Cheeze, Inc. Terms & Conditions
Last Modified: Dec 27th, 2022
PLEASE READ THESE TERMS OF SERVICE CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST CHEEZE ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.
We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these terms were last revised. We will also notify you of such changes or modifications, either through the Platform User interface, in an email notification or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except changes addressing new functions of the Platform will be effective immediately. Your continued use of the Platform and after the date any such changes become effective constitutes your acceptance of the new Terms of Service.
B. What is Cheeze?
1. Cheeze is a platform for Users, which include artists ("Creators"), brands ("Brands") and collectors ("Collectors") (collectively, "Users"), to mint, offer for sale, sell, offer to purchase, purchase, list for auction, conduct an auction, make offers on, and bid on (each a "Transaction") digital art in any copyrightable format, including, without limitation, photographs, illustrations, paintings, music, text, video and audio-visual works, represented by unique, cryptographic, non-fungible tokens (NFTs) on a blockchain ("Digital Asset"). For avoidance of doubt, all Digital Assets on Cheeze is an NFT, but other NFTs may not constitute Digital Assets for purposes of these Terms. Cheeze, the Platform, Transactions, and any services Cheeze offers in relation to the Platform, Transactions, and User accounts are collectively referred to as services for purposes of these Terms ("Services").
2. Smart-Contract Enabled. The Digital Assets on Cheeze is minted by a User using smart contracts on the Flow, SUI and Polygon blockchains which provides an immutable ledger of all Transactions that occur on Cheeze ("Smart Contracts"). This means that all Digital Assets are outside of the control of any one party, including Cheeze, and is subject to many risks and uncertainties. Users are required to have minting tokens to mint their artwork into Digital Assets. Minting tokens may be purchased from Cheeze or received through incentive programs created by Cheeze. Please read carefully the "Promotions," "New User Incentives," and "Cheeze Purchases" paragraphs for information on purchasing minting tokens or receiving minting tokens through Cheeze incentive programs.
We neither own nor control any Smart Contract, any payment processor, the blockchain networks or any provider, your browser, or any other third-party site, product, or service that you might access, visit, or use for the purpose of enabling you to use the various features of the Platform. We will not be liable for the acts or omissions of any such third parties, nor will we be liable for any damage that you may suffer as a result of your Transactions with any third-party or any other interaction with any such third parties. The User understands that your digital wallet public address will be made publicly visible on the Platform as will each Transaction on the Platform.
3. Custodial. To facilitate Transactions, Cheeze may take custody or possession of a Digital Asset or files or data relating to the Digital Asset during a Transaction or in the minting process, which may include Cheeze uploading copies of User-provided files to IPFS or Cheeze's AWS server. You affirm that you are aware and acknowledge that Cheeze is a custodial service provider solely for purposes of effecting Transactions or minting of Digital Assets. Cheeze will only initiate Transactions on instructions from a User, and only for Digital Assets rightfully owned by said User. Upon completion of a Transaction, Cheeze will transfer the Digital Asset to a User wallet and will no longer have custody or possession of the Digital Asset. As a marketplace, Cheeze makes no representation or guarantee that neither Creators, Collectors or Users will achieve any particular outcome from any Transactions or the other use of the Platform.
C. How do I use Cheeze?
3. Prohibited Users. The following persons are prohibited from using the Services (each, a "Prohibited User"): (i) persons who appear on the United States Department of the Treasury, Office of Foreign Assets Control (OFAC), Specially Designated Nationals List (SDN), United States Commerce Department's Denied Persons or other similar lists; (ii) persons who are nationals or residents of Cuba, Iran, North Korea, Sudan, Syria or any other country, territory, or other jurisdiction that is embargoed by the United States; (iii) persons who are less than 18 years of age; (iv) persons, or their affiliates, who have been subject to an account termination for cause, including any person acted in concert with, or at the direction of, any person who has been subject to an account termination; (v) persons that are not individual natural persons, unless such persons pass additional KYC requirements as determined by Cheeze; (vi) persons who do not satisfy Cheeze's identity verification processes, or Cheeze's investigations to comply with any applicable anti-money laundering rules or regulations as determined by Cheeze, Cheeze's payment processor, any applicable government or third party; and (vii) a person who, directly or indirectly, uses, employs, operates or creates a computer program to simulate the human behavior of a User ("Bots"). If User is an entity and not an individual person, please contact email@example.com.
