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Terms of Service

Last Updated: August 25, 2022

Welcome to Mueshi (mew∙she), a fine art NFT marketplace built on the Ethereum Blockchain, for artists and art enthusiasts to come together. Mueshi is operated by Mueshi Incorporated, a Delaware corporation (collectively, “Mueshi,” the “Company,” “we,” or “us”). By accessing or using mueshi.io, including any subdomain (the “Site”), you (the “User”) signify that you have read, understand, and agree to be bound by these terms of service (“Terms of Service”).

PLEASE READ THESE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION AND AFFECT YOUR LEGAL RIGHTS. AS OUTLINED BELOW, THEY INCLUDE A MANDATORY ARBITRATION AGREEMENT AND CLASS ACTION WAIVER WHICH (WITH LIMITED EXCEPTIONS) REQUIRE ANY DISPUTES BETWEEN Mueshi AND USER/YOU TO BE RESOLVED THROUGH INDIVIDUAL ARBITRATION RATHER THAN BY A JUDGE OR JURY IN COURT.

ACCEPTANCE REQUIRED

BY CLICKING TO ACCEPT AND/OR USING THE SITE, YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE AND ALL OF THE TERMS INCORPORATED HEREIN BY REFERENCE. IF YOU DO NOT AGREE TO THE TERMS OF SERVICE, THEN YOU MAY NOT ACCESS OR USE THE SITE.

Changes to these Terms of Service. We may make changes to these Terms of Service from time to time. We will post any changed Terms of Service on the Site and will indicate at the top of this page the date the Terms of Service were last updated. You understand and agree that your continued use of the Site or its services after we have made any such changes constitutes your acceptance of the new Terms of Service.

1. PRIVACY POLICY

The Mueshi Privacy Policy, located here, describes how Mueshi collects, uses, stores, and/or discloses your personal information in connection with the Site. By agreeing to these Terms of Service, you agree to the collection, use, storage, and disclosure of your data in accordance with Mueshi’s Privacy Policy.

2. TERMS APPLICABLE TO ALL USERS: ELIGIBILITY, LICENSE, AND REPRESENTATIONS

Eligibility: General. By using the Site or its services, you agree to and will abide by all of the terms and conditions stated in these Terms of Service. If you violate any of these Terms of Service, or otherwise violate an agreement between you and us, we may revoke your access and any content or information that you have posted on the Site and/or prohibit you from using or accessing the Site or its services at any time in our sole discretion, with or without notice.

Restrictions on Data Collection/Termination. Without our prior consent, you may not:

  • Use of any automated means to access the Site or to collect any information from the Site;
  • Frame the Site, utilize framing techniques to enclose any content or other proprietary information on the Site, place popup windows over the Site’s pages, or otherwise affect the display of the Site’s pages; engage in the practices of “screen scraping,” “database scraping” or any other activity with the purpose of obtaining content or other information; or
  • Use the Site in any manner that violates applicable law or that could damage, disable, overburden, or impair the Site or interfere with any other party’s use and enjoyment of the Site.

We may terminate, disable, or reduce your access to, or use of, this Site for any reason, including without limitation, if we believe that you have violated or acted inconsistently with any portion of the Terms of Service.

User Conduct. You represent, warrant, and agree that no materials of any kind submitted through your account or otherwise posted or shared by you through the Site will violate or infringe upon the rights of any third party, including copyright, trademark, privacy, publicity, or other personal or proprietary rights; or contain libelous, defamatory or otherwise unlawful material. Additionally, you agree not to use automated scripts to collect information from the Site for any other purpose. You further agree that you may not use the Site in any unlawful manner or in any manner that could damage, disable, or impair the Site in any way. In addition, you agree not to use the Site to:

  • Use the Site for any unauthorized purpose, including accessing and/or collecting usernames and/or email addresses of other users by electronic or other means, including for the purposes of sending unsolicited email or other electronic communications, or engaging in unauthorized framing of, or linking to, the Site without Mueshi’s express written consent;
  • Interfere with, disrupt, disable, damage, or create an undue burden on or impair the functionality of the Site or the equipment, networks or services connected to the Site, including without limitation, hacking into the Site, or using the Site to send unsolicited or commercial emails, bulletins, prohibited comments, or other prohibited or illegal communications;
  • Impersonate any other person or entity, sell or let others use your credentials or account, provide false or misleading identification or address information, or invade the privacy or personal or proprietary right of any person or entity;
  • Decompile, disassemble, modify, translate, adapt, reverse engineer, or create derivative works from or based on the Site or any NFTs;
  • Circumvent, disable, or otherwise interfere with (i) security related features of the Site, (ii) features that prevent or restrict use of copying of any NFTs, or (iii) features that enforce limitations on use of the Site;
  • Engage in activities regarded as competitive with the Site or interfere with any other party’s use of the Site;
  • Attempt to gain access to any portion of the Site other than those for which your access is authorized;
  • Use the site in order to disguise the origin or nature of illicit proceeds; or
  • Utilize the Site for the benefit of a Prohibited Person (as defined below).

