TERMS & CONDITIONS
Last updated: 23 Apr 2022
Thank you for using PONS.ai! We sincerely value your trust and are dedicated to giving you the best global arts, culture and entertainment social shopping experience on mobile.
Please read these Terms and Conditions (“Terms”) carefully as they contain important information about your legal rights, remedies and obligations.
1 These Terms
1.1 PONS.ai is an artificial intelligence (AI) powered social marketplace that allows users to sell, buy and commission physical artworks and cultural merchandises (“Product(s)”) as well as digital assets such as Non-Fungible Token(s) ("NFT(s)"). To see our specific terms for NFTs, please see section 26 below. These terms and conditions govern your use of our website, software and applications provided by us (collectively, our “Platform”).
1.2 Please read these Terms carefully before you submit any order on our Platform. These Terms tell you who we are, the conditions on which you may be a seller or a buyer (patron/collector, used interchangeably) on our Platform, what to do if there is a problem, and other important information. If you think that there is a mistake in these Terms or require any changes, please contact us to discuss: email@example.com.
1.3 By accessing or using our Platform, you agree to these Terms. If you are using our Platform as a representative of an entity, you represent and warrant that you have all the necessary right, authority and consent to bind such entity to these Terms including the commercial terms agreed to in the Agreement.
2 Information about us and how to contact us
2.1 We are Pons Company Limited, a company registered in Hong Kong, trading as PONS.ai. Our company registration number is 2708064 and our registered office is in Hong Kong.
2.2 For any questions or problems relating to our Platform, our Product(s) or these Terms, you can contact us by emailing us at firstname.lastname@example.org.
2.4 If we have to contact you, we may do so by in-app notifications, telephone or by writing to you at the email address or postal address you provided to us.
2.5 When we use the words "writing" or "written" in these Terms, this includes emails.
3 Contracts for sale
3.1 We are a digital social marketplace that allows users to sell, buy and commission Product(s). The actual contract for sale of Product(s) is directly between the seller (meaning artists, galleries and other sellers, used interchangeably) and the buyer (meaning individual patrons, collectors, companies and other buyers, used interchangeably) which will automatically come into existence as a buyer places an order on the Platform. We generally have a non-exclusive relationship with the sellers listing on the Platform, unless stated otherwise in-app. To facilitate the recording of financial transactions occurred via the Platform, we provide all the necessary information and documentation (e.g. order confirmation e-mail, templates for commercial invoices and certificate of authenticity) should the seller and/or buyer require them. We are not liable to any person in relation to an offer for sale, sale, or purchase of any Product listed on our Platform. We are not responsible for the enforcement of any contractual obligations between any buyer and any seller.
3.2 We have no control over and we do not guarantee the existence, quality, safety or legality of the items offered or advertised on our Platform; the accuracy, completeness or truth of any content, comments or listings posted by users; the credit worthiness of any user; the ability of sellers to sell or buyers to buy, or that a particular buyer and seller will complete a particular transaction.
3.3 We are not involved in any transaction between a buyer and a seller on our Platform except that we facilitate a marketplace for buyers and sellers and use Stripe to process payments on behalf of sellers.
3.4 We may (at our discretion but are not obliged to) check, audit or monitor the information contained in product and event listings, comments and/or reviews posted by users and remove any listings deemed by the Platform or relevant government bodies as inauthentic, fraudulent, inciting violence, offensive, or illegal.
3.5 A buyer may make purchases on the Platform as instructed on our Platform (via either one-click checkout, shopping cart checkout or timed auctions). A seller's acceptance of a buyer's order will automatically take place when the order is placed, at which point a contract will come into existence between the seller and the buyer (see Clause 3.2). Should the seller being not willing to sell to a particular buyer, they must email the Platform at email@example.com to provide their justification.
3.6 We will assign a unique order number to each order. Please tell us the order number whenever you contact us regarding your order.
4 Terms and conditions for sale
4.1 If you list a Product on our Platform, you agree to comply with our rules for listing, Content Policy (see Clause 6) and selling practices from time to time in force, as outlined by these Terms. You are responsible for the accuracy, completeness and truthfulness of the content of the listing and the Product offered. We reserve the right to modify, suspend or delete any listing that violates our rules, policies and practices (see Clause 3.4), or to improve user experience.
4.2 We have full discretion in determining the appearance, placement and order of listings in search and browse results. The factors we may consider in making such a determination may include the users' preferences and engagement on the Platform in the form of an artificial intelligence (AI) recommendation system, the buyer and seller's respective location, the search terms used, and the buyer and seller's respective usage history on the Platform.
4.3 All sellers on the Platform must comply to these Terms, including the following information:
(a) fulfil according to the Platform's packaging guidelines (for physical works) and dispatch orders within three (3) business days of payment verification, unless specifically stated otherwise by the seller on his/her 'Product' screens;
(b) forms of accepted payments on the Platform, namely: e.g. with FLOW tokens on the Flow blockchain or Stripe (and all of its accepted payment methods available), see Clause 12 Price and payment policy (of physical works);
(c) taxes and applicable government imposed fees and duties (if any), see Clause 12 Price and payment policy (of physical works);
(d) shipping method, costs and expected time of delivery, see Clause 13 Shipping policy (of physical works);
(e) refund (14-day money-back guarantee) or replacement policy (of physical works), see Clause 9 and 10; and
(f) fourteen (14) calendar days return policy (of physical works), see Clause 10.
(g) NFT terms, see Clause 26.
4.4 You are responsible in keeping any content and information posted to be as accurate and up to date as possible. You should delete any listings that are no longer available. To do so please contact firstname.lastname@example.org.
