Genesis Pass Terms of Sale
Last updated: January 20, 2022
Smart contract enabled
You acknowledge and agree that neither Probably Something nor Probably Something Genesis Pass is a decentralized autonomous organization (“DAO”). Probably Something Genesis Pass is a non-fungible token on the Ethereum blockchain. (“Smart Contracts”). The Ethereum blockchain provides an immutable ledger of all transactions that occur on the blockchain. This means that all Probably Something Genesis Passes are outside of the control of any one party, including Probably Something, and are subject to many risks and uncertainties. Probably Something neither owns nor controls MetaMask, WalletConnect, the Ethereum network, your browser, or any other third party site, product, or service (including third party wallets or marketplaces) that you might access, visit, or use for the purpose of enabling you to use the Services or to purchase, list, auction, or sell Probably Something Genesis Passes (“Transaction”), and that, except with respect to transferring control of a Probably Something Genesis Pass to the initial purchaser through the Services (“Initial Purchaser”), Probably Something has no responsibility with respect to any Transaction. Probably Something will not be responsible and liable for the acts or omissions of any third parties, nor will Probably Something be liable for any damage that you may suffer as a result of any intentional or unintentional misuse of your Tokens including, without limitation, any loss resulting from designating a non-Ethereum compliant wallet for the receipt of the Tokens, any unauthorized third party access to your wallet, depositing one type of digital asset to a wallet intended for another type of digital wallet, or any errors, typos or inaccuracies in providing a valid Ethereum Wallet address controlled by you. You understand that your Ethereum public address will be made publicly visible whenever you engage in a Transaction. Aside from transferring control of the Probably Something Genesis Pass to the Initial Purchaser, Probably Something has no control over the transfer, storage, ownership or maintenance of the Probably Something Genesis Pass.
Changes to the services
Probably Something reserves the right to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You agree that Probably Something will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services, including in relation to any Probably Something Genesis Pass.
Probably Something Perks
A Collector (as defined below) of a Probably Something Genesis Pass may receive access and perks as determined by Probably Something in its sole discretion (“Perks”) for a period of three (3) years after the Probably Something Genesis Passes are first made available for sale (i.e., dropped) by Probably Something. Probably Something does not make any representation or guarantee that any Collector will receive any Perks or achieve any particular outcome as a result of owning any Probably Something Genesis Pass. Probably Something reserves the right, at its sole discretion, to restrict, limit, or deny any Perks to any Collector, including to limit the period of time when a Perk is available, for any reason, at any time. Perks are not intended to be an endorsement of any project, creator, NFT, individual or any other thing, and Probably Something makes no recommendation and provides no investment advice in connection with any Perks or otherwise as a result of holding or owning the Probably Something Genesis Pass.
Connecting your wallet
In order to access and use the Services, including engaging in a Transaction on the Services, you must connect your account to your digital wallet supported on MetaMask, WalletConnect or other wallet extensions or gateways as allowed on the Services. Such digital wallets allow you to purchase, store, and engage in transactions using the native Ethereum cryptocurrency, ETH. When you link your cryptocurrency wallet, you understand and agree that you are solely responsible for maintaining the security of your wallet and your control over any wallet-related authentication credentials, private or public cryptocurrency keys, non-fungible tokens or cryptocurrencies that are stored in or are accessible through your wallet. Any unauthorized access to your cryptocurrency wallet by third parties could result in the loss or theft of Probably Something Genesis Passes and/or funds held in your wallet and any associated wallets, including any linked financial information such as bank account(s) or credit card(s). Probably Something is not responsible for managing and maintaining the security of your cryptocurrency wallet. Probably Something has no responsibility or liability to you for any unauthorized access to or use of your cryptocurrency wallet or if you are unable to locate your credentials. If you notice any unauthorized or suspicious activity in your cryptocurrency wallet that seems to be related to the Services, please notify us immediately.
Sale of Probably Something Genesis Pass
When each Probably Something Genesis Pass is sold for the first time, the agreement for sale is between Probably Something and the Initial Purchaser. If the Initial Purchaser decides to sell a Probably Something Genesis Pass (“Secondary Sale”), then Probably Something is not a party to any agreement between the applicable buyer, seller, or facilitator of the Secondary Sale. By placing an order on the Site or through the Services, you agree that you are submitting a binding offer to purchase a Probably Something Genesis Pass, you agree to pay all applicable fees associated with the Transaction, and you authorize Probably Something to automatically charge and collect such fees from your payment instrument or wallet. All amounts due are to be paid to the Company. No refunds are permitted except with respect to any statutory warranties or guaranties that cannot be excluded or limited by law.
