Terms and Conditions
LAST UPDATED – March 2022
If you choose to utilize the Services and your visit to ATOSHIN.art, any privacy dispute are governed by this our Terms of Use and Privacy Protection listed on this Web site, which include restrictions on damages, dispute resolution, and the applicability of California law and European General Data Protection Rules.
Welcome
NEEI LLC, Atoshin.com ("ATOSHIN," "we," "us," or "our") makes its marketplace and services (described below) available to you ("you" or "User") via its website, platform, and marketplace at www.ATOSHIN.art (the "Platform"), subject to the following Terms of Service (as amended from time to time, the "Terms"). You confirm that you have read and agree to these Terms by creating an account on the Platform or otherwise using or accessing the Platform. The User expressly agrees to and acknowledges the Privacy Policy and all other terms, guidelines, and rules set forth on the Platform, which are hereby incorporated by reference into these Terms. PLEASE READ THESE PLATFORM TERMS CAREFULLY, AS THEY CONTAIN AN ARBITRATION AGREEMENT AND OTHER IMPORTANT INFORMATION ABOUT YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE ARBITRATION AGREEMENT REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT ANY CLAIMS YOU MAY HAVE AGAINST ATOSHIN TO BINDING AND FINAL ARBITRATION, AND FURTHER THAT (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST ATOSHIN ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION At any time, we reserve the right to update or modify elements of these Terms of Service at our sole discretion. If we do this, we will post the modifications on this page and mention the date these terms were last changed at the top of the page. We'll also let you know via the Platform's user interface, an email message, or some other appropriate way. Any such changes will take effect fourteen (14) days after they are posted, with the exception of changes addressing new Platform functions, which will take effect immediately. Continued use of the Platform after the effective date of any such modifications signifies acceptance of the amended Terms of Service.
What is the definition of ATOSHIN?
ATOSHIN is a platform that allows Museums, Permanent collection and artists ("Creators") and collectors ("Collectors") to sell, buy, list for auction, make offers, and bid on Non-fungible tokens(NFTs) for Physical arts and collectibles, digital art that is represented by non-fungible Ethereum-based tokens (“Physical Assets” & "Digital Artwork"). Smart-Contract Supporting the NFTs on ATOSHIN is represented on the Ethereum blockchain through smart contracts, which offer an immutable ledger of all ATOSHIN transactions ("Smart Contracts"). This means that all Physical Assets and Digital Artwork is uncontrollable by any single entity, including ATOSHIN, and is susceptible to several dangers and uncertainties. MetaMask, Coinbase, the Ethereum network, your browser, or any other third-party site, product, or service that you could access, visit, or utilize to enable you to enjoy the Platform's different features are not owned or controlled by us. We will not be liable for any damage you may incur as a result of your transactions or other interactions with such third parties, nor will we be liable for any acts or omissions of such third parties. The User acknowledges that every time you engage in a transaction on the Platform, your Ethereum public address will be made publicly visible.
Noncustodial:
While ATOSHIN provides a NFT for Physical Assets and digital art marketplace, it does not buy, sell, or otherwise take custody or possession of any Physical or digital art. The Platform makes it easier for Users to acquire NFTs for Physical Assets or Digital Artwork, but neither the NEEI LLC, nor the Platform are responsible for any Physical Asset or Digital Artwork. The User recognizes and accepts that the Smart Contracts do not give the ATOSHIN custody, possession, or control of any Physical Asset or Digital Artwork or cryptocurrency at any time for the purpose of conducting Platform transactions. You confirm that you are aware and acknowledge that ATOSHIN is a non-custodial service provider who has built this Platform to be directly accessible by Users without ATOSHIN or any third-party involvement or activities. ATOSHIN, as a marketplace, cannot guarantee or indicate that Creators will achieve any certain result as a result of listing their NFTs for Physical Assets or Digital Artwork on ATOSHIN.
What is the best way to apply ATOSHIN?
Your Registration Requirements:
Anyone can browse ATOSHIN without having to create an account. To access and use specific Platform services, such as engaging as a Creator or Collector, you may need to register with ATOSHIN. You undertake to submit and maintain true, accurate, current, and complete information about yourself as required by our registration form if you choose to register for the Platform. Our Privacy Policy governs your registration data as well as certain other personal information. To register as a Creator, you must be at least 13 years old, and you must be at least 18 years old to bid on any Digital Artwork. You must have the express approval of a parent or legal guardian who can accept these Terms on your behalf if you are between the ages of 13 and 18. You are responsible for anything that happens when someone else uses your account, as well as the account's security.
