). These "Terms and Conditions of Website Use" (this "User Agreement") govern your use of the Website, regardless of how you access or use it. By "Website", we mean the Internet domain address within which this User Agreement is posted and all features, applications, content, and downloads that are operated by us and that are available through or interact with it, and/or post links to this User Agreement.
IF YOU'RE UNDER THE AGE OF MAJORITY (which is 18 years old in most states), then your parent or guardian may be liable for some or all of your activities on the Website. Because of this, and because it’s prudent for your parent or guardian to be aware of your activities, including the websites that you visit, you should make your parent or guardian aware that you are using the Website – as this User Agreement and your use of the Website affect their legal rights and obligations.
IF YOU WANT TO USE THIS WEBSITE, then carefully read this User Agreement, as it constitutes a written agreement between you and Tafi and it affects your legal rights and obligations.
Each time you access and/or use the Website (other than to simply read this User Agreement), you agree to be bound by and comply with all of the terms of this User Agreement and any Additional Terms (defined below). Therefore, do not use the Website if you do not agree to all of the terms of this User Agreement and any Additional Terms.
The business realities associated with operating the Website are such that, without the limitations that are set forth in this User Agreement -- such as your grants and waivers of rights, the limitations on our liability, your indemnity of us, and our arbitration of certain disputes -- Tafi would not make the Website available to you.
Summary of Key Terms
It's important that you read this entire User Agreement; but, here are some of the more significant terms that we want to bring to your attention:
In some instances, both this User Agreement and separate guidelines, rules, or terms of service or sale setting forth additional or different terms and/or conditions will apply to your use of the Website or to a service or product offered via the Website (in each such instance, and collectively, “Additional Terms”). To the extent there is a conflict between this User Agreement and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise. Please also review the terms of the Website’s NEW Privacy Statement.
Table of Contents
1. Website Content, Ownership, Limited License, and Rights of Others.
2. Content You Submit and Community Usage Rules.
A. User-Generated Content.
i. General. Tafi may now or in the future offer visitors to the Website the opportunity to post, upload, display, publish, distribute, transmit, broadcast, or otherwise make available on or submit through the Website (collectively, “submit”) messages, text, illustrations, files, images, graphics, photos, comments, sounds, music, videos, information, content, ratings, reviews, data, questions, suggestions, personally identifiable information, or other information or materials and the ideas contained therein (collectively, but excluding Tafi Licensed Elements included therein, “User-Generated Content”). Tafi may do this through forums, blogs, message boards, social networking environments, social communities, email, and other communications functionality. Subject to the rights and license you grant in this User Agreement, you retain whatever legally cognizable right, title, and interest that you have in your User-Generated Content.
ii. Non-Confidentiality of Your User-Generated Content. Except as otherwise described in the Web-site's posted NEW Privacy Statement or any Additional Terms, you agree that (a) your User-Generated Content will be treated as non-confidential and non-proprietary and will not be returned, and (b) Tafi does not assume any obligation of any kind to you or any third party with respect to your User-Generated Content. Upon Tafi’s request, you will furnish us with any documentation necessary to substantiate these rights and verify your compliance with this User Agreement or any Additional Terms. You acknowledge that the Internet may be subject to breaches of security and that you are aware that submissions of User-Generated Content may not be secure, and you will consider this before submitting any User-Generated Content.
iii. License to Tafi of Your User-Generated Content. Except as otherwise described in any Additional Terms (such as a contest’s official rules), which will govern the submission of your User-Generated Content, you hereby grant to Tafi, and you agree to grant to Tafi, the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise exploit in any manner whatsoever, all or any portion of your User-Generated Content (and derivative works thereof), for any purpose whatsoever in all formats, on or through any media, software, formula, or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. Without limitation, the granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and remove such User-Generated Content and combine same with other materials, and (b) use any ideas, concepts, know-how, or techniques contained in any User-Generated Content for any purposes whatsoever, including developing, manufacturing, and marketing products and/or services. In order to further effect the rights and license that you grant to Tafi to your User-Generated Content, you also hereby grant to Tafi, and agree to grant to Tafi, the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any User-Generated Content, without any obligation or remuneration to you. Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any User-Generated Content, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section 2(A)(iii).
iv. Tafi's Exclusive Right to Manage All User-Generated Content. Tafi may, but will not have any obligation to, review, monitor, display, post, store, maintain, accept, or otherwise make use of, any of your User-Generated Content, and Tafi may, in its sole discretion, delete, move, re-format, remove or refuse to post or otherwise make use of User-Generated Content without notice or any liability to you or any third party. Tafi reserves the right to treat User-Generated Content on the Website as content stored at the direction of users for which Tafi will not exercise control except to block or remove content that comes to Tafi’s attention and is offensive, obscene, lewd, lascivious, filthy, violent, harassing, threatening, abusive, illegal or otherwise objectionable to Tafi, or to enforce the rights of third parties or the content restrictions set forth below in the Rules (defined in Section 2(B) below) when notice of their violation comes to Tafi’s attention. Such User-Generated Content submitted by you or others need not, however, be maintained on the Website by us for any period of time and you will not have the right, once submitted, to access, archive, maintain, or otherwise use such User-Generated Content on the Website.
