travala.com

NFT SALE & PURCHASE AGREEMENT

Last Updated Date: 6 June 2024 

The “Travel Tigers” NFT collectibles (each, a “Collectible”) is part of the AVA Smart Program which is a web3 loyalty program (“Smart Program”) built on the AVA utility token. Each Collectible is a Non-Fungible Token (an “NFT”) on the Ethereum blockchain (the “Blockchain”). The Collectibles are part of a collection of unique, randomly generated NFTs released on the Blockchain and are part of the Smart Program’s highest membership tier(s). AVA Collectibles (Co No.: 383202), a company with its registered address at 2nd Floor, Harbour Place, 103 South Church Street, P.O. Box 472, George Town, Grand Cayman, KY1-1106, Cayman Islands  (the “Seller”, “we”, “us” and “our”) is the issuer and seller of the Collectibles.

This document contains very important information regarding your rights and obligations, as well as conditions, limitations and exclusions that might apply to you. Before you acquire or use the Collectibles, you will need to agree to this NFT Sale & Purchase Agreement (“Agreement”), the AVA Smart Program Terms and Conditions, any terms and conditions incorporated herein by reference  and any additional terms and conditions that apply to the Collectibles (collectively, the “Terms").

THESE TERMS GOVERN THE PURCHASE AND USE OF ANY OF THE COLLECTIBLES. WE ARE ONLY WILLING TO MAKE THE COLLECTIBLES AVAILABLE FOR PURCHASE TO YOU IF YOU ACCEPT ALL OF THESE TERMS, ANY CHANGES TO THESE TERMS AND OTHER TERMS AND CONDITIONS THAT APPLY TO THE COLLECTIBLES. BY CLICKING “I ACCEPT”  OR INDICATING YOUR ACCEPTANCE IN AN ADJOINING BOX, YOU ARE CONFIRMING THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY ALL OF THESE TERMS. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO ACCEPT THESE TERMS ON THAT ENTITY’S BEHALF, IN WHICH CASE “YOU” WILL MEAN THAT ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT ACCEPT ALL OF THESE TERMS, THEN WE HAVE NO INTENTION TO CONTRACT FOR THE SALE OR PURCHASE OF ANY OF THE COLLECTIBLES AND WE RESERVE THE RIGHT TO RESCISSION AND THE RETURN OF ANY COLLECTIBLE TO US. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT PARTICIPATE IN THE SALE & PURCHASE OF THE COLLECTIBLE(S).

ANY PURCHASE OR SALE YOU MAKE, ACCEPT OR PARTICIPATE IN OR OF A COLLECTIBLE WILL BE ENTIRELY AT YOUR RISK. NOTWITHSTANDING ANYTHING TO THE CONTRARY, YOU ACCEPT THAT WE DO NOT CONTROL OR ENDORSE PURCHASES OR SALES OF COLLECTIBLES ON SECONDARY MARKETPLACES. WE EXPRESSLY DENY ANY OBLIGATION TO INDEMNIFY YOU OR HOLD YOU HARMLESS FOR ANY LOSSES YOU MAY INCUR BY TRANSACTING, OR PARTICIPATING IN TRANSACTIONS OF THE COLLECTIBLES WHETHER WITH US OR ON SECONDARY MARKETPLACES.

Any changes to these Terms will be in effect as of the “Last Updated Date” referred to at the top of this page. Your continued use, possession or ownership of the Collectible(s) after the “Last Updated Date” will constitute your acceptance of and agreement to any such changes.

By purchasing a Collectible, you affirm that you are of legal age in your jurisdiction to validly enter into a contract, and you accept and are bound by these Terms. You affirm that if you are using or purchasing the Collectibles on behalf of an organization or company, you have the legal authority to bind any such organization or company to these Terms.

You shall not purchase the Collectibles if you: (i) do not agree to these Terms; (ii) are not of the age of majority in your jurisdiction of residence; (iii) are prohibited from purchasing or using the Collectibles by applicable laws (including in the event you are located in a country that is subject to a U.S. government and/or United Nations sanction/embargo and/or you have been identified as a specially designated national or placed on any U.S. Government or United Nation list of prohibited, sanctioned or restricted parties); or (iv) believe that such purchase constitutes or amounts to an investment with an expectation of profit due to our efforts, or any regulated or financial activity or transaction. We reserve the right to rescind any Collectible transfer that occurred on the above grounds.