Member Account, Password, and Security:
You are solely responsible for the security of your account and password, if any, and for any and all activities carried out under your password or account. When visiting ATOSHIN, you undertake to (a) promptly notify ATOSHIN of any unauthorized use of your password or account, or any other security breach, and (b) ensure that you leave from your account at the conclusion of each session. ATOSHIN will not be held liable for any loss or damage incurred as a result of your failure to comply with this Section.
Connecting your Wallet:
To engage in the marketplace as a Creator or Collector, you must first connect to MetaMask, a browser plugin. MetaMask is an electronic wallet that lets you to buy, store, and conduct transactions with the Ethereum native money, ETH. The native Ethereum cryptocurrency, ETH, is used for all ATOSHIN transactions.
Modifications to the Platform:
The ATOSHIN retains the right, with or without warning, to modify or discontinue the Platform (or any portion of it) temporarily or permanently. You agree that ATOSHIN will not be liable to you or any third person if the Platform is modified, suspended, or discontinued.
What are the ATOSHIN's guidelines?
When utilizing ATOSHIN, no User is permitted to do the following:
tamper with the price of a NFT for Physical Asset or Digital Artwork in any manner, including bidding on your own things, restricting bids, or hiding economic activities with ATOSHIN.
send or otherwise upload any content that (i) infringes on any party's intellectual property or other proprietary rights; (ii) you don't have a legal or contractual or fiduciary right to post; (iv) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, "junk mail," "spam," "chain letters," "pyramid schemes," "contests," "sweepstakes," or an equivalent; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, "junk mail," "spam," "chain letters," "pyramid schemes," "contests," "sweep
interfere with or disrupt the Platform, its servers or networks, or disobey any requirements, procedures, rules, or regulations of networks linked to the Platform; or
breach any applicable local, state, national, or international law, or any laws with legal force, including but not limited to the Office of Foreign Assets Control ("OFAC") of the United States Department of Treasury, or include proceeds of any illicit action;
impersonate someone or something, or fraudulently assert or otherwise misrepresent your affiliation with someone or something;
ask anyone under the age of 18 for personal information;
use electronic or other means to harvest or collect email addresses or other contact information from other Users on the Platform for the purpose of sending unsolicited emails or other communications;
sell or acquire any goods or services for any business purpose that isn't officially approved;
support or promote any criminal activity or enterprise, or offer instructional material on illegal activities, including to hide economic activity, launder money, or finance terrorism;
access or attempt to access or gain any items or information through any means other than those made available or provided for by the Platform;
retrieve or index any portion of the Platform or the material posted on the Platform, or gather information about its Users for any unlawful purpose, using any robot, spider, site search/retrieval program, or other technology;
establish user accounts by automated means or on the basis of inaccurate or fraudulent information;
access or use the Platform in order to develop a product or service that is competitive with any of ours.
What steps do I need to take to become a creator?
To join ATOSHIN as a Creator, Museums, Permanent collections and artists must first get an invitation. It is definitely forbidden to sell invitations in exchange for ETH or any other favor. ATOSHIN may suspend or cancel your access to ATOSHIN if it becomes aware that any invitation is being sold to a third party. Even if ATOSHIN sought the request, ATOSHIN retains total discretion in selecting the artists in its marketplace and offers no guarantees or promises that any artists will be authorized as Creators.
What are the Platform's intellectual property rights?