The Services are not available in all jurisdictions. Cheeze prohibits the use of the Services in certain jurisdictions, which jurisdictions may vary and change at Cheeze's sole discretion. Cheeze may implement controls to restrict access to the Services from any jurisdiction from which use of the Services is prohibited. You shall comply with such restrictions, even if the methods imposed by Cheeze to prevent the use of the Services are not effective or can be bypassed. You are prohibited from accessing or using the Services in, from or through a location where your use of the Services would violate any applicable law. You represent and warrant that you are not a citizen or resident of any such jurisdiction, nor will you use the Services while located in any such jurisdiction.
4. Member Account, Password, and Security. You are responsible for maintaining the confidentiality of your account and password, if any, and are fully responsible for any and all activities that occur under your password or account. You acknowledge Cheeze has no ability to access private keys to digital wallets and it is your responsibility to protect, safeguard, and keep safe all private keys for digital wallets. You agree to (a) immediately notify Cheeze of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing Cheeze. Cheeze will not be liable for any loss or damage arising from your failure to comply with this Section.
Following your acceptance of these Terms, Cheeze shall grant you a unique digital account to access the Services and act as a record of Transactions. You will create and use a password to access the account. Cheeze may also provide you with access tokens for the account. You shall not disclose such password or tokens or permit any third party to use them. You have full responsibility for use of your account, password, and tokens. You will be given the ability to adjust settings in the account, which selected settings are incorporated into these Terms. You are exclusively responsible for those selections, even if they contain errors on the part of the User or cause losses to the User. You are exclusively responsible for all Transactions in the account. Except as required to deliver the Services or as required by law, Cheeze will not grant any third-party access to your account.
5. Additional KYC Information. In the course of adding features to the account or at Cheeze's discretion, you must, when and as requested, supply Cheeze with additional User KYC information. You represent that all User KYC information provided is and shall remain true and accurate and shall immediately update such information in the account or by notice to Cheeze if any of such information changes. Cheeze reserves the right to terminate these Terms or suspend performance hereunder immediately on determining that any User KYC information is false, inaccurate, misleading, or out of date.
You shall immediately notify Cheeze if you suspect any unauthorized use or access of the account or otherwise suspects any security breaches or attempted security breaches in the Services, account, a User device, any NFT wallet or those of any other User.
You assume exclusive responsibility for all Transactions and other activities that occur in your account and through the Services and accept all risks of any unauthorized access to your account, to the maximum extent permitted by law.
6. Selling Your Account. If you wish to sell or transfer ownership of your account, you shall contact Cheeze at firstname.lastname@example.org to complete the account transfer. Any sale or transfer of account ownership conducted without prior consent of Cheeze is deemed void ab initio and constitutes a material breach of these Terms. If you are acquiring an account from another User of Cheeze, you must verify that Cheeze has already consented to the transfer of the account, failing which you forfeit the account and the contents thereof.
7. VPN. The use of a VPN to access an account, the Platform, or the Services is highly discouraged. Use of a VPN may make it more difficult for a User to access their account, the Platform, or the Services. Use of a VPN by a User entitles Cheeze, without limitation, to freeze or terminate the User's account accessed via VPN.
9. Promotions. From time to time, Cheeze may make available special offers or conduct promotions for qualifying customers. Subject to applicable laws, Cheeze may establish qualifying criteria to participate in any special promotion its sole discretion. Cheeze may revoke any special offer at any time without notice. Cheeze shall have no obligation to make special offers available to all Users.
10. New User Incentive. Cheeze's incentives for new Users ("New User Incentives") are available exclusively to new Users who have not previously verified their Account. Cheeze has sole discretion in the form of New User Incentives, such as receipt of minting tokens or other rewards. New User Incentives will appear in a new User's Account following Cheeze's verification of such User's account. As detailed in these Terms, Cheeze will verify a User's account based on its internal guidelines in its sole discretion. New User Incentives are subject to these Terms and are not guaranteed, even upon successful verification of a User's account. New Users who were referred to Cheeze who have previously opened an account using different contact information are ineligible to receive any New User Incentives. Cheeze may update the conditions for eligibility at any time, in its sole discretion. You acknowledge New User Incentives may only be redeemable for products or Services on the Platform and will not be eligible for withdrawal or redemption for cash or other value outside the Platform.