4.5 You must comply with all applicable laws and regulations under your country or region's jurisdiction in providing the Product(s) that you offer or sell.
5 Terms and conditions for purchase
5.1 When purchasing a Product, you agree to comply with our applicable rules and policies from time to time in force. You are responsible for reading the full listing before committing to purchase any Product.
5.2 Any order placed in respect of a Product is deemed irrevocable and unconditional. In placing an order you agree to these Terms.
5.3 You enter into a legally binding contract to purchase a Product when you commit to buy a Product and your order for a Product is accepted.
6 Content Policy
6.2 For all content that you provide, you warrant that:
(a) the content is accurate, up to date, legal and not misleading;
(b) you own or otherwise control all necessary rights to meet your obligations under these Terms regarding such content;
(c) the use of such content does not and will not infringe any intellectual property (IP) rights of any third party; and
(d) you shall not use any material or information, including images or photographs, which are made available through the Platform in any manner that may infringe any copyright, trademark, patent, trade secret, or other proprietary rights of the Platform or any other parties.
6.3 While we try to offer reliable information, we do not promise that any content, Product(s) or information provided on our Platform will be accurate, complete, up to date or always available. If and where we offer catalogs of listings, such catalogs may include Product or event images, descriptions and specifications provided by users or other third parties.
6.4 If you are buying Product(s), you agree that we are not responsible for examining or warranting any listings provided by any users. If you are selling Product(s), it is your responsibility to review the content of your Product listings and certify that they are as true and correct as possible to the best of your knowledge. Please make explicit of any known defects on the Product's description.
6.5 We do not take any responsibility, nor do we assume any liability, for any content, Product(s), or events provided by you or any third party. You agree not to hold us liable for any inaccurate or misleading content, Product(s) or events.
6.6. A user may be able to post or submit ideas, feedback, suggestions or feature requests (“Ideas”) through the Platform. All Ideas posted or submitted through any channels are owned by the Platform and may be adopted by the Platform for any of its products, services or resources. You assign to Pons Company Limited all right, title and interest in and to all Ideas and you waive all rights you may have, now or in future, in respect of such Ideas, including all moral rights and the right to any compensation. You acknowledge that:
(a) posting or submitting Ideas does not make you an author, inventor or contributing author or inventor of any Pons Company Limited products, features or other works or inventions;
(b) the Platform has no obligation to accept or use any Ideas;
(c) to the extent any Ideas are not assignable, you grant the Platform a non-exclusive, royalty-free, worldwide, perpetual and irrevocable right and license to freely copy, use, publish, adapt, distribute, sell, license, create derivative works from and otherwise make use of your Ideas, including incorporating them into future versions of Pons Company Limited products, services or resources; and
(d) any Ideas or unreleased features discussed on or through the community forums, user groups or other Pons Company Limited applications are not promised to be available and may never become available.
6.7 PONS.ai may present both public domain and copyright protected artworks for non-commercial purposes in-app. The latter are shown in agreement with fair use / fair dealing:
(a) as historically significant artworks
(b) as used for informational and educational purposes
(c) as readily available on the internet
(d) as low resolution copies unsuitable for commercial use
The Platform responds to notifications of alleged copyright infringement via e-mail at email@example.com and will remove the concerned copyright protected images from the Platform, or hide them for users from countries where there is an infringement.
6.8 If you would like to provide us with images of artworks that you own the rights to for them to be inputted to, trained with, and outputted as results by, our AI VISION image recognition model; and that you agree to our Content Policy, please send the images along with all the relevant information (i.e. artwork title, artist name, url for further information about the artwork (if any)) to firstname.lastname@example.org.
7 Buyer's rights to make changes (of physical works)
7.1 If a buyer wishes to make a change to the Product (e.g. ship to address) s/he has ordered prior to shipping, please contact the Platform at the earliest possible time before dispatch at email@example.com (in turn relaying that information to the seller). The seller has full discretion whether or not to accept the changes. The seller will write to the Platform (in turn relaying that information to the buyer) about any changes to the total price of the Product, the timing of supply or anything else which would be necessary as a result of the requested change and ask the buyer to confirm whether s/he wishes to go ahead with the change. If the seller cannot make the change or the consequences of making the change are unacceptable to the buyer, the buyer may request to cancel the order end the contract (see Clause 9).
7.2 No changes can be made on both buyer and seller sides after shipment dispatches.
8 Seller's rights to make changes (of physical works)
8.1 Sellers may make changes to their listed Product(s) from time to time before order confirmation in order to:
(a) provide the most updated and accurate information in relation to the Product(s) listed;
(b) reflect changes in relevant laws and regulatory requirements; or
(c) implement technical adjustments and improvements.
8.2 If a seller wishes to make any changes to their sold Product(s) before they are shipped, the seller must write to the Platform at the earliest possible time (in turn relaying that information to the buyer), prior to the changes take effect. If the buyer does not accept the changes, the buyer must contact the Platform to cancel the order and end the contract at the earliest possible time, and receive a refund (less any reasonable deductions outlined in Clause 9.4) for any Product(s) paid for but not received within the 14-day money back guarantee period (see Clause 10).