1. ACCOUNT SET-UP AND SECURITY

  1. Account and Wallet Set-Up. To purchase the Collectibles, follow the instructions on the website or platform of the relevant AVA ecosystem partner participating in the AVA ecosystem and AVA Smart Program, which in this case would be Travala.com’s (“Partner”)  website (“Platform”). You will also need to use a supported self-custody cryptocurrency wallet (e.g. MetaMask) (“Wallet”), which will enable you to store the Collectibles that you purchase or own.

  1. Account Registration. You must provide accurate and complete registration information when you create an account on the Platform. By creating an account, you agree to provide accurate, current and complete account information about yourself, and to promptly update your account information to maintain accuracy.

  1. Account Security. You are responsible for the security of your account on the Platform and for your Wallet(s). If you become aware of any unauthorized use of your password or of your account, you agree to notify our Smart Program partner immediately at [email protected].

  1. Account Transactions. You can use Partner supported Wallet(s) to purchase, store, and engage in transactions for the purchase of the Collectibles. Transactions that take place in relation to the Collectibles are managed and confirmed via the Blockchain. You understand that your wallet address may be publicly visible when you engage in transactions.

2. PURCHASING

  1. Smart Program and Collectibles. Owners of a Collectible may enjoy the membership benefits (as published on the Platform from time to time) when the Collectible is held in conjunction with membership to the Smart Program, subject to the AVA Smart Program Terms and Conditions. Each Collectible is an NFT on the Blockchain. For the avoidance of doubt, purchasing the Collectibles in itself does not include or provide the buyer/holder of the Collectibles with any membership benefits, and any membership benefits shall be subject to the buyer/holder of the Collectibles satisfying the requirements set out in the AVA Smart Program Terms and Conditions.

  1. Purchasing Collectibles. If you meet the eligibility criteria set out on the Platform, then you can purchase the Collectible(s). There will be no public sale by us or our Partner(s) of the Collectibles and only certain persons will be eligible to purchase a Collectible. You may be able to purchase a Collectible on one or more third-party marketplaces (each a “Marketplace”). If you purchase a Collectible from us, the Collectibles you purchase will be selected at random. If you buy an individual Collectible on a Marketplace, then you may be able to know the exact Collectible that you are purchasing. If you purchase a Collectible through a Marketplace or in any manner other than through us, you understand that such purchases will be entirely at your sole risk.

  1. Characteristics of Collectibles. Collectibles consist of the “Travel Tiger” artwork that comes from a collection of unique, randomly generated NFTs.

  1. Value of Collectibles. Each Collectible has no inherent or intrinsic value. The market value of each Collectible (if any) is uncertain, in the same way the value of any other digital asset is uncertain. We do not make any representation or warranty in relation to the value of each Collectible in a secondary Marketplace nor can the Collectible be returnable or resold back to us once purchased.

  1. Restrictions on Purchases and Transfers: You may not purchase a Collectible if you are a Prohibited Person nor may you transfer a Collectible to any Prohibited Person. A “Prohibited Person” means any such person, as determined by us in our sole and absolute discretion, that is:
    1. unable to pass any know-your-client requirements as may be determined by us or the relevant Partner from time to time;
    2. a resident of or any person or entity that has any relevant connection to any jurisdiction in which entry into, or the performance of any of your obligations under these Terms, would be deemed illegal, unlawful or restricted in any way, or requires licensing, registration or approval of any kind;
    3. a member of the public in the Cayman Islands;
    4. a citizen or resident of or located in, or a legal entity formed or incorporated within or subject to the laws of, a Prohibited Jurisdiction[1] (irrespective of whether use of a virtual private network or other technical workaround to effect such transaction and avoid detection within a Prohibited Jurisdiction);

      5. [1] United States of America, Cuba, Democratic People’s Republic of North Korea, Islamic Republic of Iran, Libya, People’s Republic of China, South Sudan, Sudan (North), Syria, The Crimea, any jurisdiction in which the entry into these Terms, the ownership Collectibles or the use of it is prohibited by applicable law, or any jurisdiction which is subject to United States of America, United Nations or other applicable sanctions or embargoes.