Rights of the Creator
All intellectual property rights underlying Physical Asset or the Digital Artwork created by the Creator on the Platform, including but not limited to copyrights and trademarks, are owned by the Creator. The Creator has the right to reproduce, generate derivative Digital Artwork, distribute, and exhibit or perform the Physical Asset and or Digital Artwork as the copyright owner. Creators acknowledge, understand, and agree that selling a NFT for Physical Asset or Digital Artwork on ATOSHIN constitutes an express representation, warranty, and covenant that the Creator has not, will not, or will cause another to sell, tokenize, or create another cryptographic token representing a digital collectible for the same Physical Asset or Digital Artwork. The Creator acknowledges, understands, and agrees that launching a NFT for Physical Assets and or Digital Artwork on ATOSHIN constitutes an express and affirmative grant to ATOSHIN, its affiliates, and successors of a non-exclusive, world-wide, assignable, sublicensable, perpetual, and royalty-free license to make copies of, display, perform, reproduce, and distribute the representation of Physical Asset or Digital Artwork on any media now known or later discovered for the broad purpose of operating, promoting, sharing, and distributing the information about Physical Asset or Digital Artwork on any media. Creators expressly represent and warrant that their Physical Asset NFT or Digital Artwork listed on ATOSHIN only contains original content otherwise authorized for use by the Creator, and does not contain unlicensed or unauthorized copyrighted content, such as any imagery, design, audio, video, human likeness, or other unoriginal content not created by the Creator, not authorized for use by the Creator, not in the public domain, or otherwise without a valid claim of fair use.
Rights of Collectors
Collectors acquire a cryptographic token that serves as a piece of property representing the Creator's Physical Asset or portion thereof and Digital Artwork, but they do not own the creative work itself. Collectors may display and share the representation of the Physical Asset or Digital Artwork, but they do not have any legal ownership, right, or title to the copyrights, trademarks, or other intellectual property rights, with the exception of the limited license given by these Terms. Collectors acquire a limited, global, non-assignable, non-sublicensable, royalty-free permission to display the representation of the Physical Asset as provided in the NFT or Digital Artwork lawfully owned and properly obtained by the Collector upon purchasing an NFT on ATOSHIN. The Collector's limited license to display the Information about the Physical Asset including videos and photographs, Digital Artwork includes, but is not limited to, the right to display the Digital Artwork privately or publicly (i) for the purpose of promoting or sharing the Collector's purchase, ownership, or interest; (ii) for the purpose of sharing, promoting, discussing, or commenting on the NFT’s value; and (iii) on third-party marketplaces, exchanges, platforms, or applications in connection with an offer to sell, or trade, the NFT. Collectors have the right to sell, trade, transfer, or utilize their NFT, but they are not permitted to use it for "commercial purposes." Without the Creator's express prior written agreement in each circumstance, the Collector acknowledges that it may not do or attempt to do any of the following, nor may it permit any third party to do so: (i) use the NFT and or its related information and content 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; (ii) use the NFT or its related information and content to advertise, market, or sell any third-party product or service; (iii) use the Digital Artwork in connection with images, videos, or other forms of media that depict hatred, intolerance, violence, cruelty, or anything (iv) use the NFT and or its related information and content for commercial purposes in movies, videos, video games, or other forms of media, save to the extent that such use is specifically approved by these Terms or solely for your Collector's personal, non-commercial use; (v) sell, distribute for profit, or otherwise commercialize merchandise that includes, contains, or consists of the NFT and or its related information and content ; (vi) attempt to trademark, copyright, or otherwise acquire additional intellectual property rights in or to the NFT and or its related information and content ; (vii) attempt to mint, tokenize, or create an additional cryptographic token representing the same Physical Asset or Digital Artwork, whether on or off the ATOSHIN Platform; (viii) falsify, misrepresent, or conceal the Physical Asset or Digital Artwork; Collectors release, acquit, and forever discharge NEEI, LLC and ATOSHIN, its subsidiaries, affiliates, executives, and successors from any and all liability for direct or indirect copyright or trademark infringement as a result of ATOSHIN's use of a Physical Asset or Digital Artwork in line with these Terms.
Platform Information, Software, and Trademarks:
You acknowledge and agree that the Platform may contain copyright, patent, trademark, trade secret, or other proprietary rights and laws-protected content or features ("Platform Content"). You undertake not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute, or create derivative works based on the Platform or Platform Content, in whole or in part, unless ATOSHIN expressly authorizes you to do so. You will not engage in or utilize any data mining, robots, scraping, or similar data collection or extraction activities in conjunction with your use of the Platform. If ATOSHIN prevents you from using the Platform (for example, by restricting your IP address), you undertake not to take any steps to circumvent this restriction (e.g., by masking your IP address or using a proxy IP address). Any use of the Platform or Platform Content that is not expressly permitted above is strictly prohibited. NEEI LLC, ATOSHIN, our affiliates, and our partners own the technology and software that underpins the Platform or is distributed in connection with it (the "Software"). You undertake not to duplicate, alter, adapt, translate, create a derivative work from, reverse engineer, reverse assemble, or otherwise seek to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. ATOSHIN reserves all rights not expressly granted herein. NEEI’s name, & Atoshin’s name and emblems are trademarks and service marks (collectively, the "ATOSHIN Trademarks"). Other company, product, and service names and logos that appear on the Platform may be trademarks or service marks of their respective owners, who may or may not endorse, be affiliated with, or be related to ATOSHIN. Without our prior written permission in each instance, nothing in these Terms of Service or the Platform should be regarded as providing, by implication, estoppel, or otherwise, any license or right to use any of the ATOSHIN Trademarks displayed on the Platform. All goodwill accrued as a result of the usage of ATOSHIN Trademarks will be used solely for our benefit.
