Terms of Service
Last Updated: June 21, 2023
This page explains the terms by which you may use the websites and Company Content (as defined below) of Helios Creators Inc. (“we”, “our” and “us”), including without limitation hiomusic.com (collectively, the “Sites”) and our Services (as defined below). By accessing or using the Sites or the Services, you signify on your behalf and any person or entity that you represent that you have read, understood, and agree to be bound by these Terms of Service (the “Agreement”), whether or not you are a registered user of our Sites or the Services. We reserve the right to make unilateral modifications to these terms and will provide notice of these changes as described below. This Agreement applies to all visitors, users, and others who access the Sites or the Services (“you” and “your”).
If you are a business, company, association, project group, institution or other legal entity, you may permit Authorized Users to access and use the Services, provided: (a) they have agreed to the terms of, and shall remain in compliance with, this Agreement; and (b) you shall be liable for any acts or omissions of your Authorized Users. “Authorized User(s)” mean the following users that you authorize to access or use the Services on your behalf: (i) your employees, agents, or independent contractors; and (ii) other users expressly authorized to use and access the Services by us.
Please read this Agreement carefully to ensure that you understand each provision.
NONE OF THE SITES OR THE SERVICES ARE OFFERED TO PERSONS OR ENTITIES WHO ARE RESTRICTED PERSONS (AS DEFINED BELOW).
As part of the Sites, we provide access to, among other services, the HIO App (the “Application”). This Agreement governs your use of our Sites, the Application, and all related tools, applications, data, software and other services provided by us, including without limitation using our services to view, explore, help display and create NFTs, and using our tools, at your own discretion, to connect directly with others to mint, purchase, sell, or transfer NFTs on public blockchains (collectively, the “Services”). “NFT” means a non-fungible token or similar digital item implemented on a blockchain, which uses smart contracts to link to or otherwise be associated with certain content or data.
This is a contract between you and us. You must read and agree to the terms of this Agreement before using the Sites and the Services. If you do not agree, you may not use the Sites and the Services. You may use the Sites and the Services only if you can form a binding contract with us, and only in compliance with this Agreement and all applicable: (i) laws, constitutions, treaties, statutes, codes, ordinances, principles of common and civil law and equity, orders, decrees, rules, regulations and municipal by-laws, whether domestic, foreign or international; (ii) judicial, arbitral, administrative, ministerial, departmental and regulatory judgments, orders, writs, injunctions, decisions, rulings, decrees and awards of any: (A) multinational or supranational body or organization, nation, government, state, province, country, territory, municipality, quasi-government, administrative, judicial or regulatory authority, agency, board, body, bureau, commission, instrumentality, court or tribunal or any political subdivision thereof, or any central bank (or similar monetary or regulatory authority) thereof, any taxing authority, any ministry or department or agency of any of the foregoing; (B) self-regulatory organization or stock exchange; (C) entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government; and (D) corporation or other entity owned or controlled, through stock or capital ownership or otherwise, by any of such entities or other bodies pursuant to the foregoing (“Governmental Authority”); and (iii) policies, practices and guidelines of, or contracts with, any Governmental Authority, which, although not actually having the force of law, are considered by such Governmental Authority as requiring compliance as if having the force of law, as the same may be amended from time to time and any successor thereto and in each case binding on or affecting the person or entity, or the assets of the person or entity, referred to in the context in which such word is used; (collectively, “Applicable Laws”). If you are under the age of majority in your jurisdiction of residence, you may use the Sites or the Services only with the consent of or under the supervision of your parent or legal guardian. The Sites and the Services are not available to any person previously removed from the Sites or the Services by us.
By entering or using this Sites or the Services you represent that you:
You may be required to establish an account and may be required to pay any fees through payment processors in order to use certain of the Services. If so, you agree to: (i) provide true, accurate, current and complete information about yourself as prompted by the Services; and (ii) as permitted, maintain and promptly update such information. If you provide any information that is false, inaccurate or outdated, or we have reasonable grounds to suspect that such information is false, inaccurate, outdated, or non-compliant with the terms of this Agreement or the Privacy Policy, we have the right to suspend or terminate and/or cancel your account and/or prohibit any and all current or future use of the Services by you. You are responsible for maintaining the confidentiality of your unique username, password, access code or other sign-in mechanism and all other account information (collectively, "Account Information") and your account and are fully responsible for all activities that occur under your account. You agree you will not share your Account Information with anyone and if anyone else has access to your Account Information, then you are responsible for any of their actions. You agree to prevent unauthorized access to your account by selecting and protecting your Account Information in accordance with current reasonable security standards and limiting access to your computer, browser, or mobile device by signing off after you have finished accessing your account. You agree to immediately notify us at info@hiomusic.com of any unauthorized use of your Account Information or account or any other breach of security. You agree to be responsible for all charges resulting from the use of your account and will indemnify us for any losses we suffer due to your use or misuse of the Services including charges resulting from any unauthorized use of your account. Unless otherwise agreed to between you and us, user subscriptions cannot be shared or used by more than one individual user.