8.3 No changes can be made on both buyer and seller sides after shipment dispatches.
9 Buyer's rights to end the contract (of physical works)
9.1 If a buyer is ending a contract for a reason set out below, between the timeframe of order confirmation and before shipment, the contract will end immediately. The Platform will refund the buyer for any Product(s) which have not been provided less any charges incurred by the seller and/or the Platform (see Clause 9.4 and 10):
(a) the seller makes any changes to their Product(s), which are deemed unacceptable by the buyer whom does not wish to proceed with the order (see Clause 8.2);
9.2 If a buyer becomes aware of any defect in all or part of the Product(s) delivered:
(a) the buyer must write to the Platform within fourteen (14) calendar days of receiving the Product(s) (i.e. the date of shipment arrival) to request a repair, replacement, or refund. Should the buyer requests any of the above, s/he has a further seven (7) business days (i.e. from the date of request) to return the allegedly defective Product(s) to the seller, at the cost of the buyer; and
(b) subsequently the seller will, at the decision of the buyer, repair or replace the defective Products in a mutually-agreed timeframe as facilitated by the Platform, or refund the paid price of such defective Product(s), if within the 14-day money-back guarantee period and subject to the seller's condition report (see Clause 9.4 and 10).
9.3 To end the contract with a seller, please email our customer services at firstname.lastname@example.org at the earliest possible time.
9.4 If a buyer demands a refund within the 14-day money-back guarantee period, the Platform will refund the buyer the paid price s/he paid for the Product(s), but the seller and/or the Platform may make the following deductions from the paid price:
(a) deductions to reflect any deduction in value of the Product(s) caused by the buyer from handling them in a damaging way;
(b) deductions to reflect any payment processing fees, packaging costs, shipping costs, custom duties, taxes, and other relevant fees incurred by the seller and/or the Platform. For example, according to Stripe, there are no fees to refund a charge, but the fees from the original charge (3.4% of paid price) aren’t returned.
10 Return policy (of physical works)
10.1 When a Product is delivered, a follow-up e-mail and/or notification will be sent from the Platform to the buyer to determine whether s/he is satisfied ('happy') with the item. If unsatisfied, please contact email@example.com at the earliest time possible.
10.2 Fourteen (14) calendar days money-back guarantee.
(a) If a buyer cancels an order and ends the contract for any reason (outlined in Clause 9) after order confirmation, the buyer must write a refund request to the Platform at firstname.lastname@example.org before and within fourteen (14) calendar days of the date of shipment arrival in order to qualify for the Platform's 14-day money-back guarantee (i.e. price paid by the buyer less any aforementioned deductions as outlined in Clause 9.4).
(b) If the Product(s) received were damaged during shipment outside the seller and the Platform's control (as confirmed by the seller's condition report), it is ultimately the buyer's responsibility to contact the courier and request a reasonable compensation from the courier. Buyers should check the terms (especially the declared value and limits of liability section) of the courier chosen prior to making a purchase, in order to determine whether they offer any compensation for any loss, damage or delay of your shipment, and whether their policy covers the category of items shipped (e.g. works of art, antiques). Exposure to and risk of any loss in excess of the declared value is assumed by the buyer. You may transfer this risk to a third-party insurance provider of your choice through the purchase of an insurance policy. Please contact an insurance agent or broker if you require insurance coverage. The Platform may provide assistance during this unfortunate incident, please contact email@example.com.
(c) Return of the Product(s) to the seller(s) are at the expense of the buyer (see Clause 9.1). It is also the buyer's responsibility to re-pack and arrange the return, and the Product(s) returned must be in the same condition as they arrived (please provide photographic evidence of the Product(s) of both when they arrived and due for return, with and without packaging). While the buyer shall be responsible for all costs of return, unless the Product(s) were damaged due to unacceptable actions by the seller (e.g. mis-packaging or failure to provide a condition report to show proofs of proper packaging prior to shipment), in which case the seller will be responsible for the cost of return. Sellers should therefore fill out a condition report, example here, and make photographic evidence of proper packaging (as compliant to the Platform's packaging guidelines) prior to shipping.
(d) The returned Product(s) must be in the appropriate packaging according to the Platform's packaging guidelines – possibly in its original packaging (if undamaged; see Clause 10.4). Buyers should keep the original packaging materials until they are satisfied with their purchased items. If the buyer has already damaged or disposed of the original packaging, s/he will be responsible for purchasing the packaging materials required to return the Product(s) back to the seller(s). Please take photographic evidence of proper packaging of the returned Product(s), with and without packaging.
(e) Failure to provide (i) photographic evidence of the Product(s) of both when they arrived and due for return (with and without packaging), as well as (ii) the return shipment's tracking code to the Platform within seven (7) business days after the date of refund request will result in no refund.
(f) Refunds will only be processed after the seller confirms in writing to the Platform that s/he has received and is satisfied with the returned Product(s). This must be done by the seller within seven (7) business days after the arrival of the return shipment (as indicated by the shipment's tracking code provided by the buyer), otherwise extra charges may apply.
(g) There will be no refund whatsoever if the returned Product(s) are deemed by the seller as different from the original Product(s) shipped by the seller.
(h) If the returned Product(s) were damaged during shipment outside the buyer and the Platform's control (as confirmed by the buyer's photographic evidence of proper return packaging), it is ultimately the seller's responsibility to contact the courier and request a reasonable compensation from the courier. Sellers should check the terms (especially the declared value and limits of liability section) of the courier chosen prior to making a purchase, in order to determine whether they offer any compensation for any loss, damage or delay of your shipment, and whether their policy covers the category of items shipped (e.g. works of art, antiques). Exposure to and risk of any loss in excess of the declared value is assumed by the seller. You may transfer this risk to a third-party insurance provider of your choice through the purchase of an insurance policy. Please contact an insurance agent or broker if you require insurance coverage. The Platform may provide assistance during this unfortunate incident, please contact firstname.lastname@example.org.
