Terms of Use

Version 1.0

Last revised on: June 30, 2020

The website located at https://www.async.art (the “Site”) is a copyrighted work belonging to Asynchronous Art, Inc. (“Async,” “Company,” “us,” “our,” and “we”). Your submission of information, including personal information, through or in connection with the Site is governed by the terms of our privacy policy as updated from time to time, available at http://async.art/privacy (“Privacy Policy”).

All such additional terms, guidelines, and rules, including our Privacy Policy, are incorporated by reference into these terms of use (these “Terms”).

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THESE TERMS SET FORTH THE LEGALLY BINDING TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SITE. BY ACCESSING OR USING THE SITE, YOU ARE ACCEPTING THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT), AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT). IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THESE TERMS, DO NOT ACCESS AND/OR USE THE SITE.

THESE TERMS REQUIRE THE USE OF ARBITRATION (SECTION 14.2) ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.

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  1. Description of the Services. Async is an online platform for buying and selling programmable art. Each piece of programmable art is represented by a single master (“Master”) and any of its component layers (“Layers”). Each Master or Layer may be represented in the form of non-fungible ERC721 digital assets (“Tokens”) that themselves may be created by reference to a smart contract on the Ethereum blockchain created by Async (“Smart Contract”). The Site will display either the Master or Layer image of an Artist (each, the “Artwork”) and individuals can browse Artwork and purchase Tokens associated with the Artwork (the availability of these services on the Site shall be referred to as the “Marketplace Services”). The Site provides a rendering service to allow you to view the Artwork (“Rendering Services”). You may participate on the Site as a User (defined below).
    1. Users. Users of the Site (“Users”) will be able to search, browse, and click on links to digital artworks displayed on the Site (“Browsing Services”). Users may connect their Ethereum wallet and make a bid if desired. A User is not required to connect an Ethereum wallet in order to access the Browsing Services. Users must be at least eighteen years old to access the Site and use the Services.
      1. Collectors. Users will be able to search, browse, click on links, and purchase tokens that represent the digital artworks on the Site. A User that becomes an owner of Artwork (“Collector”) will have rights associated with that purchase agreement between the Collector and the Artist. Collectors will need to connect their Ethereum wallet in order to make bids on Artwork.
      2. Applicants. In order to become an Artist on the Site, prospective artists (“Applicants”) must complete an application on the Site. Async will in its sole discretion approve or deny the application.
      3. Artists. Applicants approved by Async to become artists on the Site (“Artists”) will be permitted to upload Artwork onto the Site. Rights and obligations regarding the posting of Artwork can be found here: https://async.art/artist-terms (“Artist Terms”). Async has sole discretion regarding acceptance and hosting of Artwork. Async reserves the right to immediately remove Artwork from its platform for any reason.
  2. Ethereum Wallet.
    1. Connecting Ethereum Wallets. In order to use certain features of the Site, you must connect an Ethereum wallet to the Site (“Wallet”). You represent and warrant that you are the exclusive owner and controller of the Wallet. You are responsible for maintaining the confidentiality of any financial information related to your Wallet.
    2. Creating a Profile. Once you have connected your Wallet, you may choose to create a profile on the Site by choosing a username and uploading an avatar. If you choose to create a profile, you may choose a username. Async may, in its sole discretion, delete your profile if we deem your username to be offensive or inappropriate.
    3. Signing Out. You may sign out of the Site by disconnecting your Wallet from the Site at any time, for any reason. You can do this by going onto the Site, clicking “Connect to a wallet” and “Disconnect”.
    4. Deleting Your Profile. You may permanently delete your profile from the Site by disconnecting your Wallet from your username and avatar, at any time, for any reason. You can do this on the Site by clicking on “Edit Profile” and choosing the option to delete. Async may also permanently delete your profile in accordance with Section 12.
    5. Consent to access, processing and storage of your personally identifiable information (“PII”). You consent to us accessing, processing and retaining any personal information you provide to us for the purpose of us providing Marketplace Services to you. This consent is not related to, and does not affect, any rights or obligations we or you have in accordance with data protection laws, privacy laws, and regulations. Please see our Privacy Policy for further information about how we process your PII, and the rights you have in respect of this.
  3. Access to the Site
    1. License. Subject to these Terms, Async grants you a non-transferable, non-exclusive, revocable, limited license to use and access the Site for your own personal and noncommercial use. Notwithstanding these Terms, an Artist may use the Site for limited commercial purposes as set forth in the Artist Terms.