Notwithstanding anything to the contrary in this Agreement, you acknowledge and agree that we may access, use, preserve and/or disclose your Account Information if legally required to do so or if we have a good faith belief that such access, use, disclosure, or preservation is reasonably necessary to: (i) comply with legal process or request; (ii) enforce the Agreement including investigation of any potential violation thereof; (iii) detect, prevent or otherwise address security, fraud or technical issues; or (iv) protect our rights, property or safety of the rights, property or safety of our users or the public as considered necessary by us or permitted by applicable laws.
In order to use certain features of the Sites and Services, you may be required to connect to your digital asset wallet. You acknowledge that we are not responsible for transferring, safeguarding, or maintaining your private keys or any assets associated therewith. If you lose, mishandle or have stolen your digital asset wallet private keys, you acknowledge that you may not be able to recover associated assets and that we are not responsible for such loss. You agree that you will not use the Services to transact with any digital currency that may be considered a security under Applicable Laws. You acknowledge that we are not responsible for, and you agree to indemnify us for, any loss or damage arising from your failure to comply with the requirements hereunder.
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, non-sublicensable and freely revocable right to use the Sites and the Services. You agree to ensure that Authorized Users comply with the terms of this Agreement and all applicable fees for the Services are paid to us in relation to the use of the Services by all Authorized Users. We reserve all rights not expressly granted herein in the Sites, the Services and the Company Content (as defined below). We may terminate this right of use, in whole or in part, at any time for any reason or no reason.
The rights granted to you in this Agreement are subject to the following restrictions: (i) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Sites or the Services, whether in whole or in part, or any content displayed on the Sites or the Services; (ii) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Sites or the Services; (iii) you shall not access the Sites or the Services in order to build a similar or competitive websites, product, or service; (iv) except as expressly stated herein, no part of the Sites or the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (v) you shall not use the Sites or the Services other than as permitted hereunder. Unless otherwise indicated, any future release, update, or other addition to the functionality of the Sites and Services shall be subject to this Agreement. All copyright and other proprietary notices on the Sites (or on any content displayed on the Sites) must be retained on all copies thereof.
You acknowledge and agree that we have no obligation to provide you with any support or maintenance in connection with the Sites and the Services.
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Sites or the Services in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots”, “spiders” and “offline readers” to access the Sites or the Services in a manner that sends more request messages to our servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that we grant the operators of public search engines revocable permission to use spiders to copy publicly available materials from the Sites 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); (iii) transmitting spam, chain letters, or other unsolicited email or messages through the Sites or the Services; (iv) attempting to interfere with, compromise the system integrity or security of or decipher any transmissions to or from the servers running the Sites or the Services; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Sites or the Services; (vii) collecting or harvesting any personally identifiable information, including account names, from the Sites or the Services; (viii) using the Sites or the Services for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Sites or the Services; (xi) accessing any content on the Sites or the Services through any technology or means other than those provided or authorized by the Sites or the Services; (xii) bypassing the measures we may use to prevent or restrict access to the Sites or the Services, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Sites or the content therein; (xiii) using the Sites or the Services for any purpose prohibited or regulated by Applicable Laws; (xiv) using the Sites or the Services to mint, collect, upload, transmit, display, or distribute any content: (A) 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; (B) 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; or (C) that is harmful to minors in any way; (xv) engaging in any attack, hack, Sybil attack, DoS attack, distributed denial-of-service of attack, “griefing” attacks, interference, or any other type of exploit or unfair misuse of the Services or any related smart contracts; or (xvi) using the Sites for any purposes other than using our Services.
We may, without prior notice, change the Sites or the Services; stop providing the Sites or the Services or features of the Sites or the Services to you or to users generally; or create usage limits for the Sites or the Services. We may permanently or temporarily terminate or suspend your access to the Sites or the Services without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement. You agree that we will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Sites or the Services or any part thereof.
You are solely responsible for your interactions with other users of the Sites and the Services. We reserve the right, but have no obligation, to monitor disputes between you and other users. We shall have no liability for your interactions with other users, or for any user’s action or inaction.
You access or use the Sites or the Services at their own volition and are entirely responsible for compliance with all Applicable Laws, including but not limited to export and import regulations. You may not use the Sites or the Services if you are a person or entity resident in, a citizen of, located in, incorporated, formed or organized in or have a registered office in (i) a country embargoed by the government of the United States, Canada, the United Kingdom or the European Union or are a foreign person or entity blocked or denied by the United States, Canadian, the United Kingdom or any European Union government or (ii) a country which has been sanctioned by the United Nations (any such person or entity being a “Restricted Person”).
Certain features of the Services may require you to pay fees. For Services that require payment, you will pay the amounts specified in each invoice or subscription issued by us. You must make payments in advance, unless the applicable invoice or subscription contains payment terms that are different. Unless otherwise specified in the invoice or subscription, unpaid amounts are subject to interest equal to the lower of (i) 1.5% per month (18% per annum) or (ii) the maximum permitted by applicable laws, on any outstanding balance, plus all expenses of collection. You will be responsible for all taxes associated with the Services other than taxes based on our net income. Your access to and/or use of the Services may be terminated or cancelled without notice for any unpaid and due amount. We reserve the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Services. Unless otherwise specified in the invoice or subscription, all amounts under this Agreement are payable in Canadian dollars. Any amounts paid by you are non-refundable.