(i) If the buyer did not carry out proper packaging for the returns and as a result the Product(s) returned are damaged, reasonable deductions from the paid price will be made to the seller to compensate for the damage.
(j) Once the refund is issued, the buyer should see the refund as a credit approximately 5-10 business days later, depending upon the bank. The Platform will notify you once this has been completed through e-mail.
(k) No refund is possible after the 14-day money-back guarantee.
10.3 You agree that the Platform is not financially, legally, or in any form, liable for any damages or loss in value to the Product(s) caused by the seller, courier, buyer and/or any party.
11 Seller's rights to end the contract (of physical works)
11.1 A seller may end the contract for a Product at any time by writing to the Platform at email@example.com if:
(a) the buyer does not, in any form, allow the seller to deliver the Product(s) to the buyer;
(b) the buyer does not make a successful payment for the Product(s); or
(c) the seller does not want to supply the Product(s) to the buyer.
11.2 If the seller ends the contract in the situations set out in Clause 11.1a, the Platform will refund the paid price to the buyer, but the seller and/or the Platform may make the following deductions from the paid price: any payment processing fees, packaging costs, shipping costs, custom duties, taxes, and other relevant fees incurred by the seller and/or the Platform.
12 Price and payment policy
12.1 The Product sales price will be the price indicated on the Product and Checkout screens when a buyer places his/her order, final and official. Each seller must take all reasonable care to ensure that the price of the Product advised is correct.
12.2 A buyer must make a successful payment for the Product(s) via accepted payment methods available on the Platform, such as Stripe (and all of its accepted payment methods available on the Platform) as well as through the Flow blockchain via the Blocto crypto wallet.
12.3 The Platform operates with a simple commission structure:
(a) Any products (physical works and NFTs) will be charged with a commission of 20% on a per-item basis.
12.4 The seller is in general paid out around eighty percent (~80%) of the total sales price, unless agreed otherwise:
(a) For Stripe payments of physical works or NFTs, seller's payout is eighty percent (80%) less the outgoing Stripe payment processing fee. For NFTs, it is paid out almost instantaneously; and for physical works, it is paid out as soon as the buyer is satisfied with the Product(s) received, or once fourteen (14) calendar days have elapsed from the date of shipment arrival (i.e. the money-back guarantee period). The Platform charges the remaining 20% as commission.
(b) For crypto payments (e.g. Flow), the seller's payout (less any transaction fees) is paid out almost instantaneously. The Platform charges the remaining 20% as commission.
12.5 For physical works, the buyer is the responsible party to pay for: shipping costs, taxes, custom duties, and insurance fees (if any) in addition to the Product sales price. Free shipping may be offered to buyers, at the discretion of the directors of the Platform.
12.6 The buyer is ultimately responsible for verifying if the relevant fees outlined in Clause 12.5 are up-to-date and accurate.
12.7 For physical works, the seller is the responsible party to pay for: costs of work creation, packaging, shipping label and pick-up fees (if any).
12.8 The buyer is ultimately responsible for verifying if the relevant fees outlined in Clause 12.7 are up-to-date and accurate.
12.9 All UK, EU or other countries/regions' sellers who are VAT-registered must provide the Platform their VAT number in the Accounts screen of the app.
12.10 Emergency Situations. The Platform reserves the right to make emergency surcharges to buyers and sellers to recover costs associated with temporary emergency situations beyond the Platform's control which could not be reasonably anticipated at the commencement of this Agreement. All such surcharges will be temporary and will apply to the Platform's general customer base.
12.11 If any party believes a transaction is wrong, please contact the Platform promptly at firstname.lastname@example.org.
13 Shipping policy (of physical works)
13.1 It is the seller's responsibility to verify and provide the correct Product details for shipment (e.g. quantity, price, description and country of manufacture of the Product(s), harmonised code, actual weight in kilogram, dimensions in centimetre, pickup address, contact details, pickup date and time, and any tax related information such as a VAT number) to the Platform in order to avoid shipment errors and delays, and to ensure smooth customs clearance for international deliveries. Failure to provide correct shipment details may result in surcharges.
13.2 By using the Platform and agreeing to these Terms, the seller agrees to have followed our packaging guidelines and take full responsibility of verifying the condition of the packaged Product(s) and whether they are ready for shipment. The Platform is not liable for any damages or loss in value to the Product(s) occurred at any point in time (see Clause 10.6).
13.3 It is the seller's responsibility to maintain accurate stock counts on the Platform. In case there is a stock discrepancy and the seller is not able to fulfil the buyer's items at time of purchase, the seller will only fulfil the available Product(s) to the buyer, who will only be charged for those fulfilled items.
13.4 Shipping costs are calculated at checkout based on weight, dimensions and destination of the items in the order. Payment for shipping will be collected with the purchase. This price will be the final price for shipping cost to the customer.
13.5 For each checkout, you are only able to ship the Product(s) in your shopping cart to the same delivery address. If a buyer would like to ship multiple items to multiple addresses, please checkout separately.
13.6 Delivery Terms:
(a) Transit Time Domestically. In general, domestic shipments are in transit for two (2) to seven (7) days;
(b) Transit time Internationally. Generally, orders shipped internationally are in transit for four (4) to twenty two (22) days. This varies greatly depending on the courier you have selected. The Platform is able to offer a more specific estimate when you are choosing your courier at checkout;
(c) Dispatch Time. Orders must be dispatched within three (3) business days of payment verification, unless specifically stated otherwise by the seller on his/her 'Product' screens;
(d) Change Of Delivery Address. For any last minute change of delivery address requests after order confirmation, the Platform may be able to, but cannot guarantee, the change of address before the order has been dispatched. Please contact email@example.com ASAP;
(e) Delivery Time Exceeded. If delivery time has exceeded the forecasted time, please directly contact the courier using the tracking code provided. The Platform is not liable for any shipment delays. In case of any unexpected severe delays (of more than thirty (30) days), please contact firstname.lastname@example.org so that the Platform can conduct an investigation.
