Terms of Service

Last updated March 2021

Welcome to tabuart.com, an online platform that connects creators and collectors and where you can buy, sell, and consume verifiably rare digital blockchain art, assets, creations, products, as well as other standard digital assets, tools, tutorials, or reference packs.

The tabuart.com website (referred to as “tabuart.com” and the "Website" below) and online platform (the “TABU Platform”) (collectively the “Website and Services”) are owned and operated by TABU LLC ("TABU"). The Website and Services are offered to you conditioned on your acceptance of the terms, conditions, and notices contained herein (the "Terms" or “Agreement”). The following Terms constitute a contract between you and TABU. Your use of Website and Services constitutes your agreement to the Terms. If you do not want to agree to these Terms or the corresponding Privacy Policy, you must not access or use the Website or Services.

PLEASE READ THE FOLLOWING CAREFULLY BEFORE PURCHASING ANY PRODUCTS OR SERVICES THROUGH WWW.TABUART.COM OR OUR ONLINE PLATFORM. THIS AGREEMENT IS EFFECTIVE WHEN YOU CLICK THE ACCEPTANCE BUTTON PRESENTED WITH THESE TERMS. THIS AGREEMENT CONTAINS AN AGREEMENT TO ARBITRATE DISPUTES.

If you are entering into this Agreement on behalf of an entity, such as the company you work for, by accepting this Agreement, you are representing and warranting that you have the legal authority to bind that entity. Unless otherwise specified herein, this agreement constitutes the entire agreement between the user and TABU with respect to the Website and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the user and TABU with respect to the Website. A printed version of this agreement and of any notice given in electronic form shall 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. It is the express wish to the parties that this agreement and all related documents be written in English

TABU may in its sole discretion add, remove, change and/or modify this Agreement 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, either through the Platform user interface, in an email notification or through other reasonable means. Any such changes will become effective no earlier than fifteen (15) days after they are posted, except that 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. TABU grants you a personal, non-exclusive, non- transferable, limited privilege to enter and use the Website. The Agreement will remain in effect even after your access to the Service is terminated, or your use of the Service ends.

TABU welcomes your questions or comments regarding the Terms: TABU LLC 30 N Gould St. Ste R Sheridan, Wyoming 82801 Email Address: support@tabuart.com Telephone number: (202) 681-7009

TABLE OF CONTENTS

1. Definitions

2. Eligibility and Acceptable Use

3. Privacy

3. User Accounts

5. Email Communications; TABU Messages

6. Refunds and Credits

7. TABU Subscription Services and Products

8. Prohibited Uses

9. Other Terms and Conditions

10. Licenses

11. Information Provided to TABU

12. Links and Third Party Materials

13. Ratings and Reviews

14. Intellectual Property

15. Disclaimer of Warranties

16. Limitation of Liability, Indemnification, and Release

17. Account Suspension or Termination

18. No Agency

19. Survival

20. Notices

21. International Users

22. Dispute Resolution and Agreement to Arbitrate Disputes

23. Class Action Waiver

24. Choice of Law, Venue

25. General Provisions

1. DEFINITIONS

• In addition to the definitions provided above, the following definitions apply to these Terms:

• "Affiliate and Associate" means any entity that controls, is controlled by or is under common control with TABU, where "control" means possessing, directly or indirectly, the power to direct or cause the direction of the management, policies and operations of such entity, whether through ownership of voting securities, by contract or otherwise.

• "“Artist” means an entity or person that creates artwork, images, or any other original work to license on tabuart.com for users.

• "Content” means any information that may be generated or encountered through use of the Website, such as user interfaces, visual interfaces, trademarks, logos, data files, device characteristics, written text, software, graphics, photographs, images, sounds, artwork, messages and computer code, including but not limited to the design, structure, selection, coordination, expression, “look and feel” and arrangement of such Content, contained on the TABU Website.

• "Creator” means an entity or person that creates anything to post on tabuart.com for users.

• "Downloadable Creations" means a product or service that is purchased or downloaded through the Website, together with any provided documentation. Reference packs, brushes, models, props, tools, add-ons.

• "Non-Downloadable Creations" means a product or service that is purchased or downloaded through the Website, together with any provided documentation.Non- Downloadable Creations include, but are not limited to, Limited Edition blockchain art prints, Timed Edition blockchain art prints, and standard digital art prints.

• "Extension" means a product or service that is purchased or downloaded through the Website, together with any provided documentation. Extensions include, but are not limited to, development modules, add-ons, language packs, design interfaces and themes.

• "Paid Extensions" means Extensions licensed and distributed on the Website or by TABU community members for a charge.

• "Free Extensions" means Extensions licensed and distributed on the Website or by TABU community members for no charge.

• "TABU Software” means the proprietary software developed by TABU designed to implement certain connected features when integrated with or distributed in conjunction with Developer’s Extension pursuant to this Agreement, and all derivatives thereof.

• "Marks" means trademarks, including registered and common law trademarks, trade names, service marks, logos, domain names and designations owned, licensed or used.

• "Third-Party Service Provider” means a third party other than TABU that provides services.

• "You" or "your" or “user” means you and/or the company or other legal entity for which you are accepting this Agreement.

•"Your Information" is defined as any information you provide to TABU in any public area (including, without limitation, the TABU discussion boards or the feedback area) or through any communication. You are solely responsible for Your Information, and we act as a passive conduit for your online distribution and publication of Your Information.

 

2. ELIGIBILITY AND ACCEPTABLE USE

2.1 You understand that by using the Website and Services, particularly the Website, you consent and agree to TABU’s Acceptable Use Policy, incorporated herein by reference.

2.2 By using the Websites and Services and registering for an account you represent and warrant to us that:

(a) you are an individual who can form a legally binding contract at law; and

(b) you are at least 18 years old. This Website and Services are offered and available to users who are 18 years of age or older. By using the Website and Services, you represent and warrant that you are of legal age to form a binding contract with TABU and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Website and Services.

2.3 In order to access the Website or certain password-restricted areas of the Website (such as contributing Materials including reviews, commenting on reviews, and current or future features of the Website) and to use certain services and materials offered on and through the Website, you must register with TABU for an account. You are solely responsible for maintaining the confidentiality and security of your account access information, and for all activities that occur on or through your account, and you agree to immediately notify TABU of any security breach of your account. TABU shall not be responsible for any losses arising out of the unauthorized use of your account.

2.4 You agree to provide accurate and complete information when you register with, and as you use, the Website, and you agree to update your account information and to keep it accurate and complete. You agree that TABU may store and use the information that you provide for use in servicing and maintaining your account (including for purposes of billing where necessary).

2.5 If we believe you are abusing TABU and/or our Services or our policies prohibiting Offers to buy or sell outside of TABU, or in any way we may, in our sole discretion and without limiting other remedies, limit, suspend, or terminate your user account(s), account features, and access to our Services, delay or remove hosted content, remove any special status associated with your account(s), remove, not display, and/or demote listings, reduce or eliminate any discounts, and take technical and/or legal steps to prevent you from using our Services, and recovery of expenses for policy monitoring and enforcement. If you are a seller and you offer or reference your contact information or ask a buyer for their contact information in the context of buying or selling outside of TABU, you may be liable to pay a final value fee applicable to that item, even if the item does not sell.

2.6 We may cancel unconfirmed accounts or accounts that have been inactive for a substantial period of time. Additionally, we reserve the right to refuse, modify, or terminate all or part of our Services to anyone for any reason at our discretion.

 

3. PRIVACY

3.1 You understand that your access and use of the Website and Services will require us to collect and process certain personal information from/about you. For instance, once you register for www.tabuart.com, a profile page is automatically created for you, and some of your personal information and uploaded content may be accessible to users around the world. Your use of the Website and Services, including the Website, is governed by our Privacy Policy.

3.2 To the extent you receive information about another user (for instance, a seller receiving information about a buyer), you must comply with all applicable privacy laws. You may not disclose, sell, rent, or distribute another user's information to a third party for purposes unrelated to our Services. Furthermore, you may not use user information for marketing purposes, via electronic or other means, unless you obtain the consent of the specific user to do so or as expressly permitted by these conditions to do so. That means that each party is responsible for the personal information it processes in providing the Services. For example, if a seller accidentally discloses a buyer’s name and email address when fulfilling another buyer’s order, the seller, not TABU, will be responsible for that unauthorized disclosure.

