Terms and conditions
Introduction of
Welcome to the Peeps Club (“PC”).
The PC is a collection of diverse and personally curated characters – collectively known as the Peeps Club (the “PC”) – made available and maintained on the Ethereum blockchain through Peeps Passport NFTs (the “PassNFTs”). Those Passports can be used to create a customized Peeps Club NFT (“PCNFT”) for you to cherish (collectively, the “Product”).
These Terms and Conditions (“Terms”) set out your rights and obligations in relation to the PassNFTs, the PCNFTs (collectively, the “ACL NFTs”), the PC, the Product and your use of any website (including, without limitation, https://peeps.club (“Website”), social media platform, communication channel or blockchain-based application owned, licensed or used by Ao Collaboration Limited (a New Zealand-registered company, company number 8137164) or its affiliates or related parties (together, “ACL”, “we”, “us” or “our”) in connection with the Peeps Club or the ACL NFTs (together, the “Platform”).
Please take the time to read these Terms carefully.
These Terms incorporate the terms and conditions of the PC Privacy Policy (“Privacy Policy”), both of which can be accessed on the Website. These Terms constitute a legally binding agreement between you and ACL (“Agreement”). We recommend you read the Privacy Policy carefully. Your purchase, ownership, and/or control of an ACL NFT, and/or use of the Platform, constitutes your full and unconditional agreement to these Terms and the Agreement.
The Agreement constitutes the entire agreement between you and ACL with respect to the ACL NFTs. The failure of ACL to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be unlawful, void, invalid or unenforceable, you and ACL nevertheless agree that the court should endeavour to give effect to our intentions as reflected in that provision, and the other provisions of these Terms remain in full force and effect.
Your Warranties, Representations, and Undertakings
By agreeing to these Terms, you will also be deemed to unconditionally warrant, represent and undertake to ACL that:
you have the legal capacity to enter into the Agreement and you are not otherwise barred from participating in the Agreement under applicable law;
you will use and interact with the Platform, your ACL NFT and the ‘PC Materials’ for lawful purposes and in accordance with the Agreement;
you will not use the Platform, your ACL NFT or PC Materials to violate any law, regulation, rule or order or any right of ACL or any third party, including without limitation, any right of privacy, publicity, copyright, trademark, or patent;
you will comply with all applicable laws, regulations, rules and orders (including, without limitation, in relation to ‘Know-Your-Customer’, anti-money laundering, tax, export, import and customs) in connection with your use of the Platform and/or transactions in relation to the ACL NFTs and the PC Materials;
if you participate in the sale or purchase of a ACL NFT outside of New Zealand, you are solely responsible for ensuring that your purchase of the ACL NFT does not violate any applicable laws in that territory;
you have taken independent legal and financial advice in relation to these Terms and their content (or you have elected not to do so);
you have read and understand the full nature and effect of these Terms and you have had sufficient time to consider whether to agree to these Terms and enter into the Agreement; and
you have not been pressured or coerced to agree to these Terms and enter into the Agreement and you have relied on your own judgement in agreeing to these Terms and entering into the Agreement.
We may update these Terms from time to time by providing a new version of the Terms on the Platform. Your continued ownership or control of a ACL NFT, or use of the Platform, after any such update, constitutes your binding acceptance of such changes.
We may immediately terminate the Agreement if you fail to comply with any of these Terms.
Sale - Minting of PassNFTs
The PassNFTs will be offered for sale in two tranches through the Peeps Club website (the “Website”) as follows:
a pre-sale of the PassNFTs will be held on 30 July 2022 (the “Initial Sale”); and
a general sale of the PassNFTs will be held on 31 July 2022 (the “General Sale”),
or at such other times as ACL may determine in its sole and absolute discretion (collectively, the “PC Mint”).
You acknowledge and agree that:
https://my.peeps.club is only an interface allowing participants to purchase PassNFTs and create PCNFTs; and
you are entirely responsible for validating all transactions and contracts generated by the Website before approval.
Benefits
Each PassNFT entitles the holder of the PassNFT (the “PassNFT Holder”) to create and customize (1) PCNFT.