Payment processing services for paid Services are provided by a payment processor and you are subject to the applicable payment processor services agreement. By agreeing to the Agreement or continuing to use the Services, you agree to be bound by such payment processor services agreement, as it may be modified by the payment processor from time to time.
Subject to your agreement to pay additional amounts, incremental fees may be charged where new or additional functions are added or become available to you.
We or our partners may offer gift and promotional codes to users of the Services. Certain codes may be redeemed for gift or promotional credits applied to your account, which then may be used to purchase eligible content on our platform, subject to the terms included with your codes. Other codes may be directly redeemable for specific content. These codes and credits, as well as any promotional value linked to them, may expire if not used within the period specified in your account. Gift and promotional codes offered by us may not be refunded for cash, unless otherwise specified in the terms included with your codes or as required by applicable law. Gift and promotional codes offered by a partner are subject to that partner's refund policies. If you have multiple saved credit amounts, we may determine which of your credits to apply to your purchase. Please review any terms included with your codes for more details.
You must ensure that you, and anyone representing you, comply with our ordering and reporting requirements in effect from time-to-time, which may include providing us with written reports on the use of the Services by you and your Authorized Users in the format, for the period and within the timelines as specified by us. To permit us to confirm compliance with this Agreement and applicable laws, while this Agreement remains in effect and for a period of 2 years thereafter, you must keep accurate records including records about: (i) the use of the Services by you and your Authorized Users; (ii) any use of our trademarks and other intellectual property; and (iii) compliance with the obligations of this Agreement. To assure such compliance, we and/or our auditors may inspect, both while this Agreement remains in effect and for a period of 2 years thereafter, such records from time-to-time. Any such audits shall be conducted during regular business hours and shall not interfere unreasonably with your normal activities. If an audit reveals that you, or an Authorized User, has not complied with the obligations of this Agreement, you may be required to pay our reasonable costs of conducting the audit.
The Application accesses interrelated, non-custodial smart contracts and on-chain registries deployed to the Solana blockchain that store information and perform limited functions related to the minting, buying, and selling of NFTs within the Application. There are no smart contracts used by the Application that enable or require us to take custody of your assets without your express, on-chain permission. You understand and agree that you are able to make full technical use of smart contracts without using the Site or Services and that you shall not rely upon the Site or Services to make use of such smart contracts. You acknowledge and agree that you have the opportunity to review, audit, ask questions about, and approve, whether through the Services or through your third party wallet provider, the smart contracts the Application may access and every blockchain transaction or message executed by your digital wallet before executing any transaction. You hereby affirm that you will not approve of any transaction that is inconsistent with your intent.
Transactions initiated through the Services that invoke smart contracts are publicly broadcasted by your third-party digital wallet provider and processed, validated, managed, and confirmed entirely on the applicable public blockchain, not by us. You understand that the digital wallet that you use to mint, collect, buy or sell NFTs and all transaction details associated with your digital wallet activity are manifestly made public information.
The public blockchains require the payment of a transaction fee (a “Gas Fee”) for transactions executed by smart contracts. The value of the Gas Fee changes, often unpredictably, and is entirely outside of our control. You acknowledge that under no circumstances will a contract, agreement, offer, sale, bid, or other transaction involving smart contracts be invalidated, revocable, reversible, or otherwise unenforceable on the basis that the Gas Fee for the given transaction was unknown, too high, or otherwise unacceptable to you.
We may voluntarily pay for our users’ Gas Fees under such circumstances as we may determine at our sole and absolute discretion. We may also cease to pay for our users’ Gas Fees at any time at our sole and absolute discretion, with or without notice.
We do not control any public blockchains. We have no ability to reverse any transactions previously settled by on a blockchain. The Services enables you to voluntarily interact with experimental technologies, including blockchain, distributed ledgers, non-fungible tokens, fungible tokens, cryptocurrencies, stablecoins, smart contracts, consensus algorithms, voting systems and distributed, decentralized or peer-to-peer networks or systems. You acknowledge and agree that such technologies are novel, experimental, and speculative, and that therefore there is significant uncertainty regarding the operation, effects, and risks thereof, including uncertainty regarding the application of existing law to activities related to digital assets, cryptocurrencies, blockchains, or NFTs. We may not be able to anticipate, control or influence the occurrence or outcome of “forks,” and do not assume any risk, liability, or obligation in connection therewith. Without limiting the generality of the foregoing, we do not assume any responsibility to notify you of pending, threatened, or completed forks. We will determine our responses to such forks in our sole and absolute discretion, without any duty or obligation or liability to you for such response (or lack of such response). You assume full responsibility to independently remain apprised of and informed about possible forks, and to manage your own interests in connection therewith. To the maximum extent permitted by applicable law, we disclaim any and all liability related to the foregoing experimental technologies.