    5. an individual or an individual employed by or associated with a legal entity or a legal entity identified on the United States Department of Commerce’s denied persons or entity list, the United States Department of Treasury’s specially designated nationals or blocked persons lists, the United States Department of State’s debarred parties list, the consolidated sanctions list maintained by the United States Department of Treasury’s Office of Foreign Assets Control any United Nations Security Council sanctions lists or any other sanctions list;
    6. identified as a terrorist organization on any other relevant lists maintained by any state or governmental authority;
    7. acting, directly or indirectly, in contravention of any applicable law;
    8. in any manner limited or prohibited (or that requires licensing, registration or approval of any kind) from the purchasing, possessing, transferring, using or otherwise conducting a transaction involving any amount of digital assets under applicable law;
    9. or has been involved at any time in any type of activity associated with money laundering or terrorist financing or any other applicable anti-corruption or anti bribery statute or has been subject to any investigation or sanction by, or a request for information from, any governmental authority relating to money laundering, terrorist financing, corruption or bribery in any jurisdiction or under any applicable law; or
    10. a politically exposed person (“PEP”) as defined by the Financial Action Task Force (or such similar person under any applicable law) as an individual who is or has been entrusted with a prominent public function or an immediate family member or close associate of a PEP or any corporation, business or other entity that has been formed by, or for the benefit of, a PEP or any immediate family member or close associate of a PEP.

3. PAYMENT, GAS FEES, AND TAXES

  1. Financial Transactions on Platform. Any payments or financial transactions that you engage in via the Platform will be conducted solely through the Blockchain. We have no control over the Blockchain and these payments or transactions, nor do we have the ability to reverse any payments or transactions. We and our Partner(s) shall have no liability to you or to any third party for any claims or damages that may arise as a result of any payments or transactions that you engage in via the Platform, or any other payment or transactions that you conduct via the Blockchain. We do not provide refunds for any purchases of the Collectibles that you might make.

  1. Gas Fees. Every transaction on the Blockchain requires the payment of a transaction fee (each, a “Gas Fee”). You may be required to pay a Gas Fee for each transaction that you initiate in relation to the purchase of the Collectibles. If required, you will be solely responsible to pay any Gas Fee for any transaction that you initiate for the purchase of the Collectibles.

  1. Responsibility for Taxes. You will be solely 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 (collectively, the “Taxes”) associated with your purchase, transfer or use of the Collectibles. Except for income taxes levied on us, you: (a) will pay or reimburse us for all national, federal, state, local or other taxes and assessments of any jurisdiction, including taxes as required by applicable law, regulation or taxes, and amounts levied in lieu thereof based on charges set, services performed or payments made hereunder, as are now or hereafter may be imposed under the authority of any national, state, local or any other taxing jurisdiction; and (b) will not be entitled to deduct the amount of any such taxes, duties or assessments from payments (including but not limited to Gas Fees) made to us pursuant to these Terms.

4. OWNERSHIP, LICENSE, AND OWNERSHIP RESTRICTIONS

YOUR OWNERSHIP OF A COLLECTIBLE WILL ONLY BE RECOGNIZED BY US IF YOU HAVE PURCHASED OR OTHERWISE RIGHTFULLY ACQUIRED SUCH COLLECTIBLE FROM A LEGITIMATE SOURCE AND NOT THROUGH ANY UNLAWFUL MEANS (WHICH SHALL BE DEEMED BY US AT OUR SOLE DISCRETION).

For the purposes of this Section 4, the following capitalized terms will have the following meanings:

“Art” means any art, design, and drawings (in any form or media, including, without limitation, video or photographs) that may be associated with a Collectible that you Own.

“Own” means, with respect to a Collectible, a Collectible that you have purchased or otherwise rightfully acquired from a legitimate source, where proof of such purchase is recorded on the Blockchain.

“Purchased Collectible” means a Collectible that you Own.

“Third Party IP” means any third party patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, trademarks, know-how or any other intellectual property rights recognized in any country or jurisdiction in the world.