Each PCNFT entitles the holder of the PCNFT (the “PCNFT Holder”) the following benefits:
exclusive membership of the PC;
access to the Peeps mirror on the website to update and customise the PCNFT;
the right to Education via the Peeps Academy, which hosts weekly Twitter Spaces, discuss Case Studies, offer tutorials and send security alerts to our community so that they have up-to-date resources for navigating the NFT space;
access to Peeps Community on Peeps Club Discord Server and Peeps World metaverse locations;
Mint Price and Other Costs
The price of each PassNFT, at the Initial Sale and at the General Sale, under the PC Mint, will be determined by ACL in its sole and absolute discretion and will be notified on the Website in advance of each sale (the “Mint Price”). All sales are final. Any payment obligations you incur are binding at the time of purchase.
ACL only accepts payment of the Mint Price for PassNFTs in Ethereum (ETH).
ACL will only provide a refund to you in relation to any purchase of a PassNFT:
if you have paid the Mint Price to ACL (and but are unsuccessful in purchasing due to unavailability (for example, from oversubscription) or
as may otherwise be required by law or as determined by ACL in its sole and absolute discretion.
The Mint Price is exclusive of all Ethereum-related ‘gas’ fees (“Gas Fees”), that may apply) (“Other Fees”). You are solely responsible for paying all such Other Fees.
In the event that any payment is reversed or becomes invalid, including via either a ‘double-spend’ attack, or recall or refund request by a payment processor, you agree to immediately return to us any NFT the subject of such sale where the purchase price has no longer been retained in full by ACL.
By buying or selling an NFT, you agree to pay all applicable fees and, if applicable, you authorise the automatic deduction of such fees (including any transaction fees, Gas Fees and Other Fees as applicable) directly from your payments for the Initial Sale, Public Sale or in respect of any transaction in which an NFT is sold by one person to another person or is otherwise transferred in any manner other than in the Initial Sale or the Public Sale (“Subsequent Sale”). You acknowledge that Gas Fees fund the network of computers that run the Ethereum network, meaning that you will need to pay a Gas Fee for each transaction that occurs via the Ethereum network in connection with your NFT. ACL has no insight into or control over these payments or transactions. You acknowledge and agree that, in some instances, the Gas Fee may be greater than the value, or the acquisition or sale price, of the NFT. As the Smart Contract runs on the Ethereum network, ACL does not have the ability to undo, reverse, or restore any transactions or seize, freeze, or otherwise modify the ownership of any NFT. Accordingly, ACL has no liability to you or to any third party for any claim, action, liability, loss, penalty, expense, cost, injury, damage (actual or consequential) of any kind or nature, suit, judgment, litigation cost, obligation (including reasonable attorneys’ fees) of any kind whatsoever (including for negligence) (together, “Liability”) that may arise as a result of any transactions in relation to the NFT that you engage in or any other transactions that you conduct via the Ethereum network.
Redemption – Peeps Passport Mechanic
Each PassNFT is paired with, and may be redeemable in exchange for, one (1) PCNFT.
A PassNFT Holder can elect to use a PassNFT in exchange for one (1) PCNFT at any time, subject to any restrictions as may be notified by ACL from time to time.
To use a PassNFT, a PassNFT Holder must visit the Website and confirm their choice to use the PassNFT in accordance with the instructions set out on the Website.
Wallets and Delivery of Peeps Club NFTs
ACL does not offer a hosted digital wallet on the Platform nor does it provide custody services in relation to ACL NFTs. You must link a blockchain-based digital wallet (“Wallet”) provided by a third-party wallet provider (“Wallet Provider”) to the Platform before you will be able to purchase a PassNFT or create a PCNFT.
Your use of a Wallet Provider’s products and services is subject to that Wallet Provider’s applicable terms of service. ACL will not be liable to you for any loss that results from your use of a Wallet Provider’s products and services, including Wallets.
We will deliver any ACL NFTs that you purchase or redeem from us directly to your Wallet and you will be responsible for keeping safe and secure the passwords and keys associated with your Wallet. We will not be able to recover purchased or redeemed ACL NFTs for you in the event that you lose access to your Wallet account or under any other circumstances.
Delivery by ACL of a ACL NFTs to you is conditional upon the following terms being met:
PassNFTS
your payment to ACL, and ACL’s receipt, of the Mint Price in full, without set-off or deduction;
ACL’s confirmation of a successful sale of the PassNFT in question;
your confirmation to ACL, through the Website, of the Wallet to which your PassNFT will be delivered; and
your successful completion (as determined by ACL in its sole and absolute discretion) of any applicable diligence, including without limitation any “Know-your-Consumer”, anti-money laundering, sanctions, and other processes as may be required by ACL.