    2. Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Site, whether in whole or in part, or any content displayed on the Site; (b) you shall not (directly or indirectly) modify, decipher, disassemble, reverse compile or reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services or Site; (c) you shall not access the Site in order to build a similar or competitive website, product, or service; (d) translate, or otherwise create derivative works of any part of the Services or Site; (e) rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder; (f) frame or mirror any part of the Site without Async’s express prior written consent; (g) create a database by systematically downloading and storing Site content; (h) use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, harvest, index, “scrape,” “data mine” or in any way gather Site content or reproduce or circumvent the navigational structure or presentation of the Site without Async’s express prior written consent and (i) except as expressly stated herein, no part of the Site may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Site shall be subject to these Terms. All copyright and other proprietary notices on the Site (or on any content displayed on the Site) must be retained on all copies thereof.
    3. Modification of the Site. Async reserves the right, at any time, to modify, suspend, or discontinue the Site (in whole or in part) with or without notice to you. You agree that Async will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Site or any part thereof.
    4. Modification of the Smart Contract. Async reserves the right, at any time, to modify, suspend, or discontinue the Smart Contract, and to mandate migration to a new version of the Smart Contract where Async deems it appropriate. Async also reserves the right to pause new bids or to close auctions in order to ensure orderly or efficient migration to a new version of the Smart Contract. Collectors and Artists will be given one week’s notice of any proposed migrations via email, if provided, and through Async’s social media channels including the Site.
    5. No Support or Maintenance. You acknowledge and agree that Async will have no obligation to provide you with any support or maintenance in connection with the Site, unless specifically contracted for under a separate agreement.
    6. Ownership.
      1. Excluding any User Content that you may provide (defined below), you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Site and its content are owned by Async. Neither these Terms (nor your access to the Site) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in these Terms. Async reserves all rights not granted in these Terms. There are no implied licenses granted under these Terms.
      2. You acknowledge the intellectual property of the Artwork belongs to the Artist, and that any transfer of Intellectual Property rights over Artwork shall be governed by the purchase agreement between Collector and Artist.
  4. User Content
    1. User Content.User Content” means any and all information and content that an Artist or Collector submits to, or uses with, the Site (e.g., programmable art, Masters, Layers, Artwork, content in the avatar, username, Artist’s descriptions of the digital artwork). You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that personally identifies you or any third party. You hereby represent and warrant that your User Content does not violate our Acceptable Use Policy (defined in Section 4.2). You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by Async. Because you alone are responsible for your User Content, you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. Async is not obligated to backup any User Content, and your User Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your User Content if you desire.
    2. Acceptable Use Policy. The following terms constitute our “Acceptable Use Policy”:
      1. You agree not to use the Site to collect, upload, transmit, display, or distribute any User Content (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) that is harmful to minors in any way; or (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party.
      2. In addition, you agree not to: (i) upload, transmit, or distribute to or through the Site any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through the Site unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) use the Site to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Site, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Site (or to other computer systems or networks connected to or used together with the Site), whether through password mining or any other means; (vi) harass or interfere with any other user’s use and enjoyment of the Site; or (vi) use software or automated agents or scripts to produce multiple accounts on the Site, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Site (provided, however, that we may conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file).
    3. Enforcement. We reserve the right (but have no obligation) to review any User Content, and to investigate and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of these Terms or otherwise create liability for us or any other person. Such action may include delisting Artworks, deleting your profile, banning you from listing new Artworks, and/or reporting you to law enforcement authorities.
    4. Feedback. If you provide Async with any feedback or suggestions regarding the Site (“Feedback”), you hereby assign to Async all rights in such Feedback and agree that Async shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. Async will treat any Feedback you provide to Async as non-confidential and non-proprietary. You agree that you will not submit to Async any information or ideas that you consider to be confidential or proprietary.
  5. Indemnification. You agree to indemnify and hold Async (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Site, (b) your violation of these Terms, (c) your violation of applicable laws or regulations or (d) your User Content. Async reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Async. Async will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
  6. Fees and Artwork Sales.
  7. Collectors do not pay any fees related to the initial purchase of Tokens. Subsequent purchases of any Tokens that take place on the Smart Contract will result in 1% of the purchase amount distributed from the subsequent purchaser to Async. Any fees imposed by Async due to Async by the Artist, or any payments due to the Artist by Async shall be outlined in the Artist Terms. Async may introduce premium services and impose fees related to such services in the future.