You further represent that the information you submit through the Site is truthful and accurate; your use of the Site and your use of its services does not violate any applicable laws or regulations; that you are of sufficient legal age or otherwise have legal capacity to legally enter these Terms of Service, and that your use of the Site will comply with the Terms of Service.

Ownership and Licenses. All legal right, title, and interest in and/or to this Site, its content, components, elements, the compilation and collection thereof, and all intellectual property rights associated with any of the foregoing (collectively, the “Company Assets”), resides with Mueshi or its licensors, as applicable, unless expressly provided otherwise in the Terms of Service. Mueshi does not claim ownership over artist NFTs or the rights relating to NFTs. Use of this Site does not grant ownership of, or any other rights, with respect to any content, code, data, or other Company Assets without prior written consent of Mueshi. You further agree to observe applicable intellectual property and other laws, discussed below.

3. INTELLECTUAL PROPERTY

You are solely responsible for your use of the Site and for any information you provide, including compliance with applicable laws, rules, and regulations, as well as these Terms of Service, including the User Conduct requirements outlined above.

By using the Site in conjunction with creating, submitting, posting, promoting, or displaying content, or by complying with Mueshi’s metadata standards in your metadata API responses, you grant Mueshi a worldwide, non-exclusive, sublicensable, royalty-free license to use, copy, modify, and display any content, including but not limited to text, materials, images, files, communications, comments, feedback, suggestions, ideas, concepts, questions, data, or otherwise, that you submit or post on or through the Site for our current and future business purposes, including to provide, promote, and improve the Site. This includes any digital file, art, or other material linked to or associated with any NFTs that are displayed on the Site.

Mueshi does not represent, or purport to claim, that it owns any content that is submitted, posted, or displayed on the Site.

You represent that you have, or have obtained, all rights, licenses, consents, permissions, power and/or authority necessary to grant the rights granted herein for any content that you create, submit, post, promote, or display on or through the Site. You represent and warrant that such content does not contain material subject to copyright, trademark, publicity rights, or other intellectual property rights, unless you have necessary permission or are otherwise legally entitled to post the material and to grant Mueshi the license described above, and that the content does not violate any laws.

Mueshi will take down works that are copyrighted or which infringe. If you believe that any material on the Site infringes upon your content, such as by copyright or trademark infringement, or violates your publicity or other intellectual property rights, you may send us a written notification of such infringement to Ariana Waller at 1250 S Miami Ave, 1708, Miami, Florida 33130.

To meet the notice requirements under the Digital Millennium Copyright Act (“DMCA”), the notification must be written an include the following:

  • Identification of the copyrighted work(s), trademark, publicity rights, or other intellectual property rights that you claim are being infringed;
  • Identification of the allegedly infringing material that is requested to be removed, including a description of the specific location on the Site (the url), so that we can locate the material;
  • Your contact information, including at least your full legal name and email address;
  • Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and if available, an email address;
  • A declaration that contains the following:

    • A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the intellectual property rights owner, its agent, or the law;
    • A statement that the information in the notice is accurate; and
    • A statement under penalty of perjury that you are authorized to act on behalf of the intellectual property owner of the intellectual property that is allegedly being infringed.
  • Your physical or electronic signature.

4. NFT TRANSACTIONS

Accounts. In order to be eligible to conduct transactions on Mueshi.io, users must register and create a personal account associated with Mueshi.io. Registration and creation of an account is accomplished directly on the Site and account information is stored on a centralized database. By creating an account, you agree to provide accurate, current, and complete account information about yourself, maintain and promptly update your account information as necessary and keep and maintain the security of your account information. Mueshi reserves the right to reclaim usernames without liability to you. You are responsible for the security of the username and password associated with your account. Once signed-in with an account, registered users will have full access to content, including the ability to conduct transactions. You accept all liability and risks regarding any unauthorized access to your account.