PCNFTs
your confirmation to ACL, through the Website, of the burning of (1) PassNFT for redemption of the PCNFT
ACL’s confirmation of a successful signature and burning of the PassNFT in question;
your confirmation to ACL, through the Website, of the Wallet to which your PCNFT will be delivered; and
your successful completion (as determined by ACL in its sole and absolute discretion) of any applicable diligence, including without limitation any “Know-your-Consumer”, anti-money laundering, sanctions, and other processes as may be required by ACL.
If you fail to meet any of the conditions above, ACL may suspend the delivery of the purchased ACL NFTs.
You are entirely responsible for the safety and management of your own Wallet.
ACL will use its reasonable endeavours to deliver any purchased or redeemed ACL NFTs to your nominated Wallet by the date ACL nominates for delivery. You acknowledge, however, that the delivery date may change for reasons within or outside ACL’s control, including at ACL’s sole and absolute discretion.
You assume full responsibility and liability for any losses resulting from any intentional or unintentional misuse of any Wallet used to receive, store, exchange or send a ACL NFTs including, without limitation, any loss resulting from designating a non-compliant Wallet for the receipt of the ACL NFTs, any unauthorised third party access to your Wallet, depositing one type of digital asset to a Wallet intended for another type of digital wallet, or any errors, typographical errors or inaccuracies in providing a valid Wallet address for the receipt of a ACL NFTs.
Legal rights
PassNFT and PCNFT Holders (collectively, the “ACL NFT Holder”) own the right to hold, sell, transfer, and otherwise dispose of their ACL NFTs. This right does not include any rights, title, or interest in and to any artwork, designs, drawings, images, photographs, labels, logos, insignia, trademarks, trade dress, copyright, formulae, and other creative materials in connection, or that may be associated, with any ACL NFTs or any intellectual property rights therein (the “PC Materials”).
All rights, title, and interest in and to the PC Materials, all proprietary source code, all object code and all other technology associated with the ACL NFTs, any and all other content and materials available through the ACL NFTs, any associated application, and all intellectual property rights therein (collectively, the “PC IP”), including any other PC IP incorporated in any ACL NFTs (and including all copyrights, trademarks, and other intellectual property rights therein), are, and shall always remain, the sole and exclusive property of ACL.
All PC IP is protected by copyright, trademark and other applicable intellectual property rights and may not be used except as permitted in accordance with the terms and conditions of the Product.
ACL grants to each ACL NFT Holder a limited, non-exclusive, non-transferable, non-sublicensable, revocable licence to access and use the Website (and any social media platform, communication channel or blockchain-based application owned, licensed or used by ACL or its affiliates or related parties in connection with the PC) (collectively, the “Platform”) and any ACL NFTs held by the ACL NFT Holder (including all software, PC Materials, content, virtual items and other material associated with the ACL NFTs) for a ACL NFT Holder’s own personal, non-commercial use only.
ACL grants to each ACL NFT Holder a limited, non-exclusive, non-transferable, royalty-free licence to display the PC Materials for ACL NFTs they own, solely, for the following purposes:
for the ACL NFT Holder’s own personal, non-commercial use; or
as part of a marketplace that permits the purchase and sale of ACL NFTs (provided that the marketplace cryptographically verifies each ACL NFT Holder’s right to display the PC Materials to ensure that only the ACL NFT Holder in question can display the PC Materials).
ACL grants to each ACL NFT Holder a limited right to assign or transfer their licensed rights referred to above (the “Licensed Rights”) solely in connection with the sale or disposition of their ACL NFT, provided that:
the transferee accepts all of the terms and conditions of the Product;
the ACL NFT Holder has not, prior to the transfer or assignment, breached the terms and conditions of the Product; and
prior to the transfer or assignment, the ACL NFT Holder’s Licensed Rights have not been terminated.