You are responsible for any and all sales, use, value-added and other taxes, duties, and assessments now or hereafter claimed or imposed by any governmental authority, associated with your use of the Services, Perks or Probably Something Genesis Passes (including, without limitation, any taxes that may become payable as the result of your ownership, transfer, purchase, or sale of a Probably Something Genesis Pass).
Probably Something Intellectual property rights
You acknowledge and agree that the Services may contain content or features (“Services Content”) that are protected by copyright, patent, trademark, trade secret, or other proprietary rights and laws. Except as expressly authorized by Probably Something, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute, or create derivative works based on the Services or the Services Content, in whole or in part. Any use of the Services or the Services Content other than as specifically authorized herein is strictly prohibited. Probably Something's name and logos are trademarks and service marks of Probably Something (collectively the “Probably Something Trademarks”). Other company, product, and service names and logos used and displayed via the Services may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Probably Something. Nothing in these Terms or the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Probably Something Trademarks displayed on the Services, without Probably Something's prior written permission in each instance. All goodwill generated from the use of Probably Something Trademarks will inure to our exclusive benefit.
Your intellectual property rights
You acknowledge and agree that Probably Something (or, as applicable, its licensors) owns all legal rights, title and interest in all intellectual property rights of the content underlying Probably Something Genesis Pass (“NFT IP”), including but not limited to copyrights and trademarks in the NFT IP. As the copyright owner, Probably Something has the exclusive right to reproduce, prepare derivatives of, distribute, display, perform and otherwise exercise and exploit the NFT IP, subject to Collector Licenses. Subject to continued compliance with these Terms, Probably Something grants Collector a limited, worldwide, non-assignable and non-transferable (except as part of a Secondary Sale), non-sublicensable, royalty-free license to display the NFT IP solely for the Collector's non-commercial purposes (except as expressly permitted herein), including the right to display such NFT IP privately or publicly: (i) for the purpose of promoting or sharing the Collector's purchase of, ownership of, or interest in such Probably Something Genesis Pass, (ii) for the purpose of sharing, promoting, discussing, or commenting on such Probably Something Genesis Pass or NFT IP; (iii) on third party marketplaces, exchanges, platforms, or applications in association with a Transaction of the Probably Something Genesis Pass; and (iv) within decentralized virtual environments, virtual worlds, virtual galleries, virtual museums, or other navigable and perceivable virtual environments (the “Collector License”). While the Collector has the right to sell, trade, transfer, or use their Probably Something Genesis Pass, the Collector may not make commercial use of the NFT IP.
No Investment Advice; Investment Risks
The information on this Site and any information provided in connection with the Services or Perks are provided to Probably Something Genesis Pass owners only and for information only and do not constitute, and should not be construed as, investment advice or a recommendation to buy, sell, or otherwise transact in any digital asset including any products or services or an invitation, offer or solicitation to engage in any investment activity with respect to any digital asset. The information on this Site and any information provided in connection with the Services or Perks provided to Probably Something Genesis Pass owners are provided solely on the basis that you will make your own investment and trading decisions, and Probably Something does not take account of any person's investment objectives, particular needs, or financial situation. In addition, nothing on this Site or any information provided in connection with the Services or Perks provided to Probably Something Genesis Pass owners shall, or is intended to, constitute financial, legal, accounting or tax advice. It is strongly recommended that you seek professional investment advice before making any investment decision. Any investment decision that you make should be based on an assessment of your risks in consultation with your investment adviser. The digital assets about which information is provided on the Site and any information provided in connection with the Services or Perks provided to Probably Something Genesis Pass owners are not viewed by the issuer or sponsor of any such digital assets, or those buying or selling the digital asset, as securities under U.S. laws or relevant applicable laws. As a result it is unlikely that fulsome disclosures from the issuer or sponsor, or any executive officer associated with the digital asset or related protocol have been provided, and others may have better or more information than the information made available to you via the Site, any information provided in connection with the Services or Perks provided to Probably Something Genesis Pass owners or to which you may independently have access. There are risks associated with purchasing and holding digital assets. Loss of the full amount of the purchase price is possible. Volatility is highly likely, and some of the protocols and platforms may fail entirely due to forking, flaws in the code, hacking or other malicious attacks. These terms do not represent a complete statement of risk factors associated with the digital assets or products that may be viewed or tracked on this site or that may be featured or discussed in connection with the services or perks for probably something genesis pass owners. You should consider these risk warnings carefully and take appropriate advice before taking any decision to purchase or trade a digital asset.