You agree and understand that all fees, commissions, assets, NFTs, and royalties transferred by or received by you are processed and settled exclusively by the applicable blockchain and not by us. By invoking or interacting with smart contracts (whether through the Services or otherwise), you agree and irrevocably consent to the automated processing and settlement of fees, commissions, royalties, NFT transfers, and other transactions or functionalities enabled by such smart contracts. You expressly delegate to the smart contracts that you interact with through the Services the fullest necessary legal and technical authority to process, settle, and execute all functions and transactions initiated by you or your digital wallet. You hereby consent to and agree to be irreversibly bound by the outcome of any transaction, smart contract operation or function, or blockchain state change initiated by or caused your digital wallet.
The Services depend on public peer-to-peer networks and consensus machines, such as the blockchain, that are not under our direct or indirect control or influence and are subject to many risks, uncertainties, and unknown security vulnerabilities. The Services or your digital assets or NFTs may be the target of third-party attacks, including but not limited to phishing, Sybil attacks, bruteforcing, inactive listing exploits, impersonations, or the use of viruses (“Third-Party Attacks”). We will not be responsible or liable, directly or indirectly, for any actual or alleged loss or damage sustained by You in connection with Third-Party Attacks. Blockchain technologies and digital assets are subject to many legal and regulatory uncertainties that could adversely impact the Services, which could impede or limit your ability to continue the use and enjoyment of the Services or related assets and technologies. Users acknowledge and agree that smart contracts (including without limitation smart contracts that the Services interact wit)h may be subject to bugs, malfunctions, errors, vulnerabilities , or changes to the protocol rules of the applicable blockchain (i.e., “forks”), which can adversely affect the smart contracts and may expose you to a risk of total loss, forfeiture of your digital currency or NFTs, or lost opportunities to buy or sell NFTs. We do not guarantee, and are not responsible for, your ability to exercise your rights with respect to digital assets held in your digital wallet or with respect to your use or enjoyment of the Services.
You are knowledgeable, experienced, and sophisticated in using and evaluating blockchain and related technologies, digital assets, NFTs, and “smart contracts.” You represent that you have sufficient knowledge, market sophistication, professional advice, and experience to make your own evaluation of the merits and risks of any transaction conducted via the Services or any underlying digital asset. You have conducted your own thorough independent investigation and analysis of the Services, the smart contracts the Services interact with and the other matters contemplated by this Agreement. You agree that you have had the full opportunity to review the applicable smart contracts and all related functions, permissions, and information. You have not relied up-on any information, statement, omission, representation, or warranty, express or implied, written or oral, made by or on our behalf in connection therewith, except as expressly set forth us in this Agreement.
You are permitted, but not required, to use the Services to facilitate an NFT minting transaction. To mint an NFT through the Services you must: (i) upload an original digital artwork; (ii) provide information about the artwork to populate the NFT metadata; (iii) authenticate the work as an non-infringing, original creation authorized to be minted and sold by you as an NFT; (iv) reaffirm the your agreement to this Agreement and any other terms that we may require; and (vi) authenticate a request through your third party digital wallet provider to effectuate a minting transaction through the Services. We reserve the absolute right to modify or impose additional minting terms through use of the Services. You expressly represent and warrant that you have the agency, authority, and capacity to perform the foregoing transactions from your digital wallet.
By minting an NFT through the Services, you represent and warrant that: (i) the User Content (as defined below), which includes all downloadable media content, images, video, audio, metadata content or information, descriptions, tags, attributes, logos, trademarks, likenesses, and all other elements submitted by you, associated with the minted NFT is an original work of authorship and not infringing on any intellectual property rights of any third party; (ii) your decision to mint, sell, transfer, and license the User Content as provided for herein as an NFT does not violate the contractual rights or expectations of any collaborator or any other third party; and (iii) you have exclusive right and title to all proceeds, royalties, or revenues received to your digital wallet as a result of sales or use of the NFT, or otherwise will distribute such proceeds, royalties, or revenues to the appropriate third parties.
You agree to only mint works that you personally created and agree not to mint content that you developed for third parties as a “work for hire” or content to which copyright ownership is encumbered, unknown, unclear, or disputed. To the extent the User Content contains any unoriginal material not owned or originally developed exclusively by you, including without limitation music, visual content, brand names, logos, third party trademarks, likenesses, material contributed by collaborators, content generated by algorithms or artificial intelligence (collectively, “Third Party Content”) you further represent and warrant that you have the necessary licenses or permission to mint and sell such Third Party Content as an NFT, or otherwise that you have a clear and compelling “fair use” defense in relation to their use of such Third Party Content.
You are expressly prohibited from minting NFTs consisting of unlicensed, unauthorized, unlawful, pornographic or infringing content. If you mint content that is even arguably pornographic or not safe for work (“NSFW”), you must tag the work in the NFT metadata as “NSFW.”