v. Representations and Warranties Related to Your User-Generated Content. Each time you submit any User-Generated Content, you represent and warrant that you are at least the age of majority in the state in which you reside and are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor who is depicted in or contributed to any User-Generated Content you submit, and that, as to that User-Generated Content, (a) you are the sole author and owner of the intellectual property and other rights to the User Generated Content, or you have a lawful right to submit the User-Generated Content and grant Tafi the rights to it that you are granting by this User Agreement and any Additional Terms, all without any Tafi obligation to obtain consent of any third party and without creating any obligation or liability of Tafi; (b) the User-Generated Content is accurate; (d) the User-Generated Content does not and, as to Tafi’s permitted uses and exploitation set forth in this User Agreement, will not infringe any intellectual property or other right of any third party; and (e) the User-Generated Content will not violate this User Agreement (including the Rules) or any Additional Terms, or cause injury or harm to any person.
vi. Enforcement. Tafi has no obligation to monitor or enforce your intellectual property rights to your User-Generated Content, but you grant us the right to protect and enforce our rights to your User-Generated Content, including by bringing and controlling actions in your name and on your behalf (at Tafi’s cost and expense, to which you hereby consent and irrevocably appoint Tafi as your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest).
B. Community Usage Rules. As a user of the Website, these Community Usage Rules ("Rules") are here to help you understand the conduct that is expected of members of the Website's online communities ("Communities").
i. Your User-Generated Content. Do not use any User-Generated Content that belongs to other people and pass it off as your own; this includes any content that you might have found elsewhere on the Internet. For example, your User-Generated Content should not contain any visible logos, phrases, or trademarks that belong to third parties. If anyone contributes to your User-Generated Content or has any rights to your User-Generated Content, or if anyone appears in the User-Generated Content, then you must also have their permission to submit such User-Generated Content to Tafi. (For example, if someone has taken a picture of you and your friend, and you submit that photo to Tafi as your User-Generated Content, then you must obtain your friend’s and the photographer’s permission to do so.)
3. Website and Content Use Restrictions.
4. Customer Service
Tafi will not respond to consumer and other similar inquiries sent to the addresses in Section 5 below. If you have any customer service questions related to our products or services, then as a resource please use our website at the following addresses:
Tafi brands and Daz 3D brands: https://helpdaz.zendesk.com/
5. Procedure for Alleging Copyright Infringement
A. DMCA Notice. Tafi will respond appropriately to notices of alleged copyright infringement that comply with the U.S. Digital Millennium Copyright Act (“DMCA”), as set forth below. If you own a copyright in a work (or represent such a copyright owner) and believe that your (or such owner’s) copyright in that work has been infringed by an improper posting or distribution of it via the Website, then you may send us a written notice that includes all of the following:
i. a legend or subject line that says: "DMCA Copyright Infringement Notice";
ii. a description of the copyrighted work that you claim has been infringed or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
iii. a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL of the Website on which the material appears);
iv. your full name, address, telephone number, and e-mail address;
v. a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
vi. a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the copyright owner (or, if you are not the copyright owner, then your statement must indicate that you are authorized to act on the behalf of the owner of an exclusive right that is allegedly infringed); and,
vii. your physical signature or, if sent within an email (rather than in a physical document or a digital document attached to an email), your name typed followed by “//s//”, which will serve as your electronic signature.
Tafi will only respond to DMCA Notices that it receives by mail, e-mail or facsimile at the addresses below:
224 South 200 West, Salt Lake City, UT 84101
Chief Technology Officer
It is often difficult to determine if your copyright has been infringed. Tafi may elect to not respond to DMCA Notices that do not substantially comply with all of the foregoing requirements, and Tafi may elect to remove allegedly infringing material that comes to its attention via notices that do not substantially comply with the DMCA.
Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
We may send the information that you provide in your notice to the person who provided the allegedly infringing work. That person may elect to send us a DMCA Counter-Notification.
Without limiting Tafi’s other rights, Tafi may, in appropriate circumstances, terminate a repeat infringer’s access to the Website and any other website owned or operated by Tafi.