3.3 If the EU General Data Protection Regulation (“GDPR”) applies to you in connection with your use of the platform, upon your request, TABU will make available a Data Protection Agreement (or Addendum) (“DPA”) designed to meet the requirements of Article 28 of the GDPR pertaining to data processing.

 

4. USER ACCOUNTS

4.1 If you use this Website, you are responsible for registering and selecting a unique username and password for your account by providing your full legal name, current address, phone number, a valid email address, and any other information indicated as required. You must not use a username that is, in our discretion, offensive, derogatory, vulgar, defamatory, obscene, hateful or otherwise unlawful or objectionable. We may modify user names as we see fit. You are solely responsible and liable for all activity conducted through and while logged on your account. In addition to maintaining the confidentiality of your account and password and for restricting access to your computer, you agree to accept responsibility for all activities that occur under your account or password. If you become aware of a security breach, including any loss, theft or unauthorized disclosure or use of your password, you must immediately report the actual or suspected security breach to us by contacting us. TABU will not be liable for any loss or damage from your failure to maintain the security of your account and password.

4.2 All of the information you provide must be accurate and true. You must keep the information we have on file for you up to date. It must be current, and you must have full access to it. For example, if you change your email address, then you must change it on your account.

4.3 Stripe Connected Account Agreement. Some payment processing services made available through the Website and Services to certain account users are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Service Agreement”). By agreeing to these Terms, you also agree, to the extent applicable, to be bound by the Stripe Services Agreement (which may be modified from time to time by Stripe). You also authorize TABU to share such account information and other transaction information related to your use of the payment processing services provided by Stripe.

4.4 You may not assign or otherwise transfer your account to any other person or entity. You acknowledge that TABU is not responsible for third party access to your account that results from theft or misappropriation of your account. TABU and its associates reserve the right to refuse or cancel service, terminate accounts, or remove or edit content in our sole discretion.

4.5 If, however, TABU and sellers are found to be joint data controllers of buyers’ personal information, and if TABU is sued, fined, or otherwise incurs expenses because of something that you did as a joint data controller of buyer personal information, you (as a seller) agree to indemnify TABU for the expenses it occurs in connection with your processing of buyer personal information. See indemnity section below for more information about your indemnification obligations to TABU.

 

5. EMAIL COMMUNICATIONS; TABU MESSAGES

5.1 Visiting tabuart.com or sending emails to TABU constitutes electronic communications. You consent to receive electronic communications and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically, via email and on the Website, satisfy any legal requirement that such communications be in writing. If you send an email to an email address that is not registered in our community, we do not permanently store that e-mail or use that e-mail address for any marketing purpose. We do not rent or sell these email addresses. You consent to us and our associates sending you commercial electronic messages, in the manner described above.

5.2 You may generate or send messages from your account using the TABU message services to other users of the TABU Services with an account (the “Message Services”). In addition to the Terms applicable to the Services, (including TABU’s Acceptable Use Policy, and Privacy Policy), the following terms apply to your access and use of the Message Services:

• TABU employs certain controls to scan the content of TABU messages you deliver using the TABU Message Services prior to delivery (“Content Scanning”). Such Content Scanning is intended to limit spam, phishing, or other malicious content that contravenes these Terms, or TABU’s Acceptable Use Policy (collectively, “Threats”). By using the TABU Message Services, you explicitly grant TABU the right to employ such Content Scanning. TABU does not warrant that the TABU Message Services will be free from Threats, and each TABU merchant is responsible for all content generated by their respective Stores.

• BY GENERATING OR SENDING MESSAGES THROUGH THE MESSAGE SERVICES, YOU AGREE TO COMPLY WITH THE FOLLOWING REQUIREMENTS (THE “MESSAGE SERVICES REQUIREMENTS”). TABU, OR ITS THIRD PARTY PROVIDERS, MAY SUSPEND OR TERMINATE YOUR ACCESS TO AND USE OF THE EMAIL SERVICES IF YOU DO NOT COMPLY WITH THE MESSAGE SERVICES REQUIREMENTS.

• Your use of the Message Services must comply with all applicable laws (e.g., laws relating to spam, privacy, security, obscenity, etc.). It is your responsibility to know and understand the laws applicable to your use of the Message Services and the emails messages you generate or send through the Message Services.

• Your use of the Message Services must comply with TABU’s Privacy Policy. It is your responsibility to read and understand the Privacy Policy applicable to your use of the Message Services and the messages you generate or send through the Message Services.

• You will use commercially reasonable efforts not to send sensitive personal data, including information regarding an individual’s medical or health condition, race or ethnic origin, political opinions, religious or philosophical beliefs, or other sensitive data through the Message Services.

• Your use of the Message Services must follow all applicable guidelines established by TABU. The guidelines below are examples of practices that may violate the Message Services Requirements when generating, or sending emails through the Message Services:

• sending spam messages

• including “junk messages,” “chain letters,” “pyramid schemes,” incentives (e.g., coupons, discounts, awards, or other incentives) or other material in any email that encourages a recipient to forward the message to another recipient.

• If You or a customer knows of or suspects any violations of the Message Services Requirements, please notify TABU at abuse@tabuart.com. TABU will determine compliance with the Message Services Requirements in its discretion.

5.3 The Website may contain bulletin board services, chat areas, news groups, forums, communities, personal web pages, reviews, calendars, and/or other message or communication facilities designed to enable you to communicate with the public at large or with a group (collectively, "Communication Services"). You agree to use the Communication Services only to post, send and receive messages and material that are proper and related to the particular Communication Service. By way of example, and not as a limitation, you agree that when using a Communication Service, you will not: defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others; publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful topic, name, material or information; upload files that contain software or other material protected by intellectual property laws (or by rights of privacy of publicity) unless you own or control the rights thereto or have received all necessary consents; upload files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another's computer; advertise or offer to sell or buy any goods or services for any business purpose, unless such Communication Service specifically allows such messages; conduct or forward surveys, contests, pyramid schemes or chain letters; download any file posted by another user of a Communication Service that you know, or reasonably should know, cannot be legally distributed in such manner; falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded; restrict or inhibit any other user from using and enjoying the Communication Services; violate any code of conduct or other guidelines which may be applicable for any particular Communication Service; harvest or otherwise collect information about others, including email addresses, without their consent; violate any applicable laws or regulations. TABU has no obligation to monitor the Communication Services. However, TABU reserves the right to review materials posted to a Communication Service and to remove any materials in its sole discretion. TABU reserves the right to terminate your access to any or all of the Communication Services at any time without notice for any reason whatsoever. TABU reserves the right at all times to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, at TABU's sole discretion. Always use caution when giving out any personally identifying information about yourself or your children in any Communication Service. TABU does not control or endorse the content, messages or information found in any Communication Service and, therefore, TABU specifically disclaims any liability with regard to the Communication Services and any actions resulting from your participation in any Communication Service. Managers and hosts are not authorized TABU spokespersons, and their views do not necessarily reflect those of TABU. Materials uploaded to a Communication Service may be subject to posted limitations on usage, reproduction and/or dissemination. You are responsible for adhering to such limitations if you upload the materials.

 

6. REFUNDS AND CREDITS

6.1 Subscriptions: There are no refunds for subscriptions.

6.2 All sales are final.

 

7. TABU SUBSCRIPTION SERVICES AND PRODUCTS

7.1 Many portions of the Website are free to use. However, if you wish to use any of the premium services or wish to purchase any subscriptions, auctions, creations, artwork, or products available on the Website, you agree that you will pay TABU the prices posted on the Website for those products and services, plus all applicable taxes, and you will make those payments on the dates set out on the Website. Payments must be made in advance. TABU may change the fees from time-to-time. TABU may charge your payment method for any subscriptions, creations, artwork, or products purchased and for any additional amounts (including any taxes and late fees, as applicable) that may be accrued by or in connection with your account. YOU ARE RESPONSIBLE FOR THE TIMELY PAYMENT OF ALL FEES AND FOR PROVIDING TABU WITH A VALID PAYMENT METHOD FOR PAYMENT OF ALL FEES.