11. Modifications to the Platform. Cheeze reserves the right to modify or discontinue, temporarily or permanently, the Platform (or any part thereof) with or without notice, without regard to any other term or condition of these Terms of Service. Cheeze will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Platform or the Services.
12. Security. Cheeze may, but is not obligated to, offer or require enhanced security features for the Account, such as two-factor authentication. For any enhanced security features, you shall ensure the security of your device or account (e.g., phone) that may be associated with the enhanced security features. Any mention of, or linking to, third parties by Cheeze that provide such security features ("2FA Provider") is offered as a convenience and shall not be considered an endorsement or requirement of Cheeze to use such 2FA Provider.
D. What are the rules for using Cheeze?
Cheeze cannot be used for absolutely any purpose. When using Cheeze, no User is allowed to:
- manipulate the price of a Digital Asset in any way, including bidding on your own items, preventing bidding, or using Cheeze to conceal economic activity.
- email or otherwise upload any content that (i) infringes any intellectual property or other rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, "junk mail," "spam," "chain letters," "pyramid schemes," "contests," "sweepstakes," or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another's privacy, hateful racially, ethnically or otherwise objectionable; or (vii) in the sole judgment of Cheeze, is objectionable or which restricts or inhibits any other person from using or enjoying the Platform, or which may expose Cheeze or its Users to any harm or liability of any type;
- interfere with or disrupt the Platform or servers or networks connected to the Platform, or disobey any requirements, procedures, policies, or regulations of networks connected to the Platform; or
- violate any applicable local, state, national or international law, or any regulations having the force of law, including but not limited to the OFAC, or which would involve proceeds of any unlawful activity;
- impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- solicit personal information from anyone under the age of 18;
- harvest or collect email addresses or other contact information of other Users from the Platform by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
- advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;
- further or promote any criminal activity or enterprise or provide instructional information about illegal activities, including for the purpose of concealing economic activity, laundering money, or financing terrorism;
- obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Platform;
- use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Platform or the content posted on the Platform, or to collect information about its Users for any unauthorized purpose;
- create User accounts by automated means or under false or fraudulent pretenses;
- access or use the Platform for the purpose of creating a product or service that is competitive with any of our products or services.
- use the Platform to promote any works and Digital Assets by any Users other than Users, works, and Digital Assets on the Cheeze Platforms
You shall use the Services for only good faith Transactions for your own purposes and not on behalf of third parties. You shall not use the Services to, directly or indirectly, assist in any activity that is illegal in any nation or jurisdiction including but not limited to Canada, the U.S., the European Union, or the jurisdiction of User. Cheeze reserves the right to add or remove prohibited activities at its sole discretion.
2. Cheeze Rights. If Cheeze believes in its sole discretion, or has reasonable grounds to suspect, that an NFT in a User's Hosted Wallet or account was, in any prior Transaction, purchased with a stolen payment card, obtained by fraudulent means or otherwise in violation of these Terms, Cheeze may exercise any right Cheeze deems necessary in response to a violation of these Terms, including but not limited to pausing or delaying a Transaction, disable access to the user interface of an NFT, or freeze or disable the User's account. Without limitation, Cheeze may freeze an account pursuant to a court order, order by a regulator, order of a key supplier to Cheeze, as required under applicable law or where Cheeze determines, in its sole discretion, that the account poses excessive legal, security, financial or reputational risk to Cheeze, another User or another third party. Accounts may also be frozen throughout the course of internal or external investigations until investigations have been completed. Your account is not an investment account and that NFTs have no intrinsic value; consequently, and without limitation, Cheeze shall have no liability to User for the freezing or termination of an account.
E. How do I become a creator?
1. Creator. A user must open a studio or download the mobile app on Cheeze ("Creator"). A Creator will have the ability to create a limited number of collections and will be entitled to a limited amount of storage. The number of collections and amount of storage may be adjusted by Cheeze from time to time, and the Creator will be notified of those limitations at the time the User becomes a Creator. Cheeze may amend these limitations on notice to the Basic Creator from time to time.
2. Brand. Brands need an invitation to open a Brand Studio on Cheeze.
F. What are the intellectual property rights on the Platform?
1. Creator Rights
The Creator owns all legal right, title, and interest in all intellectual property rights underlying the Digital Asset minted by the Creator on the Platform, including but not limited to copyrights and trademarks. As the copyright owner, the Creator has the right to reproduce, prepare derivative Digital Assets, distribute, and display or perform the Digital Asset.