Third-Party Material:
ATOSHIN will not be liable in any way for any third-party (including user) content or materials, including, but not limited to, any mistakes or omissions in any content, or any loss or damage of any kind incurred as a consequence of the use of any such content. You recognize that ATOSHIN does not pre-screen content, but that ATOSHIN and its designees will have the right (but not the obligation) to decline or delete any content made available through the Platform in their sole discretion. Without limiting the foregoing, ATOSHIN and its designees will have the right to delete any content that violates these Terms of Service or that Platform deems to be otherwise objectionable in its sole discretion. You agree to assess and assume all risks associated with the use of any content and the purchase of any NFT for Physical Assets or Digital Artwork, including any reliance on such content's accuracy, completeness, or usefulness.
User Content Transmitted Through the Platform:
You represent and warrant that you own all right, title, and interest in and to the content, Digital Artwork, or other materials you upload through the Platform or share with other users or recipients (collectively, "User Content"), including, without limitation, all copyrights and rights of publicity contained therein. By uploading any User Content, you grant and will grant ATOSHIN and its affiliated companies a nonexclusive, worldwide, royalty-free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify, and otherwise use your User Content in connection with the Platform's operation, promotion, advertising, and marketing in any form, medium, or technology now known or later developed. Any questions, comments, suggestions, ideas, feedback, or other information you provide to ATOSHIN about the Platform ("Submissions") is non-confidential, and ATOSHIN will be entitled to use and disseminate these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you. If required by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws, or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of ATOSHIN, its users, or the public, ATOSHIN, its users, and the public may preserve and disclose content. You acknowledge that the Platform's technical processing and transmission, including your content, may entail (a) transmissions over multiple networks; and (b) adjustments to conform and adapt to technical requirements of connecting networks or devices.
Copyright Complaints:
The ATOSHIN respects the intellectual property of others, and we expect our users to do so as well. If you believe your work has been duplicated in a way that constitutes copyright infringement or that your intellectual property rights have been violated in any other way, you should contact ATOSHIN via the procedure outlined below. With respect to any claimed or actual infringement, the ATOSHIN will process and investigate reports of alleged infringement and take necessary action under the Digital Millennium Copyright Act ("DMCA") and other applicable intellectual property laws. A copyright infringement notification should be addressed to ATOSHIN's at Legal@atoshin.art (Subject line: "DMCA Takedown Request"). The notification must be in written and include the following details to be effective:
the signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property rights, whether electronic or physical;
a description of the allegedly infringed copyrighted work or other intellectual property;
a description of where the allegedly infringing material is located on the Platform, with enough specificity that we can locate it;
your name, mailing address, phone number, and email address;
a statement from you that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
a statement signed under penalty of perjury that the above information in your Notice is correct and that you are the copyright or intellectual property owner or authorized to act on behalf of the copyright or intellectual property owner.
Counter-Notice:
If you believe your removed (or disabled) User Content is not infringing, or that you have permission from the copyright owner, the copyright owner's agent, or the law to upload and use the content in your User Content, you may send a written counter-notice to the Copyright Agent containing the following information:
your signature (physical or electronic);
the content that has been removed or to which access has been disabled, as well as the place where the content was available before it was removed or disabled;
a statement if you believe the item was removed or disabled due to a mistake or misidentification of the content; and
your name, address, phone number, and email address, as well as a statement that you consent to the jurisdiction of the federal court in the State of Delaware and that you will accept serving of process from the individual who reported the alleged infringement.