B. DMCA Counter-Notification. If access on the Website to a work that you submitted to Tafi is disabled or the work is removed as a result of a DMCA Notice, and if you believe that the disabled access or removal is the result of mistake or misidentification, then you may send us a DMCA Counter-Notification to the addresses above. Your DMCA Counter-Notification should contain the following information:
i. a legend or subject line that says: "DMCA Counter-Notification";
ii. a description of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled (please include the URL of the Website from which the material was removed or access to it disabled);
iii. a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
iv. your full name, address, telephone number, e-mail address, and the username of your account;
v. a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or, if the address is located outside the U.S.A., to the jurisdiction of the United States District Court for Utah), and that you will accept service of process from the person who provided DMCA notification to us or an agent of such person; and
vi. your physical signature or, if sent within an email (rather than in a physical document or a digital document attached to an email), your name typed followed by “//s//”, which will serve as your electronic signature.
Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) in not less than10 and not more than 14 business days following receipt of the DMCA Counter-Notification. However, we will not do this if we first receive notice at the addresses above that the party who sent us the DMCA Copyright Infringement Notice has filed a lawsuit asking a court for an order restraining the person who provided the material from engaging in infringing activity relating to the material on the Website. You should also be aware that we may forward the DMCA Counter-Notification to the party who sent us the DMCA Copyright Infringement Notice.
6. Procedure for Alleging Infringement of Other Intellectual Property.
If you own intellectual property other than copyrights and believe that your intellectual property has been infringed by an improper posting or distribution of it via the Website, then you may send us a written notice to one of the addresses set forth in Section 5 above that includes all of the following:
a. a legend or subject line that says: “Intellectual Property Infringement Notice”;
b. a description of the intellectual property that you claim has been infringed;
c. a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL of the Website on which the material appears);
d. your full name, address, telephone number, and e-mail address;
e. a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the owner of the intellectual property, its agent, or the law;
f. a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the owner of the intellectual property at issue (or, if you are not the owner, then your statement must indicate that you are authorized to act on the behalf of the owner of the intellectual property that is allegedly infringed); and,
g. your physical signature or, if sent within an email (rather than in a physical document or a digital document attached to an email), your name typed followed by “//s//”, which will serve as your electronic signature.
We will act on such notices in our sole discretion. Any user of the Website that fails to respond satisfactorily to Tafi with regard to any such notice is subject to suspension or termination. We may send the information that you provide in your notice to the person who provided the allegedly infringing material.
7. Unsolicited Ideas and Materials Prohibited; No Confidential or Special Relationship With Tafi.
As the worldwide company, Tafi employs a large staff of designers to develop new ideas and, each year, Tafi solicits and receives thousands of product idea submissions from professionals with whom it has business relationships.
Because of this, in your communications with Tafi, please keep in mind that Tafi does not accept or consider any unsolicited ideas or materials for products or services, or even improvements to products or services, such as ideas, concepts, inventions, or designs for models, games, videogames, books, scripts, screenplays, motion pictures, television shows, theatrical productions, music productions, or webisodes (collectively, “Unsolicited Ideas and Materials”). Therefore, you must not send to Tafi (even within any of your User-Generated Content that we may request), in any form and by any means, any Unsolicited Ideas and Materials. Any Unsolicited Ideas and Materials you post on or send to us via the Website are deemed User-Generated Content and licensed to us as set forth above.
Except as otherwise specifically described in the Website’s NEW Privacy Statement or any Additional Terms, your relationship with Tafi is not a confidential, fiduciary, or other type of special relationship and your Unsolicited Ideas and Materials, and anything else submitted by you (such as any questions, comments, answers, correspondence, postings, and the like) will be treated as non-confidential and non-proprietary User-Generated Content – regardless of whether you mark them “confidential”, “proprietary”, or the like. Tafi will not assume any responsibility, obligation, or liability for the receipt or non-receipt of any of the foregoing. Therefore, your decision to submit any Unsolicited Ideas and Materials to Tafi does not place Tafi in a position that is any different from the position held by members of the general public with regard to your Unsolicited Ideas and Materials.
Tafi finds that many submissions that it receives, including those from professional inventors, are already in the public domain; or are identical or substantially similar to products developed or in development by our own staff; or, for a host of many other reasons, are not novel or unique. So if, you send us any of your Unsolicited Ideas and Materials despite our request that you not do so, it’s likely they’re identical or substantially similar to ideas, concepts, and materials that, in the past, were developed by our staff or submitted to us by others. Likewise, in the future we may, without any reference to any of your Unsolicited Ideas and Materials, develop or receive from others ideas, concepts, and materials that are identical or substantially similar to your Unsolicited Ideas and Materials.
Tafi’s receipt of your Unsolicited Ideas and Materials is not an admission by Tafi of their novelty, priority, or originality, and it does not impair Tafi’s right to contest existing or future intellectual property rights relating to your Unsolicited Ideas and Materials.