7.2 You agree that you will pay fees applicable to your subscription to the Services (if any) (“Subscription Fees”) and any other applicable fees, including but not limited to applicable fees relating to the value of sales made through your store, auctions, the / TABU online gallery, and or art collection accounts when using credit card payments or cryptocurrency (“Transaction Fees”), without limitation minting, tokenizing, bidding, listing, offering, purchasing, or confirming, are facilitated by smart contracts existing on the Ethereum network, and any fees relating to your purchase or use of any, shipping, or Third Party Services (“Additional Fees”). Together, the Subscription Fees, Auction Fees, Transaction Fees and the Additional Fees are referred to as the “Fees.” For every transaction that occurs on the Ethereum network it requires the payment of a transaction fee (a “Gas fee”). A transaction fee of which may occur on Tabu. Gas fee charges fluctuate and are often unpredictable, outside of Tabu’s control. The User acknowledges that under no circumstances will a contract, agreement, offer, sale, bid, or other transaction on Tabu 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.

7.3 No user is allowed to manipulate the price of a Digital Artwork in any way, including bidding on your own items, preventing bidding, or using Tabu to conceal economic activity.

7.4 TABU will charge applicable Fees to any valid payment method that you authorize (“Authorized Payment Method”), and TABU will continue to charge the Authorized Payment Method for applicable Fees until the Services are terminated, and any and all outstanding Fees have been paid in full. Unless otherwise indicated, all Fees and other charges are in U.S. dollars, and all payments shall be in U.S. currency.

7.5 Subscription Fees are paid in advance and will be billed in 30 day intervals (each such date, a “Billing Date”). Transaction Fees and Additional Fees will be charged from time to time at TABU’s discretion. You will be charged on each Billing Date for all outstanding Fees that have not previously been charged. Fees will appear on an invoice, which will be sent to the Creator’s or collector’s account owner via the email provided. In addition, an invoice will appear on the account page of your Creator and or Art Collector Account’s administration console. Users have approximately two weeks to bring up and settle any issues with the billing of Subscription Fees.

7.6 Subscription Services may be cancelled any time. In order to cancel your Subscription Service, you must email us at support@tabuart.com, indicate that you wish to cancel and follow the instructions that we send you in response. There are no cancellation fees. Canceling your Subscription Service does not provide you a refund for Subscription Service payments already processed, nor does it stop a pending charge. We must receive your cancellation request at least 24 hours before the start of your next Subscription Service term in order to ensure that your cancellation goes into effect before the next billing cycle.

7.7 If we are not able to process payment of Fees using an Authorized Payment Method, we will make a second attempt to process payment using any Authorized Payment Method 3 days later. If the second attempt is not successful, we will make a final attempt 3 days following the second attempt. If our final attempt is not successful, we may suspend and revoke access to your Account and the Services. Your Account will be reactivated upon your payment of any outstanding Fees, plus the Fees applicable to your next billing cycle. You may not be able to access your Account or your storefront / TABU gallery and or TABU collection during any period of suspension. If the outstanding Fees remain unpaid for 60 days following the date of suspension, TABU reserves the right to terminate your Account.

7.8 All Fees are exclusive of applicable federal, provincial, state, local or other governmental sales, goods and services (including Goods and Sales Tax under the Goods and Services Tax Act, Chapter 117A of Singapore), harmonized or other taxes, fees or charges now in force or enacted in the future (“Taxes”).

7.9 You are responsible for all applicable Taxes that arise from or as a result of your subscription to or purchase of TABU’s products and services. To the extent that TABU charges these Taxes, they are calculated using the tax rates that apply based on the billing address you provide to us. Such amounts are in addition to the Fees for such products and services and will be billed to your Authorized Payment Method. If you are exempt from payment of such Taxes, you must provide us with evidence of your exemption, which in some jurisdictions includes an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date we receive evidence satisfactory to TABU of your exemption. If you are not charged Taxes by TABU, you are responsible for determining if Taxes are payable, and if so, self-remitting Taxes to the appropriate tax authorities in your jurisdiction.

• For the avoidance of doubt, all sums payable by you to TABU under these Terms of Service shall be paid free and clear of any deductions or withholdings whatsoever. Other than Taxes charged by TABU to you and remitted to the appropriate tax authorities on your behalf, any deductions or withholdings that are required by law shall be borne by you and paid separately to the relevant taxation authority. TABU shall be entitled to charge the full amount of Fees stipulated under these Terms of Service to your Authorized Payment Method ignoring any such deduction or withholding that may be required.

• You must maintain an accurate location in the administration menu of your TABU Store/ Online Gallery and Art Collector Account. If you change jurisdictions you must promptly update your location in the administration menu.

• TABU does not provide refunds for subscriptions.

7.9 A valid payment method (like a credit card) is required for all Store/ Online Gallery and Art Collector Account. You will be billed for your Subscription Fees every 30 days. Any Transaction Fees or Additional Fees will be charged to your payment method. If we are not able to process payment of Fees using your payment method, we will try again in 3 days. If we are unable to process payment of Fees on the second attempt, we will make a third and final attempt three days later. If payment of Fees is unsuccessful after three attempts, TABU may freeze your Store/ Online Gallery and Art Collector Account. You may be required to remit Taxes to TABU or to self-remit to your local taxing authority.

7.10 YOU ACKNOWLEDGE AND AGREE THAT YOUR SUBSCRIPTION MEMBERSHIP, IF ANY, AUTOMATICALLY RENEWS, AND YOU WILL CONTINUE TO BE CHARGED UNLESS AND UNTIL YOU CANCEL YOUR MEMBERSHIP, OR WE SUSPEND OR TERMINATE IT, IN ACCORDANCE WITH THESE TERMS.

 

8. PROHIBITED USES

8.1 Content. Except as expressly provided in this Agreement, no part of TABU’s Website or Services, including the Website and any Content therein, may be copied, reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted or distributed in any way (including “mirroring”) to any other computer, server, website or other medium for publication or distribution or for any commercial enterprise, without TABU’s express prior written consent.

8.2 Restricted Activities. You may not use any “deep-link”, “page-scrape”, “robot”, “spider” or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Website or any Content, or in any way reproduce or circumvent the navigational structure or presentation of the Website or any Content, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Website. TABU reserves the right to bar any such activity.

You may not attempt to gain unauthorized access to any portion or feature of the Website or TABU Platform, or any other systems or networks connected to the Website, TABU Platform or to any TABU server, or to any of the services offered on or through the Website, by hacking, password “mining” or any other illegitimate means.

You may not probe, scan or test the vulnerability of the Website or TABU Platform or any network connected to the Website, nor breach the security or authentication measures on the Website or any network connected to the Website.

You may not reverse look-up, trace or seek to trace any information on any other user of or visitor to the Website, including any TABU account not owned by you, to its source, or exploit the Website or any service or information made available or offered by or through the Website, in any way where the purpose is to reveal any information, including, but not limited to, personal identification or information, other than your own information, as provided for by the Website.

You agree that you will not take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Website or TABU’s systems or networks, or any systems or networks connected to the Website or to TABU.

You agree not to use any device, software or routine to interfere or attempt to interfere with the proper working of the Website or any transaction being conducted on the Website, or with any other person’s use of the Website.

You may not forge headers or otherwise manipulate identifiers in order to disguise the origin of any message or transmittal you send to TABU on or through the Website or any service offered on or through the Website. You may not pretend that you are, or that you represent, someone else, or impersonate any other individual or entity.

You may not use the Website or any Content for any purpose that is unlawful or prohibited by this Agreement, or to solicit the performance of any illegal activity or other activity, which infringes the rights of TABU or others.

You agree that you will not reproduce, copy, duplicate, sell, resell, rent or trade the Website (or any part thereof) for any purpose.

Your information and your activities on the Website shall not, in TABU’s sole and reasonable discretion: (a) be false, inaccurate or misleading or reflect negatively on TABU; (b) be fraudulent; (c) infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; or (d) violate any law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, antidiscrimination or false advertising).

 

9. OTHER TERMS AND CONDITIONS

9.1 Particular Creations, Extensions, components or features of the Website provided by TABU and/or its licensors, may be subject to separate software or other license agreements or terms of use of Third-Party Service Provider(s). You must read, accept, and agree to be bound by any such separate agreement as a condition of using the Website and any particular components or features of the TABU Website. If there is a conflict between these Terms and the terms posted for or applicable to a specific portion of the Website or for any service offered by a Third-Party Service Provider on or through the Website, these Terms shall control with respect to your use of that portion of the Website or the specific service.