13.7 Tracking: After dispatch, buyers and sellers will be able to find a tracking link (located in the order item screen under the 'My Orders' or 'My Sold Items' screen) from which they will be able to follow the progress of their shipment based on the latest updates made available by the shipping provider.
13.8 Duties & Taxes:
(a) The Platform follows the delivered duty paid (DDP) intercoms rule;
(b) Sales tax has already been applied to the price of the Product(s) as displayed in-app at checkout;
(c) Import Duties & Taxes. For international shipments, import duties and taxes may be required to be paid. The EasyPost 3PL provider pre-calculates these costs and display them at the Platform's checkout for the sellers and buyers. The Platform encourages buyers to pre-pay duties and taxes as pre-paying these will facilitate a faster delivery time as they will be less likely to be subject to delays at customs at their destination country.
13.9 Insurance options:
(a) EasyPost Insurance: with one click of a button you can choose to add shipping insurance provided by EasyPost at checkout, and their maximum insurance will cover up to USD $5,000 per shipment; and
(b) If you would like to have an alternative shipping insurance for your purchased items (regardless of the carrier you use), please kindly consider purchasing that yourself from third-party insurance providers (e.g. UPS Capital, case study here).
13.10 Process for parcel damaged in-transit. If within the 14-day money-back guarantee period (see Clause 10), the Platform will process a refund (less any costs incurred by the seller and/or the Platform) or replacement as soon as the courier has completed their investigation into the claim.
13.11 Process for parcel lost in-transit. The Platform will process a refund (less any costs incurred by the seller and/or the Platform) or replacement as soon as the courier has conducted an investigation and deemed the parcel lost.
14.1 In no event, including but not limited to negligence, shall Pons Company Ltd., its affiliates, subsidiaries or licensors, or any of their respective members, managers, directors, officers, employees, agent and contractors (collectively, the “protected entities”) be liable for any direct, indirect, special, incidental, consequential, exemplary, or punitive damages of any kind whatsoever, including lost revenues or lost profits, which may or does result from the use of, access to, or inability to use the Platform, the Platform proprietary contents, user information, subscriber information, the services, Product(s), NFT(s), information and other materials on and in and made available through the Platform, regardless of legal theory, whether or not you or Pons Company Ltd. had been advised of the possibility or probability of such damages, and even if the remedies otherwise available fail of their essential purpose:
(a) all warranties, conditions, or terms relating to fitness for purpose, quality, or condition of the Product(s), whether express or implied by statute or common law or otherwise, are expressly excluded;
(b) the Platform shall not be liable to you (whether in contract, tort or otherwise) for any loss of profit or any indirect or consequential loss arising from or in connection with the provision of the Product(s);
(c) our total liability to you for all losses arising from or in connection with the use of the Platform shall be limited to one dollar U.S. ($1 U.S.) in the preceding twelve (12) month period. Some regions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you. If any part of this limitation on liability is found to be invalid or unenforceable for any reason, then the total liability of Pons Company Ltd. and its affiliates, subsidiaries or its licensors shall not exceed one dollar U.S. ($1 U.S.); and
(d) if you are dissatisfied with the Platform, or with any of these Terms, or feel the Platform has breached these Terms, your sole and exclusive remedy is to discontinue using the Platform.
15 Community Safety
15.1 Every person at the Platform will do their best to keep the community on the Platform safe, but it is not guaranteed. It requires the users to do this, which includes the following commitments:
(a) you will not send or otherwise post unauthorised commercial communications (such as spam) on the Platform;
(b) you will not collect users' content or information, or otherwise access the Platform, using automated means (such as harvesting bots, robots, spiders, or scrapers) without our permission;
(c) you will not engage in unlawful multi-level marketing, such as a pyramid scheme on the Platform;
(d) you will not upload viruses or other malicious code, or engage in any cyberattacks on the Platform;
(e) you will not solicit login information or access an account belonging to someone else;
(f) you will not bully, intimidate, or harass any user;
(g) you will not post content that is hateful, threatening, pornographic, or that contains nudity or graphic or gratuitous violence;
(h) you will not use the Platform to do anything unlawful, misleading, malicious, or discriminatory;
(i) you will not do anything that could disable, overburden, or impair the proper working of the Platform, such as a denial of service attack; and
(j) you will not facilitate or encourage any violations of these Terms.
16 Use of personal information
16.2 In the event you process personal data relating to a buyer or a seller for the purpose of effecting a transaction or otherwise using the Platform, you confirm and undertake that you will only process such personal data for the sole purpose of participating in the marketplace on the Platform and (where applicable) to supply the Product(s) to buyers and you will apply all adequate technical and organisational measures to keep such personal data secure.
17.1 The user acknowledges and agrees that during the use of these Terms s/he may be exposed to Confidential Information. "Confidential Information" shall mean all information, in whole or in part, that is disclosed by Pons Company Limited or any user of the Platform or any employee, affiliate or agent thereof that is non-public, confidential or proprietary in nature. Confidential Information also includes, without limitation, to information about business, sales, operations, know-how, trade secrets, business affairs, any knowledge gained through examination or observation of or access to the facilities, computer systems and/or books and records, any analyses, compilations, studies or other documents prepared by Pons Company Limited or otherwise derived in any manner from the Confidential Information that the user is obliged to keep confidential or knows or has reason to know should be treated as confidential.