A. Right to Charge or Require Registration; Access and Fees Relating to Your Internet Device. Tafi reserves the right, upon reasonable notice, to: (i) charge for access to some or all of the Website, charge for access to premium functionality or Content on some or all of the Website, or require a free subscription or account registration to access some or all of the Website (“Usage Subscriptions”); (ii) change terms and conditions for the Website or portions of the Website; and (iii) restrict access to the Website or portions of the Website, in whole or in part, based on any lawful eligibility requirements Tafi may elect to impose (e.g., geographic or demographic limitations). You are responsible for obtaining and maintaining, at your sole cost, all Internet Devices and other equipment and software, and all Internet, mobile, and other services needed for you to access and use the Website.
B. Usage Subscriptions; Virtual Goods and Services.
i. Right to Modify, Revalue, or Make Usage Subscriptions Free. Tafi may modify, revalue, or make the Usage Subscriptions free at its sole discretion without advance notice or liability. Unless otherwise stated in any Additional Terms, in the event that Tafi terminates or changes the Website, a portion of the Website, or content or functionality associated with a Usage Subscription in a way that materially diminishes the value of your Usage Subscription, then Tafi will provide you with either of the following at Tafi’s sole discretion: (a) a pro rata refund of your unused Usage Subscription corresponding to the value of the diminished features or portion of the terminated or changed Website; or (b) an online credit for future redemption of comparable value corresponding to the value of the diminished features or portion of the terminated or changed Website. The valuation of the pro rata refund or credit will be determined in Tafi's good faith business judgment, which determination will be final. The provision of a pro rata refund or credit will be your sole and exclusive remedy with respect to Tafi's termination or change of the Website in a way that materially diminishes the value of your Usage Subscription.
ii. Right to Modify, Revalue, or Make Virtual Goods and Services Free; Purchased Virtual Tender May Redeemed First Tafi may offer you the opportunity to purchase or use virtual currency, credits, points, virtual services, or virtual items (“Virtual Goods and Services”). Tafi may modify, revalue, or make the Virtual Goods and Services free at its sole discretion, and such modifications may make the Virtual Goods and Services more or less common, valuable, effective, or functional. Virtual points, credits, or currency (“Virtual Tender”) in your account that was purchased with real money may be redeemed before Virtual Tender in your account that was not purchased (i.e., it was earned through experiential play), no matter when that Virtual Tender was acquired.
a. If You Have a Corresponding Usage Subscription. If you have a corresponding Usage Subscription, then the use of your Virtual Goods and Services are limited to the life of your corresponding Usage Subscription, subject to any earlier modification or termination of the Website, your account, or your Usage Subscription as set forth in Sections 8 and 9.
b. If You Don't Have a Corresponding Usage Subscription. If you don’t have a corresponding Usage Subscription, then you are encouraged to use your Virtual Goods and Services as quickly as possible – because Tafi makes no representations about the continued availability of such Virtual Goods and Services. The availability of such Virtual Goods and Services is subject to Tafi’s right to terminate the Website or your account as set forth in Sections 8 and 9 without any refund to you for any unused or unredeemed Virtual Goods and Services.
iii. Termination or Change to Usage Subscriptions and Virtual Goods and Services. Except as set forth in any Additional Terms (such as any refund policies that may apply to a subscription service) or in Section 9(B)(i) above with respect to Usage Subscriptions, if Tafi changes, suspends, or terminates any Usage Subscription or Virtual Goods and Services, then you will forfeit the changed, suspended, or terminated Usage Subscription or Virtual Goods and Services. Likewise, except as set forth in Section 9(B)(i), in any Additional Terms, or as required by applicable law, Tafi is not responsible for repairing or replacing your Usage Subscription or Virtual Goods and Services, or providing you with any credit or refund or any other sum, in the event of: (a) Tafi’s change, suspension, or termination of any Usage Subscription or Virtual Goods and Services; or (b) for loss or damage due to Website error, or any other reason. Pursuant to its right to terminate accounts under Section 8 above, Tafi reserves the right to terminate Usage Subscriptions and Virtual Goods and Services for cause immediately at its sole discretion without advance notice or liability. In such an event you will not be entitled to a pro rata refund or credit.
C. No Monetary Value; Limited Right to Use; No Property, Economic, or Ownership Interest. Except as set forth in any Additional Terms or in Section 9(B)(i) above with respect to Usage Subscriptions, purchases of Usage Subscriptions and Virtual Goods and Services are final, nonrefundable, have no monetary value (i.e., are not a cash account or equivalent), and are purchases of only a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to use, even if they come with a durational term (e.g., a monthly subscription). Notwithstanding any agreement by Tafi to provide a discretionary pro rata refund or credit in certain circumstances, you have no property, proprietary, intellectual property, ownership, economic, or monetary interest in your Usage Subscriptions or Virtual Goods and Services, which remain the exclusive property of Tafi (subject only to the license set forth in Section 1(C) above, this User Agreement, and any Additional Terms). Except as set forth in this Section 9, the license may be immediately suspended or terminated for any reason, in Tafi’s sole discretion, and without advance notice or liability.