9.2 TABU’s obligations, if any, with regard to its products and services are governed solely by the agreements pursuant to which they are provided, and nothing on the Website should be construed to alter such agreements.

9.3 TABU may make changes to any products or services offered on the Website, or to the applicable prices for any such products or services, at any time, without notice. The materials on the Website with respect to products and services may be out of date, and TABU makes no commitment to update the materials on the Website with respect to such products and services.

 

10. LICENSES

10.1 License of Downloadable Creations and Non-Downloadable Creations

Unless set forth in a separate agreement, the Downloadable Creations and Non-Downloadable Creations made available through the Website are licensed, not sold, to you.

The Creator of each Downloadable Creation and/or Non-Downloadable Creation is solely responsible for that Downloadable Creation and/or Non-Downloadable Creation, the content therein, any warranties to the extent that such warranties have not been disclaimed, and any claims that you or any other party may have relating to that Downloadable Creation and/or Non-Downloadable Creation.

You acknowledge and agree that TABU is a third-party beneficiary of any Creator’s license agreement. You also agree that TABU will have the right (and will be deemed to have accepted the right) to enforce such license against you as a third-party beneficiary thereof.

10.2 Downloadable Creation License Restrictions.

You may auto-download a Downloadable Creation only once; and after being downloaded, it cannot be replaced. You may not make copies or translations to the Downloaded Creations. You may not alter, obscure, or remove the copyright notice on any copy of the Downloadable Creation. Unless set forth in a separate agreement you may not assign, sell, distribute, lease, rent, sublicense, create a derivative use or transfer the Downloadable Creations, nor may you use the Downloadable Creation in a manner that disrupts the operation of any associated services or otherwise in a manner that was intended (for example, by engaging in any unlawful activity through the Downloadable Creation).

10.3 Non-Downloadable Creation License Restrictions

You may NOT auto-download or download a Non-Downloadable Creation. It is only allowed to be streamed through the TABU app. You may not make copies or translations to the Non-Downloaded Creation. Unless set forth in a separate agreement, you may not alter, obscure, or remove the copyright notice on any copy of the Non-Downloaded Creation. You may not assign, sell, distribute, lease, rent, sublicense, create a derivative use or transfer the Non-Downloaded Creations, nor may you use the Non-Downloaded Creations in a manner that disrupts the operation of any associated services or otherwise in a manner that was intended (for example, by engaging in any unlawful activity through the Non-Downloadable Creation).

10.4 Our Right to Use Artist’s Content And Artist's Representations.

Unless set forth in a separate agreement, Artist retains ownership rights to any images Artist uploads, posts, or otherwise transmits to the Website or TABU (“Artist’s Content”). We may use Artist’s Content in a number of different ways, including publicly displaying it, reformatting it, incorporating it into advertisements and other works, creating derivative works from it, promoting it, and distributing it. As such, Artist agrees to the following:

Artist provides a nonexclusive, worldwide, perpetual, irrevocable, fully paid-up, royalty-free license, with the right to sublicense through multiple levels of sublicenses to make, use, have made, sell, offer to sell, copy, reproduce, distribute, publicly perform, publicly display, digitally transmit, modify, promote, create derivative works of, import, and otherwise exploit Artist’s Content;

(b) Artist represents and warrants that Artist’s Content is original to Artist and no other party has any rights thereto;

(c) Artist represents and warrants that Artist’s Content does not infringe the rights of any third party;

(d) Artist acknowledges that TABU has the unrestricted right to use Artist’s Content for any purpose whatsoever, commercial or otherwise, without compensation to Artist or any other person; and,

(e) TABU is not responsible for maintaining any of Artist’s Content and TABU may delete or destroy any of Artist’s Content at any time.

 

11. Information Provided to TABU

11.1 By submitting information of any type to the Website, you automatically grant TABU a royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, publish, translate, create derivative works from, distribute, transmit, perform, and display such information (in whole or in part) worldwide and/or to incorporate into other works in any form, media, or technology now known or later developed for the full term of any rights that may exist in such content or information. TABU may sublicense all or part of its rights under this license or assign them to third parties. With the exception of personal information as outlined in the Privacy Policy, you also acknowledge that such submissions are non-confidential for all purposes.

 

12. LINKS AND THIRD PARTY MATERIALS

12.1 The TABU Website may contain links to other independent third-party websites (“Linked Websites”). These Linked Websites are provided solely as a convenience to our visitors. Such Linked Websites are not under TABU’s control, and TABU is not responsible for and does not endorse the content of such Linked Websites, including any information or materials contained on such Linked Websites. The TABU App, or the integration or enabling of such Third Party Services with the Services does not constitute or imply an endorsement, authorization, sponsorship, or affiliation by or with TABU. TABU does not guarantee the availability of Third Party Services and you acknowledge that TABU may disable access to any Third Party Services at any time in its sole discretion and without notice to you. TABU is not responsible or liable to anyone for discontinuation or suspension of access to, or disablement of, any Third Party Service. TABU strongly recommends that you seek specialist advice before using or relying on Third Party Services, to ensure they will meet your needs. In particular, tax calculators should be used for reference only and not as a substitute for independent tax advice, when assessing the correct tax rates you should charge to your customers. You will need to make your own independent judgment regarding your interaction with these Linked Websites. Certain services made available via tabuart.com are delivered by third party Websites and organizations. By using any product, service or functionality originating from the tabuart.com domain, you hereby acknowledge and consent that TABU may share such information and data with any third party with whom TABU has a contractual relationship to provide the requested product, service or functionality on behalf of tabuart.com users and customers.

12.2 If you install or enable a Third Party Service for use with the Services, you grant us permission to allow the applicable Third Party Provider to access your data and other Materials and to take any other actions as required for the interoperation of the Third Party Service with the Services, and any exchange of data or other Materials or other interaction between you and the Third Party Provider is solely between you and such Third Party Provider. TABU is not responsible for any disclosure, modification or deletion of your data or other Materials, or for any corresponding losses or damages you may suffer, as a result of access by a Third Party Service or a Third Party Provider to your data or other Materials. Google Analytics, Mixpanel, and Heap are Third Party Services that are used within the Services. Your use of the Services is subject to your acceptance of the Google Analytics, Google ADs, Google Google Analytics as it may be amended by Google from time to time. In addition, Mixpanel's Privacy Policy. and Heap's Privacy Policy.

12.3 The relationship between you and any Third Party Provider is strictly between you and such Third Party Provider, and TABU is not obligated to intervene in any dispute arising between you and a Third Party Provider.

12.4 Under no circumstances shall TABU be liable for any direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary or other damages whatsoever, that result from any Third Party Services or your contractual relationship with any Third Party Provider. These limitations shall apply even if TABU has been advised of the possibility of such damages. The foregoing limitations shall apply to the fullest extent permitted by applicable law.

12.5 You agree to indemnify and hold us and (as applicable) our parent, subsidiaries, affiliates, TABU partners, officers, directors, agents, employees, and suppliers harmless from any claim or demand, including reasonable attorneys’ fees, arising out of your use of a Third Party Service or your relationship with a Third Party Provider.

 

13. RATINGS AND REVIEWS

13.1 We may, in our sole discretion, offer a system for rating and/or reviewing Extensions, Downloadable and Non-Downloadable Creations listed on the Extensions or Downloadable and Non-Downloadable Creations directory ("Review"). In the event that we do, you may not take any actions that undermine the integrity of TABU’s rating system.

13.2 In making a Review, you represent and warrant that (1) you are the sole author of the Review and owner of the intellectual property rights thereto; (2) your Review is accurate to the best of your knowledge; and (3) your Review does not violate any confidentiality, non-disclosure, or contractual obligations you might have towards a third party. When your Review consists of a review or evaluation of an Extension, you further represent and warrant that (a) you are a user of the Extension being reviewed; (b) unless you prominently disclose your affiliation and interest in such Review, you are not an employee, contractor, agent, officer or director of the vendor, of the Extension for which you are submitting a review, evaluation or opinion or such vendor’s channel partner (collectively “Vendor”) or a competitor of such Vendor that offers a competitive product or service or such competitor’s channel partner (collectively “Competitor”) and otherwise have no pecuniary interest in such Vendor, Competitor or their Extension; (c) your review does not disclose any confidential information of Vendor; (d) the opinions expressed in the Review are your honest opinions, findings, beliefs and experiences with respect to the Extension; (e) the statements made in the Reviews are not false or misleading in any respect; and (f) the Review is not defamatory, trade libelous, unlawfully threatening or unlawfully harassing.