Prohibited Activities
Without limitation, you must not (and you must not permit any third party to or attempt to) engage in any of the following activities:
modify, adapt, translate, or reverse engineer any portion of the Platform, any ACL NFTs or any PC Materials in any way, including without limitation, any associated shapes, designs, drawings, attributes, or colour schemes without prior written approval;
distribute viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or any other items of a destructive or deceptive nature in connection with the Platform, any ACL NFTs or any PC Materials;
interfere with other users’ use of the Platform, any ACL NFTs or the PC Materials;
use the Platform, a ACL NFTs or the PC Materials to advertise, market, or sell any product or service (with the exception of a resale of a ACL NFTs as permitted by these Terms and applicable law);
exploit the Platform, a ACL NFTs or PC Materials for any unauthorised purpose;
use the Platform, ACL NFTs or the PC Materials in any manner which would constitute or amount to an endorsement of or relationship with any particular third party, entity, product, product category, charity or service without ACL’s prior written consent;
grant any third-party the right to use the Platform, ACL NFTs or the PC Materials (unless as otherwise expressly provided for in these Terms);
use the Platform, ACL NFTs or the PC Materials in connection with images, videos, or other forms of media or content that depict or promote violence, illegality, abuse, obscenity, objectionability, intolerance, cruelty, racism, hatred, sexual conduct, illicit drugs or anything else that could reasonably be found to constitute hate speech, infringe upon the rights of others or reflect negatively on ACL or the Peeps Club;
use the Platform, ACL NFTs or the PC Materials in movies, videos, or other forms of media, except solely for your own personal, non-commercial use;
sell, distribute, or otherwise commercialise merchandise that depicts, embodies, contains, or consists of the Platform, ACL NFTs or the PC Materials;
attempt to trademark, copyright, or otherwise acquire any intellectual property rights in the Platform, ACL NFTs or the PC Materials except for the limited licence granted pursuant to these Terms;
otherwise use the Platform, ACL NFTs or the PC Materials for your or any third party’s commercial benefit. To the extent that the Platform, ACL NFTs or the PC Materials contain any intellectual property licensed from a third party, you will not have the right to use such third party intellectual property in any way except as incorporated in the Platform, ACL NFTs or the PC Materials (and subject to all of the restrictions set forth herein with respect to your use of the Platform, ACL NFTs or the PC Materials). The licence granted in these Terms applies only to the extent you continue to own the applicable ACL NFTs. If at any time you sell, transfer or otherwise dispose of a ACL NFTs, the licence granted in these Terms will immediately expire, and you will have no further rights in or to the ACL NFTs or the related PC Materials;
use, employ, or operate Bots or other similar forms of automation to engage in any activity or transaction on the Platform;
remove any copyright, trademark or other proprietary rights, notices or labels contained in or on the Platform or any part of it (including on or in the PC IP) or bypass, modify, defeat or circumvent any technologies or methods to deliver or protect the ACL NFTs or any other PC IP;
use any technology (including, without limitation, spiders, scrapers, site search/retrieval applications, or other devices) to retrieve, index or collect information about the Platform, a ACL NFTs or the PC Materials for any unauthorised purpose; or
acquire a ACL NFTs through inappropriate or illegal means (including, among other things, using a stolen credit card, or a payment mechanism that you do not have the right to use, or purchasing a ACL NFTs and then attempting to charge the cost back to your payment method while still maintaining ownership or control of the ACL NFTs); or
access or use the Platform for the purpose of creating a product or service that is competitive with any of our products or services.
If you engage in any of the prohibited activities set out in clause 36 above, we may, in our sole and absolute discretion, without notice to you, and without limiting any of our other rights or remedies at law or in equity, immediately suspend or terminate any user account you may have with ACL and/or the Peeps Club.
Subsequent Sales and Royalty Payments
In any transaction in which ACL NFTs are sold by one person to another person or is otherwise transferred in any manner other than in the Initial Sale or the General Sale, (a “Subsequent Sale”), the transferor must pay a royalty to ACL in connection with that Subsequent Sale (the “Royalty Payment”). The Royalty Payment will be as determined by ACL in its sole and absolute discretion and regulated by the PC Smart Contract. The Royalty Payment will be notified on the Website in advance of the PC Mint.