You agree that you will not, and will not permit any third party to, do or attempt to do any of the following without the Probably Something's express prior written consent in each case: interfere with or disrupt the Services or servers or networks connected to the Services in any manner that could negatively affect or inhibit other Users from fully enjoying the Services or that could damage, disable, overburden or impair the functioning of the Services in any manner; violate any applicable local, state, national or international law, or any regulations having the force of law, including but not limited to the U.S. Department of Treasury's Office of Foreign Assets Control (“OFAC”), or which would involve proceeds of any unlawful activity; obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Services; use the Services or any Probably Something Genesis Pass or NFT IP to advertise or offer to sell or buy any goods or services for any purpose that is not specifically authorized herein; use the Services or any Probably Something Genesis Pass or NFT IP to further or promote any criminal activity or enterprise or provide instructional information about illegal activities, including for the purpose of concealing economic activity, laundering money, or financing terrorism; or use the Services or any Probably Something Genesis Pass or NFT IP to carry out financial activities subject to registration or licensing, including but not limited to creating, listing, or buying securities, commodities, options, real estate, or debt instruments.
Please note the following risks in accessing, purchasing, or using Probably Something Genesis Passes: The price and liquidity of blockchain assets, including Probably Something Genesis Passes, are extremely volatile and may be subject to large fluctuations. Fluctuations in the price of other digital assets could materially and adversely affect Probably Something Genesis Passes, which may also be subject to significant price volatility. Legislative and regulatory changes or actions at the state, federal, or international level may adversely affect the use, transfer, exchange, and value of Probably Something Genesis Passes. Probably Something Genesis Passes are not legal tender and are not backed by any government. Transactions of Probably Something Genesis Passes may be irreversible, and, accordingly, losses due to fraudulent or accidental transactions may not be recoverable. Some Transactions of Probably Something Genesis Passes shall be deemed to be made when recorded on a public ledger, which is not necessarily the date or time that you initiated the Transaction. You agree and understand that you are solely responsible for determining the nature, potential value, suitability, and appropriateness of these risks for yourself, and that we do not give advice or recommendations regarding Probably Something Genesis Passes, including the suitability and appropriateness of, and investment strategies for, Probably Something Genesis Passes. You agree and understand that you access and use the Services, Probably Something Genesis Passes, NFT IP, and Perks at your own risk; however, this brief statement does not disclose all of the risks associated with Probably Something Genesis Passes and other digital assets. You agree and understand that Probably Something will not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience when using Probably Something Genesis Passes, however caused.
Disclaimer of warranties
Your use of the services, Probably Something Genesis Passes, NFT IP and perks is at your sole risk. Except as expressly provided to the contrary in a writing by Probably Something, the services, perks, services content, and any and all Probably Something Genesis Passes and NFT IP are provided on an “as is” and “as available” basis without warranties or conditions of any kind, either express or implied. Probably Something does not make any warranty whatsoever with respect to the Tokens, including any warranty of merchantability, warranty of fitness for a particular purpose, warranty of title, or warranty against infringement or intellectual property rights of a third party, whether arising by law, course of dealing, course of performance, usage of trade, or otherwise. Probably Something Makes no warranty that (I) the services, probably something genesis passes, nft ip or perks will meet your requirements, (ii) the services, probably something genesis passes, nft ip or perks will be uninterrupted, timely, secure, or error-free, (iii) the results that may be obtained from the use of the services, probably something genesis passes, nft ip or perks will be accurate or reliable, or (iv) the quality of any services, probably something genesis passes, nft ip or perks, or any products, platforms, information, or other material purchased or obtained by you through the services, probably something genesis passes or perks will meet your expectations. Probably something and its representatives 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 services, probably something genesis passes, nft ip or perks. Probably something does not represent or warrant that services content is accurate, complete, reliable, current or error-free.
Except as expressly set forth herein, you acknowledge that you have not relied upon any representation or warranty made by Probably Something or any other person on their behalf. Without limiting the generality of the foregoing, you assume all risks and liabilities for the results obtained by the use of any Tokens and regardless of any oral or written statements made by Probably Something, by way of technical advice or otherwise, related to the use of the tokens. Probably Something Genesis Passes Are intangible digital assets. They exist only by virtue of the ownership record maintained in the ethereum network.