If the Copyright Agent receives a counter-notice, ATOSHIN will send a copy of the counter-notice to the original complaining party, alerting them that the removed content may be replaced or disabled in 10 business days. The withdrawn content may be replaced, or access to it restored, in 10 to 14 business days or more following receipt of the counter-notice, at our exclusive discretion, unless the copyright owner launches an action seeking a court order against the content provider, member, or user.
Repeat Infringer Policy:
In compliance with the DMCA and other applicable law, ATOSHIN has adopted a policy of terminating Users who are found to be repeat infringers in suitable circumstances and at ATOSHIN's sole discretion. In addition, ATOSHIN may, in its sole discretion, restrict access to the Platform and/or terminate the memberships of any users who infringe on the intellectual property rights of others, whether or not the violation is repeated.
The user agrees to work with the ATOSHIN.
Creators expressly agree to refund the entire portion of Fees received from the sale of an NFT for Physical Assets or Digital Artwork that was later removed from the Site as a result of an effective DMCA request for which the Creator failed to timely submit an effective DMCA Counternotification to the Collector and/or ATOSHIN. For deleting allegedly infringing works from the Platform or otherwise satisfying its legal obligations under the DMCA, the ATOSHIN will not be held accountable to any User. Creators, Collectors, and all Users expressly agree to assist with the ATOSHIN's investigations, requests, and enquiries relating to DMCA disputes or allegations of infringement, and to react in a timely manner. Users agree to conduct a "burn" transaction for the NFT of the Physical Asset or Digital Artwork that has been permanently removed from the ATOSHIN marketplace due to a valid DMCA Take-Down Notice, or that is otherwise suspected to be infringing, at ATOSHIN's request.
What are the ATOSHIN's fees?
Auction. The Auctions' terms and mechanics are detailed in our Help Center and are integrated into these Terms.
Fees. The following are the fees for an initial sale NFT of a Physical Asset or of Digital Artwork on ATOSHIN:
In the case of an Initial Sale, creators receive 85% of the entire sale price.
The ATOSHIN receives 15% of the entire sale price from an Initial Sale.
You acknowledge and agree that any fees, commissions, and royalties will be transferred, processed, or triggered directly through one or more of the Ethereum blockchain network's smart contracts.
The following are the fees for a secondary sale of NFTs for Physical Assets or Digital Artwork on ATOSHIN:
Fees. The following are the fees for an initial sale NFT of a Physical Asset or of Digital Artwork on ATOSHIN:
In the case of an Initial Sale, creators receive 85% of the entire sale price.
The ATOSHIN receives 15% of the entire sale price from an Initial Sale.
You acknowledge and agree that any fees, commissions, and royalties will be transferred, processed, or triggered directly through one or more of the Ethereum blockchain network's smart contracts.
The following are the fees for a secondary sale of NFTs for Physical Assets or Digital Artwork on ATOSHIN:
In a Secondary Transaction, the seller receives 90% of the entire sale price.
In the case of a Secondary Sale, the Original Creator receives 6% of the total sale price.
The ATOSHIN receives 4% of the entire sale price from a Secondary Sale.
You acknowledge and agree that any fees, commissions, and royalties will be transferred, processed, or triggered directly through one or more of the Ethereum blockchain network's smart contracts.
For transactions that take place outside of ATOSHIN, no fees, commissions, or royalties are usually collected. Users release, acquit, and forever discharge ATOSHIN, its subsidiaries, affiliates, executives, and successors from any and all liability for royalties, fines, or fees not collected from any off-market transaction. Smart contracts on the Ethereum network facilitate all ATOSHIN transactions, including but not limited to minting, tokenizing, bidding, listing, offering, purchasing, or verifying. Every transaction that occurs on the Ethereum network, and thus every transaction that occurs on ATOSHIN, involves the payment of a transaction fee (a "Gas fee"). The value of the Gas Fee fluctuates, frequently unpredictably, and is completely outside ATOSHIN's control. The User agrees that a contract, agreement, offer, sale, bid, or other ATOSHIN transaction will not be invalidated, revocable, retractable, or otherwise unenforceable because the Gas Fee for the transaction was unknown, too expensive, or otherwise inappropriate. Taxes. Users are liable for all sales, use, value-added, and other taxes, fees, and levies now or in the future claimed or imposed by any governmental entity "related with your use of ATOSHIN" (including, without limitation, any taxes that may become payable as the result of your ownership, transfer, purchase, sale, or creation of any artworks). Platforms in beta. Certain ATOSHIN features may be available while they are still in "beta" version ("Beta Platforms"). By designating Beta Platforms on its Platform, the ATOSHIN will make every attempt to identify them. You understand and agree that the Beta Platforms are supplied as a "Beta" version and made available on a "As Is" or "As Available" basis by accepting these Terms or using the Beta Platforms. Bugs, mistakes, and other issues may exist on the Beta Platforms. YOU ASSUME ALL RISKS AND COSTS ASSOCIATED WITH YOUR USE OF THE BETA PLATFORMS, INCLUDING ANY INTERNET ACCESS FEES, BACK-UP EXPENSES, COSTS INCURRED FOR THE USE OF YOUR DEVICE AND PERIPHERALS, AND ANY DAMAGE TO ANY EQUIPMENT, SOFTWARE, INFORMATION, OR DATA. Furthermore, we are not bound to provide any Beta Platforms maintenance, technical, or other assistance.