Each Creator hereby acknowledges, understands, and agrees that selling a Digital Asset on Cheeze constitutes an express representation, warranty, and covenant that the Creator has not, will not, and will not cause another to sell, tokenize, or create another cryptographic token representing a digital collectible for the same Digital Asset, other than as specified in the Digital Asset, excepting, without limitation, the Creator's ability to sell, tokenize, or create a cryptographic token or other Digital Asset representing a legal, economic, or other interest relating to any of the exclusive rights belonging to the Creator under copyright law.
The Creator hereby acknowledges, understands, and agrees that launching a Digital Asset on Cheeze constitutes an express and affirmative grant to Cheeze, its affiliates and successors a non-exclusive, world-wide, assignable, sublicensable, perpetual, and royalty-free license to make copies of, display, perform, reproduce, and distribute the Digital Asset, on any media whether now known or later discovered, solely for effecting Transactions on the Platform, or for operating, promoting, sharing, developing, marketing, and advertising the Platform, which includes the express right to display or perform the Digital Asset on the Platform, a third party platform, social media posts, blogs, editorials, advertising, market reports, virtual galleries, museums, virtual environments, editorials, or to the public, and the express right to create and distribute digital or physical derivative Digital Assets based on the Digital Asset, in connection with operating, promoting, sharing, developing, marketing, and advertising the Platform.
Creators expressly represent and warrant that their Digital Asset listed on Cheeze contains only original content otherwise authorized for use by the Creator, and does not contain unlicensed or unauthorized copyrighted content, including any imagery, design, audio, video, human likeness, or other unoriginal content not created by the Creator, not authorized for use by the Creator, not in the public domain, or otherwise without a valid claim of fair use, does not infringe upon the rights of any nature of any person, living or deceased, or any firm or entity. The Creator further represents and warrants that it has permission to incorporate all unoriginal content included in the Digital Asset.
2. Collectors Rights
Collectors receive a cryptographic token representing the Creator's Digital Asset as a piece of property, but do not own the creative work itself. Collectors may receive other property (e.g., mp3 files, mp4 files, images, physical memorabilia) packaged with the drop of a Digital Asset; any other items or property packaged with a Digital Asset as part of the drop shall be considered part of the Digital Asset for purposes of these Terms with all rights and obligations applying to each element or packaged item in a Digital Asset. Collectors may display and share the Digital Asset. Collectors do not have any IP Rights to the Digital Asset, excepting the limited license to the Digital Asset granted by these Terms and subject to any applicable terms regarding the Digital Asset as determined by the Creator, or unless Creator conveys some or all of Creator's IP Rights to Collector in a Transaction. Upon collecting a Digital Asset, Collectors receive a limited, worldwide, revocable, non-assignable, non-sublicensable, royalty-free license to display the Digital Asset legally owned and properly obtained by the Collector.
The Collector's limited license to display the Digital Asset, includes, but is not limited to, the right to display the Digital Asset privately or publicly: (i) for the purpose of promoting or sharing the Collector's purchase, ownership, or interest, (ii) for the purpose of sharing, promoting, discussing, or commenting on the Digital Asset; (iii) on third party marketplaces, exchanges, platforms, or applications in association with an offer to sell, or trade, the Digital Asset; and (iv) within decentralized virtual environments, virtual worlds, virtual galleries, virtual museums, or other navigable and perceivable virtual environments.
Collectors have the right to sell, trade, transfer, or use their Digital Asset, but Collectors may not make "commercial use" of the Digital Asset. For purposes of these Terms, "commercial use" includes any direct or indirect royalty generating, profit generating, or income generating exploitation of the Digital Asset, or its underlying IP Rights not granted to a Collector by a Creator, other than peer to peer Transaction of the Digital Asset from a Collector's Hosted Wallet to another Collector's wallet.