If TABU, in our sole discretion, determines that your Review is not in compliance with this Agreement, TABU may promptly modify or remove your Review. Any reviews and feedback you provide at the Website shall be deemed to be non-confidential. TABU shall be free to use such information on an unrestricted basis.

 

14. INTELLECTUAL PROPERTY

14.1 You are granted a non-exclusive, non-transferable, revocable license to access and use tabuart.com strictly in accordance with these Terms. As a condition of your use of the Website, you warrant to TABU that you will not use the Website for any purpose that is unlawful or prohibited by these Terms. You may not use the Website in any manner which could damage, disable, overburden, or impair the Website or interfere with any other party's use and enjoyment of the Website. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Website. All content included as part of the Service, such as text, graphics, logos, images, as well as the compilation thereof, and any software used on the Website, is the property of TABU or its suppliers and protected by copyright and other laws that protect intellectual property and proprietary rights. You agree to observe and abide by all copyright and other proprietary notices, legends or other restrictions contained in any such content and will not make any changes thereto. You will not modify, publish, transmit, reverse engineer, participate in the transfer or sale, create derivative works, or in any way exploit any of the content, in whole or in part, found on the Website.Your use of the Website does not entitle you to make any unauthorized use of any protected content, and in particular you will not delete or alter any proprietary rights or attribution notices in any content. You will use protected content solely for your personal use, and will make no other use of the content without the express written permission of TABU and the copyright owner. You agree that you do not acquire any rights in any Downloadable Creation and/or Non-Downloadable Creation. We do not grant you any licenses, express or implied, to the intellectual property of TABU or our licensors except as expressly authorized by these Terms.

14.2 In addition to other prohibitions as set forth in the Terms, you are prohibited from using the Website or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Service or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) use any robot, scraper, data mining tools, data gathering and extraction tools, to spam, phish, pharm, pretext, spider, crawl, or other automated means to access our Services for any purpose, except with the prior express permission of TABU; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Service or any related website, other websites, or the Internet. We reserve the right to terminate your use of the Service or any related website for violating any of the prohibited uses.

14.3 In connection with using or accessing our Services, you will not:

• post, list or upload content or items in inappropriate categories or areas on our Website;

• breach or circumvent any laws, regulations, third-party rights or our systems, Services, policies, or determinations of your account status;

• use our Services if you are not able to form legally binding contracts (for example, if you are under 18 years old), or are temporarily or indefinitely suspended from using our Services, or are a person with whom transactions are prohibited under economic or trade sanctions;

• fail to deliver items sold by you, unless you have a valid reason as set out in an TABU policy, for example, the buyer fails to comply with the posted terms in your listing or you cannot contact the buyer;

• manipulate the price of any item or interfere with any other user's listings;

• post false, inaccurate, misleading, deceptive, defamatory, or libelous content;

• take any action that may undermine the feedback or ratings systems;

• transfer your TABU account (including Feedback) and user ID to another party without our consent;

• distribute or post spam, unsolicited or bulk electronic communications, chain letters, or pyramid schemes;

• distribute viruses or any other technologies that may harm TABU or the interests or property of users;

• interfere with the functioning of our Services, such as by imposing an unreasonable or disproportionately large load on our infrastructure;

• export or re-export any TABU application or tool, except in compliance with the export control laws, and rules and policies of any relevant jurisdictions;

• infringe the copyright, trademark, patent, publicity, moral, database, and/or other intellectual property rights (collectively, "Intellectual Property Rights") that belong to or are licensed to TABU. Some, but not all, actions that may constitute infringement are reproducing, performing, displaying, distributing, copying, reverse engineering, decompiling, disassembling, or preparing derivative works from content that belongs to TABU or someone else;

• infringe any Intellectual Property Rights that belong to third parties affected by your use of our Services or post content that does not belong to you;

• commercialize any TABU application or any information or software associated with such application, except with the prior express permission of TABU;

• harvest or otherwise collect information about users without their consent; or

• circumvent any technical measures used to provide our Services.

14.4 Technology. You acknowledge and agree that TABU or its licensors own all legal right, title and interest in and to the Website and Services, including the Website, and any TABU Software provided to you as a part of and/or in connection with Website (the “Software”), including any and all intellectual property rights that exist therein, whether registered or not, and wherever in the world they may exist. Such Software will be subject to the terms of the license agreement that accompanies the Software. Subject to the limited licenses set forth in this Agreement, nothing in this Agreement transfers or assigns to you any of TABU’s intellectual property rights in our Extensions or our other technology, software, products or services, including, without limitation, any source code to any Extensions (collectively, "our Intellectual Property").

14.5 Trademarks. TABU, the TABU logo, and other TABU trademarks, service marks, graphics, and logos used in connection with the Website and Services, including the Website, are trademarks of TABU LLC. (We don’t have this registered yet but can start by claiming it with the ™ logo and then we can officially register it soon after officially? How would word this?) Other trademarks, service marks, graphics, and logos used in connection with the Website and Services may be the trademarks of their respective owners. You are granted no right or license in any of the aforesaid trademarks, and further agree that you shall not remove, obscure, or alter any proprietary notices (including trademark and copyright notices) that may be affixed to or contained within the Website and Services.

14.6 Copyrights. Notice for Claims of Intellectual Property Violations and Agent for Notice (Digital Millennium Copyright Act). TABU may in its discretion terminate the account or access of anyone who infringes the intellectual property rights of others. TABU is registered with the United States Copyright Office as a Service Provider. If you are a copyright owner or agent thereof and believe that content posted on our website infringes upon your copyright, please submit notice, pursuant to the Digital Millennium Copyright Act (17 U.S.C. § 512(c)) to us with the following information:

14.7 TABU may in its discretion terminate the account or access of anyone who infringes the intellectual property rights of others. TABU is registered with the United States Copyright Office as a Service Provider. If you are a copyright owner or agent thereof and believe that content posted on our website infringes upon your copyright, please submit notice, pursuant to the Digital Millennium Copyright Act (17 U.S.C. § 512(c)) to us with the following information:

• a physical or electronic signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest that is allegedly infringed;

• identification or description of the copyrighted work or other intellectual property that you claim has been infringed. If you are asserting infringement of an intellectual property right other than copyright, please specify the intellectual property right at issue (for example, trademark or patent);

• the URL of the location on our website containing the material that you claim is infringing, or an identification or description of where the material that you claim is infringing is located on the Website, with enough detail that we may find it;

• your address, telephone number, and email address;

• a statement by you that you have a good faith belief that the use of the material complained of 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 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.

TABU's agent designated to receive claims of copyright or other intellectual property infringement may be contacted as follows:

Our address: 30 N. Gould St STE R, Sheridan, WY 82801

By e-mail: copyright@tabuart.com

 

15. DISCLAIMER OF WARRENTIES

15.1 SOME JURISDICTIONS DO NOT ALLOW CERTAIN WARRANTY DISCLAIMERS OR LIMITATIONS ON LIABILITY. ONLY DISCLAIMERS OR LIMITATIONS THAT ARE LAWFUL IN THE APPLICABLE JURISDICTION WILL APPLY TO YOU AND TABU’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