17.2 The user's use of the Platform obligates the user to:
(a) maintain all Confidential Information in strict confidence;
(b) not to disclose Confidential Information to any third parties; and
(c) not to use Confidential Information in any way which may directly or indirectly be detrimental to Pons Company Limited or any user(s) of the Platform.
17.3 All Confidential Information remains the sole and exclusive property of Pons Company Limited or the respective disclosing party. The user acknowledges and agrees that nothing in these Terms or its participation or use of the Platform shall be construed as granting any rights, by licence or otherwise, in or to any Confidential Information or any patent, copyright or other intellectual property proprietary rights of Pons Company Limited or any user(s) of the Platform.
18.1 Neither the user nor anyone at Pons Company Limited may announce, market or otherwise use the Platform's name, logo, Product(s) or branding in any way without the prior written consent from the directors of the Platform.
19.1 The Platform may contain links to third party web sites or services that are not owned or controlled by the Company or its affiliates. Pons Company Ltd. has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party web sites or services. You further acknowledge and agree that Pons Company Ltd. shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such web sites or services. We strongly advise you to read the terms and conditions and privacy policies of any third party web sites or services that you visit.
20.1 The user releases, and hereby agrees to indemnify, defend and save harmless Pons Company Limited, and its affiliates, advertisers, divisions, licensors, suppliers or partners, and their past, present and future officers, agents, employees, shareholders, members, representatives, employees, successors and assigns, jointly and individually, from and against all claims, demands, causes of action, liabilities, losses, damages, costs, expenses, judgments, fines and penalties (including reasonable legal fees) based upon or arising out of the user's negligent actions, errors and omissions, wilful misconduct and fraud in connection with the participation in or use of the Platform, arising out of the user's breach or alleged breach of this Agreement. The user further agrees in the event that the user brings a claim or action in violation of this Agreement, the user shall be liable for any legal fees and costs incurred by Pons Company Limited.
20.2 The user agrees to cooperate fully with any investigations of any actual, alleged or potential violations of these Terms. The user hereby agrees to waive any and all rights against Pons Company Limited, and agreed to hold Pons Company Limited harmless in connection with any claims relating to any action taken by Pons Company Limited as part of the investigation.
21 Modifications to these Terms
21.1 The Platform reserves the right to modify these Terms at any time in accordance with this provision. If we make changes to these Terms, we will post the revised Terms on the Platform and update the “Last Updated” date at the top of these Terms. If you disagree with the revised Terms, you may terminate this Agreement with immediate effect. If you do not terminate your Agreement within fourteen (14) calendar days from the date the revised Terms become effective, your continued access to or use of the Platform will constitute acceptance of the revised Terms.
21.2 Pons Company Ltd. reserves the right to modify, suspend or terminate your account, access to this Platform and/or ability to use the services with or without notice for failure to comply with these Terms, for providing Pons Company Ltd. with untrue or inaccurate information about yourself, for infringement upon the Company's proprietary rights, or for any other reason whatsoever or for no reason.
22.1 In case of discrepancies between the English and Chinese language versions of these terms, the English version shall prevail.
23 Governing law and jurisdiction
23.1 These terms are governed by and shall be construed in accordance with the laws of the Hong Kong Special Administrative Region.
23.2 The courts of Hong Kong Special Administrative Region shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these terms.
23.3 Users must not display, list or advertise any content or Product on the Platform that violates any applicable law or regulations.
24.1 Pons Company Ltd., its subsidiaries, and affiliates are not responsible for and do not guarantee the accuracy or completeness of any Platform proprietary content or other items contained within the Platform. We reserve the right to immediately remove or make changes to any Platform proprietary contents or other items for any reason or for no reason in our sole discretion. We provide the Platform on an "as is" basis. Your use of the Platform is at your own risk. We disclaim all warranties of any kind, whether express or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, copyright ownership and/or noninfringement of copyrights or other third party proprietary rights. We do not warrant that the website will provide continuous, prompt, secure, or error-free service. We make reasonable, ongoing efforts to revise and update the Platform, but assume no liability for any errors or omissions, including the inaccuracy of content, or for any damages or losses that you or any third party may incur as a result of the unavailability of the Platform. We assume no responsibility, and shall not be liable for, any damages to, or viruses which may affect, your computer equipment or other property arising from your use of the Platform.
25 Force majeure
25.1 We will not be liable or responsible to the you, nor be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any of these Terms, when and to the extent such failure or delay is caused by or results from the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, epidemics, pandemics, including the 2019 novel coronavirus pandemic (COVID-19), tsunami, explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this agreement; (f) strikes, labour stoppages or slowdowns or other industrial disturbances; (g) shortage of adequate or suitable Internet connectivity, telecommunication breakdown or shortage of adequate power or electricity; and (h) other similar events beyond our control.
25.2 This force majeure clause can excuse sellers or buyers for non-performance of contractual obligations only if the orders have yet to be shipped, or orders that have been shipped where the shipping company has become insolvent. Otherwise, once the order has shipped, sellers and buyers must still fulfil and honor their contractual obligations, even if, for example, shipment has been delayed or hindered.
25.3 Either seller or buyer must give written notice to the Platform of utilising the force majeure clause as soon as possible before the order is shipped.