  1. Ownership of Collectible. Because each Collectible is an NFT on the Blockchain, when you purchase a Collectible in accordance with these Terms (and not through any unlawful means), you own the underlying NFT. This means that you have the right to swap your Collectible, sell it, or give it away. Ownership of the Collectible is mediated entirely by the Blockchain. Except as otherwise permitted by these Terms, at no point will we seize, freeze, or otherwise modify the ownership of any Collectible.

  1. User License to Art. All intellectual property rights to the Art shall remain with the Seller. Subject to your continued compliance with these Terms, we grant you a worldwide, non-exclusive, non-transferable, royalty-free license to use, copy, and display the Art for your Purchased Collectibles, solely for the following purposes: (a) for your personal or non-commercial use (as determined by the Seller’s sole discretion); (b) as part of a marketplace that facilitates the purchase and sale of your Purchased Collectibles, provided that the marketplace cryptographically verifies each Collectible owner’s rights to display the Art for their Purchased Collectible to ensure that only the actual owner can display the Art; or (c) as part of a third-party website or application that permits the inclusion, involvement, or participation of your Purchased Collectible in a particular manner or activity, provided that the website/application cryptographically verifies each Collectible’s owner’s rights to display the Art for their Purchased Collectible to ensure that only the actual owner can display the Art, and provided that the Art is no longer displayed once the owner of the Purchased Collectible leaves the website/application.

  1. Restrictions on Ownership. You agree that you may not, nor permit any third party to do or attempt to do any of the foregoing without our (or, as applicable, our licensors’) express prior written consent in each case: (a) utilise or modify the Art for your Purchased Collectible in any commercial, misrepresenting or damaging (to goodwill) manner, including, without limitation, the shapes, designs, drawings, attributes, or color schemes; (b) use the Art for your Purchased Collectible to advertise, market, or sell any third-party product or service; (c) use the Art for your Purchased Collectible 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; (d) use the Art for your Purchased Collectible in movies, videos, or any other forms of media, except to the limited extent that such use is expressly permitted in these Terms or solely for your own personal or non-commercial use; (e) sell, distribute for commercial gain (including, without limitation, giving away in the hopes of eventual commercial gain), or otherwise commercialize merchandise that includes, contains, or consists of the Art for your Purchased Collectible; (f) attempt to trademark, copyright, or otherwise acquire additional intellectual property rights in or to the Art for your Purchased Collectible; or (g) otherwise utilize the Art for your Purchased Collectible for yours or any third party’s commercial benefit.

  1. Third Party IP. In the event where the Art associated with your Purchased Collectible contains Third Party IP (e.g., licensed intellectual property from a third party), you understand and agree as follows: (a) that you will not have the right to use such Third Party IP in any way except as incorporated in the Art, and subject to the license and restrictions contained herein; (b) that, depending on the nature of the license granted from the owner of the Third Party IP, we may need to (and reserve every right to) pass through additional restrictions on your ability to use the Art; and (c) to the extent that we inform you of such additional restrictions in writing, you will be responsible for complying with all such restrictions from the date that you receive the notice, and that failure to do so will be deemed a breach of the license contained in this Section 4.

  1. Other Terms of License. The license granted in Section 4(ii) above applies only to the extent that you continue to Own the applicable Purchased Collectible. If at any time you sell, swap, donate, give away, transfer, or otherwise dispose of your Purchased Collectible for any reason, the license granted in Section 4(ii) will immediately expire with respect to that Collectible without the requirement of notice, and you will have no further rights in or to the Art for that Collectible. The restrictions in Sections 4(iv), (v) and (vi) will survive the expiration or termination of these Terms.