15.2 WE DO NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE TABU WEBSITE OR SERVICES, INCLUDING THE WEBSITE, AND OPERATION OF THE TABU WEBSITE OR SERVICES MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF OUR CONTROL. EXCEPT AS EXPRESSLY STATED HEREIN, TABU DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. TABU DOES NOT REPRESENT OR WARRANT THAT THE TABU WEBSITE AND SERVICES, OR ANY EXTENSION WILL OPERATE SECURELY OR WITHOUT INTERRUPTION. THE TABU WEBSITE AND SERVICES AND ANY EXTENSIONS PROVIDED BY TABU HEREUNDER ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND THE TABU WEBSITE AND SERVICES AND EXTENSIONS ARE SUBJECT TO CHANGE WITHOUT NOTICE. YOU ACKNOWLEDGE THAT YOU HAVE NOT ENTERED INTO THIS AGREEMENT IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION EXCEPT THOSE SPECIFICALLY SET FORTH HEREIN. YOU ASSUME TOTAL RESPONSIBILITY AND ALL RISKS FOR YOUR USE OF THE TABU WEBSITE AND SERVICES AND ANY EXTENSIONS. YOU ACKNOWLEDGE AND AGREE THAT NO SOFTWARE, ONLINE PLATFORM OR WEBSITE CAN BE ENTIRELY SECURE OR FREE OF RISK OF SECURITY BREACHES OR ATTACKS BY THIRD PARTIES, AND THAT WE MAKE NO WARRANTY OR REPRESENTATION THAT OUR ONLINE PLATFORM OR WEBSITE WILL BE SECURE OR FREE FROM DATA BREACHES OR CYBER-ATTACKS

15.3 WHEN YOU USE THE WEBSITE (TABUART.COM), THE TABU CONTENT, THE TABU TOOLS AND SERVICES YOU USE THEM AT YOUR OWN RISK THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE WEBSITE MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION HEREIN. TABU LLC AND/OR ITS SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE WEBSITE AT ANY TIME. TABU LLC AND/OR ITS SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, AND ACCURACY OF THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS CONTAINED ON THE WEBSITE FOR ANY PURPOSE. TABU LLC AND/OR ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

15.4 Please note the following risks in accessing or using TABU: The price and liquidity of blockchain assets, including blockchain asset/non-downloadable creations, are extremely volatile and may be subject to large fluctuations; Fluctuations in the price of other digital assets could materially and adversely affect blockchain asset/non-downloadable creations, which may also be subject to significant price volatility; Legislative and regulatory changes or actions at the state, federal, or international level may adversely affect the use, transfer, exchange, and value of blockchain asset/non-downloadable creations; blockchain asset/non-downloadable creations are not legal tender and are not backed by the government; Transactions in blockchain asset/non-downloadable creations may be irreversible, and, accordingly, losses due to fraudulent or accidental transactions may not be recoverable; Some transactions in blockchain asset/non-downloadable creations shall be deemed to be made when recorded on a public ledger, which is not necessarily the date or time that you initiated the transaction; The value of blockchain asset/non-downloadable creations may be derived from the continued willingness of market participants to exchange fiat currency or digital assets for blockchain asset/non-downloadable creations, which may result in the potential for permanent and total loss of value of a particular TABU should the market for that TABU disappear; The nature of blockchain asset/non-downloadable creations may lead to an increased risk of fraud or cyber attack, and may mean that technological difficulties experienced by Gemini may prevent the access to or use of your Digital Assets; Changes to Third Party Websites (discussed in Section 12 below) may create a risk that your access to and use of the Website will suffer.

15.5 You agree and understand that you are solely responsible for determining the nature, potential value, suitability, and appropriateness of these risks for yourself, and that TABU does not give advice or recommendations regarding blockchain asset/non-downloadable creations, including the suitability and appropriateness of, and investment strategies for, blockchain asset/non-downloadable creations. You agree and understand that you access and use TABU at your own risk; however, this brief statement does not disclose all of the risks associated with blockchain asset/non-downloadable creations and other digital assets. You agree and understand that TABU will not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience when using blockchain asset/non-downloadable creations, however caused.

15.6 TABU reserves the right to do any of the following, at any time, without notice: (1) to modify, suspend or terminate operation of or access to the Website and Services or any portion of the Website, for any reason; (2) to modify or change the Website and Services or any portion of the Website, and any applicable policies or terms; (3) to interrupt the operation of the Website and Services, or any portion of the Website, as necessary to perform routine or non- routine maintenance, error correction, or other changes; or (4) block any user’s right to access the Website and Services or any user name, user handle or other identifier, which could be deemed to be an impersonation or misrepresentation of your identity, or a misappropriation of another person's name or identity.

 

16. LIMITATION OF LIABILITY, INDEMNIFICATION, AND RELEASE

16.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL TABU LLC AND/OR ITS SUPPLIERS OR ANY TABU PARTY, OR ITS HEIRS, SUCCESSORS AND ASSIGNS BE LIABLE BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, PROPERTY DAMAGE, PERSONAL INJURY, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE WEBSITE OR YOUR USE OF THE PLATFORM, WITH THE DELAY OR INABILITY TO USE THE WEBSITE OR RELATED SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE PLATFORM SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE WEBSITE/PLATFORM, OR OTHERWISE ARISING OUT OF THE USE OF THE WEBSITE, WHETHER OR NOT BASED ON CONTRACT, OR IF TABU IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF TABU LLC OR ANY OF ITS SUPPLIERS, ANY TABU PARTY, ITS HEIRS, SUCCESSORS AND ASSIGNS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES SHALL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNTS DUE AND PAYABLE BY TABU TO YOU UNDER THIS AGREEMENT FOR THE MONTH IMMEDIATELY PRECEDING THE DATE UPON WHICH SUCH DAMAGES ACCRUE. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IN SUCH JURISDICTIONS, YOU AGREE THAT THE LIABILITY OF TABU SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH JURISDICTION. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE WEBSITE, OR WITH ANY OF THESE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE WEBSITE.

16.2 You shall indemnify, defend (including by paying reasonable attorneys’ fees and costs), and hold harmless TABU and its affiliates, and each of their officers, directors, shareholders, agents, representatives, licensees and employees (each, an “Indemnified Party”), from and against any and all claims, losses, liabilities, damages, actions, lawsuits and other proceedings, judgments and awards, and costs and expenses (including, without limitation, court costs and reasonable attorneys’ and consultancy fees), arising directly or indirectly, in whole or in part, resulting from your use of the TABU Website and Services, including the Website, whether based in contract or tort (including strict liability) and regardless of the form of action. An Indemnified Party may participate in the defense by counsel of its own choosing, at its own cost and expense. You shall not settle any claim that adversely affects an Indemnified Party or imposes any obligation or liability on an Indemnified Party without the Indemnified Party’s prior written consent.

16.3 To the maximum extent permitted by law, you hereby release each Indemnified Party from all damages (whether direct, indirect, incidental, consequential, or otherwise), losses, liabilities, costs and expenses of every kind and nature, known and unknown, arising out of or in connection with disputes between you and third parties concerning the website or this Agreement. In connection with the foregoing release, you hereby waive (to the maximum extent permitted by law) California Civil Code 1542 (and any other applicable law or statute) which substantially states:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE WHICH, IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.

 

17. ACCOUNT SUSPENSION OR TERMINATION

17.1 Termination by TABU. You agree that TABU may, in its sole discretion and without prior notice, terminate your access to the Website and Services, including the Website, and/or block your future access to the Website and Services if we determine that you have violated this Agreement or other agreements or guidelines, which may be associated with your use of the Website and Services. You may not use the Website and Services to impersonate or misrepresent yourself as another person, a TABU employee, or otherwise misrepresent your affiliation with a person or entity (TABU reserves the right at any time to reject, reclaim, modify or block any user, user name, user handle or other identifier, which could be deemed to be an impersonation or misrepresentation of your identity, or a misappropriation of another person's name or identity, or for any other reason at TABU’s sole discretion).

You also agree that any violation by you of this Agreement will constitute an unlawful and unfair business practice, and will cause irreparable harm to TABU, for which monetary damages would be inadequate, and you consent to TABU obtaining any injunctive or equitable relief that TABU deems necessary or appropriate in such circumstances. These remedies are in addition to any other remedies TABU may have at law or in equity.

You agree that TABU may, in its sole discretion and without prior notice, terminate your access to the Website and Services, for cause, which includes (but is not limited to) (1) requests by law enforcement or other government agencies, (2) a request by you (self-initiated account deletions), (3) discontinuance or material modification of the Website and Services or any service offered on or through the Website and Services, or (4) unexpected technical issues or problems. If TABU does take any legal action against you as a result of your violation of these Terms, TABU will be entitled to recover from you, and you agree to pay all reasonable attorneys’ fees and costs of such action, in addition to any other relief granted to TABU. You agree that TABU will not be liable to you or to any third party for termination of your access to the Website and Services as a result of any violation of these Terms.