What about my personal space?
These Terms include our privacy policy. Please take a look at the ATOSHIN Privacy Policy, which also controls the Platform and informs Users about our data gathering methods.
Other Legal Terminologies
You agree to release, indemnify, and hold NEEI LLC, ATOSHIN and its affiliates, as well as their officers, employees, directors, and agents (collectively, "Indemnitees"), harmless from any and all losses, damages, expenses, including reasonable attorneys' fees, rights, claims, actions of any kind, and injury (including death) arising out of or relating to your use of the Platform, any User Content, your connection to the Platform, or your violation of these Terms and Conditions. Despite the foregoing, you will not be obligated to indemnify or keep any Indemnitee harmless from or against any liabilities, losses, damages, or expenditures incurred as a result of such Indemnitee's actions or inactions. If you live in California, you agree to waive California Civil Code Section 1542, which states: "A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of execution of the release and that, if known, would have materially affected his or her settlement with the debtor or released party." You waive any analogous statute or doctrine if you are a resident of another jurisdiction.
Disclaimer of Warranties:
Platform transactions, such as primary and secondary market sales, listings, offers, bids, acceptances, and other operations, make use of experimental smart contract and blockchain technology, such as non-fungible tokens, cryptocurrencies, consensus algorithms, and decentralized or peer-to-peer networks and systems. Users acknowledge and agree that such technologies are experimental, speculative, and inherently risky, and that they may be subject to bugs, malfunctions, timing errors, hacking and theft, or changes to the Ethereum blockchain protocol rules (i.e., "forks"), all of which can negatively affect smart contracts and expose you to the risk of total loss, forfeiture of your digital currency or Digital Artwork, or lost opportunities to buy or sell Digital Artwork. THE PLATFORM IS USED SOLELY AT YOUR OWN RISK. THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE," WITHOUT WARRANTY OF ANY KIND. ATOSHIN EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. ATOSHIN MAKES NO WARRANTY THAT (I) THE PLATFORM WILL MEET YOUR EXPECTATIONS, (II) THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PLATFORM WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, PLATFORM
LIMITATION OF LIABILITY:
YOU EXPRESSLY UNDERSTAND AND AGREE THAT ATOSHIN SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, INCLUDING BUT NOT LIMITED TO, LOSS IN VALUE OF ANY DIGITAL ARTWORK, DAMAGES FOR LOSS OF GOODWILL, USE, ATOSHIN'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION WILL IN NO EVENT EXCEED THE AMOUNT YOU HAVE PAID ATOSHIN IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100). THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES, AS WELL AS THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, ARE PROHIBITED IN SOME JURISDICTIONS. SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU, AS A RESULT. YOUR SOLE AND EXCLUSIVE REMEDY IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE PLATFORM OR WITH THESE TERMS OF PLATFORM IS TO STOP USING THE PLATFORM. IF YOU ARE A NEW JERSEY USER, THE ABOVE SECTIONS TITLED "DISCLAIMER OF WARRANTIES" AND "LIMITATION OF LIABILITY" ARE INTENDED TO BE ONLY AS GENERAL AS THE STATE OF NEW JERSEY ALLOWS. THE INVALIDITY OF ANY PORTION OF THESE SECTIONS WILL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS UNDER THE LAWS OF THE STATE OF NEW JERSEY. Here are our options for terminating our contract. You agree that ATOSHIN may suspend or terminate your account (or any part thereof) or use of the Platform, as well as remove and discard any content within the Platform, for any reason, including, without limitation, if ATOSHIN believes you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive, or illegal behavior that could lead to the termination of your Platform use may be reported to the appropriate law enforcement authorities. ATOSHIN may also, at any time and without notice, terminate supplying the Platform, or any part of it, in its sole discretion. You understand and agree that ATOSHIN may immediately deactivate or delete your account and all connected information and files in your account, and/or restrict any further access to such files or the Platform, if any provision of this Terms of Service is violated. You further agree that ATOSHIN will not be liable to you or any third party if your access to the Platform is terminated. We don't get involved in disagreements between users. You acknowledge that you are solely responsible for your interactions with other Users on the Platform, and that the ATOSHIN has no obligation or responsibility in this regard. ATOSHIN reserves the right, but not the duty, to intervene in any way in disputes between you and other Platform users.