Payment Method. Upon establishing an account, registered users can participate in transactions via credit card purchase with Crossmint or cryptocurrency payment utilizing a third-party wallet of their choice (e.g., meta mask, trust wallet, wallet connect, coinbase wallet). Users agree to the terms of service of any third-party provider, pursuant to Section 11 below.

NFT Transfers. NFTs are initially held by Mueshi in a custodian wallet [or NFTs will initially be held by the applicable artist in the artist’s custodian wallet].

Appointment as Agent for Transfer. In the event that you effect a transfer via a sale or auction of any NFTs to another registered user through Mueshi.io, to the extent applicable you hereby appoint Company as your limited payments agent for the sole purpose of receiving, holding, and settling to you payments made for your NFTs. Company will settle to you payments that are actually received by Company as good funds, less any amounts owed to Company including fees collected by Company on behalf of the relevant IP holders and other obligations, and subject to these terms.

Taxes. In no event shall Mueshi be responsible for determining the tax implications of your transactions. You are solely responsible for determining what, if any, taxes apply to your transactions.

“Prohibited Persons.” No Prohibited Person may register or create an account or otherwise use the Site. “Prohibited Person” means: (i) any resident, the government or a government official of Cuba, Democratic People’s Republic of Korea (North Korea), Iran, Syria, or Crimea (a region of Ukraine annexed by the Russian Federation); (ii) any person or entity controlled by a person listed on the “Specially Designated Nationals and Blocked Persons” (“SDN”) List and the Non-SDN List, including the Sectoral Sanctions Identifications List, published by OFAC, the Section 311 Special Measures for Jurisdictions, Financial Institutions, or International Transactions of Primary Money Laundering Concern published by FinCEN, and any other foreign terrorist organization or other sanctioned, restricted, or debarred party; or (iii) any person that Mueshi, in its sole discretion, deems to have violated any of the Terms of Service.

5. COMPANY’S MANAGEMENT

Mueshi reserves the right, but does not undertake the obligation to: (i) monitor or review the Site for violations of the Terms of Service and for compliance with Mueshi’s policies; (ii) report to law enforcement authorities and/or take legal action against anyone who violates the Terms of Services; (iii) manage the Site in a manner designed to protect Mueshi’s and third parties’ rights and property or to facilitate the proper functioning of the Site; (iv) screen Company’s users, or attempt to verify the statement of Mueshi’s users; and/or (v) monitor or resolve disputed between you and other users or to terminate or block you and other users for violating the Terms of Service.

Company’s Right to Terminate Use. WITHOUT LIMITING ANY OTHER PROVISION OF THE TERMS OF SERVICE, COMPANY RESERVES THE RIGHT TO, IN COMPANY’S SOLE DISCRETION, AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE SITE TO ANY PERSON FOR ANY REASON OR FOR NO REASON AT ALL, INCLUDING WITHOUT LIMITATION, FOR BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT CONTAINED IN THE TERMS OF SERVICE OR VIOLATION OF ANY APPLICABLE LAW OR REGULATION.

6. ALL USERS: CONSENT TO ELECTRONIC TRANSACTIONS, DISCLOSURES, AND COMMUNICATIONS

Because Mueshi.io operates on the internet, it is necessary for you to consent to transact business with us online and electronically. As part of doing business with us, therefore, we also need you to consent to our giving you certain disclosures electronically, either via our Site or to the email address (or other electronic means of communication) you provide to us. The use of the Site constitutes your consent.

Electronic Communications. Any disclosure regarding your rights will be provided to you electronically through Mueshi.io, either on our Site or through Discord.

Scope of Consent. Your consent to receive disclosures and transact business electronically, and our agreement to do so, applies to any transactions to which such disclosures relate. You consent will remain in effect for so long as you are a User and, if you are no longer a User, will continue until such a time as all disclosures relevant to transactions that occurred while you were a User have been made.

Consenting to do Business Electronically. Before you decide to do business electronically, you should consider whether you have the required hardware and software capabilities described below.

Hardware and Software Requirements. In order to access and retain information electronically, you must satisfy the following computer hardware and software requirements: access to the internet; an email account and related software capable of receiving email through the internet; supported Web browsing software (Chrome version 32.0 or higher, Firefox version 26.0 or higher, Internet Explorer version 8.0 or higher, or Safari version 7.0 or higher); and hardware capable of running this software.

Telephone Consumer Protection Act Overview Consent. You expressly consent to receiving calls and messages, including auto-dialed and pre-recorded message calls, and SMS messages (including text messages) from us, our affiliates, agents, and others calling at their request or on their behalf, at any telephone numbers that you have provided or may provide in the future (including any cellular telephone numbers). You cellular or mobile telephone provider will charge you according to the type of plan you carry.