  8. Assumption of Risk

    You accept and acknowledge:

    1. You are solely responsible for determining what, if any, taxes apply to your purchases and sales of Tokens. Async is not responsible for determining the taxes that apply to Token transactions.
    2. Async is not responsible for exploits that are not reasonably foreseeable. While Async has taken a number of precautions to ensure the security of the Smart Contract, the technology is relatively new and it is not possible to guarantee that the code is 100% free from bugs or errors.
    3. The Site does not store, send or receive Tokens. The Tokens are minted and transferred on the Smart Contract maintained by Async. Any transfers of Tokens occur via the Smart Contract located on the Ethereum blockchain and not on this Site.
    4. There are risks associated with accepting cryptocurrencies as payment and purchasing blockchain based Tokens, including but not limited to, the risk of losing private keys, theft of cryptocurrency or Tokens due to hackers finding out your private key, lack of a secondary market, significant price volatility, hard forks and disruptions to the Ethereum blockchain. You accept and acknowledge that transfers on the Ethereum blockchain are irreversible and as a result, it is not possible for Async to issue refunds on Token purchases.
    5. There is a risk that Async may be obligated to take down listings and remove Artwork from the Site if it has received a Digital Millennium Copyright Notice (“DMCA Notice”) under Section 13. Async may also be obligated to serve a DMCA Notice to its IPFS service provider. If this occurs, the Token may no longer reference the Artwork. Artwork linked to images subject to a DMCA Notice may subsequently lose value and owners of Tokens associated with Layers may no longer be able to initiate state changes.
    6. Any state changes initiated by an owner of a Token associated with a Layer may be rejected by the Artist.
    7. Where an Artwork has been delisted from the Site, Async will cease Rendering Services related to that Artwork or its associated Masters or Layers. Owners of a Token associated with a Layer that has been delisted must interact with the smart contract directly or find an external source to update their Token.
    8. Async cannot guarantee payment of any royalties to Artists where transactions involving Tokens occur on third-party platforms or directly between Collectors.
  9. Third-Party Links & Ads; Other Users
    1. Other Users. Each Site user is solely responsible for any and all of its own User Content. Digital artworks and its descriptions are posted for informational purposes only and may not be independently verified by Async and/or its partners. Therefore, your reliance on such information is at your own risk. You should always verify information on our platform before making a bid or purchase. Because we do not control User Content and/or other third-party sites and resources, you acknowledge and agree that we are not responsible for the accuracy or availability of any User Content and materials and/or external sites or resources, whether provided by you or by others. We make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content. Your interactions with other Site users are solely between you and such users. You agree that Async will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Site user, we are under no obligation to become involved.
    2. Release. You hereby release and forever discharge Async (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Site (including any interactions with, or act or omission of, other Site users or any Third-Party Links & Ads). IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
  10. Accuracy of Information.
  11. We attempt to ensure that the information that we provide on this Site is complete, accurate and current. Despite our efforts, the information on this Site may occasionally be inaccurate, incomplete or out of date. We make no representation as to the completeness, accuracy or correctness of any information on this Site.