Terms of Law in General
These Terms of Service govern your use of the Platform and supersede all earlier agreements between you and ATOSHIN with respect to the Platform. When you utilize affiliate or third-party services, third-party content, or third-party software, you may be subject to additional terms and restrictions. The laws of the State of California, without respect to its conflict of law rules, will govern these Terms of Service. You and ATOSHIN agree to submit to the personal and exclusive jurisdiction of the state and federal courts located in Delaware in any disputes or claims not subject to arbitration as set forth above. The failure of ATOSHIN to exert or enforce any right or term of these Terms of Service does not imply that such right or provision has been waived. If a court of competent jurisdiction finds any provision of these Terms of Service to be invalid, the parties agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the remaining provisions of these Terms of Service will remain in full force and effect. You agree that, regardless of any legislation or law to the contrary, any claim or cause of action arising out of or related to the Platform or these Terms of Service must be filed within one (1) year of the day the claim or cause of action began, otherwise it will be irrevocably barred. In judicial or administrative proceedings based on or relating to this agreement, a printed version of this agreement and any notice given in electronic form will be admissible to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign these Terms of Service without ATOSHIN's prior written agreement, but ATOSHIN may assign or transfer this Terms of Service without restriction, in whole or in part. The section titles in these Terms of Service are merely descriptive and have no legal or contractual significance. Email or traditional mail may be used to send you notices. By displaying notifications or links to notices on the Platform, the Platform may also provide you with notices of changes to these Terms of Service or other topics.
Your Personal Information
The privacy of our users is important to us at ATOSHIN. Please visit our Privacy Policy for more information. You consent to our collection and use of personal data as defined in the Platform by using it. Users in California Should Be Aware Users of the Platform from California are entitled to the following special consumer rights notification under California Civil Code Section 1789.3: The Complaint Assistance Unit of the California Department of Consumer Affairs' Division of Consumer Platforms can be reached by mail at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by phone at (916) 445-1254 or (800) 952-5210. ATOSHIN, Inc., 11420 Santa Monica Blvd, PO Box 252111, Los Angeles, CA 90025, or (657) 229-1518 are the places to contact.
Binding Arbitration for Dispute Resolution:
THIS SECTION AFFECTS YOUR RIGHTS, SO READ IT CAREFULLY.
Arbitration Agreement This portion of the Terms of Service titled "Dispute Resolution by Binding Arbitration" is referred to as the "Arbitration Agreement." You agree that any and all disputes or claims that have arisen or may arise between you and ATOSHIN, whether arising out of or relating to this Terms of Service (including any alleged breach thereof), the Platforms, any advertising, or any aspect of our relationship or transactions, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement. Furthermore, this Arbitration Agreement does not prevent you from bringing matters to the notice of federal, state, or municipal agencies, which can seek remedies against us on your behalf if the law allows it. By agreeing to these Terms of Service, you and ATOSHIN are each renouncing the right to a jury trial or to join a class action lawsuit. A neutral arbitrator, not a judge or jury, will decide your rights. The interpretation and enforcement of this Arbitration Agreement are governed by the Federal Arbitration Act.
