Posted: July 7, 2021
This TOU is a legal agreement between SUPERPLASTIC ("we", "our", "us") and you, the visitor, governing your access to and use of all content and functionalities available at the Janky Heist website and related micro-sites accessed through the URL "jankyheist.com" and related domain names, and any other website or micro-site of SUPERPLASTIC to which this TOU is applied or posted (collectively the "Site"), and other services offered by SUPERPLASTIC, as well as services offered through third parties integrating SUPERPLASTIC’s functionality (collectively, the “Services”).
BY USING THE SITE OR SERVICES, YOU ARE ACCEPTING, AND AGREEING TO BE BOUND BY, THIS TOU. PLEASE READ THEM CAREFULLY.
You must be at least 13 years old to use the Site or the Services. If you are under the age of majority in your state of residence, a minor, your parent or legal guardian must agree to these TOU on your behalf and you may only access and use the Site and Services with permission from your parent or legal guardian.
2. Terms of Sale
No Refunds: ALL SALES ARE FINAL and are not subject to return. Please carefully review your order prior to submitting.
Pricing: Prices shown on the Site are in US Dollars and are exclusive of taxes. All prices and offers remain valid as advertised from time to time. The price applicable to your order will be the price listed at the time your order is placed (for NFTs) or accepted (for all other (non-NFT) products).
Prices are subject to change at any time, for any reason, and in the sole and exclusive discretion of SUPERPLASTIC.
Order Acceptance for Non-NFT products: Once you have made your choice and your order has been placed, you will receive an email acknowledging the details of your order. This email is NOT an acceptance of your order.
Unless you cancel your order, acceptance of your order will be perfected upon completion of the packing of your order.
We reserve the right not to accept your order, for example, in the event that we are unable to obtain authorization for payment, that delivery restrictions apply to a particular item, that the item ordered is out of stock or does not satisfy our quality control standards and is withdrawn, or that you do not meet the eligibility criteria set out within the TOU.
We may also refuse to process and therefore accept a transaction for any reason or refuse service to anyone at any time at our sole discretion. We will not be liable to you or any third party by reason of our withdrawing any merchandise from the Site whether or not that merchandise has been sold, removing, screening or editing any materials or content on the Site, refusing to process a transaction or unwinding or suspending any transaction after processing has begun.
Inaccuracy Disclaimer: From time to time, there may be information on the Site that contains typographical errors, inaccuracies, or omissions that may relate to product descriptions, pricing, and availability. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update information at any time without prior notice (including after you have submitted your order). If you do not wish to continue with your Order after pricing or other information has been corrected, please contact us right away and we will work with you to cancel or return your order.
Additional Terms for Non-Fungible Tokens (“NFTs”): For NFTs sold through our Site, the following additional terms of sale apply.
In some cases, we will offer an NFT in conjunction with the sale of a Janky. This will be indicated on the Site where applicable. When you elect to “Buy” from the Site, you will checkout as set forth above and as indicated on the Site. You will receive a link (which may come from one of our business partners) to redeem the NFT at the email indicated in your Account profile. You will need to obtain your own Ethereum-compatible wallet. To redeem, click the link, and enter the public key for your Ethereum-compatible wallet and the email address associated with your account and select “submit.” Subject to verification and confirmation of your email and validity of the link, the NFT will be transferred to your wallet. Completion of the contract between you and SUPERPLASTIC will be perfected when we transfer, or cause to be transferred, the NFT to the wallet associated with the public key that you provide. You are solely responsible for providing the correct public key. You are responsible for initiating the redemption process described above.
You understand and acknowledge that the NFT transaction is implemented via a smart contract on the Ethereum platform. Successful execution of the transaction is subject to the proper operation of the smart contract and the Ethereum platform which is beyond the control of Superplastic. The Ethereum platform is subject to change and NFT transactions may be adversely impacted by any such changes. You hereby acknowledge and assume all risks associated with use of the smart contracts, the Ethereum platform and your wallet and take full responsibility and liability for the outcome of any transaction or failed transaction, whether or not they behave as expected or intended.
We make no representations or warranties, express or implied, written or oral, in connection with any Ethereum transaction or related technology.
The NFT represents ownership of certain rights to a single instance of a digital file associated with the NFT. Upon successful transfer of the NFT to your wallet, you own the NFT, but you only obtain a limited, transferrable license to use the digital file. The limited license to the digital file is a license to use it for your own personal, non-commercial use and, to display it. This limited license may be transferred to the bona fide purchaser in a secondary sale of the NFT, provided that such purchaser agrees to be bound by the terms of this license. The license does not grant you or anyone else any other rights. All rights, including all copyrights, not expressly granted to you by the limited license are reserved to Superplastic or its licensors. You agree that you will not use the digital file for any unauthorized purpose, including, without limitation, you will not copy or modify the digital file, use the content of the digital file to market or sell any file or product including the content or any other commercial purpose.