The Collector may not, nor permit any third party, to do or attempt to do any of the following without the Creator's express prior written consent in each case: (i) modify, distort, mutilate, or perform any other modification to the Work which would be prejudicial to the Creator's honor or reputation; (ii) use the Digital Asset to advertise, market, or sell any third party product or service; (iii) use the Digital Asset in connection with images, videos, or other forms of media that depict hatred, intolerance, violence, cruelty, or anything else that could reasonably be found to constitute hate speech or otherwise infringe upon the rights of others; (iv) incorporate the Digital Asset in movies, videos, video games, or any other forms of media for a commercial purpose, except to the limited extent that such use is expressly permitted by these Terms or solely for your Collector's personal, non-commercial use; (v) sell, distribute for commercial gain, or otherwise commercialize merchandise that includes, contains, or consists of the Digital Asset; (vi) attempt to trademark, copyright, or otherwise acquire additional intellectual property rights in or to the Digital Asset; (vii) attempt to mint, tokenize, or create an additional cryptographic token representing the same Digital Asset, whether on or off of the Cheeze Platform; (viii) falsify, misrepresent, or conceal the authorship of the Digital Asset; or (ix) otherwise utilize the Digital Asset for the Collector's or any third party's commercial benefit other than in an authorized Transaction of the Digital Asset.
Collectors irrevocably release, acquit, and forever discharge Cheeze and its subsidiaries, affiliates, officers, and successors of any liability for direct or indirect copyright or trademark infringement for Cheeze use of a Digital Asset in accordance with these Terms.
3. IP Acknowledgements
A. Platform Content, Software and Trademarks Cheeze owns all legal right, title, and interest in and to all elements of the Platform. You acknowledge and affirm that the Platform may contain content or features ("Platform Content") that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by Cheeze, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Platform or the Platform Content, in whole or in part. In connection with your use of the Platform you will not engage in or use any data mining, robots, scraping, or similar data gathering or extraction methods. If you are blocked by Cheeze from accessing the Platform (including by blocking your IP address), you will not implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Platform or the Platform Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Platform or distributed in connection therewith are the property of Cheeze, our affiliates and our partners (the "Software"). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Cheeze.
The Cheeze name and logos are trademarks and service marks of Cheeze (collectively the "Cheeze Trademarks"). Other company, product, and service names and logos used and displayed via the Platform may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Cheeze. Nothing in this Terms of Service or the Platform should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Cheeze Trademarks or any other party's intellectuals property displayed on the Platform, without our prior written permission in each instance. All goodwill generated from the use of Cheeze Trademarks will inure to our exclusive benefit.
B. Third Party Material. Under no circumstances will Cheeze be liable in any way for any content or materials of any third parties (including Users or Creators or Collectors), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. Cheeze pre-screens, in an automated manner, all content uploaded into and for any Digital Asset or NFT. You acknowledge not to upload unlawful content and Cheeze and its designees have the sole right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Platform. Without limiting the foregoing, Cheeze and its designees will have the right to remove any content that violates these Terms of Service or is deemed by Cheeze, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content and the purchase of any Digital Asset, including any reliance on the accuracy, completeness, or usefulness of such content.
C. User Content Transmitted Through the Platform. With respect to the content, Digital Assets, or other materials you upload through the Platform or share with other Users or recipients, or any User feedback to Cheeze (collectively, "User Content"), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein. By uploading any User Content, you hereby grant and will grant Cheeze and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Platform or the promotion, advertising or marketing thereof in any form, medium or technology now known or later developed.
Any questions, comments, suggestions, ideas, feedback or other information about the Platform ("Submissions"), provided by you to Cheeze are non-confidential and Cheeze will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
Cheeze may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Cheeze, its Users and the public. You understand that the technical processing and transmission of the Platform, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
D. Copyright Complaints Cheeze respects the intellectual property of others, and we ask our Users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify Cheeze of your infringement claim in accordance with the procedure set forth below.
Cheeze will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act ("DMCA") and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Cheeze's Copyright Agent support@Cheeze.com (Subject line: "DMCA Takedown Request").
To be effective, the notification must be in writing and contain the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the Platform, with enough detail that we may find it on the Platform;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
- a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
E. Counter-Notice. If you believe your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent:
- your physical or electronic signature;
- identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
- your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within Northern District of California and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, Cheeze will send a copy of the counter-notice to the original complaining party informing that person that Cheeze may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or User, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
F. Repeat Infringer Policy. In accordance with the DMCA and other applicable law, Cheeze has adopted a policy of terminating, in appropriate circumstances and at Cheeze's sole discretion, Users who are deemed to be repeat infringers. Cheeze may also at its sole discretion limit access to the Platform and/or terminate the memberships of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
G. User Agrees to Cooperate with Cheeze. Creators expressly agree to refund to a Collector and/or Cheeze the entire portion of Fees received from the sale of a Digital Asset that was subsequently removed from the Site pursuant to an effective DMCA request to which the Creator failed to timely submit an effective DMCA Counternotification. Cheeze will not be held liable to any User for removing allegedly infringing works which may appear on the Platform or otherwise fulfilling its legal obligations under the DMCA.