  1. All secondary marketplace transactions are subject to the following provisions:
    1. the Collectible transferee (the “Transferee”) shall, by receiving an ownership interest in the Collectible, be deemed to accept all of the provisions of these Terms;
    2. the Collectible transferor (the “Transferor”) shall provide notice to the Transferee of these Terms including a link or other method by which these Terms may be accessible by the Transferee;
    3. the Transferor shall pay us such percentage of the gross amounts paid by the Transferee as we may reasonably determine as a Creator fee (the “Creator Fee”) regardless of the venue of the sale of the Collectible;
    4. the Creator Fee shall, where possible, be integrated into the relevant Marketplace or sale and/or transfer contract between the Transferee and Transferor and paid at the same time as when the Transferor is paid by the Transferee;
    5. both the Transferor and the Transferee acknowledge and agree that the amounts payable hereunder as the Creator Fee do not include, and are not intended to cover, any additional fees imposed or required by the transferring third party platform or Marketplace through which You transfer the Collectible to the Transferee; and
    6. without limitation of any other termination rights, we may suspend or terminate all benefits associated with a Collectible if we have a reasonable basis for believing that it was involved in a sale or ownership transfer that is not compliant with the Terms, or otherwise engaged in any transactions for the purchase or sale of a Collectible without paying the applicable Creator Fee. You, and all subsequent Transferees, shall be responsible for paying the Creator Fees associated with the secondary transaction purchase price, regardless of whether such purchase is fulfilled through a Marketplace, on-chain, off-chain, or in a combination of the foregoing.
  1. User Feedback. You may choose to submit comments, bug reports, ideas or other feedback about the Collectibles and its sale to our Partner(s) or  us, including without limitation about how to improve the sale of the Collectibles (collectively, “Feedback”). By submitting any Feedback, you agree that we and our Partner(s) are free to use such Feedback at our discretion and without additional compensation to you, and to disclose such Feedback to third parties (whether on a non-confidential basis, or otherwise). You hereby grant us a perpetual, irrevocable, nonexclusive, worldwide license under all rights necessary for us to incorporate and use your Feedback for any purpose.

5. TERMINATION

  1. Refunds.  Unless expressly provided in these Terms, all sales and purchases of Collectibles are not refundable nor creditable.

  1. Termination. You agree that we, in our sole discretion and for any or no reason, may terminate these Terms and suspend and/or terminate your ability to use and access the Collectibles and/or the Smart Program benefits that come with the Purchase of the Collectibles without the provision of prior notice. You agree that any suspension or termination of your access to the Smart Program may be without prior notice, and that we will not be liable to you or to any third party for any such suspension or termination.

  1. Other Remedies Available. If we terminate these Terms or suspend or terminate your access to or use of the Collectibles due to your breach of these Terms or any suspected fraudulent, abusive, or illegal activity, then termination of these Terms will be in addition to any other remedies we may have at law or in equity.

  1. Referral to Governmental Authority. We have the right, without provision of prior notice, to take appropriate legal action, including, without limitation, referral to law enforcement or regulatory authority, or notifying the harmed party of any illegal or unauthorized use of the Collectibles. Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone owning or using the Collectibles.

  1. Effect of Termination. Sections 1 and 3 through 12 will survive the termination or expiration of these Terms for any reason.

6. DISCLAIMERS

  1. YOU ACKNOWLEDGE THAT THERE ARE INHERENT RISKS ASSOCIATED WITH NFTS, INCLUDING (WITHOUT LIMITATION) EXTREME VOLATILITY OF MARKET VALUATION, RAPIDLY DEVELOPING REGULATIONS (WHICH MAY LIMIT YOUR ACCESS TO DIGITAL ASSETS), AND THEIR DIGITAL NATURE (WHICH MAY APPEAL TO HACKERS). EVENTS BEYOND OUR CONTROL COULD IMPEDE OR LIMIT YOUR ABILITY TO USE OR ACCESS THE VALUE OF THE COLLECTIBLES, OR EVEN RESULT IN THE LOSS OF YOUR COLLECTIBLES. BY ACKNOWLEDGING THESE RISKS, YOU AGREE THAT THE SELLER, ITS PARTNERS AND THEIR RELATED ENTITIES AND PERSONS CANNOT BE HELD LIABLE FOR LOSSES OR DAMAGES DUE TO SAID RISKS.