You hereby acknowledge, understand and agree that using the Services to mint an NFT constitutes an irrevocable (except as otherwise provided herein) and affirmative grant to any current, lawful owner of the NFT to the default, limited, non-commercial, and non-exclusive personal license rights in the associated User Content as provided in this Agreement or as modified under Section 5(d) below. All intellectual property rights in and to the User Content and any of your other intellectual property rights not expressly licensed herein are reserved by you.
You may modify, revoke, or terminate the default license applicable to an NFT minted by you, but only if both you and the current NFT owner (who may be the same person) cryptographically authenticate a new license that clearly supersedes the default license using their respective digital wallets through an on-chain transaction, or other state change that is publicly available and processed, settled, or stored by the applicable blockchain. Notwithstanding the foregoing, nothing in this Agreement shall prohibit you from implementing a different license type at the time of minting intended for the benefit of any current, lawful owner of the minted NFT, but only if: (i) a clear and conspicuous reference to the different license is included by you within the metadata of relevant NFT; (ii) such license is publicly available and accessible by the owner of the minted NFT; and (iii) the different license does not require or create a substantial risk of a violation of any other provisions of this Agreement.
You hereby acknowledge, understand, and agrees that minting an NFT through the Services constitutes an express and affirmative grant to us, our affiliates and successors a non-exclusive, world-wide, assignable, sublicensable, perpetual, and royalty-free license to make copies of, display, perform, reproduce, download, upload, and distribute the User Content associated with the NFT on any media whether now known or later discovered for the general purpose of operating, promoting, sharing, developing, marketing, and advertising the Services or such NFT, or any other lawful purpose related to our Services, including without limitation, the express right to: (i) display or perform the User Content on the Services, a third-party platform, social media posts, blogs, editorials, advertising, market reports, documentaries, virtual galleries, private galleries, museums, virtual environments, editorials, or to the public; (ii) create and distribute digital or physical derivative works based on the User Content, including without limitation, compilations, collective works, and anthologies; (iii) indexing and storing the User Content in electronic databases, indexes, catalogues, smart contracts, or ledgers; and (iv) hosting, storing, distributing, uploading and reproducing one or more copies of the User Content within a distributed file keeping system, node cluster, or other database (such as IPFS) or causing, directing, incentivizing, or soliciting others to do so. As a matter of courtesy, we may seek ancillary authorization or provide notice to you relating to our use of this license but assumes no obligations to do so.
If you mint an NFT using a digital wallet associated primarily with only you (i.e., not a shared account), you agree that you shall clearly and conspicuously identify in the NFT metadata any third-party collaborators who are intended as joint-authors of the associated User Content, if any. By minting an NFT through the Services without a clear and conspicuous reference in the NFT metadata identifying a third-party collaborator, you are presumed by us to be the sole author with exclusive right and title to associated User Content, or as otherwise represented by you under the terms of this Agreement. Conversely, by minting an NFT through the Services with a clear and conspicuous reference in the NFT metadata identifying one or more third-party collaborator(s), you and all identified collaborators are presumed by us to be joint authors of the associated User Content. By minting an NFT through the Services, you represent and warrant that all collaborators, if any, of the associated User Content: (i) have been put on notice of this Agreement; (ii) have a mutual agreement as to the respective rights, liabilities, and responsibilities of each collaborator with respect to the minted NFT; and (iii) have a mutual agreement regarding the use of title to proceeds, including royalties, received from sales of the NFT. Nothing in this Agreement shall prohibit more than one collaborator from minting from a shared or collective digital wallet, provided that the entity performing the actual minting transaction, or otherwise making use of the Services, has agency to bind all collaborators to this entire Agreement.
Creators may promise or make available additional services, goods, digital assets, or utility, or impose additional terms or restrictions, in relation to the initial sale of their minted NFTs, but only to the extent consistent with this Agreement, compliant with applicable laws, and communicated appropriately to all buyers (preferably by communicating such additional terms in the NFT metadata). The Company assumes no responsibilities or obligations with respect to your independent promises. You are solely responsible for fulfilling any promises you communicate and are personally liable for all contractual obligations, duties, disputes, breaches of warranty or title claims, misrepresentation claims, or violations of law associated with any promises you make to other users in connection with your use of the Services. By making additional promises to buyers in the metadata of your minted NFTs, you expressly consent to our disclosure of your contact information to the NFT owner. We reserve the right to remove or restrict your access to the Services, or remove your User Content from the Services, for any reason..
You may be liable to the Company for the minting, creation, promotion, publication, advertising, marketing, sale, or distribution of the NFTs that you mint (or any other User Content that you contribute to the Services), including, without limitation, claims involving the actual or alleged infringement of any third party intellectual property or contractual rights.