D. Transfers Prohibited. Tafi will not recognize the transfer of Usage Subscriptions or Virtual Goods and Services (including for “real” money or any other consideration or items of value whether inside our outside of the Website). Accordingly, except as to gift cards issued by Tafi, which will be governed by Additional Terms, you may not purchase, sell, barter, gift, or trade any Usage Subscriptions or Virtual Goods and Services, or offer to purchase, sell, barter, gift, or trade any Usage Subscriptions or Virtual Goods and Services. Any such attempted transfer will be null and void.
9. Links by You to the Website.
We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the Website, so long as: (a) the links only incorporate text, and do not use any trademark graphics that are owned or licensed to Tafi, (b) the links and the content on your website do not suggest any affiliation with Tafi or cause any other confusion, and (c) the links and the content on your website do not portray Tafi or its products or services in a false, misleading, derogatory, or otherwise offensive matter, and do not contain content that is inappropriate for children or that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party or are otherwise objectionable to Tafi. Tafi reserves the right to suspend or prohibit linking to the Website for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third party.
10. Linked-To Websites; Advertisements; Dealings with Third Parties.
A. Linked Websites; Advertisements.The Website may contain links, as part of third party ads on the Website or otherwise, to or from third-party websites (“Linked Websites”), including websites operated by advertisers, licensors, licensees, and certain other third parties who may have business relationships with Tafi. Tafi may have no control over the content, operations, policies, terms, or other elements of Linked Websites, and Tafi does not assume any obligation to review any Linked Websites. Tafi does not endorse, approve, or sponsor any Linked Websites, or any third party content, advertising, information, materials, products, services, or other items. Tafi disclaims all liability in connection therewith. Any activities you engage in connection with any of the same are subject to the privacy and other policies, terms and conditions of use, and rules issued by the operator of the Linked Websites. Tafi disclaims all liability in connection therewith.
B. Dealings with Third Parties. Any interactions, correspondence, transactions, and other dealings that you have with any third parties found on or through the Website (including on or via Linked Websites or advertisements) are solely between you and the third party (including issues related to the content of third party advertisements, payments, delivery of goods, warranties (including product warranties), privacy and data security, and the like). Tafi disclaims all liability in connection therewith.
A. Wireless Features. The Website may offer certain features and services that are available to you via your wireless Internet Device. These features and services may include the ability to access the Website’s features and upload content to the Website, receive messages from the Website, and download applications to your wireless Internet Device (collectively, “Wireless Features”). Standard messaging, data, and other fees may be charged by your carrier to participate in Wireless Features. Fees and charges may appear on your wireless bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless Internet Device. You should check with your carrier to find out what plans are available and how much they cost. Contact your carrier with questions regarding these issues.
B. Terms of Wireless Features. You agree that as to the Wireless Features for which you are registered, we may send communications to your wireless Internet Device regarding us or other parties – unless you cancel your registration or opt-out in accordance with any procedure established by us or by law. Further, we may collect information related to your use of the Wireless Features. If you have registered via the Website for Wireless Features, then you agree to notify Tafi of any changes to your wireless number (including phone number) and update your accounts on the Website to reflect the changes, or notify us when you wish to terminate your registration. (See Section 4 above.)
12. Dispute Resolution.
Certain portions of this Section 13 are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and Tafi agree that we intend that this Section 13 satisfies the “writing” requirement of the Federal Arbitration Act.
A. First -- Try to Resolve Disputes and Excluded Disputes. If any controversy, allegation, or claim arises out of or relates to the Website, the Content, your User-Generated Content, your Unsolicited Ideas and Materials, this User Agreement, or any Additional Terms (collectively, “Dispute”), or to any of Tafi’s actual or alleged intellectual property rights (an “Excluded Dispute”, which includes those actions set forth in Section 13(D) below), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such information exists or if such information is not current, then we have no obligation under this Section 13(A). Your notice to us must be sent to: Tafi, Inc., 224 S 200 W, Salt Lake City, UT 84101, Attention: General Counsel. For a period of 60 days from the date of receipt of notice from the other party, Tafi and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or Tafi to resolve the Dispute or Excluded Dispute on terms with respect to which you and Tafi, in each party’s sole discretion, are not comfortable.
B. Forums for Alternative Dispute Resolution.
If we cannot resolve a Dispute as set forth in Section 13(A) above within 60 days of receipt of the notice, then either you or we may submit the Dispute to formal arbitration in accordance with this Section 13(B). If we cannot resolve an Excluded Dispute as set forth in Section 13(A) above within 60 days of receipt of the notice, then either you or we may submit the Excluded Dispute to formal arbitration only if you and Tafi consent, in a writing signed by you and Tafi, Inc.’s General Counsel, to have that Excluded Dispute subject to arbitration. In such a case (and only in such a case), that Excluded Dispute will be deemed a “Dispute” for the remainder of this Section 13(B).