7. INDEMNIFICATION

By agreeing to the Terms of Service and accessing the Site, you agree, to the fullest extent permitted by applicable law, to indemnify, defend, and hold harmless Mueshi, and our respective past, present, and future employees, officers, directors, contractors, consultants, equity holders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors, and assigns from and against all actual or alleged claims, damages, awards, judgments, losses, liabilities, obligations, taxes, penalties, interest, fees, expenses, and costs (including but not limited to attorneys’ fees and court costs), of every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract, or otherwise (collectively, “Claims”), including, but not limited to, damages to property or personal injury, that are caused by, arise out of or related to (a) your use or misuse of the Site, its content, NFTs, (b) your violation or breach of any term of these Terms of Service or applicable law; (c) your violation of the rights of or obligations to a third party, including another user or third-party; and (d) your negligence or willful misconduct. You agree to promptly notify Mueshi of any Claims and cooperate with Mueshi in defending such Claims. You further agree that Mueshi shall have control of the defense or settlement of any Claims. THIS INDEMNITY IS IN ADDITION TO, AND NOT IN REPLACEMENT OF, ANY INDEMNITIES SET FORTH IN OTHER WRITTEN AGREEMENTS BETWEEN YOU AND US.

8. DISCLAIMERS AND LIMITATIONS ON LIABILITY

The following disclaimers are provided herein and are effective as to the fullest extent of the law in your jurisdiction.

Your access to and use of the Site is at your own risk. You understand and agree that the Site is provided on an “as is” and “as available” basis and Mueshi expressly disclaims warranties or conditions of any kind, either express or implied. Mueshi makes no warranty or representation and disclaim all responsibility for whether the Site will: (a) meet your requirements; (b) be available on an uninterrupted, timely, secure, or error-free basis; or (c) will be accurate, reliable, complete, legal, or safe. Mueshi disclaims all other warranties or conditions, express or implied, including without limitation, implied warranties or conditions of merchantability, fitness for a particular purpose, title and non-infringement.

Mueshi WILL NOT BE LIABLE FOR ANY LOSS OF ANY KIND FROM ANY ACTION TAKEN OR TAKEN IN RELIANCE ON MATERIAL OR INFORMATION, CONTAINED ON THE SITE. WHILE Mueshi ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF THE SITE SAFE, MUESHI CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICE, CONTENT, CONTENT LINKED TO OR ASSOCIATED WITH ANY NFTS, OR ANY NFTS YOU INTERACT WITH USING OUR SERVICE (OR OUR SERVICE PROVIDERS’ SERVERS) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE CANNOT GUARANTEE THE SECURITY OF ANY DATA THAT YOU DISCLOSE ONLINE. NO ADVICE OR INFORMATION, WHETHER ORAL OR OBTAINED FROM THE OPENSEA PARTIES OR THROUGH THE SERVICE, WILL CREATE ANY WARRANTY OR REPRESENTATION NOT EXPRESSLY

MADE HEREIN. YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING OVER THE INTERNET AND WILL NOT HOLD MUESHI RESPONSIBLE FOR ANY BREACH OF SECURITY.

Mueshi WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSS AND TAKE NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO YOU FOR, ANY USE OF NFTS, CONTENT, AND/OR CONTENT LINKED TO OR ASSOCIATED WITH NFTS, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES, OR CLAIMS ARISING FROM: (A) USER ERROR, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED ADDRESSES; (B) SERVER FAILURE OR DATA LOSS; (C) UNAUTHORIZED ACCESS OR USE; (D) ANY UNAUTHORIZED THIRD-PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK AGAINST THE SITE.

NFT ownership is recorded on the Ethereum Blockchain. Any transfers or sales occur on the Ethereum Blockchain. Mueshi cannot affect or otherwise control the transfer of title or right in any NFTs or underlying or associated content or items.

Mueshi WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY SUSTAINED LOSSES OR INJURY DUE TO VULNERABILITY OR ANY KIND OF FAILURE, ABNORMAL BEHAVIOR OF SOFTWARE, BLOCKCHAINS OR ANY OTHER FEATURES OF THE NFTS. Mueshi WILL NOT BE RESPONSIBLE OR LIABLE FOR LOSSES OR INJURY DUE TO LATE (OR NO) REPORTS BY DEVELOPERS OR REPRESENTATIVES OF ANY ISSUES WITH THE BLOCKCHAIN SUPPORTING THE NFTS, INCLUDING FORKS, TECHNICAL NODE ISSUES, OR ANY OTHER ISSUES HAVING LOSSES OR INJURY AS A RESULT.