The Sites and the Services and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos and music and all intellectual property rights related thereto (the “Company Content”) but excluding all material, content or information posted or upload by you or other users to the Sites or the Services (“User Content”), are the exclusive property of us and our licensors. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Company Content or intellectual property rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Company Content. Use of the Company Content for any purpose not expressly permitted by this Agreement is strictly prohibited. Company Content is made available solely for your personal, non-commercial use and may not be copied, reproduced, published, republished, modified, mirrored, uploaded, posted, transmitted, displayed, encoded, translated or distributed in any form or in way, including by e-mail or other electronic means, or stored in any retrieval system of any nature in any way, without the express prior written consent of us or such third party that may own such Company Content in each instance. You agree to abide by all copyright and other proprietary notices, information and restrictions contained in the Company Content and any other material accessed through the Sites.
You may choose to, or we may invite you to submit comments, feedback, or ideas about the Sites and the Services, including without limitation about how to improve the Sites or our Services (“Feedback”). By submitting any Feedback, you agree that (a) your disclosure is non-confidential, gratuitous, unsolicited and without restriction and will not place us under any fiduciary or other obligation, (b) you grant to us a perpetual, worldwide, royalty-free, irrevocable, transferable, sublicensable, non-exclusive and fully paid-up right to copy, use, reproduce, modify, adapt, publish, create derivative works from, translate, transmit, display, distribute, market, promote, sell or offer for sale, rent or lease such information or materials or any portions thereof (including any ideas for new products or Services or modifications to existing products or Services) and/or products or Services which practice or embody, or are configured for use in practicing, such information or materials or any portion thereof, in any form or medium known or later developed, in furtherance of the terms of the Agreement and the actions and transactions contemplated hereby, including the right to bring an action for infringement of these rights, (c) we are free to use the Feedback without any additional compensation to you, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone and (d) you will have no claim against for any actual or alleged infringement of any proprietary rights, rights of privacy or publicity, moral rights or rights of attribution in connection with our use of any Feedback you provide. You further acknowledge that, by acceptance of your submission, we do not waive any rights to use similar or related comments, feedback and ideas previously known to us, or developed by our employees, or obtained from sources other than you.
It is our policy to respond promptly to any claim that User Content infringes the copyright, trademark, or other intellectual property rights of any person. We will use reasonable efforts to investigate notices of alleged infringement and will take appropriate action under Applicable Laws and this Agreement, including removing or disabling access to User Content claimed to be infringing and/or terminating a user’s access to the Services. We reserve the absolute right and authority to modify our takedown policies and to implement additional policies or requirements by amending this Agreement. You must send all allegations of infringement to the following email address: info@hiomusic.com.
We require you to address, resolve, and settle claims of infringement directly with the complaining party. We may respond to infringement complaints on our own behalf, but never on your behalf. We will require the complaining party to settle with directly the allegedly infringing creator and may refuse to remove or restrict access to content unless and until the involved parties arrive at a settlement. We will cooperate with settlements between the involved parties that involve the removal of content from the Services, or other modification to User Content as it appears on the Services (e.g. hashtags and artwork descriptions). You agree that you will expressly release us, and require the counterparty of any dispute relating to your activities using the Services to release us from all liability in respect of such dispute. By minting NFTs through the Services, you consent in advance to the disclosure of your email address (or other contact information given to us) to parties accusing you of infringement or owners of your minted NFTs that are involved in an allegation of infringement.
In the interests of transparency and providing all buyers notice of potential claims against allegedly infringing NFTs, we may publicly publish the details of your infringement complaints, including all attachments, allegations, claims, details, and other information or arguments provided by you in connection with an allegation of infringement. By sending an allegation of infringement to us, you consent to the public disclosure of your infringement allegations. By minting NFTs through the Services, you expressly waive any expectation of privacy relating to allegations of infringement made against you and consent in advance to the public disclosure of infringement complaints made against you.
We reserve the absolute right to remove, modify, or restrict access to any User Content that allegedly infringes another person's copyright or intellectual property right. Consequently, our decision to remove or restrict access to User Content may restrict your ability to sell, access, or view the User Content or associated NFT through the Services. We shall not be liable to any person in connection with an NFT that was subsequently taken down by us pursuant to a allegations of infringement, or otherwise due to an actual or suspected violation of this Agreement.
In addition to any other rights we may have under this Agreement, we reserve the right to terminate or limit your access to the Services if in our sole and absolute discretion we determine your minting privileges, terminating your account, removing your minted content, or otherwise restricting access to the Services. We also reserve the right to similarly restrict your account or content at any time for reasons other than intellectual property infringement, such as but not limited to, minting pornographic content or hateful content, engaging in excessive or suspicious minting conduct, duplicate minting, or for any violation of this Agreement.
You expressly agree to refund the owner of an NFT you created the entirety of the value (whether in cryptocurrency or otherwise) received from the owner from a sale of an NFT you created that was removed from the Services or voluntarily burnt by the owner pursuant to an infringement complaint. We will not be liable to you, any NFT owner or other person for removing allegedly infringing content from the Services or otherwise fulfilling our legal obligations.