Limitation of liability
To the fullest extent permitted by law, in no event will Probably Something be liable to you or any third party for any action or claim for incidental, special, consequential, indirect, punitive, exemplary or statutory damages arising from these terms, the site, the services, services content, Probably Something Genesis Passes, NFT IP, or third party sites and products, or for any damages related to loss of revenue, loss of profits, loss of business or anticipated savings, loss of use, loss of goodwill, or loss of data, whether caused by tort (including negligence), breach of contract, statute, or otherwise, even if foreseeable and even if they have been advised of the possibility of such damages. Except for liability arising from the Company’s fraud or intentional misconduct, Probably Something’s liability for any claim of any kind, for any loss or damage arising out of, connected with or resulting from the transaction herein shall in no case exceed the fair market of the Tokens transferred to you. Any action resulting from any claim arising under this agreement must be commenced within one (1) year after the cause of action has accrued. Access to, and use of, the site, the services, services content, probably something genesis pass, nft ip, perks or third party sites and products are at your own discretion and risk, and you will be solely responsible for any damage to your computer system or mobile device or loss of data resulting therefrom. Notwithstanding anything to the contrary contained herein, in no event shall the maximum aggregate liability of probably something or any of its representatives arising out of or in any way related to these terms, the access to and use of the site, the services, services content, probably something genesis pass, nft ip or perks exceed $100. Some jurisdictions do not allow the disclaimer or exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations set forth above may not apply to you or be enforceable with respect to you. If you are dissatisfied with any portion of the services, probably something genesis passes, nft ip or perks or with these terms, your sole and exclusive remedy is to discontinue use of the services. If you are a user from new jersey, the foregoing sections titled “disclaimer of warranties” and “limitation of liability” are intended to be only as broad as is permitted under the laws of the state of new jersey. If any portion of these sections is held to be invalid under the laws of the state of new jersey, the invalidity of such portion shall not affect the validity of the remaining portions of the applicable sections.
To the fullest extent permitted by applicable law, you agree to indemnify, defend and hold harmless Probably Something and its Representatives (collectively, the “Indemnitees”), from and against all actual or alleged third party claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses (including, without limitation, attorneys' fees and expenses) and costs (including, without limitation, court costs, costs of settlement and costs of pursuing indemnification and insurance), 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 are related to (a) your use or misuse of the Site, the Services, Services Content, Probably Something Genesis Passes, NFT IP or Perks, (b) your violation of these Terms, or (c) your violation of the rights of a third party, including another User. You agree to promptly notify Probably Something of any third party Claims and cooperate with the applicable Indemnitee in defending such Claims. You further agree that the Indemnitees shall have the right to control of the defense or settlement of any third party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and us.
You agree that Probably Something, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Services or Perks and remove and discard any content within the Services, for any reason, including, without limitation, for lack of use or if Probably Something believes that you have violated or acted inconsistently with the letter or spirit of these Terms. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of the Services or Perks may be referred to appropriate law enforcement authorities. Probably Something may also in its sole discretion and at any time discontinue providing the Services or Perks, or any part thereof, with or without notice. You agree that any termination of your access to the Services or Perks under any provision of these Terms may be effected without prior notice, and acknowledge and agree that Probably Something may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Services or Perks. Further, you agree that Probably Something will not be liable to you or any third party for any termination of your access to the Services or Perks.
Disputes with other users or collectors
You agree that you are solely responsible for your interactions with any other Users and Collectors in connection with the Services, Probably Something Genesis Passes and Perks, and Probably Something will have no liability or responsibility with respect thereto. Probably Something reserves the right, but has no obligation, to become involved in any way with disputes between you and any other User or Collector.