Upon expiration of the applicable 60-day period and to the fullest extent permitted by applicable law, a Dispute will be resolved solely by binding arbitration in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association (“AAA”). If the Dispute has a claimed value of not more than $250,000, then the arbitration will be heard and determined by a single neutral arbitrator who is a retired judge or a lawyer with not less than 15 years experience as a practicing member of the bar in the substantive practice area related to the Dispute, who will administer the proceedings in accordance with the AAA’s Supplementary Procedures for Consumer Related Disputes. If the Dispute has a claimed value of more than $250,000, or if Tafi elects in its sole discretion to bear the costs of arbitration in excess of those that would occur for a proceeding before a single neutral arbitrator, then the arbitration will be heard and determined by a three member panel, with one member to be selected by each party and the third (who will be chair of the panel) selected by the two party appointed members or by the AAA in accordance with the Commercial Arbitration Rules. The arbitrator or arbitration panel, as the case may be, will apply applicable law and the provisions of this User Agreement and any Additional Terms, will determine any Dispute according to the applicable law and facts based upon the record and no other basis, and will issue a reasoned award. If you and Tafi do not both consent to the arbitration of an Excluded Dispute as set forth in the immediately preceding paragraph of this Section 13(B)(i), then this paragraph and the remainder of this Section 13(B) will not apply to the Excluded Dispute.
If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling or unable to set a hearing date within 60 days of the filing of a “demand for arbitration,” then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and a legal officer of Tafi consents to in writing. The substantive practice area requirements for the arbitrator and the $250,000 threshold for the number of arbitrators assigned to the Dispute set forth in the paragraph above for the AAA arbitration will also apply to any such arbitration under JAMS or another arbitration service.
You can obtain AAA and JAMS procedures, rules, and fee information as follows:
ii. Nature, Limitations, and Location of Alternative Dispute Resolution. In arbitration, as with a court, the arbitrator must honor the terms of this User Agreement (and any Additional Terms) and can award the prevailing party damages and other relief (including attorneys’ fees). However, WITH ARBITRATION (A) THERE IS NO JUDGE OR JURY, (B) THE ARBITRATION PROCEEDINGS AND ARBITRATION OUTCOME ARE SUBJECT TO CERTAIN CONFIDENTIALITY RULES, AND (C) JUDICIAL REVIEW OF THE ARBITRATION OUTCOME IS LIMITED. All parties to the arbitration will have the right, at their own expense, to be represented by an attorney or other advocate of their choosing. If an in-person arbitration hearing is required, then it will be conducted in the “metropolitan statistical area” (as defined by the U.S. Census Bureau) where you are a resident at the time the Dispute is submitted to arbitration. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require Tafi to pay a greater portion or all of such fees and costs in order for this Section 13 to be enforceable, then Tafi will have the right to elect to pay the fees and costs and proceed to arbitration. Discovery will be permitted pursuant to the applicable arbitration rules. The arbitrator’s decision must consist of a written statement stating the disposition of each claim of the Dispute, and must provide a statement of the essential findings and conclusions on which the decision and any award (if any) is based. Judgment on the arbitration decision and award (if any) may be entered in or by any court that has jurisdiction over the parties pursuant to Section 9 of the Federal Arbitration Act.
C. Limited Time to File Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT AN EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 13(A) ABOVE) WITHIN 1 YEAR AFTER THE DISPUTE ARISES -- OR IT WILL BE FOREVER BARRED.
D. Injunctive Relief. The foregoing provisions of this Section 13 will not apply to any legal action taken by Tafi to seek an injunction or other equitable relief in connection with any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Website, any Content, your User-Generated Content or Unsolicited Ideas and Materials and/or Tafi’s intellectual property rights (including such Tafi may claim that may be in dispute), Tafi’s operations, and/or Tafi’s products or services.
E. Small Claims Matters Are Excluded from Arbitration Requirement. Notwithstanding the foregoing, either of us may bring a qualifying claim of Disputes (but not Excluded Disputes) in small claims court.
F. No Class Action Matters. Disputes will be arbitrated only on an individual basis and will not be consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. But if, for any reason, any court with competent jurisdiction or any arbitrator selected pursuant to Section 13(B)(i) above holds that this restriction is unconscionable or unenforceable, then our agreement in Section 13(B) above to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 13(G) below.
G. Federal and State Courts in Los Angeles. Except to the extent that arbitration is required in Section 13(B) above, and except as to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute may only be instituted in state or federal court in Salt Lake City, Utah. Accordingly, you and Tafi consent to the exclusive personal jurisdiction and venue of such courts for such matters.
13. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES.
YOUR ACCESS TO AND USE OF THE WEBSITE IS AT YOUR SOLE RISK.