3. Additional Terms
Some of our Services have additional terms and conditions (“Additional Terms”). Where Additional Terms apply to a Service, we will make them available for you to read through your use of that Service. By using that Service, you agree to the Additional Terms.
4. User Content
The Site and some of our Services allow you to upload, submit, store, send, or receive content and data (“User Content”). You retain ownership of any intellectual property rights that you hold in that User Content.
When you upload, submit, store, send, or receive User Content to or through the Site or Services, you give us permission to reproduce and use your User Content as follows: you grant to us and those we work with a license to use, host, store, reproduce, modify, create derivative works (such as translations, adaptations, or other changes we make so that User Content works better with the Site and Services), publicly perform, publicly display, and distribute your User Content. This license is for the limited purpose of operating, promoting, and improving the Site and Services, and to develop new Services. Our license to your User Content is non-exclusive, meaning you may use the User Content for your own purposes or let others use your User Content for their purposes. This license is fully-paid and royalty free, meaning we do not owe you anything else in connection with our use of your User Content. We may exercise our rights under this license anywhere in the world and in any media. Lastly, this license is perpetual, meaning that our rights under this license continue even after you stop using the Site and Services. In general, however, we will only need to use your User Content for as long as you choose to store it with us using the Site or Services.
For clarity, all intellectual property rights in any digital file associated with an NFT and any content contained therein are and shall remain owned by Superplastic and its licensors.
6. Acceptable Use of the Site and Services
You are responsible for your use of the Site and Services, and for any use of the Site or Services made using your account. Our goal is to create a positive, useful, and safe user experience. To promote this goal, we prohibit certain kinds of conduct that may be harmful to other users or to us. When you use the Site or Services, you may not:
- violate any law or regulation;
- violate, infringe, or misappropriate other people’s intellectual property, privacy, publicity, or other legal rights;
- engage in spidering or harvesting, or participate in the use of software, including spyware, designed to collect data from the Site or Services;
- transmit any viruses or other computer instructions or technological means whose purpose is to disrupt, damage, or interfere with the use of computers or related systems;
- stalk, harass, or harm another individual;
- impersonate any person or entity or perform any other similar fraudulent activity, such as phishing;
- use any means to scrape or crawl any Web pages contained in the Site;
- attempt to circumvent any technological measure implemented by us or any of our providers or any other third party (including another user) to protect the Site or Services;
- attempt to decipher, decompile, disassemble, or reverse engineer any of the software or other underlying code used to provide the Site or Services; or
- advocate, encourage, or assist any third party in doing any of the foregoing.
9. Changes to the Site or Services
We enhance and update the Site and Services often. We may change or discontinue the Site or Services at any time, with or without notice to you.
We reserve the right to not provide the Site or Services to any person. We also reserve the right to terminate any user’s right to access the Site or Services at any time, in our discretion. If you violate this TOU, your permission to use the Site and Services automatically terminates.
11. Disclaimer and Limitations on Our Liability
YOU USE THE SITE AND SERVICES AT YOUR OWN RISK. THE SITE AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SUPERPLASTIC AND ITS OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, AND LICENSORS (“AFFILIATES”) DISCLAIMS ALL WARRANTIES, CONDITIONS, AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING THOSE RELATED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT AND THOSE ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. IN PARTICULAR, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SUPERPLASTIC AND ITS AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY OR COMPLETENESS OF CONTENT AVAILABLE ON OR THROUGH THE SITE OR SERVICES, OR THE CONTENT OF ANY WEBSITES OR ONLINE SERVICES LINKED TO OR INTEGRATED WITH THE SITE OR SERVICES. SUPERPLASTIC AND ITS AFFILIATES WILL HAVE NO LIABILITY FOR ANY: (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (b) PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR ACCESS TO OR USE OF THE SITE OR SERVICES; (c) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS, YOUR ACCOUNT, OR OF ANY PERSONAL INFORMATION OR USER DATA; (d) ANY INTERRUPTION OF TRANSMISSION TO OR FROM THE SITE OR SERVICES; (e) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED ON OR THROUGH THE SITE OR SERVICES BY ANY THIRD PARTY; OR (f) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED OR SHARED THROUGH THE SITE OR SERVICES.
YOU UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY MATERIAL OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE OR SERVICES IS DONE AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE ARISING FROM DOING SO. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SITE OR SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING FOR LOSS OF PROFITS, REVENUE, OR DATA) OR FOR THE COST OF OBTAINING SUBSTITUTE PRODUCTS ARISING OUT OF OR IN CONNECTION WITH THIS TOU, HOWEVER CAUSED, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT WE’VE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR TOTAL CUMULATIVE LIABILITY TO YOU OR ANY THIRD PARTY UNDER THIS TOU, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE FEES YOU HAVE ACTUALLY PAID US DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM GIVING RISE TO SUCH LIABILITY.