Assumptions of Risks
When registering for the Platform or third party services that facilitate access to the Platform, you may be required to select a username and password, private key, or other form of secure authentication that will be used to access your account (“Access Credentials”). You are responsible for any use of your Access Credentials, whether by you or others. You agree to keep your Access Credentials confidential and not share them with anyone else. ACL is not liable for any loss or damage arising from your failure to protect your Access Credentials or any other personal information, including but not limited to loss of access to any ACL NFTs. You authorise ACL to act on instructions received through use of your Access Credentials, and ACL may, but is not obligated to, deny access or block any transaction made through use of your Access Credentials without prior notice.
The ACL NFTs are intangible digital assets. They exist only by virtue of the ownership record maintained on the Ethereum network. Any transfer of ACL NFTs occurs on the decentralised ledger within the Ethereum network, which ACL does not control. ACL does not guarantee that ACL can effect the transfer of any ACL NFTs. You bear full responsibility for verifying the identity, legitimacy, and authenticity of any ACL NFTs you purchase through the Platform. Other than in respect of the Pass Mint, ACL makes no claims about the identity, legitimacy, or authenticity of any ACL NFTs notwithstanding indicators and messages that suggest verification.
The ACL NFTs may not be available due to any number of factors including, but not limited to, periodic system maintenance, scheduled or unscheduled, ‘Force Majeure’ (see clauses 53 and 54 below), unauthorised access, viruses, denial of service or other attacks, technical failure of the Platform and/or telecommunications infrastructure or disruption, and therefore ACL expressly disclaims any express or implied warranty regarding the use and/or availability, accessibility, security or performance of the ACL NFTs caused by such factors. We do not make any representations or warranties against the possibility of deletion, mis-delivery or failure to store communications, personalised settings or other data.
ACL cannot guarantee the security of any data that you disclose online. You accept the inherent security risks of providing information and dealing online over the Internet and will not hold ACL responsible for any breach of security.
You understand, acknowledge and accept all risks associated with the following:
The prices and liquidity of digital assets (including NFTs) generally are extremely volatile. Fluctuations in the price of other digital assets could materially and adversely affect the ACL NFTs, which may also be subject to significant price volatility. We cannot guarantee that any purchasers of ACL NFTs will not lose money. Given the volatility, NFTs such as ACL NFTs should not be considered an investment. You assume all risks in that regard. Digital assets also suffer from valuation and liquidity challenges. ACL does not represent, warrant or guarantee the accuracy or fairness of the price of any ACL NFTs sold on or off the Platform, or that any such ACL NFTs will retain or increase their value. You acknowledge and agree that ACL is not a fiduciary nor owes any duties to you, including the duty to ensure fair pricing of ACL NFTs. You solely bear the risk of loss in purchasing, selling and/or transferring ACL NFTs.
You are solely responsible for determining what, if any, taxes apply to your purchase, sale, or transfer of your ACL NFT(s) (including without limitation, all sales, use, value-added and other taxes, customs, or other import or export taxes, levies, duties, and assessments or hereafter claimed or imposed by any governmental authority, in any jurisdiction). ACL is not responsible for determining your tax reporting or compliance obligations and you are solely responsible for all tax obligations, including payment obligations, arising from your transactions in relation to the Platform and/or your ACL NFT(s).
The ACL NFTs are currently available only on the Ethereum network. You will not be able to transfer your ACL NFTs to any digital wallet that is not compatible with the Ethereum network. In the event that you inadvertently transfer a ACL NFTs to a digital wallet that is not compatible with the Ethereum network, your ACL NFTs may be lost or destroyed.
We do not own or control the Ethereum network (or any other applicable network supported by the Platform), any digital wallet provider, or any other third-party infrastructure provider used in relation to the Platform, and we are not liable for any defects in, unavailability of, or acts or omissions of such third-party infrastructure.
The Ethereum network may be subject to sudden changes in operating rules, and third parties may, from time to time, fork the Ethereum network and implement changes in the operating rules or other features that might result in multiple versions of the network and, possibly, more than one version of the ACL NFTs. This may affect the value and the function of your ACL NFTs and we can temporarily suspend our services while we determine, at our sole and absolute discretion, which network to support. Such networks and forks are outside of our control and we can decide, at our sole and absolute discretion, to abandon or otherwise not support the initial or the copy of the ACL NFTs. We may, at our sole and absolute discretion, obtain and retain the unsupported ACL NFTs.