THE WEBSITE IS PROVIDED ON AN "AS IS", "AS AVAILABLE", AND "WITH ALL FAULTS" BASIS. Therefore, to the fullest extent permissible by law, Tafi, Inc. and its subsidiaries and each of their respective employees, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns (collectively, "Tafi Parties") hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, as to:
a. the Website (including the Content and the User-Generated Content);
b. the functions, features, or any other elements on, or made accessible through, the Website;
c. any products, services, or instructions offered or referenced at or linked through the Website (except for any specific warranties provided in additional terms provided by a Tafi Party who is also a product manufacturer that are included with a product that you purchase from us);
d. security associated with the transmission of your User-Generated Content transmitted to Tafi or via the Website;
e. whether the Website or the servers that make the Website available are free from any harmful components (including viruses, trojan horses, and other technologies that could adversely impact your Internet Device);
f. whether the information (including any instructions) on the Website is accurate, complete, correct, adequate, useful, timely, or reliable;
g. whether any defects to the Website will be repaired; and
h. whether your use of the Website is lawful in any particular jurisdiction.
EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED IN ADDITIONAL TERMS PROVIDED BY A TAFI PARTY WHO IS ALSO A PRODUCT MANUFACTURER THAT ARE INCLUDED WITH A PRODUCT THAT YOU PURCHASE FROM US, TAFI PARTIES FURTHER HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS.
Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimers may not apply to the extent such jurisdictions’ laws are applicable.
14. LIMITATIONS OF LIABILITY OF TAFI PARTIES.
UNDER NO CIRCUMSTANCES WILL ANY TAFI PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages that are directly or indirectly related to:
a. the Website (including the Content and the User-Generated Content);
b. your use of or inability to use Website, or the performance of the Website;
c. any action taken in connection with an investigation by Tafi Parties or law enforcement authorities regarding your access to or use of the Website;
d. any action taken in connection with copyright or other intellectual property owners or other rights owners;
e. any errors or omissions in the Website’s technical operation; or
f. any damage to any user’s computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or equipment failure or malfunction.
The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if Tafi Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action of contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of God, telecommunications failure, or destruction of the Website).
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to you.
EXCEPT AS MAY BE PROVIDED IN ANY ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE TOTAL LIABILITY OF TAFI PARTIES TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE WEBSITE AND YOUR RIGHTS UNDER THIS USER AGREEMENT, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID TAFI IN CONNECTION WITH THE TRANSACTION(S) THAT UNDERLY THE CLAIM(S); PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A TRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE. FOR PURPOSES OF CLARITY, THE PRIOR SENTENCE DOES NOT EXPAND OR LIMIT ANY PRODUCT WARRANTY THAT IS PROVIDED BY A MANUFACTURER OF A PHYSICAL PRODUCT.
With respect to any electronic commercial service on a Tafi website, residents of California are entitled to the following specific consumer rights information: if you have a complaint, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at 400 R St., Suite 1080, Sacramento, California, 95814, or by telephone at 916.445.1254. See also: http://www.dca.ca.gov.
15. Waiver of Injunctive or Equitable Relief.
IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSSES, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE WEBSITE, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, CONTENT, USER-GENERATED CONTENT, UNSOLICITED IDEAS AND MATERIALS, PRODUCT, SERVICE, OR OTHER INTELLECTUAL PROPERTY OWNED, LICENSED, OR CONTROLLED BY TAFI (INCLUDING YOUR LICENSED USER-GENERATED CONTENT) OR A LICENSOR OF TAFI.
16. General Provisions.
A. Updates to User Agreement. Tafi reserves the right to modify this User Agreement and any Additional Terms, at any time without prior notice (“Updated Terms”). You agree that we may notify you of the Updated Terms by posting them on the Website so that they are accessible via a link on the Website, and that your use of the Website after we post the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms. Therefore, you should review this User Agreement and any Additional Terms on a regular and frequent basis. The Updated Terms will be effective as of the time that Tafi posts them on the home page of the Website, or such later date as may be specified in them.
B. Tafi's Consent or Approval. As to any provision in this User Agreement or any Additional Terms that grants Tafi a right of consent or approval, or permits Tafi to exercise a right in its “sole discretion”, Tafi may exercise that right in its sole and absolute discretion. No Tafi consent or approval may be deemed to have been granted by Tafi without being in writing and signed by an officer of Tafi.
C. Applicable Law. This User Agreement and any Additional Terms will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with, the laws of the State of New York, without regard to its conflicts of law provisions.