26 NFT terms
26.1 Use of the platform; account set-up and security:
(a) Account and Wallet Set-Up. To most easily use the Platform, you should use our supported electronic wallet, Blocto, which will enable you to purchase and store collectibles that you collect or purchase via the Platform. Each collectible is a Non-Fungible Token (an “NFT”) on the Flow™ blockchain network (the “Flow Network”).
(b) Account Registration. You must provide accurate and complete registration information when you create an account for the Platform. By creating an account, you agree to provide accurate, current and complete account information about yourself, and to maintain and promptly update your account information as necessary. We reserve the right to reclaim usernames without liability to you.
(c) Account Security. You are responsible for the security of your account for the Platform and for your electronic wallet(s). If you become aware of any unauthorized use of your password or of your account with us, you agree to notify us immediately at email@example.com.
(d) Account Transactions. You can use your electronic wallet to purchase, store, and engage in transactions using your credit card, or via one or more cryptocurrencies that we may elect to accept from time to time. Transactions that take place on the Platform are managed and confirmed via the Flow Network. You understand that your Flow Network public address will be made publicly visible whenever you engage in a transaction on the Platform.
26.2 Payment, gas fees, and taxes
(a) Financial Transactions on the Platform. Any payments or financial transactions regarding NFTs that you engage in via the Platform will be conducted through the Flow Network. We have no control over these payments or transactions, nor do we have the ability to reverse any payments or transactions. We have no liability to you or to any third party for any claims or damages that may arise as a result of any payments or transactions that you engage in via the Platform, or any other payment or transactions that you conduct via the Flow Network. We do not provide refunds for any purchases that you might make on or through the Platform. All sales are final. No refunds are permitted except with respect to any statutory warranties or guarantees that cannot be limited or excluded by law.
(b) Gas Fees. Every transaction on the Flow Network requires the payment of a transaction fee (each, a “Gas Fee”). The Gas Fees fund the network of computers that run the decentralized Flow Network. This means that you will need to pay a Gas Fee for each NFT transaction that you instigate via the Platform. Except as otherwise expressly set forth in these Terms, you will be solely responsible to pay any Gas Fee for any transaction that you instigate via the Platform.
(c) Responsibility for Taxes. You will be solely responsible to pay any and all sales, use, value-added and other taxes, duties, and assessments (except taxes on our net income) now or hereafter claimed or imposed by any governmental authority (collectively, the “Taxes”) associated with your use of the Platform. Except for income taxes levied on us, you:
(i) will pay or reimburse us for all national, federal, state, local or other taxes and assessments of any jurisdiction, including value added taxes and taxes as required by international tax treaties, customs or other import or export taxes, and amounts levied in lieu thereof based on charges set, services performed or payments made hereunder, as are now or hereafter may be imposed under the authority of any national, state, local or any other taxing jurisdiction; and
(ii) will not be entitled to deduct the amount of any such taxes, duties or assessments from payments (including Gas Fees) made to us pursuant to these Terms.
(d) Platform fees. For all primary sales of NFTs, the Platform takes a 20% commission of total item sales prices. For all secondary market sales (resales), the Platform takes a 10% commission of total item sales prices.
(e) Resale royalties. Seller(s) are entitled to a 2.5% - 10% resale royalty (set by the seller during the Sell flow) from every successful secondary market sale of an NFT that they first created (minted).
26.3 Ownership, license, and ownership restrictions
(a) Ownership of the NFTs by Patrons. You own the underlying NFT completely. This means that you have the right to sell your NFT or give it away. Ownership of the NFT is mediated entirely by the Flow Network. At no point will we seize, freeze, or otherwise modify the ownership of any NFT.
(b) Patron License to the NFTs. Only limited personal non-commercial use and resale rights in the NFT are granted and you have no right to license, commercially exploit, reproduce, distribute, prepare derivative works, publicly perform, or publicly display the NFT, the music, the movie segment, or the artwork therein. All rights to reproduction of the work(s) of art are retained by the Seller (e.g. artist).
(c) We Own the Platform. You acknowledge and agree that we (or, as applicable, our licensors) owns all legal right, title and interest in and to all other elements of the Platform, and all intellectual property rights therein (including, without limitation, all designs, systems, methods, information, computer code, software, services, “look and feel”, organization, compilation of the content, code, data, and all other elements of the Platform (collectively, the “App Materials”). You acknowledge that the App Materials are protected by copyright, trade dress, patent, and trademark laws, international conventions, other relevant intellectual property and proprietary rights, and applicable laws. All App Materials are the copyrighted property of us or our licensors, and all trademarks, service marks, and trade names associated with the Platform or otherwise contained in the App Materials are proprietary to us or our licensors.
(d) No User License or Ownership of App Materials. Except as expressly set forth herein, your use of the Platform does not grant you ownership of or any other rights with respect to any content, code, data, or other App Materials that you may access on or through the Platform. We reserve all rights in and to the App Materials that are not expressly granted to you in these Terms.
(e) Restrictions on Ownership. You agree that you may not, nor permit any third party to do or attempt to do any of the foregoing without our (or, as applicable, our licensors’) express prior written consent in each case:
(i) modify the NFT in any way, including, without limitation, the shapes, designs, drawings, attributes, or color schemes;
(ii) use the NFT to advertise, market, or sell any third party product or service;
(iii) use the NFT in connection with images, videos, or other forms of media that depict hatred, intolerance, violence, cruelty, or anything else that could reasonably be found to constitute hate speech or otherwise infringe upon the rights of others;
(iv) use the NFT in movies, videos, or any other forms of media, except to the limited extent that such use is expressly permitted in these Terms or solely for your own personal, non-commercial use;
(v) sell, distribute for commercial gain (including, without limitation, giving away in the hopes of eventual commercial gain), or otherwise commercialize merchandise that includes, contains, or consists of the NFT;
(vi) attempt to trademark, copyright, or otherwise acquire additional intellectual property rights in or to the NFT; or
(vii) otherwise utilize the NFT for your or any third party’s commercial benefit.