You expressly agree to cooperate and timely respond to our investigations, instructions, requests, and inquiries related to intellectual property disputes, other allegations of infringement, or other violations of this Agreement. You agree to “burn” (i.e., permanently remove from circulation) or transfer an NFT upon our request subject to other terms or conditions imposed by us. While we may play a role in administering or facilitating actions taken in response to infringement complaints, you are solely responsible for coordinating with and remedying an owner of an NFT you created that was removed from the Services or burnt because of an infringement complaint, or other violation of this Agreement.
All information on the Sites and the Services is for informational purposes only and should not be construed as professional advice. You should contact your own legal, financial, tax or other professional advisors. Neither the Sites, the Services nor we provide any legal, financial, taxation or any other professional advice. No action should be taken based upon any information contained in the Sites or the Services. You should seek independent professional advice from a person who is licensed and/or qualified in the applicable area.
We care about the privacy of our users. You understand that by using the Sites you consent to the collection, use and disclosure of personally identifiable information and aggregate data, and to have your personally identifiable information collected, used, transferred to and processed in accordance with our Privacy Policy, a copy of which can be found here: https://hiomusic.com/terms/. Our Privacy Policy is hereby incorporated into and forms part of this Agreement.
All statements contained in the Company Content, the Services, the Sites, statements made in press releases or in any place accessible by the public and oral statements that may be made Company Parties may constitute forward-looking statements (including statements regarding the intent, belief or current expectations with respect to market conditions, business strategy and plans, financial condition, specific provisions and risk management practices). You are cautioned not to place undue reliance on these forward-looking statements given that these statements involve known and unknown risks, uncertainties and other factors that may cause the actual future results to be materially different from that described by such forward-looking statements, and no independent third party has reviewed the reasonableness of any such statements or assumptions. These forward-looking statements are applicable only as of the date indicated therein and the Company Parties disclaim any responsibility (whether express or implied) to release any revisions to these forward-looking statements to reflect events after such date.
We are an early stage platform. You acknowledge that applications are code that are subject to flaws and acknowledge that you are solely responsible for evaluating any available code provided by the Services. You further expressly acknowledge and represent that applications can be written maliciously or negligently, and that we cannot be held liable for your interaction with such applications. These warnings and others later provided by us in no way evidence or represent an ongoing duty to alert you to all the potential risks of utilizing the Sites and Services.
We use commercially reasonable physical, managerial, and technical safeguards to preserve the integrity and security of your personal information and implement your privacy settings. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
The Sites or the Services may contain links to third-party materials that are not owned or controlled by us. we do not endorse or assume any responsibility for any such third-party websites, information, materials, products, or services. If you access a third-party website or service from the Sites or the Services on or through any third-party website or service, you do so at your own risk, and you understand that this Agreement and our Privacy Policy do not apply to your use of such websites. When you interact with an NFT created, deployed, or minted by a third-party smart contract, you are subject to the terms and conditions of the applicable third party and assume the risk of any conceivable outcome of any smart contract function or operation enabled by such third party smart contracts, including but not limited to dynamic metadata and smart contract pauses. You expressly relieve us from any and all liability arising from your use of any third-party NFT, website, service, or content. Additionally, your dealings with or participation in promotions of advertisers found on the Sites or the Services, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that we shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.
You agree to defend, indemnify and hold harmless us and our suppliers, partners, licensors, dealers, representatives, associates or affiliates, and each of their respective employees, contractors, agents, representatives, shareholders, officers and directors (collectively, the “Company Parties”), from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to lawyer’s fees and disbursements) arising from: (a) your use of and access to the Sites, Company Content and the Services, including minting, selling and transferring NFTs and any act or omission by you or users of your account or any data or content transmitted or received by you; (b) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (c) your violation of any third-party right, including without limitation any right of privacy or intellectual property rights; (d) your violation of any Applicable Laws; (e) any User Content that you submit to the Sites or the Services including without limitation misleading, false, or inaccurate information; (f) your willful misconduct; or (g) any other party’s access and use of the Sites, Company Content or the Services with your unique username, password or other appropriate security code. You will co-operate as fully as reasonably required in the defense of any claim.
The Sites and the Services are provided on an “as is” and “as available” basis. Use of the Sites, Company Content and the Services is at your own risk. To the maximum extent permitted by applicable law, the Sites, Company Content and the Services are provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, or non-infringement. No advice or information, whether oral or written, obtained by you from a Company Party or through the Sites or the Services will create any warranty not expressly stated herein. Without limiting the foregoing, the Company Parties do not warrant that the Company Content is accurate, reliable or correct; that the Sites, Company Content and the Services will meet your requirements; that the Sites, Company Content and the Services will be available at any particular time or location, uninterrupted or secure; that any defects or errors will be corrected; or that the Sites, Company Content and the Services are free of viruses or other harmful components. Any content downloaded or otherwise obtained through the use of the Sites or the Services is downloaded at your own risk and you will be solely responsible for any damage to your computer system or mobile device or loss of data that results from such download or your use of the Sites, Company Content or the Services.
We do not warrant, endorse, guarantee, or assume responsibility for any product or websites advertised or offered by a third party through the Sites or the Services or any hyperlinked websites, and we will not be a party to or in any way monitor any transaction between you and third-party providers of products or services.