  1. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR PURCHASE OF THE COLLECTIBLES ARE AT YOUR SOLE RISK, AND THAT THE PLATFORM AND COLLECTIBLES PURCHASED ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. WE AND OUR PARENT, PARTNERS, SUBSIDIARIES, AFFILIATES, AND LICENSORS MAKE NO EXPRESS WARRANTIES AND HEREBY DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE COLLECTIBLES AND ANY PART OF IT, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, CORRECTNESS, ACCURACY, OR RELIABILITY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE, OUR PARENT, PARTNERS, SUBSIDIARIES, AFFILIATES (INCLUDING THE PLATFORM OPERATOR), AND LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (I) YOUR ACCESS TO OR USE OF THE COLLECTIBLES WILL MEET YOUR REQUIREMENTS; (II) YOUR ACCESS TO OR USE OF THE COLLECTIBLES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR.

  1. NOTWITHSTANDING ANYTHING TO THE CONTRARY ANYWHERE, YOU AGREE THAT THE SALE AND PURCHASE OF THE COLLECTIBLES IS SOLELY MADE IN CONSIDERATION FOR YOU TO HAVE THE RIGHT TO THE COLLECTIBLES, THE TRAVEL TIGER ART DEPICTED ON THE COLLECTIBLES AND THE LICENSE TO IT IN ACCORDANCE TO SECTION 4(II). ANY OTHER BENEFITS, PERKS OR INCENTIVES THAT COME WITH OWNING THE COLLECTIBLES AS STATED OR ADVERTISED WHEN THE COLLECTIBLES ARE CONNECTED WITH THE SMART PROGRAM ARE NOT INTENDED TO BE PERMANENT, AND IS SUBJECT TO CHANGE (E.G. WITH BETTER OR LESSER BENEFITS, PERKS OR INCENTIVES) OR TOTAL DISCONTINUATION AT ANY TIME, AT THE SOLE DISCRETION OF THE SELLER, SMART PROGRAM’S PARTNER(S) OR BOTH.    

  1. YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET, AND AGREE THAT WE AND OUR PARENT AND PARTNER(S) HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY BREACH OF SECURITY UNLESS IT IS DUE TO OUR GROSS NEGLIGENCE.

  1. WE AND OUR PARENT AND PARTNER(S) WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSSES YOU INCUR AS THE RESULT OF YOUR USE OF THE PLATFORM, COLLECTIBLES, BLOCKCHAIN, OR YOUR WALLET, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (I) USER ERROR, SUCH AS FORGOTTEN PASSWORDS OR INCORRECTLY CONSTRUED SMART CONTRACTS OR OTHER TRANSACTIONS; (II) SERVER FAILURE OR DATA LOSS; (III) COMPROMISED WALLETS OR CORRUPTED WALLET FILES; (IV) UNAUTHORIZED ACCESS OR HACKING ACTIVITIES BY THIRD PARTIES, INCLUDING, BUT NOT LIMITED TO, THE USE OF VIRUSES, PHISHING, BRUTE-FORCING OR OTHER MEANS OF ATTACK AGAINST THE PLATFORM, THE BLOCKCHAIN, OR ANY WALLET; OR (V) ANY CHANGES TO THE AVA TOKEN, AVA SMART PROGRAM OR CRYPTOCURRENCY MARKET CONDITIONS.

  1. COLLECTIBLES ARE DIGITAL ASSETS THAT EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED ON THE BLOCKCHAIN. ALL SMART CONTRACTS ARE CONDUCTED AND OCCUR ON THE DISTRIBUTED LEDGER WITHIN THE BLOCKCHAIN. WE HAVE NO CONTROL OVER AND MAKE NO GUARANTEES OR PROMISES WITH RESPECT TO THE ETHEREUM BLOCKCHAIN OR SMART CONTRACTS.

  1. WE, OUR PARENT AND PARTNERS ARE NOT RESPONSIBLE FOR LOSSES DUE TO BLOCKCHAIN TECHNOLOGY OR ANY OTHER FEATURES OF THE ETHEREUM BLOCKCHAIN (AS WELL AS ANY OTHER BLOCKCHAIN WHERE RELEVANT TO THE COLLECTIBLES AND/OR THE AVA SMART PROGRAM), OR ANY WALLET, INCLUDING BUT NOT LIMITED TO LATE REPORT BY DEVELOPERS OR REPRESENTATIVES OR NO REPORT AT ALL OF ANY ISSUES WITH THE BLOCKCHAIN SUPPORTING THE BLOCKCHAIN, INCLUDING FORKS, TECHNICAL NODE ISSUES, OR ANY OTHER ISSUES CAUSING THE LOSS OF ANY CRYPTOCURRENCY UTILIZED AS PAYMENT FOR COLLECTIBLE PURCHASES OR OF COLLECTIBLES THEMSELVES.