Creators, Collectors, and all Users expressly agree to cooperate and timely respond to Cheeze's investigations, requests, and inquiries related to DMCA disputes or allegations of infringement. Users agree to initiate a "burn" transaction upon Cheeze's request for Digital Assets that have been permanently removed from the Cheeze marketplace pursuant to a valid DMCA Take-Down Notice, or that are otherwise alleged to be infringing.
G. What fees does Cheeze charge?
1. Fees. The Fees for using Cheeze are as follows:
- Brand Studios are subject to a monthly fee based upon the number of users that are members and the number of challenges they host.
- Where applicable some challenges will require an entry fee.
- In the instance that users want to promote or advertise their profiles / challenges Cheeze will take a payment related to the campaign type.
The Fees for any sale of a Digital Asset either of the primary or the secondary sale through the Marketplace on Cheeze is as follows:
- Cheeze collects 2.5% on all transactions conducted on the platform.
You agree and understand that all fees, commissions, and royalties are transferred, processed, or initiated directly as established by Cheeze and each User or Collector. You also consent to the automated collection and disbursement to Creators of royalties for secondary sales of Digital Assets. You hereby waive any first sale defence or argument with respect to secondary sales activities resulting in a royalty to a Creator.
Cheeze does not generally collect any fees, commissions, or royalties for transactions occurring outside of Cheeze. User irrevocably releases, acquits, and forever discharges Cheeze and its subsidiaries, affiliates, officers, and successors of any liability for royalties, fines, or fees not received from any off-market transaction. User acknowledges Cheeze is not a party to any Transaction or any agreement between any Users involving the purchase, offer, sale, auction, or transfer of Digital Assets, whether or not a commission or fee is received by Cheeze as a consequence of the Transaction.
2. Gas. All Transactions and activity on Cheeze, including without limitation minting, tokenizing, bidding, listing, offering, purchasing, or confirming, are facilitated by smart contracts existing on the Flow, SUI and Polygon networks. These networks require the payment of a transaction fee (a "Gas Fee") for every Transaction that occurs on the Flow network, and thus every Transaction occurring on Cheeze. Cheeze does not pay Gas Fees on your behalf unless otherwise stated; Creators and Collectors will be charged a Gas Fee where appliable for any Transaction or other applicable activity on the Platform. The value of the Gas Fee changes, often unpredictably, and is entirely outside of the control of Cheeze. The User acknowledges that under no circumstances will a contract, agreement, offer, sale, bid, or other Transaction on Cheeze be invalidated, revocable, retractable, or otherwise unenforceable on the basis that the Gas Fee for the given Transaction was unknown, too high, or otherwise unacceptable.
3. Taxes. Users are responsible to pay any and all sales, use, value-added and other taxes, duties, and assessments now or hereafter claimed or imposed by any governmental authority, associated with your use of Cheeze (including, without limitation, any taxes that may become payable as the result of your ownership, transfer, purchase, sale, or creation of any artworks).
4. Beta Platforms. Certain features on Cheeze may be offered while still in "beta" form ("Beta Platforms"). Cheeze will seek to identify the Beta Platforms by labeling on its Platform. By accepting these Terms or using the Beta Platforms, you understand and acknowledge that the Beta Platforms are being provided as a "Beta" version and made available on an "As Is" or "As Available" basis. The Beta Platforms may contain bugs, errors, and other problems. YOU ASSUME ALL RISKS AND ALL COSTS ASSOCIATED WITH YOUR USE OF THE BETA PLATFORMS, INCLUDING, WITHOUT LIMITATION, ANY INTERNET ACCESS FEES, BACK-UP EXPENSES, COSTS INCURRED FOR THE USE OF YOUR DEVICE AND PERIPHERALS, AND ANY DAMAGE TO ANY EQUIPMENT, SOFTWARE, INFORMATION OR DATA. In addition, we are not obligated to provide any maintenance, technical, or other support for the Beta Platforms.