Dispute resolution by binding arbitration
Please read this section carefully as it affects your rights. Agreement to Arbitrate. You agree that any and all claims, disputes or controversies arising from or related to these Terms shall be submitted to binding arbitration under the Delaware Rapid Arbitration Act, 10 Del. C. C. §§ 5801 et seq. (“DRAA”). Absent a written agreement signed by all parties hereto amending, waiving or modifying the rules for DRAA arbitrations adopted by the DRAA and the Delaware courts (the “Arbitration Rules), the DRAA and the Arbitration Rules shall govern all aspects of the arbitration. Any claim or dispute arising from your receipt, transfer, use or disposition of the Tokens will take place on an individual basis without resort to any form of class or representative action (the “Class Action Waiver”). This class action waiver precludes any party from participating in or being represented in any class or representative action regarding a claim. Notwithstanding anything to the contrary, the validity and effect of this Class Action Waiver may be determined only by a court or referee and not by an arbitrator, and you acknowledge that this Class Action Waiver is material and essential to the arbitration of any disputes between the parties and is non-severable from any additional terms of the transaction described herein. The parties agree that arbitration shall be the sole and exclusive forum for resolving disputes subject to this Arbitration Provision. In the event a party initiates litigation in violation of this Arbitration Provision, such action shall be subject to dismissal, with the reasonable fees and expenses of the non-initiating party or parties paid by the party or parties that initiated the action. Nothing in this Arbitration Provision shall limit the right of a party to seek an order from a court of competent jurisdiction (a) dismissing litigation brought in violation of this Arbitration Provision or (b) compelling a party to arbitrate in accordance with this Arbitration Provision. In the event such an order is sought and obtained, the non-prevailing party shall pay all reasonable fees and expenses of the prevailing party. The parties stipulate and agree that a violation of this Arbitration Provision shall constitute irreparable harm and that, on proof of a breach, the party seeking relief from such violation shall be entitled to equitable relief including, but not limited to, an injunction or specific performance. Fees and Costs of Arbitration: An Arbitrator may in consultation with the parties retain appropriate counsel to provide advice to the Arbitrator, to make rulings on issues of law, to the extent requested by the Arbitrator, or both. The fees and costs incurred by the Arbitrator’s counsel shall be included as part of the Arbitrator’s expenses. The final award shall provide for the allocation of payment of fees and costs, subject to the reductions for an untimely award provided by 10 Del. C. § 5808(b). Unless otherwise provided in the Arbitration Agreement, those fees and costs shall include the Arbitrator’s fees and expenses, the costs of preparing a record of the Arbitration Hearing (if any), the fees and costs incurred by counsel retained by the Arbitrator under 10 Del. C. § 5806(c), and any other expenses incurred in the conduct of the Arbitration, but not including the counsel fees of the parties to the Arbitration. Confidentiality: Arbitrations under the Act are confidential proceedings. All memoranda and work product contained in the case files of an Arbitrator are confidential. Any communication made in or in connection with the Arbitration that relates to the controversy being arbitrated, whether made to the Arbitrator or a party, or to any person if made at a Preliminary Conference, Preliminary Hearing or Arbitration Hearing, is confidential. Such confidential materials and communications are not subject to disclosure in any judicial or administrative proceeding with the following exceptions: (1) where all parties to the Arbitration agree in writing to waive the confidentiality, or (2) where the confidential materials and communications consist of statements, memoranda, materials, and other tangible evidence that are otherwise subject to disclosure and were not prepared specifically for use in the Arbitration. No document or other matter submitted to the Arbitrator, served upon the parties to an Arbitration, used in any hearing or conference with the Arbitrator, or referred to or relied upon in an arbitral award shall become part of a public record as a result of such submission, service, use, reference or reliance. However, in the event of the taking of a challenge to a final award to the Supreme Court of Delaware under 10 Del. C. § 5809, a document or other matter submitted to the Supreme Court of Delaware shall become part of the public record only to the extent required by the Rules of that Court or by order of that Court. The Arbitrator shall have power to issue orders to protect the confidentiality of the proceedings and of any documents or other matter used in the Arbitration. Future Changes to Arbitration Agreement Notwithstanding any provision in these Terms to the contrary, Probably Something agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a User of the Services, you may reject any such change by sending Probably Something written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
Notice for california users
Notice for California Users Under California Civil Code Section 1789.3, Users of the Services from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted (a) via email at firstname.lastname@example.org; (b) in writing at: Department of Consumer Affairs, Consumer Information Division, 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834; or (c) by telephone at (800) 952-5210 or (800) 326-2297 (TDD). Sacramento-area consumers may call (916) 445-1254 or (916) 928-1227 (TDD). You may contact us at Probably Something, [Address].
If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect.
You may not assign the Terms without the prior written consent of Probably Something, but Probably Something may assign or transfer these Terms, in whole or in part, without restriction.
These Terms will be governed by the laws of the St ate of Delaware without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Probably Something submit to the personal and exclusive jurisdiction of the state and federal courts located within the State of Delaware.
These Terms constitute the entire agreement between you and Probably Something and govern your use of the Services, Probably Something Genesis Passes, NFT IP and Perks, superseding any prior agreements between you and Probably Something with respect thereto. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity. You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content or third party software. The failure of Probably Something to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services, any Probably Something Genesis Passes, any Perks or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. The section titles in these Terms are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. Probably Something may also provide notices to you of changes to these Terms or other matters by displaying notices or links to notices generally on the Services.