ACL does not store, send, or receive cryptocurrency assets. Losses due to fraudulent or accidental transactions may not be recoverable. Certain transactions in relation to a ACL NFTs will be deemed to be made when recorded on the Ethereum network, which may not necessarily be the date or time that you initiated the transaction.
There are risks associated with using an Internet-based digital asset, including but not limited to, the risk of hardware, software and Internet connections, the risk of malicious software introduction, and the risk that third parties may obtain unauthorised access to information stored within your Wallet. ACL will not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience when effecting ACL NFT-transactions, however caused.
You assume all responsibility for any adverse effects of disruptions or other issues impacting Ethereum or the Ethereum network.
A lack of use or public interest in the creation and development of distributed ecosystems could negatively impact the development of those ecosystems and related applications, and could therefore also negatively impact the potential utility or value of NFTs generally or of the ACL NFTs.
Digital assets, including blockchain-based assets such as the ACL NFTs, and blockchain technology generally, are relatively new and are subject to evolving risks, and developing laws and regulations, throughout the world. New risks, laws and regulations could negatively impact such technologies, which could adversely affect the use, transfer, exchange or value of the ACL NFTs. You understand and accept all risks in that regard. In addition, there are risks associated with the dependence on third-party decentralised trading platforms, applications or other intermediaries (e.g., exchanges), counterparties or custodians to hold or convert digital assets that may be subject to little or no regulation, or that may operate in violation of regulations, including regulations related to sanctions compliance and anti-money laundering.
Transactions involving the ACL NFT may rely on third-party platforms to perform transactions which are outside of ACL’s control. Therefore, access to and interactions for the ACL NFT may be limited or unavailable.
By participating in the sale and purchase of the ACL NFTs, you represent that you understand the inherent risks associated with using cryptographic and blockchain-based systems, and that you have a working knowledge of digital assets. Such systems may have vulnerabilities or other failures, or other abnormal behaviour. ACL is not responsible for any issues with the blockchains, including forks, technical node issues or any other issues having fund losses as a result. You acknowledge that the cost and speed of transacting with cryptographic and blockchain-based systems are variable and may increase at any time. You further acknowledge the risk that your ACL NFTs may lose some or all of their value while they are supplied from ACL. You further acknowledge that ACL is not responsible for any of these variables or risks and cannot be held liable for any resulting losses that you experience while purchasing or redeeming ACL NFTs. Accordingly, you understand and agree to assume full responsibility for all of the risks of participating in the sale and purchase of the ACL NFT.
The acquisition, trading and/or holding of digital assets (including ACL NFTs) can and often does involve significant and exceptional risks and the losses can be, and often is, immediate and/or substantial. You should carefully consider and assess whether trading or holding ACL NFT is suitable for you depending upon your financial circumstances and tolerance to risk and you should take independent financial advice.
ACL has not advised you to, or recommended that you should, use the Platform and/or acquire a ACL NFTs.
ACL makes no warranties or representations as to the future value or benefits (if any) associated with any ACL NFTs and accepts no liability for any change in value of any ACL NFTs.
You must exercise extreme caution whenever you select, store or transmit your private keys that relate to your ACL NFTs. If another person learns your private key then they can take your ACL NFTs. If you forget or lose your private key or password, you acknowledge that: (1) ACL does not keep a record of that private key; (2) that ACL cannot provide a back-up; (3) you will not be able to access the ACL NFT; and (4) you will lose your ACL NFTs.
If you choose to provide ACL with an address to send your ACL NFTs to, it is your sole responsibility to ensure that you have entered a correct and valid address. ACL is not responsible or liable for any loss of ACL NFTs due to you providing us with an incorrect address.
ACL is not responsible for providing any support, advice or communication regarding your ACL NFTs once it has been received by you. This includes, but is not limited to, hard forks, mainnet swaps, network changes and airdrops.
ACL NFTs are not money or legal tender and do not have governmental or central bank-backing.
User accounts maintained with ACL in connection with the Peeps Club are not subject to any governmental insurance protection or compensation scheme.