  1. YOU WAIVE AND HOLD US AND OUR PARENT, PARTNERS, SUBSIDIARIES, AFFILIATES AND OUR AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, CONTRACTORS, LICENSORS, LICENSEES, SUPPLIERS, AND SUCCESSORS HARMLESS FROM ANY AND ALL CLAIMS RESULTING FROM ANY ACTION TAKEN BY US AND ANY OF THE FOREGOING PARTIES RELATING TO ANY INVESTIGATIONS BY EITHER US, FOREGOING PARTIES OR BY LAW ENFORCEMENT AUTHORITIES.

7. LIMITATION OF LIABILITY

  1. YOU UNDERSTAND AND AGREE THAT WE, OUR PARENT, PARTNERS, SUBSIDIARIES, AFFILIATES AND LICENSORS 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 BUT NOT LIMITED TO, ANY LOSS OF PROFITS (WHETHER INCURRED DIRECTLY OR INDIRECTLY), LOSS OF GOODWILL OR BUSINESS REPUTATION, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, DIMINUTION OF VALUE OR ANY OTHER INTANGIBLE LOSS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

  1. IF IT IS DETERMINED THAT WE (OR ANY PARTY REFERRED TO IN SECTION 7(i)) ARE LIABLE TO YOU FOR ANY LOSS OR DAMAGE IN CONNECTION TO YOUR PURCHASE OR USE OF THE COLLECTIBLES, YOU AGREE THAT OUR TOTAL, AGGREGATE LIABILITY TO YOU FOR ANY AND ALL CLAIMS, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, IS LIMITED TO THE AMOUNT YOU HAVE LAWFULLY PAID US UNDER THESE TERMS IN THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE.

  1. YOU ACKNOWLEDGE AND AGREE THAT WE HAVE MADE THE SALE OF THE COLLECTIBLES AVAILABLE TO YOU AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN, WHICH REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN US AND YOU AND FORM AN ESSENTIAL BASIS OF THE TRANSACTION BETWEEN US AND YOU. WE WOULD NOT BE ABLE TO OFFER THE SALE OF THE COLLECTIBLES AND THE USE OF IT TO YOU WITHOUT THESE LIMITATIONS.

8. ASSUMPTION OF RISK

  1. Value and Volatility. The market prices of collectible blockchain assets are extremely volatile and subjective and collectible blockchain assets (including the Collectibles) have no inherent or intrinsic value. Market movements and fluctuations in the price of other digital assets could materially and adversely affect the value of your Collectibles, which may also be subject to significant price volatility. We cannot guarantee that any Collectibles will retain their purchase price in the market, as the value of Collectibles is inherently subjective and factors occurring outside of the Collectible’s or AVA’s ecosystem may materially impact the value and desirability of any particular Collectible.

  1. Tax Calculations. You are solely responsible for determining what, if any, taxes apply to your Collectible-related transactions or Collectible ownership. We are not responsible for determining the taxes that apply to you in relation to your purchase or ownership of the Collectible.

  1. Use of Blockchain. We do not store or transfer Collectibles. This is because Collectibles exist only by virtue of the ownership record maintained on the Collectibles supporting blockchain. Any transfer of Collectibles occurs within the supporting blockchain, and not by us.

  1. Inherent Risks with Cryptocurrency. There are risks associated with using   cryptocurrency, 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 unauthorized access to your Wallet. You accept and acknowledge that we will not be responsible for any losses, communication failures, disruptions, errors, distortions or delays you may experience due to the Blockchain, however caused.

  1. Regulatory and Legal Uncertainty. The regulatory regime governing blockchain technologies, cryptocurrencies, NFTs and tokens are uncertain, and new regulations or policies may materially and/or adversely affect the development of the AVA or Collectible’s ecosystem, and therefore the potential utility or value of your Collectibles.

  1. Software Risks. Systemic changes to the Blockchain such as upgrades, a hard fork, or a change in how transactions are confirmed on the Blockchain may have unintended, adverse effects on the Collectible’s ecosystem.