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF Mueshi ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS OF SERVICE, THE ACCESS TO AND USE OF THE SITE, CONTENT, OR NFTS, EXCEED THE GREATER OF (A) $100 OR (B) THE AMOUNT RECEIVED BY MUESHI FOR ITS SERVICES DIRECTLY RELATING TO THE ITEMS THAT ARE THE SUBJECT OF THE CLAIM.

9. ASSUMPTION OF RISK AND ACKNOWLEDGEMENT OF NO INVESTMENT ADVICE

YOU ACKNOWLEDGE THAT MUESHI DOES NOT PROVIDE INVESTMENT ADVICE OR A RECOMMENDATION OF SECURITIES OR INVESTMENTS. FURTHERMORE, YOU AGREE THAT THE CONTENTS OF THE MUESHI.IO SITE DO NOT CONSTITUTE FINANCIAL, ACCOUNTING, LEGAL, OR TAX ADVICE. YOU SHOULD ALWAYS OBTAIN INDEPENDENT FINANCIAL AND TAX ADVICE FROM YOUR PROFESSIONAL ADVISERS BEFORE MAKING ANY FINANCIAL DECISIONS.

You further accept and acknowledge:

  • The value of an NFT is subjective. Prices of NFTs are subject to volatility and fluctuations in the price of cryptocurrency can also materially and adversely affect NFT prices. You acknowledge that you fully understand this subjectivity and volatility and that you may lose money.
  • A lack of use or public interest in the creation and development of distributed ecosystems could negatively impact the development of those ecosystems and related applications, and could therefore also negatively impact the potential utility of NFTs.
  • The regulatory regime governing blockchain technologies, NFTs, cryptocurrency, and other crypto-based items is uncertain, and new regulations or policies may materially adversely affect the development of the Site and the utility and enthusiasm for NFTs.
  • Although the NFTs are intended to be collectibles, not investments, the legality of owning, buying, selling, or trading NFTs may not be clear and may vary under the laws of different jurisdictions throughout the world. Mueshi is not a registered broker-dealer or investment adviser in the United States or anywhere else in the world. Whether and on what basis an NFT may constitute property, an asset, a security, or a right varies from one jurisdiction to another. You are responsible for knowing and understanding the laws applicable to you or your property, rights, or assets and taxes on the NFTs you buy, sell, and/or trade.
  • You are solely responsible for determining what, if any, taxes apply to your transactions and to withhold, collect, report, and remit the correct amounts of taxes to the appropriate tax authorities. Mueshi is not responsible for determining, withholding, collecting, reporting, or remitting the taxes that apply to your NFTs.
  • There are risks associated with purchasing items associated with content created by third parties through peer-to-peer transactions, including but not limited to, the risk of purchasing counterfeit items, mislabeled items, items that are vulnerable to metadata decay, items on smart contracts with bugs, and items that may become untransferable. You represent and warrant that you have done sufficient research before making any decisions to sell, obtain, transfer, or otherwise interact with any NFTs or accounts/collections.
  • We do not control the blockchain that you are interacting with and we do not control certain smart contracts and protocols that may be integral to your ability to complete transactions on the blockchain. Because blockchain transactions are irreversible, Mueshi has no ability to reverse any transactions on the blockchain.
  • There are risks associated with using Internet and blockchain-based products, including but not limited to, the risk associated with hardware, software, and internet connections, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to your wallet or account. You accept and acknowledge that Mueshi will not be responsible for any communication failures, disruptions, errors, distortions, or delays you may experience when using the Site, however caused.
  • The Site relies on third-party platforms and/or vendors. You accept and acknowledge that Mueshi does not control the actions, platforms, or terms and conditions of pricing of third-party platforms and vendors. You accept and acknowledge that Mueshi will not be responsible for a change in vendors, a change in pricing with respect to its vendors, if any such platform or vendor loses market share or falls out of favor or is unavailable for a prolonged period of time, causing a delay or disruption in the Site.
  • Mueshi reserves the right to hide collections, contracts, and items affected by any of these issues or by other issues. NFTs you purchase may become inaccessible on Mueshi.io. You accept and acknowledge that Mueshi will not be liable for a change in circumstances as a result of these issues or an inability to use the Site in conjunction with the purchase, sale, or transfer of NFTs.