Disclaimers, Limitation of Liability and Exclusion of Liability
To the maximum extent permitted by law, the ACLNFTs, the PC Materials and your use of the Platform are provided “as is,” without warranty of any kind. Without limiting the foregoing, ACL explicitly disclaims any implied warranties of title, merchantability, fitness for a particular purpose, quiet enjoyment and non-infringement, and any warranties arising out of course of dealing or usage of trade regarding the ACL NFTs, the PC Materials and your use of the Platform (including, without limitation, the PC Smart Contract and any external websites). ACL makes no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any information or content in relation to the ACL NFTs, the PC Materials or the Platform.
To the maximum extent permitted by law, ACL disclaims and excludes all Liability arising out of or in any way related to:
your access to or use of the Platform (including, without limitation, the ACL NFTs and the PC Materials);
your purchase, sale, ownership, use and interaction with the ACL NFTs or licence in respect of the PC Materials and certain rights associated with the ACL NFTs as set out in these Terms,
any Subsequent Sales;
any payment or transaction that you engage in via the Platform or the Ethereum network in connection with the Peeps Club;
the information, content or materials included on the Platform;
user error such as forgotten passwords, incorrectly constructed transactions, or mistyped wallet addresses;
server failure or data loss;
corrupted wallet files;
unauthorised access to a ACL NFTs; or
any unauthorised third party activities, including without limitation the use of viruses, phishing, brute-forcing or other means of attack against the Ethereum network.
ACL makes no warranty that:
the ACL NFTs, the PC Materials, the Platform or their supporting systems or technology, are reliable, current or error-free or otherwise meets your requirements;
defects in the ACL NFTs, the PC Materials, the Platform or their supporting systems or technology, will be corrected;
the ACL NFTs, PC Materials, the Platform, or ACL’s servers are free of viruses or other harmful components; or
the delivery mechanism for ACL NFTs will be free of viruses or other harmful components.
ACL will not be liable to you or to any third party for any indirect, incidental, special, consequential, or exemplary damages which you may incur, howsoever caused and under any theory of liability, including, without limitation, any loss of profits (whether incurred directly or indirectly), loss of goodwill, loss of business reputation, loss of data, cost of procurement of substitute goods or services, or any other intangible loss, even if ACL has been advised of the possibility of such damages.
You agree that ACL’s total, aggregate liability to you for any and all Liability arising out of or relating to these Terms and the Agreement or your access to or use of (or your inability to access or use) any portion of the Platform, whether in contract, tort, strict liability, or any other legal theory, is limited to NZ$500
You acknowledge and agree that ACL has made the Platform available to you and ACL has entered into the Agreement in reliance upon the various warranty disclaimers, limitations of liability and exclusions of liability set out in these Terms. We would not be able to provide the Platform to you without these limitations.
ACL disclaims all liability or responsibility in connection with third party services, including wallets, browsers, blockchains, and hosting services. Nothing herein nor any participation in the sale and purchase of ACL NFTs in connection with third party services constitutes ACL’s endorsement, recommendation or any other affiliation of or with any third party services.
Nothing in these Terms is intended to limit any rights or remedies that you may have under the Fair Trading Act 1986 (NZ) or the Consumer Guarantees Act 1993 (NZ).
Indemnity
You agree to indemnify and hold harmless, and to continue to indemnify and hold harmless, ACL, its directors, subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners from and against any Liability arising out of or in any way related to:
your access to or use of the Platform (including, without limitation, the ACL NFTs and the PC Materials);
your purchase, sale, ownership, use and interaction with the ACL NFTs or licence in respect of the PC Materials and certain rights associated with the ACL NFTs as set out in these Terms,
any Subsequent Sales;
your breach or anticipatory breach of these Terms or the Agreement;
your misuse of the Platform; or
your violation of applicable laws, rules or regulations in connection with your access to or use of the Platform or interaction with the ACL NFTs.
Force Majeure
ACL will not be liable or responsible to you, nor be deemed to have defaulted under or breached the Agreement, for any failure or delay in fulfilling or performing any of these Terms, when and to the extent such failure or delay is caused by or results from the following force majeure events (“Force Majeure Event(s)”):
acts of God;
flood, fire, earthquake, tsunami, explosion, epidemics, pandemics (including, without limitation, the 2019 novel coronavirus pandemic (also known as COVID-19) (and any related or similar communicable diseases, strains, mutations or derivations thereof) (together, “COVID-19”) or any event, series of events or state of affairs beyond ACL’s reasonable control arising directly or indirectly in relation to or in connection with COVID-19;
war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest;
government order, law, or action;
embargoes or blockades in effect on or after the date of the Agreement;
strikes, labour stoppages or slowdowns or other industrial disturbances;
shortage of adequate or suitable Internet connectivity, telecommunication breakdown or shortage of adequate power or electricity; and
other events beyond ACL’s reasonable control.