You understand and agree that we have set our prices and entered into this TOU with you in reliance upon the limitations of liability set forth in this TOU, which allocate risk between us and form the basis of a bargain between the parties.
To the maximum extent permitted by applicable law, you agree to indemnify and hold harmless SUPERPLASTIC and its Affiliates from and against any and all claims, costs, proceedings, demands, losses, damages, and expenses (including, without limitation, reasonable attorney’s fees and legal costs) of any kind or nature, arising from or relating to, any actual or alleged breach of this TOU by you or anyone using your account. Consultants may not settle any indemnified claim against Client, without SUPERPLASTIC’S express consent. SUPERPLASTIC may, at its election, control the defense of any indemnified claim at your expense. If we assume the defense of such a matter, you will reasonably cooperate with us in such defense. This Section of the TOU will survive the termination of your relationship with us.
13. Arbitration Agreement & Waiver of Certain Rights
Except as set forth below, you and we agree that we will resolve any disputes between us (including any disputes between you and a third-party agent of ours) through binding and final arbitration instead of through court proceedings. You and we hereby waive any right to a jury trial of any Claim (defined below). All controversies, claims, counterclaims, or other disputes arising between you and us or you and a third-party agent of ours (each a “Claim”) shall be submitted for binding arbitration in accordance with the Rules of the American Arbitration Association (“AAA Rules”). The arbitration will be heard and determined by a single arbitrator. The arbitrator's decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. You and we agree that the arbitration proceedings will be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration, by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies, or as specifically permitted by state law. The Federal Arbitration Act and federal arbitration law apply to this agreement. However, the Arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement including, but not limited to, a claim that all or any part of this Agreement is void or voidable. If you demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of the administrative costs and arbitrator's fees required for the arbitration as the arbitrator deems necessary to prevent the cost of the arbitration from being prohibitive. In the final award, the arbitrator may apportion the costs of arbitration and the compensation of the arbitrator among the parties in such amounts as the arbitrator deems appropriate.
This arbitration agreement does not preclude either party from seeking action by federal, state, or local government agencies. You and we also have the right to bring qualifying claims in small claims court. In addition, you and we retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions, and any such request shall not be deemed incompatible with this TOU, nor a waiver of the right to have disputes submitted to arbitration as provided in this TOU.
Neither you nor we may act as a class representative or private attorney general, nor participate as a member of a class of claimants, with respect to any Claim. Claims may not be arbitrated on a class or representative basis. The arbitrator can decide only your and/or our individual Claims. The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated. The arbitrator may award in the arbitration the same damages or other relief available under applicable law, including injunctive and declaratory relief, as if the action were brought in court on an individual basis. Notwithstanding anything to the contrary in the foregoing or herein, the arbitrator may not issue a “public injunction” and any such “public injunction” may be awarded only by a federal or state court. If either party seeks a “public injunction,” all other claims and prayers for relief must be adjudicated in arbitration first and any prayer or claim for a “public injunction” in federal or state court stayed until the arbitration is completed, after which the federal or state court can adjudicate the party’s claim or prayer for “public injunctive relief.” In doing so, the federal or state court is bound under principles of claim or issue preclusion by the decision of the arbitrator.
If any provision of this Section is found to be invalid or unenforceable, then that specific provision shall be of no force and effect and shall be severed, but the remainder of this Section shall continue in full force and effect. No waiver of any provision of this Section of the TOU will be effective or enforceable unless recorded in a writing signed by the party waiving such a right or requirement. Such a waiver shall not waive or affect any other portion of this TOU. This Section of the TOU will survive the termination of your relationship with us.
THIS SECTION LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM, THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN AAA RULES, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. OTHER RIGHTS THAT YOU OR WE WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION.
14. Other Provisions
Under no circumstances will we be held liable for any delay or failure in performance due in whole or in part to any acts of nature or other causes beyond our reasonable control.
This TOU will be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any conflict of laws rules or provisions.
You agree that any action of whatever nature arising from or relating to this TOU, the Site, or Services will be filed only in the state or federal courts located in the state of Delaware. You consent and submit to the personal jurisdiction of such courts for the purposes of any such action.
If any provision of this TOU is found to be unlawful or unenforceable, then that provision will be deemed severable from this TOU and will not affect the enforceability of any other provisions.
The failure by us to enforce any right or provision of this TOU will not prevent us from enforcing such right or provision in the future.
We may assign our rights and obligations under this TOU, including in connection with a merger, acquisition, sale of assets or equity, or by operation of law.
15. Changes to this TOU
From time to time, we may change this TOU. If we change this TOU, we will give you notice by posting the revised TOU on the Site. Those changes will go into effect on the Revision Date shown in the revised TOU. By continuing to use the Site or Services, you are agreeing to the revised TOU.
PLEASE PRINT A COPY OF THIS TOU FOR YOU RECORDS AND PLEASE CHECK
THE SITE FREQUENTLY FOR ANY CHANGES TO THIS TOU.