  12. Disclaimers
  13. THE SITE IS PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND ASYNC (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SITE WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SITE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.

    YOU ACKNOWLEDGE THAT YOU ARE NOT RELYING ON ASYNC IN MAKING A PURCHASE, BID, OR SALE. ASYNC DOES NOT ENDORSE ANY OTHER THIRD-PARTY AND SHALL NOT BE RESPONSIBLE IN ANY WAY FOR ANY TRANSACTIONS YOU ENTER INTO WITH OTHER USERS. YOU AGREE THAT ASYNC WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGES OF ANY SORT INCURRED AS THE RESULT OF ANY INTERACTIONS BETWEEN YOU AND OTHER ARTISTS OR COLLECTORS.

    SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

  14. Limitation on Liability
  15. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ASYNC BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE SITE, EVEN IF ASYNC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITE IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.

    ASYNC SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE AS A RESULT OF YOUR FAILURE TO KEEP YOUR WALLET SECURE. ASYNC SHALL NOT LIABLE FOR ANY LOSS OR DAMAGE ARISING FROM YOUR FAILURE TO MAINTAIN THE CONFIDENTIALITY OF YOUR FINANCIAL INFORMATION, WHICH INCLUDES YOUR PRIVATE KEYS.

    TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF FIFTY US DOLLARS (U.S. $50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.

    SOME JURISDICTIONS 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.

  16. Term and Termination. Subject to this Section, these Terms will remain in full force and effect while you use the Site. We may suspend or terminate your rights to use the Site (including delisting your artwork and deleting your profile) at any time for any reason at our sole discretion, including for any use of the Site in violation of these Terms. Upon termination of your rights under these Terms, right to access and use the Site will terminate immediately. You understand that any termination of your rights may involve removal of your User Content associated with your Wallet from our live databases. Async will not have any liability whatsoever to you for any termination of your rights under these Terms, including for deleting your profile or delisting your Artwork. Even after your rights under these Terms are terminated, the following provisions of these Terms will remain in effect: Sections 3.2 through 6, and Sections 4 through 8 and Sections 10 through 11.
  17. Digital Millennium Copyright Notice. Async respects the intellectual property of others and asks that users of our Site do the same. In connection with our Site, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Site who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our Artists is, through the use of our Site, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated copyright agent:
    1. your physical or electronic signature;
    2. identification of the copyrighted work(s) that you claim to have been infringed;
    3. identification of the material on our services that you claim is infringing and that you request us to remove;
    4. sufficient information to permit us to locate such material;
    5. your address, telephone number, and e-mail address;
    6. a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
    7. a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
  18. Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.

    Pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512(c) ("DMCA"), Async’s designated copyright agent for notice of claims of copyrights infringement can be contacted at the addresses below.

    Asynchronous Art, Inc.
    649 Mission St, 5th Floor
    San Francisco, CA 94105
    IP@async.art

    You acknowledge, accept and agree that if we receive a notice of a claim of copyright infringement, we may immediately remove the identified materials from our Site without liability to you or any other party and that the claims of the Complaining Party will be referred to the United States Copyright Office for adjudication as provided in the DMCA.

    Please note that this procedure is exclusively for notifying Async and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with our rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws. Allegations that other intellectual property right is being infringed should be sent to info@async.art. Async may, in its sole discretion, delete the profile and delist the Artwork of those who are accused of copyright infringement or other intellectual property rights.