(f) Third Party IP. This means any third party patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, trademarks, know-how or any other intellectual property rights recognized in any country or jurisdiction in the world. If the NFT contains Third Party IP, you understand and agree as follows:
(i) that you will not have the right to use such Third Party IP in any way except as incorporated in the NFT, and subject to the license and restrictions contained herein;
(ii) that, depending on the nature of the license granted from the owner of the Third Party IP, we may need to (and reserve every right to) pass through additional restrictions on your ability to use the NFT; and
(iii) to the extent that we inform you of such additional restrictions in writing, you will be responsible for complying with all such restrictions from the date that you receive the notice, and that failure to do so will be deemed a breach of the license contained in Terms.
(g) NFT Club membership. All benefits related to the NFT should be clearly stated in-app, as proposed by the seller and approved by the Platform (as a membership facilitator to ensure that utilities are delivered).
(i) To protect buyers' rights, once the benefits are listed in-app, they cannot be removed.
(ii) Benefits can be added or modified (to a small degree) with the approval of the Platform—the seller should contact the Platform at his/her earliest convenience.
(iii) Benefits shall be provided by the seller to all buyers (primary or secondary) at least once within 180 days from the date of purchase, unless stated otherwise.
(iv) Benefits marked 'primary sales only' mean that secondary market buyers have no rights whatsoever to such benefits.
(v) If a buyer sells, swaps, donates, gives away, transfers, or otherwise disposes of the NFT, he/she will have no access to the Club benefits with immediate impact (see 26.3(h)), and shall be removed from the Club.
(vi) If the benefits stated are not provided by the seller within 180 days from the date of purchase, please contact the seller and the Platform for a potential resolution.
(vii) If any illegal activities and/or abusive conduct by any user within a Club are reported, the Platform reserves the right to suspend or remove the user from the Club.
(viii) In the case of any disputes, the Platform reserves the right of final decision on all matters relating to NFT Clubs, which shall be binding on all the parties concerned.
(h) Other Terms of License. The license granted above applies only to the extent that you continue to own the NFT. If at any time you sell, swap, donate, give away, transfer, or otherwise dispose of your NFT for any reason, the license and benefits granted will immediately expire with respect to that NFT without the requirement of notice, and you will have no further rights in or to the NFT. The restrictions in 26.3(f) and 26.3(h) will survive the expiration or termination of these Terms.
26.4 Assumption of risk
(a) Value and Volatility. The prices of collectible blockchain assets are extremely volatile and subjective and collectible blockchain assets have no inherent or intrinsic value. Fluctuations in the price of other digital assets could materially and adversely affect the value of your NFTs, which may also be subject to significant price volatility. Each NFT has no inherent or intrinsic value. We cannot guarantee that any NFTs purchased will retain their original value, as the value of collectibles is inherently subjective and factors occurring externally may materially impact the value and desirability of any particular NFT.
(b) Tax Calculations. You are solely responsible for determining what, if any, taxes apply to your NFT-related transactions. We are not responsible for determining the taxes that apply to your transactions on the Platform.
(c) Use of Blockchain. The Platform does not store, send, or receive NFT. This is because NFTs exist only by virtue of the ownership record maintained on the Platform's supporting blockchain in the Flow network. Any transfer of NFTs occur within the supporting blockchain in the Flow network, and not on the Platform.
(d) Inherent Risks with Internet Currency. There are risks associated with using an Internet-based currency, including, but not limited to, the risk of hardware, software and Internet connections, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to information stored within your electronic wallet. You accept and acknowledge that we will not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience when using the Flow Network, however caused.
(e) Regulatory Uncertainty. The regulatory regime governing blockchain technologies, cryptocurrencies and tokens is uncertain, and new regulations or policies may materially adversely affect the development of the Flow ecosystem, and therefore the potential utility or value of your NFTs.
(f) Software Risks. Upgrades to the Flow Network, a hard fork in the Flow Network, or a change in how transactions are confirmed on the Flow Network may have unintended, adverse effects on all blockchains using the Flow Network’s NFT standard.
27 Entire agreement
27.1 These Terms constitute the entire Agreement between any user and Pons Company Limited in relation to the use of the Platform. These Terms supersede and extinguish all other agreements, promises, assurances, warranties, representations and understandings between any user and us, whether written or oral, in relation to the use of the Platform.
27.2 You acknowledge that you will have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these terms.
28 Other important terms
28.1 We may transfer our rights and obligations under these terms to another organisation. We will contact you to let you know if we plan to do this. If you do not wish to continue the contract with the transferee, you may contact us to end this Agreement with immediate effect from the date of us informing you of the proposed transfer and we will refund you any payments you have made in advance for Product(s) not provided.
28.2 You may only transfer your rights or your obligations under these terms to another person if we agree to this in writing.
28.3 If a court finds part of this contract illegal, the rest will continue in force. Each of the paragraphs of these terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.
28.4 Even if we delay in enforcing this contract, we can still enforce it later. If we do not insist immediately that you do anything you are required to do under these terms, or if we delay in taking steps against you in respect of your breaking this contract, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date. For example, if you miss a payment and we do not chase you but we continue to provide the Product(s), we can still require you to make the payment at a later date.