9. INDEMNIFICATION

You agree to hold harmless and indemnify us and our parent, Partner(s), subsidiaries, affiliates, officers, agents, employees, advertisers, licensors and suppliers from and against any claim, liability, loss, damage (actual and consequential) of any kind or nature, suit, judgment, litigation cost and attorneys' fees arising out of or in any way related to: (i) your breach of these Terms; (ii) your misuse of the Collectibles; or (iii) your violation of applicable laws, rules or regulations in connection with your access to or use of the Collectibles. You agree that we will have the option (but not the obligation) to control of the defense or settlement of any such claims.

10. FORCE MAJEURE

  1. Force Majeure Events. We will not be liable or responsible to you, nor be deemed to have defaulted under or breached these Terms, 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)”): (a) acts of God; (b) flood, fire, earthquake, epidemics, pandemics, tsunami, explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date hereof; (f) strikes, labour stoppages or slowdowns or other industrial disturbances; (g) shortage of adequate or suitable Internet connectivity, telecommunication breakdown or shortage of adequate power or electricity; and (h) other similar events beyond our control.

  1. Performance During Force Majeure Events. 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 remedy the failure or delay and ensure the effects of such Force Majeure Events are minimized. We will resume the performance of our obligations as soon as reasonably practicable. In the event that our failure or delay remains uncured for a period of sixty (60) consecutive days following written notice given by us under this Section 10, we shall have the option to terminate these Terms.

11. GOVERNING LAW AND JURISDICTION

This Agreement and any rights or obligations arising out of or in connection with the aforesaid as well as the Collectibles shall be governed by, and construed with, the laws of the Cayman Islands, without regard to the conflicts of law provisions of such jurisdiction. The parties to this Agreement irrevocably agree that courts of the Cayman Islands are to have exclusive jurisdiction.

12. GENERAL

  1. Entire Agreement. This Agreement constitutes the entire legal agreement between you and us, and governs the purchase and use of the Collectibles, and completely replaces any prior or contemporaneous agreements between you and us related to your purchase and use of the Collectibles, whether oral or written.

  1. Severability. Should any part of this Agreement be held invalid, illegal, void or unenforceable, that portion will be deemed severed from this Agreement and will not affect the validity or enforceability of the remaining provisions of this Agreement.

  1. No Waivers. Our failure or delay to exercise or enforce any right or provision of this Agreement will not constitute or be deemed a waiver of future exercise or enforcement of such right or provision. The waiver of any right or provision of this Agreement will be effective only if in writing and signed for and on behalf of us by a duly authorized representative.

  1. Notices. We may provide you with any notices (including, without limitation those regarding changes to this Agreement) by email or via postings on the Partner’s Platform. By providing us with your email address, you consent to us using the email address to send you any notices. Notices will be sent by email and will be effective the moment we send the email. It is your responsibility to keep your email address current.

  1. Assignment. You may not assign any of your rights or obligations under this Agreement, whether by operation of law or otherwise, without our prior written consent. We may assign our rights and obligations under this Agreement and Terms at our sole discretion to an affiliate, subsidiary or in connection with an acquisition, sale or merger.

  1. We may effect change, modify, amend, alter or supplement this Agreement and/or Terms (each an “Amendment”) at any time in order to reflect (i) changes to applicable law that may be, or which may otherwise become, applicable to the Collectibles, (ii) any developments that may otherwise reasonably be capable of materially or adversely impact the Collectibles and its use; or (iii) as we may in good faith deem advisable to protect our reputation or the effective operation of the Collectibles.

  1. Your continued use, possession or ownership of the Collectibles after any such Amendment shall constitute your consent to such Amendment and acceptance of the amended Agreement and/or Terms. If we change, amend, modify, alter or supplement this Agreement and/or Terms, we shall publish on the AVA website, and/or our Partner(s) will publish on their Platform the amended version of this Agreement and/or Terms reflecting such Amendment. The revised Agreement and/or Terms will be effective from the date of posting on the Platform and/or on the AVA website or such other date as indicated in the amended Agreement and/or Terms. You waive any right you may have to receive specific notice of such Amendment.