None of the Company Parties will have any responsibilities or liability with respect to the following: (a) the Services could be impacted by one or more regulatory inquiries or actions, which could prevent or limit our ability to continue to develop or provide the Services, or for you and your users to use the Services, (b) we have no obligation to update the Services or its underlying platforms and networks to address, mitigate, or remediate any security or other vulnerabilities in the Services, or such platforms or networks and (c) portions of the Services or any other underlying networks and platforms may rest on open-source software, and there is a risk that weaknesses or bugs that may be introduced in the infrastructural elements of the Services or any other underlying networks and platforms, which may result in security vulnerabilities, data loss, damage, destructions, disclosure, or other compromises.
You acknowledge that the Sites and the Services, and your use of the Sites and the Services contain certain risks, including without limitation the following risks: That any Services you interact with are entirely your own responsibility and liability, and we are not a party to the Application; at any time, your access to your digital assets may be suspended or terminated or there may be a delay in your access or use of your digital assets which may result in the digital assets diminishing in value; and the Services may be suspended or terminated for any or no reason, which may limit your access to your digital assets. Accordingly, you expressly agree that you assume all risk in connection with your access and use of the Sites and Services.
You also agree that to the maximum extent permitted by Applicable Laws, in no event shall any Company Party be liable for any indirect, punitive, incidental, special, consequential or exemplary damages, including without limitation damages for loss of profits, goodwill, use, data or other intangible losses, arising out of or relating to the use of, or inability to use, the Sites, Company Content or the Services. Under no circumstances will any Company Party be responsible for any damage, loss or injury resulting from hacking, tampering or other unauthorized access or use of the Sites, the Services or the Company Content and other information contained therein. To the maximum extent permitted by Applicable Laws, we assume no liability or responsibility for any (a) errors, mistakes, or inaccuracies of content; (b) personal injury or property damage, of any nature whatsoever, resulting from your access to or use of our Sites, Company Content or the Services; (c) any unauthorized access to or use of our secure servers and/or any and all personal information stored therein; (d) any interruption or cessation of transmission to or from the Sites or the Services; (e) any bugs, viruses, trojan horses, or the like that may be transmitted to or through our Sites, Company Content or the Services by any third party; (f) any errors or omissions in any content or for any loss or damage incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available through the Sites or the Services; and/or (g) User Content or the defamatory, offensive, or illegal conduct of any third party. You agree that if, notwithstanding the other provisions of this Agreement, a Company Party is found to be liable for any claims, proceedings, liabilities, obligations, damages, losses or costs, such Company Party’s liability shall in no event exceed the amount you paid to us hereunder during the 6-month period prior to the date on which such claim arose, if any.
This limitation of liability section applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if we have been advised of the possibility of such damage. The foregoing limitation of liability shall apply to the fullest extent permitted by Applicable Laws.
Some states, provinces and other jurisdictions do not allow the exclusion and limitations of certain implied warranties, or the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you. This Agreement gives you specific legal rights, and you may also have other rights which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, and limitations of liability under this agreement will not apply to the extent prohibited by Applicable Laws.
Our failure or delay in insisting upon or enforcing strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or rights. No waiver of any provision of this Agreement shall constitute a waiver of any other provision, nor shall any waiver of any provision of this Agreement constitute a continuing waiver unless expressly made in writing by us.
In the event that any of the provisions of this Agreement are held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that these terms and conditions shall otherwise remain in full force and effect.
This Agreement shall be governed by, and construed in accordance with, the laws of the Province of Ontario and the federal laws of Canada applicable therein. You agree to submit to the exclusive jurisdiction of the courts of the Province of Ontario or any other judicial district or jurisdiction as we may determine in any and all actions, disputes or controversies relating hereto. You further agree as follows: (a) any claim brought to enforce these terms and conditions must be commenced within 1 year of the cause of action accruing; (b) no recovery may be sought or received for damages other than out-of-pocket expenses, except that the prevailing party will be entitled to costs and legal fees; and (c) any claim must be brought individually and not consolidated as part of a group or class action complaint.
We reserve the right, in our sole discretion, to modify the terms of this Agreement from time to time. If we make changes, we will provide you with notice of such changes, such as by providing notice through the Sites, the Services or updating the “Last Updated” date at the top of this Agreement. Unless we state otherwise in our notice, all such modifications are effective immediately, and your continued use of the Sites and the Services after we provide that notice will confirm your acceptance of the changes. If you do not agree to the amended terms of this Agreement, then your only recourse is to terminate this Agreement by providing written notice to us and must stop using the Sites and the Services.
This Agreement, including all other documents incorporated by reference herein, are binding and constitute the entire agreement between us and you with respect to your use of the Sites and the Services. The parties agree that the English language will be the language of the Agreement and all documents in connection thereto, and each party waives any right (whether statutory or otherwise) to use and rely upon any other language, or translations. Il est de la volonté expresse des parties que tous les documents qui s'y rattachent soient rédigés en langue anglaise.