Non-Individualized Relief and Class and Representative Actions are Prohibited
YOU AND THE ATOSHIN AGREE THAT WE MAY BRING CLAIMS AGAINST EACH OTHER ONLY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PRETENDED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING UNLESS BOTH YOU AND THE ATOSHIN AGREE OTHERWISE. ALSO, THE ARBITRATOR MAY ONLY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S), WITH THE EXCEPTION THAT YOU MAY PURSUE A
Non-Individualized Relief and Class and Representative Actions are Prohibited
Most customer complaints can be resolved promptly and to the client's satisfaction by emailing customer service at help@ ATOSHIN.art . ATOSHIN is always interested in resolving disputes politely and expeditiously. If those attempts fail, a party who wants to go to arbitration must first send a formal Notice of Dispute ("Notice") to the other party via certified mail. ____________________________________________________ ("Notice Address"). The Notice must I outline the claim or dispute's nature and basis, and (ii) state the precise relief requested. You or ATOSHIN may initiate an arbitration action if ATOSHIN and you do not resolve the issue within sixty (60) calendar days of receiving the Notice. The amount of any settlement offer made by ATOSHIN or you during the arbitration shall not be disclosed to the arbitrator until the arbitrator determines the amount to which you or ATOSHIN is entitled, if any.
Dispute Resolution Procedures The arbitration shall be conducted by a neutral arbitrator in accordance with the rules and procedures of the American Arbitration Association ("AAA"), including the AAA's Consumer Arbitration Rules (collectively, the "AAA Rules"), as amended by this Arbitration Agreement. Visit the AAA's website at http://www.adr.org for further information. The AAA's consumer arbitration page, http://www.adr.org/, contains information regarding the AAA Rules and costs for consumer disputes, which may be changed from time to time. If any term of the AAA Rules conflicts with a term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will take precedence unless the arbitrator determines that applying the contradictory Arbitration Agreement terms would result in a fundamentally unfair arbitration. In the same way as a court would, the arbitrator must observe the provisions of these Terms of Service. All questions, including but not limited to matters relating to the scope, enforcement, and arbitrability of this Arbitration Agreement, are for the arbitrator to decide. Although arbitration hearings are typically less formal and time-consuming than trials and other judicial proceedings, an arbitrator can award the same damages and relief to an individual as a court can under the Terms of Service and applicable legislation. Arbitrator decisions are enforceable in court and can only be overturned by a court for very specific grounds. Unless ATOSHIN and you agree otherwise, any arbitration hearings will be held at a location that is fairly convenient for both parties, taking into account their capacity to travel and other relevant factors. If the parties are unable to agree on a location, AAA will make the decision. If your claim is for $10,000 or less, ATOSHIN undertakes to let you select whether the arbitration will be conducted purely on the basis of papers presented to the arbitrator, through a telephonic hearing, or through an in-person hearing, as set forth in the AAA Rules. If your claim is worth more than $10,000, the AAA Rules will assess whether you have a right to a hearing. The arbitrator must give a reasoned written decision sufficient to explain the fundamental findings and conclusions on which the award is based, regardless of how the arbitration is conducted.
Why Arbitration Fees?
Unless otherwise specified in this Arbitration Agreement, all filing, administration, and arbitrator fees (collectively, the "Arbitration Fees") will be regulated by the AAA Rules. And paid respectively by the parties.
Confidentiality For the advantage of all parties, all aspects of the arbitration proceeding, as well as any ruling, decision, or award made by the arbitrator, will be kept totally confidential.
Severability If a court or arbitrator rules that any term or provision of this Arbitration Agreement is invalid or unenforceable (other than subsection (b) above titled "Prohibition of Class and Representative Actions and Non-Individualized Relief"), the parties agree to replace it with a term or provision that is valid and enforceable and comes closest to expressing the invalid or unenforceable term or provision, and this Arbitration Agreement will be void. If any of the provisions of subsection (b) above titled "Prohibition of Class and Representative Actions and Non-Individualized Relief" are found to be invalid or unenforceable by a court or arbitrator, then the entire Arbitration Agreement will be null and void, unless such provisions are found to be invalid or unenforceable solely with respect to claims for public injunctive relief. The rest of the Terms of Service will remain in effect.
Future Modifications to the Arbitration Agreement Regardless of any other provision in these Terms of Service, ATOSHIN agrees that you may reject any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Platforms by sending ATOSHIN written notice within thirty (30) calendar days of the change to the Notice Address provided above. You agree to arbitrate any disagreement between us in accordance with the language of this Arbitration Agreement as of the date you initially accepted these Terms of Service by rejecting any future amendment (or accepted any subsequent changes to these Terms of Service).