10. DISPUTE RESOLUTION

PLEASE READ THIS FOLLOWING CLAUSE CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT

Initial Dispute Resolution. Mueshi is available by email at [insert] to address any concerns you may have regarding your use of the Site. Most concerns may be quickly resolved in this manner. Each of you and Mueshi agree to use reasonable efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.

Agreement to Binding Arbitration. If Company and you do not reach an agreed upon solution within a period of thirty (30) days from the time informal dispute resolution is pursued pursuant to Section 9(a) above, then either you or Company may initiate binding arbitration. All claims arising out of or relating to the Terms of Service (including their formation, performance and breach), the parties’ relationship with each other and/or your use of the Site shall be finally and exclusively settled by binding arbitration administered by JAMS, in accordance with the JAMS Streamlined Arbitration Rules and Procedures, excluding any rules or procedures governing or permitting class actions. Each party will have the right to use legal counsel in connection with arbitration at its own expense. The parties shall select a single neutral arbitrator in accordance with the JAMS Streamlined Arbitration Rules and Procedures. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of the Terms, including but not limited to, any claim that all or any part of the Terms is void or voidable. You or Company may elect to appear at the arbitration by phone or, if you and Company both agree, to conduct it online, in lieu of appearing live. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be in writing and provide a statement of the essential findings and conclusions, shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.

The JAMS rules governing the arbitration may be accessed at https://www.jamsadr.com/adr-rules-procedures. If you initiate arbitration, to the extent the filing fee for the arbitration exceeds Two Hundred and Fifty U.S. Dollars ($250.00), Mueshi will pay the additional cost. If Mueshi is required to pay the additional cost of the filing fees, you should submit a request for payment of fees to JAMS along with your form for initiating the arbitration, and Mueshi will make arrangements to pay all necessary fees directly to JAMS. Mueshi will also be responsible for paying all other arbitration costs arising in connection with the arbitration, other than costs incurred by you for legal counsel, travel and other out-of-pocket costs and expenses not constituting fees or amounts payable to JAMS. You will not be required to pay fees and costs incurred by Mueshi if you do not prevail in arbitration. Mueshi will also pay JAMS to reimburse you for any portion of the $250.00 filing fee that is more than what you would otherwise have to pay to file suit in a court of law.

The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that the right to discovery may be more limited in arbitration than in court.

Class Action and Class Arbitration Waiver. You and Mueshi each further agree that any arbitration shall be conducted in Company’s respective individual capacities only and not as a class action or other representative action, and you and the Company each expressly waive Company’s respective right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration cannot proceed on a class basis, then the arbitration provision set forth herein shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.

Exception – Small Claims Court. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.

Exception – California Private Attorneys General Act (PAGA) Action. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief in a court of law for a claim arising under California’s Private Attorneys General Act.

30 Day Right to Opt-Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth herein by sending written notice of your decision to opt-out by emailing Mueshi at [[email protected]]. The notice must be sent within thirty (30) days of registering to use the Site, otherwise you shall be bound to arbitrate disputes in accordance with the Terms of Service herein. If you opt-out of these arbitration provisions, Mueshi also will not be bound by them.

11. THIRD-PARTY WEBSITES

This Site may include links to third-party websites which are not controlled by Mueshi. Mueshi disclaims any and all responsibility for the contents of any third-party websites or any websites linked therein. Links to third-party websites are provided on this Site as a convenience to you and the inclusion of any link in no way represents an endorsement by Mueshi of any kind. Additionally, Mueshi disclaims any and all responsibility for any and all third-party transactions.

12. GOVERNING LAW AND CHOICE OF VENUE

These Terms of Service and your access to and use of the Site shall be governed by and construed and enforced in accordance with the laws of the State of Delaware (without regard to conflict of law rules or principles of the State of Delaware, or any other jurisdiction that would cause the application of the laws of any other jurisdiction). Any dispute between the parties that is not subject to arbitration as set forth in Section 10 or cannot be heard in small claims court, shall be resolved in the state or federal courts of Wilmington in the State of Delaware.

13. SEVERABILITY

If any term, clause, or provision of these Terms of Service is held invalid or unenforceable, then that term, clause, or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause, or provision, or any other term, clause, or provision of these terms.

14. SURVIVAL

All sections of the Terms which by their nature are designed to survive expiration or termination of the Terms or your use of the Site shall survive any applicable expiration or termination.

15. CONTACT INFORMATION

If you have any questions regarding these Terms of Service, your account, or a transaction, please email Company at [email protected]