D. Indemnity. You agree to, and you hereby, defend, indemnify, and hold Tafi Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any Tafi Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with: (i) your User-Generated Content; (ii) your use of the Website and your activities in connection with the Website; (iii) your breach or anticipatory breach of this User Agreement or any Additional Terms; (iv) your violation or anticipatory violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental and quasi-governmental authorities in connection with your use of the Website or your activities in connection with the Websites; (v) information or material transmitted through your Internet Device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by you; (vii) Tafi Parties’ use of the information that you submit to us (including your User-Generated Content); (viii) your purported “ownership” of any usage subscriptions or virtual items; and (ix) the increase or decrease in “value” or loss of usage subscriptions or virtual items if Tafi deletes, terminates, or modifies them (all of the foregoing, “Claims and Losses”). You will cooperate as fully required by Tafi Parties in the defense of any Claim and Losses. Notwithstanding the foregoing, Tafi Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. Tafi Parties reserve the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a Tafi Party.
E. Operation of Website; Availability of Products and Services; International Issues. Tafi controls and operates the Website from its offices in the U.S.A. Tafi makes no representation that the Website is appropriate or available for use beyond the U.S.A. If you use the Website from other locations, you are doing so of your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply. Subject to the terms of this User Agreement, we reserve the right to limit the availability of, restrict access to, or discontinue the Website and/or any content, program, product, service, or other feature described or available on the Website to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service, or other feature that we provide. Some content, programs, services, or features may be available on this Website only on a subscription or fee basis. You and we disclaim any application to this User Agreement of the United Nations Convention on Contracts for the International Sale of Goods.
F. Export Controls. Software related to or made available by the Website may be subject to export controls of the U.S.A. No software from the Website may be downloaded, exported, or re-exported (i) into (or to a national or resident of) any country or other jurisdiction to which the U.S.A. has embargoed goods, software, technology or services (which, as of the effective date of this User Agreement, includes Cuba, North Korea, Iran, Sudan and Syria), or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders, or (iii) to anyone on the U.S. Department of Commerce’s Bureau of Industry and Security Entities List as published in the Export Administration Regulations (including entities engaged in weapons of mass destruction proliferation in various countries and persons and entities that are suspected of diverting U.S. origin items to embargoed countries or terrorist end-uses). By downloading any software related to the Website, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list.
G. Severability; Interpretation. If any provision of this User Agreement, or any Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from this User Agreement or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of this User Agreement or the Additional Terms (which will remain in full force and effect). To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter. Wherever the word “including” is used in this User Agreement or any Additional Terms, the word will be deemed to mean “including, without limitation,”.
H. Communications. When you communicate with us electronically, such as via e-mail and text message, you consent to receive communications from us electronically. Please note that, except as set forth in Section 5 above, we are not obligated to respond to inquiries that we receive. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
I. Investigations; Cooperation with Law Enforcement; Termination; Survival. Tafi reserves the right, without any limitation, to: (i) investigate any suspected breaches of its Website security or its information technology or other systems or networks, (ii) investigate any suspected breaches of this User Agreement and any Additional Terms, (iii) investigate any information obtained by Tafi in connection with reviewing law enforcement databases or complying with criminal laws, (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, (v) prosecute violators of this User Agreement and any Additional Terms, and (vi) discontinue the Website, in whole or in part, or, except as may be expressly set forth in any Additional Terms, suspend or terminate your access to it, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third party. Any suspension or termination will not affect your obligations to Tafi under this User Agreement or any Additional Terms. Upon suspension or termination of your access to the Website, or upon notice from Tafi, all rights granted to you under this User Agreement or any Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Website. The provisions of this User Agreement and any Additional Terms, which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to Tafi in this User Agreement, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration.
J. Assignment. Tafi may assign its rights and obligations under this User Agreement and any Additional Terms, in whole or in part, to any party at any time without any notice. This User Agreement and any Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Tafi.
K. No Waiver. Except as expressly set forth in this User Agreement or any Additional Terms, (i) no failure or delay by you or Tafi in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of this User Agreement or any Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.
Additional Provisions Regarding Coca-Cola NFT found at https://maketafi.com/coca-cola-nft.
3. “Purchaser of the Coca-Cola NFT acquires ownership of the NFT digital file and is granted a royalty free license to use, copy and display the NFT for personal, non-commercial use, as well as the right to resale the NFT as a digital file. The same rights and restrictions follow each subsequent purchase. Purchaser has no right to the copyright of the NFT or to the Coca-Cola Company name, trademarks, logos, music or slogans within the NFT. Any use of the intellectual property of the NFT outside of the digital file is a copyright or trademark infringement. Any rights granted by The Coca-Cola Company can be modified or rescinded in their entirety if there are changes in technology, law or regulations related to the sale of NFTs that would necessitate such modification or rescission to protect the rights or property of The Coca-Cola Company. As the purchaser of this NFT, you understand that the prices of collectible blockchain assets are extremely volatile and subjective. Each NFT has no inherent or intrinsic value. No NFT is guaranteed to retain their original value and factors occurring outside of the NFT, including fluctuations in the price of other digital assets, may materially impact the value and desirability of any NFT.