5. Cheeze Purchases. Cheeze may give Users the opportunity to separately purchase minting tokens or some other form of credits in-Platform ("Credits"). The dollar value that you use to purchase Credits is a prepayment for Services on the Platform. Credits are only redeemable for Services on the Platform. Unless otherwise required by law or permitted by these Terms, the dollar value you paid to purchase Credits is nonrefundable. The value of these Credits can change at any time and the issuance and redemption of Credits could discontinue at any time. Cheeze has the right to create any other requirements regarding Credits at any time.
H. What about my privacy?
I. Other Legal Terms
1. Indemnity and Release. You agree to release, indemnify and hold Cheeze and its affiliates and their officers, employees, directors and agents (collectively, "Indemnitees") harmless from any from any and all losses, damages, expenses, including reasonable attorneys' fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Platform, any User Content, your connection to the Platform, the Services, your violation of these Terms of Service or your violation of any rights of another. Notwithstanding the foregoing, you will have no obligation to indemnify or hold harmless any Indemnitee from or against any liability, losses, damages, or expenses incurred as a result of any action or inaction of such Indemnitee. If you are a California resident, you waive California Civil Code Section 1542, which says: "A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party." If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
2. Disclaimer of Warranties. Platform Transactions, including but not limited to Initial Sales, Secondary Sales, , listings, offers, bids, acceptances, and other operations utilize experimental smart contract and blockchain technology, including non-fungible tokens, cryptocurrencies, fiat currencies, consensus algorithms, and decentralized or peer-to-peer networks and systems. Users acknowledge that such technologies are experimental, speculative, and inherently risky and may be subject to bugs, malfunctions, timing errors, hacking and theft, or changes to the protocol rules of the Flow blockchain (i.e., "forks"), which can adversely affect the smart contracts and may expose you to a risk of total loss, forfeiture of your digital currency or Digital Assets, or lost opportunities to buy or sell Digital Assets. YOUR USE OF THE PLATFORM IS AT YOUR SOLE RISK. YOU ASSUME ALL RISKS AND ALL COSTS ASSOCIATED WITH YOUR USE OF THE PLATFORM AND THE SERVICES. THE PLATFORM IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. CHEEZE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
CHEEZE MAKES NO WARRANTY THAT (I) THE PLATFORM WILL MEET YOUR REQUIREMENTS, (II) THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PLATFORM WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, PLATFORMS, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE PLATFORM WILL MEET YOUR EXPECTATIONS.
Transactions can take time to be confirmed and may, in some cases, not be completed. In no event will Cheeze be liable to you or to any third party for any of the foregoing.
If the Platform or the Services post a value in a fiat currency in association with a specific NFT in your Hosted Wallet, such posting shall not constitute a representation as to the actual or projected value of such asset. Instead, such posting constitutes either: (i) the potential value attributed to the NFT by another User; or (ii) third party content for your general information only, and you should not rely on such posting for any financial decision. You agree that it is your responsibility to independently ascertain the value of your NFTs, without relying on the Services. Cheeze is not, itself, offering to purchase or sell any NFTs from you or to you under these Terms. You agree that you shall not make any claim against Cheeze that alleges, in whole or in part, that any NFT has anything more than nominal value.
2. Limitation of Liability. YOU EXPRESSLY UNDERSTAND AND AGREE THAT CHEEZE WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, LOSS IN VALUE OF ANY DIGITAL ASSET, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF CHEEZE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE PLATFORM; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND PLATFORMS RESULTING FROM ANY DIGITAL ASSET, GOODS, DATA, INFORMATION OR PLATFORMS PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE PLATFORM; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE PLATFORM; OR (V) ANY OTHER MATTER RELATING TO THE PLATFORM. IN NO EVENT WILL CHEEZE'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID CHEEZE IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE PLATFORM OR WITH THESE TERMS OF PLATFORM, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE PLATFORM.
IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED "DISCLAIMER OF WARRANTIES" AND "LIMITATION OF LIABILITY" ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
J. Here are our termination rights.
You agree that Cheeze, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Platform and remove and discard any content within the Platform, for any reason, including, without limitation, for lack of use or if Cheeze believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of Platform, may be referred to appropriate law enforcement authorities. Cheeze may also in its sole discretion and at any time discontinue providing the Platform, or any part thereof, with or without notice. Any termination of your access to the Platform under any provision of this Terms of Service may be effected without prior notice, and Cheeze may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Platform. Further, Cheeze will not be liable to you or any third party for any termination of your access to the Platform.