17.2 Voluntary Account Termination. You may cancel or terminate your account at any time. In order to do so contact TABU at support@tabuart.com and follow the instructions given to you afterwards.

Once your account is terminated by either party for any reason:

1. Your TABU gallery or collection will be taken offline. (we need to discuss what we will do here)

2. TABU will cease providing you with the Services and you will no longer be able to access your Account;

3. Unless otherwise provided in the Terms, you will not be entitled to any refunds of any Fees, time, credits, points or in your account, pro rata or otherwise;

4. You will have to pay any outstanding balance owed to TABU for your use of the services through the effective date of such termination will immediately become due and payable in full;

5. TABU may (but is not required to) delete some or all of your Content from the Website and from your account within 60 days after termination; and

6. The License will continue in full force and effect for all of your Content, including content the Website deletes;

If at the date of termination of the Service, you owe any outstanding fees you will receive one final invoice via email. Once that invoice has been paid in full, you will not be charged again.

17.3 Effect of Termination. Upon termination of your account, you lose all access to the Website, any data stored thereon, and your account name and Content. You agree upon termination of these Terms to destroy the Extensions, together with all copies, modifications, and merged portions in any form, including any copy in your computer memory or on a hard disk. TABU will not be responsible to you or any third party for any damages that may result or arise out of such termination or suspension of your account and/or access to Website.

17.4 Inactive and Abandoned Accounts: If you do not log into your account for 24 months, your account may be deemed “Inactive”. We may, in our sole discretion, suspend or terminate your account and membership if it becomes inactive.

17.5 TABU reserves the right, in its sole discretion, to terminate your access to the Website and Services or any portion thereof at any time, without notice.

TABU will provide you with specific information on how to proceed in terminating your account. Once the termination is confirmed, your TABU membership will no longer be automatically renewed. If you cancel in the middle of your billing cycle, you’ll have one last email invoice.

 

18. NO AGENCY

You agree that no joint venture, partnership, employment, or agency relationship exists between you and TABU as a result of this agreement or use of the Website and Services.

 

19. SURVIVAL

All terms and conditions that, by their nature, should survive termination of these Terms (regardless of the reason for termination) will survive including, without limitation, all licenses granted by you, all warranties and representations by you, all limitations of liability and disclaimers, and all terms relating to notice, choice of law, choice of venue or dispute resolution. TABU’s remedies under these Terms are cumulative and not exclusive and are in addition to all remedies available at law or in equity. For the avoidance of doubt, sections 1 (Definitions), 6 (Refunds and Credits), 10 (Licenses), 13 (Intellectual Property), 14 (Disclaimer of Warranties ), 16 (Account Suspension or Termination ), 15 (Limitation of Liability, Indemnification, and Release ), 21 (Dispute Resolution and Agreement to Arbitrate Disputes), 22 (Class Action Waiver), 23 (Choice of Law, Venue), and 24 (Miscellaneous) shall survive any termination or expiration of this Agreement.

 

20. NOTICES

20.1 TABU may send you notices with respect to the Website and Services by sending an e-mail message to the email address listed in your contact information. Notice shall be deemed given 24 hours after the email is sent, unless the sending party is notified that the e-mail address is invalid. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to TABU during the registration process. In such case, notice shall be deemed given 3 days after the date of mailing.

20.2 Any notice to TABU that is required or permitted by this Agreement shall be deemed given: (a) if sent by email to support@tabuart.com, upon our receipt of electronic confirmation thereof; or (b) if sent in writing by next day delivery service to 7901 4th St N, STE 300St. Petersburg , FL 33702, upon such delivery.

 

21. INTERNATIONAL USERS

21.1 The Service is controlled, operated and administered by TABU from our offices within the USA. If you access the Website and Service from a location outside the USA, you are responsible for compliance with all local laws. You agree that you will not use the TABU Content accessed through tabuart.com in any country or in any manner prohibited by any applicable laws, restrictions or regulations.

21.2 Orders for Downloadable and Non-Downloadable Creations and Extensions may be accepted and/or processed by associated payment processors and exchanges such as; Stripe, Utrust, and Uphold or any of their subsidiaries or affiliates. The personal information, which you give to TABU when registering for the Website or placing any order for Extensions will be used in connection with your use of the Website or fulfilling your order, and will be transferred to and maintained in TABU’s records in the United States. If you do not consent to this transfer, do not accept this Agreement. Please refer to our Privacy Policy, which may be updated from time to time and which controls in the event of any conflict.

 

22. DISPUTE RESOLUTION AND AGREEMENT TO ARBITRATE DISPUTES

22.1 Many customer concerns can be resolved quickly and to the customer’s satisfaction by contacting TABU at support@tabuart.com. Before taking any formal action, you agree to first contact us and provide a description of your dispute, all relevant documents, and your proposed resolution. If we are unable to resolve your dispute within 30 days of your notice to us, you agree to submit your dispute to binding arbitration or small claims court as set forth in this provision. Please forward your dispute to: TABU 7901 4th St N, STE 300St. Petersburg , FL 33702.

22.2 Agreement to Arbitrate Disputes. This section of the Agreement shall be referred to as the “Agreement to Arbitrate Disputes.” This Agreement to Arbitrate Disputes shall be deemed a contract entered into under the laws of the State of Florida and will be governed by the laws of the State of Wyoming together with the Federal Arbitration Act. The Effective Date of the Agreement To Arbitrate Disputes is December 1, 2020. This Agreement to Arbitrate Disputes may change from time to time, and each change will reflect a new effective date. The operative version of the Agreement to Arbitrate Disputes is the version that applied or applies at the time you accepted the Agreement to Arbitrate Disputes as defined in this Section below.

22.3 Time of Acceptance of Agreement to Arbitrate Disputes. Your agreement with TABU to arbitrate disputes starts when you accept these Terms. You accept the TABU Terms by taking the earliest of any of the following actions (i) receiving the Terms from TABU in connection with a transaction, or otherwise receiving the Terms from TABU: (ii) giving TABU a written or electronic signature or indication accepting the Terms; or (iii) telling TABU orally that you accept the Terms.

22.4 Effect of Acceptance. Once accepted, this Agreement to Arbitrate Disputes applies to all disputes involving you and TABU regardless of when the circumstances giving rise to the dispute occurred, including after the termination of your account or use of any TABU Service. The Agreement to Arbitrate Disputes remains effective even if you stop purchasing or using our Services. If you have any questions, contact us as indicated at the start of this Section to have your questions answered.

22.5 Binding Arbitration. Please read this section carefully as it affects rights that you may otherwise have. This Agreement requires the use of individual arbitration rather than jury trials or class actions to resolve disputes and claims (including ones that already are the subject of litigation). Arbitration is more informal than litigation because it uses a neutral arbitrator instead of a judge or jury and allows for less discovery and less appellate review than a proceeding in a court of law. This arbitration clause shall survive termination of these Terms or termination of your use of the Services. You agree that you are aware that there is no judge or jury in arbitration but that an arbitrator may award you the same damages and relief that you may be able to recover in a court of law subject to the limitation of liability section of this Agreement. You and TABU further agree that the arbitrator must honor the terms of this Agreement. Notwithstanding the foregoing, provided that such action is within the governing jurisdictional limitations, either party may bring a claim on an individual basis only in small claims court or the small claims division of a court of appropriate jurisdiction.

22.6 Claims Covered by Agreement to Arbitrate Disputes. This Agreement to Arbitrate Disputes governs all claims or disputes between you and TABU with no exceptions. References to you and TABU include our respective suppliers, vendors, service providers, service companies, or their respective subsidiaries, officers, agents, partners, employees or consultants, predecessors in interest, successors, and assigns. This Agreement to Arbitrate Disputes includes but is not limited to any and all claims for relief and theories of liability, between you and TABU, whether based in contract, tort, fraud, negligence, regulation or ordinance; claims for relief under any state or federal statutes, including but not limited to the federal and any state analogs of the Americans with Disabilities Act, the Telephone Consumer Protection Act, the Fair Credit Reporting Act, the Fair and Accurate Credit Transactions Act, privacy and data protection laws, and other statutes; claims for common law fraud, misrepresentation, or any other legal or equitable theory arising out of your relationship with TABU, any interactions between you and TABU, and/or claims arising from or related to your contract with TABU. If there is a final judicial determination that applicable law precludes enforcement of this paragraph's limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in a court of law, in which case you agree that the venue for litigating such claim shall be either Orange County, Florida, or your county of residence but only to the extent that you reside in Florida.