  19. General
    1. Changes. These Terms are subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any), and/or by prominently posting notice of the changes on our Site. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to these Terms will be effective one (1) day following the earlier of our dispatch of an e-mail notice to you (if applicable) or one (1) day following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Site. Continued use of our Site following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
    2. Dispute Resolution. Please read this Arbitration Agreement carefully. It is part of your contract with Async and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
      1. Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) between Async and any User or Registered User that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and Async, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
      2. Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Async should be sent to: Asynchronous Art, Inc. 649 Mission St, 5th Floor San Francisco, CA 94105. After the Notice is received, you and Async may attempt to resolve the claim or dispute informally. If you and Async do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
      3. Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules (“Arbitration Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that Async made to you prior to the initiation of arbitration, Async will pay you the greater of the award or $2,500.00. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
      4. Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
      5. Time Limits. If you or Async pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
      6. Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Async, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Async.
      7. Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and Async in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND THE ASYNC WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
      8. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
      9. Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
      10. Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
      11. Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
      12. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Async.
      13. Small Claims Court. Notwithstanding the foregoing, either you or Async may bring an individual action in small claims court.
      14. Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
      15. Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
      16. Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within New York County, New York, for such purpose.
    3. Disclosures. Async is located at the address in Section 14.9. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
    4. Electronic Communications. The communications between you and Async use electronic means, whether you use the Site or send us emails, or whether Async posts notices on the Site or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Async in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Async provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
    5. Entire Terms. These Terms constitute the entire agreement between you and us regarding the use of the Site. The section titles in these Terms are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation.” If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. You confirm that you are acting on your own behalf and not for the benefit of any other person. Your relationship to Async is that of an independent contractor, and neither party is an agent or partner of the other. These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Async ’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Async may freely assign these Terms. The terms and conditions set forth in these Terms shall be binding upon assignees.
    6. Waiver. A waiver by Async of any right or remedy under these Terms shall only be effective if it is in writing, executed by a duly authorized representative of Async and shall apply only to the circumstances for which it is given. Our failure to exercise or enforce any right or remedy under these Terms shall not operate as a waiver of such right or remedy, nor shall it prevent any future exercise or enforcement of such right or remedy. No single or partial exercise of any right or remedy shall preclude or restrict the further exercise of any such right or remedy or other rights or remedies.
    7. Governing Law and Jurisdiction. These Terms and any dispute or claim arising out of or in connection with their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of Delaware. You agree that the courts of Delaware shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the subject matter or formation (including non-contractual disputes or claims) of these Terms.
    8. If you are located outside of the United States (U.S.), you use or access the Site solely at your own risk and initiative. The Service is controlled and operated from facilities within the U.S. This Site is not intended to subject Async to non-U.S. jurisdiction or laws, except as otherwise expressly stated in this Agreement. The Site may not be appropriate or available for use in some jurisdictions. Async and its partners do not represent or warrant that the Site or any part thereof is appropriate or available for use in any particular jurisdiction other than the United States. In choosing to access the Site, you do so on your own initiative and at your own risk, and you are responsible for complying with all local laws, rules and regulations.

      SOME JURISDICTIONS HAVE CONSUMER PROTECTION AND OTHER LEGISLATION WHICH MAY APPLY TO THE SERVICES AND WHICH DO NOT ALLOW CERTAIN PROVISIONS SUCH AS LIMITATIONS OF LIABILITY AND EXCLUSION OF CERTAIN WARRANTIES, AMONG OTHERS. TO THE EXTENT THAT A LIMITATION, EXCLUSION, RESTRICTION OR OTHER PROVISION SET OUT BELOW IS SPECIFICALLY PROHIBITED BY APPLICABLE LAW, SUCH LIMITATION, EXCLUSION, RESTRICTION OR PROVISION MAY NOT APPLY TO YOU.

    9. Copyright/Trademark Information. Copyright © 2020 Asynchronous Art, Inc. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Site are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
    10. Contact Information:
    11. Asynchronous Art, Inc.

      649 Mission St, 5th Floor

      San Francisco, CA 94105

      info@async.art