K. We do not get involved with User disputes
You agree that you are solely responsible for your interactions with any other Users in connection with the Platform and Cheeze will have no liability or responsibility with respect thereto. Cheeze reserves the right, but has no obligation, to become involved in any way with disputes between you and any other User of the Platform.
L. General Legal Terms
- These Terms of Service constitute the entire agreement between you and Cheeze and govern your use of the Platform, superseding any prior agreements between you and Cheeze with respect to the Platform. You also may be subject to additional terms and conditions that may apply when you become a Creator, use any affiliate or third-party services, third party content or third-party software. These Terms of Service will be governed by the laws of the State of New York applicable to contracts wholly made and performed therein. With respect to any disputes or claims not subject to arbitration, as set forth herein, you and Cheeze agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within New York County, New York. The failure of Cheeze to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Platform, or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. In the event of a breach, you acknowledge your sole remedy shall be an action at law for damages. In no event shall you be entitled to rescind these Terms, or any rights granted to Cheeze, and you shall not be entitled to equitable or injunctive relief. A printed version of these Terms and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign this Terms of Service without the prior written consent of Cheeze, but Cheeze may assign or transfer this Terms of Service, in whole or in part, without restriction. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Platform may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Platform. Neither Party will be liable for any failure or delay in performing an obligation under these Terms that is due to any of the following causes, to the extent such events are beyond such Party's reasonable control: acts of God, accident, riots, war, terrorist act, epidemic, pandemic, quarantine (specifically excluding the current Covid-19 Pandemic/Epidemic, and quarantine related to it), civil commotion, breakdown of communication facilities, natural catastrophes, governmental acts or omissions, national strikes, fire, or explosion.
M. Notice for California Users
Under California Civil Code Section 1789.3, Users of the Platform from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Platforms of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at Cheeze, Inc., 11420 Santa Monica Blvd, PO Box 252111, Los Angeles, CA 90025, or at (657) 229-1518.
Dispute Resolution By Binding Arbitration: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
- Agreement to Arbitrate. This Dispute Resolution by Binding Arbitration section is referred to in this Terms of Service as the "Arbitration Agreement." You agree that any and all disputes or claims that have arisen or may arise between you and Cheeze, whether arising out of or relating to this Terms of Service (including any alleged breach thereof), the Platforms, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. By entering into this Terms of Service, you and Cheeze are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
- Prohibition of Class and Representative Actions and Non-Individualized Relief.
YOU AND CHEEZE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND CHEEZE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
- Pre-Arbitration Dispute Resolution. Cheeze is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer's satisfaction by emailing customer support at support@Cheeze.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute ("Notice"). The Notice to Cheeze should be sent to 40 Worth Street, 10th Floor, New York, NY 10013 ("Notice Address"). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Cheeze and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Cheeze may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Cheeze, or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Cheeze is entitled.
- Arbitration Procedures. Arbitration will be conducted by a single neutral arbitrator in accordance with the American Arbitration Association's ("AAA") rules and procedures, including the AAA's Consumer Arbitration Rules (collectively, the "AAA Rules"), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA's consumer arbitration page, http://www.adr.org/ as may be updated from time to time. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Cheeze and you agree otherwise, any arbitration hearings will take place in New York, NY. If your claim is for $10,000 or less, Cheeze agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
- Costs of Arbitration. If you have a dispute with Cheeze, you will pay all filing, administration, and arbitrator fees (collectively, the "Arbitration Fees"). Arbitration Fees will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. Also, any payment of attorneys' fees will be governed by the AAA Rules.
- Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
- Severability. If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection titled "Prohibition of Class and Representative Actions and Non-Individualized Relief" above) is invalid or unenforceable, the parties will replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection above titled "Prohibition of Class and Representative Actions and Non-Individualized Relief" are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of the Terms of Service will continue to apply.
- Future Changes to Arbitration Agreement. Notwithstanding any provision in this Terms of Service to the contrary, Cheeze agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a User of the Platforms, you may reject any such change by sending Cheeze written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service