22.7 Severance. If any term of this Agreement to Arbitrate Disputes is to any extent invalid, illegal, or incapable of being enforced, such term shall be excluded to the extent of such invalidity, illegality, or unenforceability; all other terms herein shall remain in full force and effect

22.8 Delegation Provision. You and TABU agree that the Arbitrator shall have the power to rule on his or her own jurisdiction, the existence, scope, validity and arbitrability of this Agreement. This Delegation Provision shall be deemed a contract entered into under the laws of the State of Wyoming and will be governed by the laws of the State of Wyoming together with the Federal Arbitration Act. Your agreement with TABU to be bound by this Delegation Provision starts when you accept these Terms.

22.9 Single Arbitrator. Claims shall be heard by a single arbitrator.

22.10 No Class Action In Arbitration. You and TABU agree that any arbitration will be conducted on an individual basis and not on a consolidated, class wide, or representative basis. Further, you and TABU agree that the arbitrator may not consolidate proceedings or consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. Each party waives the right to litigate in court or arbitrate any claim or dispute as a class action, either as a member of a class or as a representative, or to act as a private attorney general. If there is a final judicial determination that applicable law precludes enforcement of this paragraph's limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.

22.11 AAA Rules. The arbitration of any dispute or claim shall be conducted in accordance with the American Arbitration Association (“AAA”) Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Agreement. The AAA Rules are available online at www.adr.org, or by calling the AAA at 1-800-778-7879.

22.12 Interpretation of Agreement to Arbitrate Disputes.You and TABU agree that use of TABU’s Website and Services evidences a transaction in interstate commerce and this arbitration provision will be interpreted and enforced in accordance with the laws of the State of Wyoming, the Federal Arbitration Act and federal arbitration law.

22.13 Payment of Fees in Arbitration. (i) For claims that you bring against TABU: absent a finding that your demand is frivolous, brought for an improper purpose, or malicious as set forth by the standards of Federal Rule of Civil Procedure 11(b), if you initiate an arbitration in which you seek no more than $30,000 in damages, TABU will pay the filing, administration, and arbitrator fees of an arbitration initiated in accordance with this Agreement to Arbitrate Disputes, with the exception that you are responsible for the first $50 in filing fees of an arbitration initiated in accordance with this Agreement to Arbitrate Disputes. If you prevail at arbitration, you will receive your $50 share of the filing costs from TABU. If, however, the arbitrator does deem that your demand was frivolous, was brought for an improper purpose, or was malicious, payment of all fees will be determined in accordance with AAA Rules. Additionally, TABU hereby waives any right to seek its attorneys’ fees from you in the event that it prevails in the arbitration, except where your demand is deemed frivolous, brought for an improper purpose, or malicious under the standard set out above. If you initiate an arbitration in which you seek more than $30,000 in damages, the payment of fees will be governed by the AAA rules. (ii) For claims that TABU brings against you, the payment of fees will be governed by the AAA rules.

22.14 Location of Arbitration. Unless you and TABU agree otherwise and in an effort to reduce the burden of arbitration on you, the location of any arbitration shall be in the Wyoming county of your residence. In the event that you are not a resident of Wyoming at the time you commence arbitration, the location of the arbitration shall be Laramie County, Wyoming, unless you and TABU agree otherwise. Either or both parties may participate in the proceedings by telephone.

22.15 Governing Law in Arbitration Proceeding. The arbitrator shall apply the laws of the State of Wyoming to the substantive issues at issue in the dispute. Notwithstanding anything to the contrary, the arbitrator shall apply the laws of the State of Wyoming and the Federal Arbitration Act to interpret and enforce this Agreement to Arbitrate Disputes and each of its provisions, including with regard to any issues over acceptance of the terms of the Agreement to Arbitrate Disputes. Judgment on the award rendered may be entered by any court of competent jurisdiction.

22.16 Disclosure With Consent of Both Parties. Except as may be required by law, such as through a petition to confirm or a petition to vacate an arbitration award, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.

22.17 Opting Out of Arbitration. You have the right to opt out of this Agreement to Arbitrate Disputes within the earlier of (i) 14 days of your acceptance of the Agreement to Arbitrate Disputes as defined in this Section of the Agreement; or (ii) 14 days after the first of any actions that are deemed to constitute acceptance under this Section of the Agreement. This means that unless we make any changes to the Agreement to Arbitrate Disputes, you will have only one opportunity to opt out of arbitration of any claim between you and TABU. If we make changes to this Agreement to Arbitrate Disputes, you will then have the right to opt out within 14 days of those changes. You may exercise this right to opt out of this Agreement to Arbitrate Disputes by writing to us at support@tabuart.com. Your letter to us must indicate your name, provide your contact information, and state that you are opting out of the Agreement to Arbitrate Disputes. Any opt out received after the opt-out deadline (or, in the case of those mailed, postmarked after the opt-out deadline) will be invalid, and you must pursue any claims or dispute against TABU (as defined in this Section of the Agreement) in arbitration.

 

23. CLASS ACTION WAIVER

If for any reason the Agreement to Arbitrate Disputes is deemed inapplicable or invalid, or to the extent the Agreement to Arbitrate Disputes allows for litigation of disputes in court, or if any claims between you and TABU are litigated in court for any reason, you and TABU waive to the fullest extent permitted by law: (i) any right to pursue any claims on a class or consolidated basis, and (ii) your right to serve in a representative capacity in any class or consolidated basis. If this Class Action Waiver is deemed to any extent invalid, illegal, or incapable of being enforced, it shall be excluded to the extent of such invalidity, illegality, or unenforceability; all other terms of this Agreement hereof remain in full force and effect.

 

24. CHOICE OF LAW, VENUE

Except for the Agreement to Arbitrate Disputes contained in this Agreement, which will be governed by the Federal Arbitration Act and the laws of the State of Wyoming, this Agreement will be governed by the laws of the State of Wyoming, without regard to the state’s choice of law rules. The application to this Agreement of the United Nations Convention of Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act is expressly exclude.

You hereby consent to the exclusive jurisdiction and venue of courts in Wyoming in all disputes arising out of or relating to the use of the Website and Services. Use of the Website is unauthorized in any jurisdiction that does not give effect to all provisions of these Terms, including, without limitation, this section..

 

25. GENERAL PROVISIONS

25.1 You agree to comply fully with all relevant export laws and regulations of the United States ("Export Laws") to assure that neither the Extensions nor any direct product thereof is exported, directly or indirectly, in violation of Export Laws.

25.2 If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced.

25.3 You may also be subject to separate terms that may apply when you use affiliate services, third- party content, or third-party software.

25.4 You agree that this Agreement and all incorporated agreements may be assigned by TABU in accordance with Section 19 "Notices," in our sole discretion. This Agreement will bind your successors but may not be assigned, in whole or part, by you without the written approval of an authorized representative of TABU. Any non-conforming assignment shall be null and void.

25.5 Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.

25.6 Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches.

25.7 This Agreement sets forth the entire understanding and agreement between us with respect to the subject matter hereof today.

25.8 Our failure or delay in the performance of any obligation under this Agreement shall be excused to the extent and for the duration that such failure or delay is occasioned by a force majeure event which shall include, without limitation, acts of God, acts of war, earthquakes, fires, floods, terrorism, riots, civil disorders, rebellions, labor disputes, pandemics, or any circumstances beyond our reasonable control. You are responsible for providing and maintaining your own internet connection and we will have no liability whatsoever resulting from your inability to access the internet or any connection issue that prevents connections with our servers or data centers.

25.9 TABU reserves the right, in its sole discretion, at any time, and from time to time, to modify or discontinue, the Services (or any part thereof) with or without notice (unless otherwise required by applicable law) under which tabuart.com is offered.. The most current version of the Terms will supersede all previous versions. TABU encourages you to periodically review the Terms to stay informed of our updates. Prices can change after a 30 day notice from TABU. TABU may notify you at any time by posting the changes to the TABU Website tabuart.com or administration menu of your TABU store via an announcement. TABU shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Service.

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