If we suffer a Force Majeure Event, we will use reasonable efforts to promptly notify you of the Force Majeure Event, stating the period of time the occurrence is expected to continue. We will use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimised. We will resume the performance of our obligations as soon as reasonably practicable after the removal of the cause. In the event that our failure or delay remains uncured for a period of forty-five (45) consecutive days following written notice given by us under this clause [54], we may thereafter terminate the Agreement upon ten (10) days’ written notice.
Financial Markets Conduct Act 2013
ACL NFTs are intended for consumer enjoyment, use and consumption only, and are not a ‘financial product’ as that term is defined in section 7 of the Financial Markets Conduct Act 2013 (“FMCA”).
No offer or other disclosure document has been, or will be, prepared in relation to the Platform and/or the ACL NFTs or the PC Materials, under the FMCA.
Noting in these Terms, the Agreement or on the Platform qualifies as, or is intended to be, an offer of securities or financial products in any jurisdiction nor does it constitute an offer or an invitation to purchase shares, securities or other financial products. Due to the artistic nature of the project, Peeps Club has not been registered with or approved by any regulator in any jurisdiction. It remains your sole responsibility to assure that the purchase of a ACL NFT is in compliance with laws and regulations in your jurisdiction.
No information on the Platform is or may be considered to be advice or an invitation to enter into an agreement for any investment purpose.
Dispute Resolution
You and ACL must first attempt to resolve any dispute, claim or controversy arising out of or relating to the Agreement or the breach, termination, enforcement, interpretation or validity thereof or the participation in the sale and purchase of ACL NFTs (collectively, a “Dispute”) informally.
If we cannot resolve a dispute under clause [59] within twenty (20) days of you and ACL entering into informal discussions to attempt to resolve the Dispute, either of us may by written notice to the other require that the dispute be dealt with by arbitration. The arbitration will be conducted in Auckland, New Zealand, by a single arbitrator under the Arbitration Act 1996 (NZ). If we do not agree on an arbitrator within five (5) days of receipt of the notice of arbitration, the arbitrator shall be appointed by the President or any other office-holder for the time-being of the New Zealand chapter of the Resolution Institute (or his or her nominee) at the request of any party. Each party will cover its own fees and costs associated with the arbitration. The award of the arbitrator will be final and binding, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing, we may seek and obtain injunctive relief in any jurisdiction in any court of competent jurisdiction.
You acknowledge and agree that:
any Dispute will be resolved solely by way of arbitration referred to in clause [60] above and not by way of a class, representative or consolidated action or proceeding;
you expressly waive and relinquish your right to a trial by jury or to participate as a member of a class of claimants in any class, representative or consolidated action or proceeding involving any Dispute;
the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding; and
if an arbitrator or court of competent jurisdiction decides that any part of the Agreement is invalid or unenforceable, the other parts of the Agreement will still apply.
The arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favour of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the extent that you or we prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
The arbitration provisions set out in these Terms shall survive termination of the Agreement.
Governing Law
The Agreement will be construed in accordance with, and exclusively governed by, the laws of New Zealand without regard to conflict of law rules or principles that would cause the application of the laws of any other jurisdiction.
Miscellaneous
The failure of ACL to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision.
You agree that communications and transactions between you and ACL may be conducted electronically and satisfy any legal requirement that such communication be in writing.
These Terms may not be transferred, assigned or delegated by you, by operation of law or otherwise, our prior written consent or except as may otherwise be provided for in the Agreement without, and any attempted transfer, assignment or delegation without such consent, or in accordance with the Agreement, will be void and without effect.
We may freely transfer, assign or delegate the Terms, in whole or in part, without your prior written consent.
Except as otherwise provided herein, or as may otherwise be determined by ACL in its sole and absolute discretion, these Terms are intended solely for the benefit of you and ACL and are not intended to confer third-party beneficiary rights upon any other person or entity.
Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of the Terms.
Last updated: July 2022