Last Updated: February 1, 2018
The DADA Art Gallery is a distributed application that runs on the Ethereum network, using specially-developed smart contracts (each, a “Smart Contract”) to enable users to own, transfer, and sell drawings which are made by artists who draw on dada.nyc, and which can then be visualized on a website that the user can interact with (the “Gallery”). The Smart Contracts and the website are collectively referred to in these Terms as the “Gallery”. Using the Gallery, users can view the art they have purchased or claimed and use the Smart Contracts to acquire, trade, and sell the artworks with other Gallery users.
1. DADA Artworks
The artworks available for sale in the Gallery are the work of artists in the DADA community that have made these artworks directly on the DADA drawing platform, dada.nyc. DADA reserves the right to issue or retract any drawing or visual conversation created on its platform (dada.nyc) for purchase, trade, or sale in the Gallery. DADA will also, on occasion, issue drawings created by DADA to be claimed by collectors free of charge. In this case, the collector will agree to pay for any fees associated with the transaction, as described in more detail in the Fees and Payment section of these Terms.
Smart contracts allow for the automatic distribution of profits which is as follows:
On the first sale of an artwork, the artist who created it will get 70% of the profits and DADA will get 30%. On secondary sales, the owner of the artwork will get 60% on the profit from the sale, the artist will get 30% and DADA will get 10%.
2. The Gallery
A. To most easily use the Gallery you must first install the Google Chrome web browser. Once you have installed Chrome, you will need to install a browser extension called MetaMask. MetaMask is an electronic wallet, which allows you to purchase (either directly via Coinbase if you are in the United States, or via other third party sites), store, and engage in transactions using Ethereum cryptocurrency. You will not be able to engage in any transactions on the Gallery other than through MetaMask (or other Ethereum-compatible browsers). The Gallery will only recognize you as a user, and you will only be able to interact with the Gallery if your Ethereum electronic wallet is connected and unlocked through your MetaMask account. There is no other way to sign up as a user or to interact directly with the Gallery.
B. Transactions that take place in the Gallery are managed and confirmed via the Ethereum blockchain. You understand that your Ethereum public address will be made publicly visible whenever you engage in a transaction on the Gallery.
C. DADA nor the Gallery neither owns nor controls MetaMask, Coinbase, Google Chrome, Firefox, the Ethereum network, or any other third party site, product, or service that you might access, visit, or use for the purpose of enabling you to use the various features of the Gallery. We will not be liable for the acts or omissions of any such third parties, nor will we be liable for any damage that you may suffer as a result of your transactions or any other interaction with any such third parties.
D. You must provide accurate and complete registration information when you create an account for the Gallery. By creating an account, you agree to provide accurate, current and complete account information about yourself, and to maintain and promptly update as necessary your account information. You are solely responsible for the security of your account and your MetaMask wallet (and other Ethereum wallets and accounts). If you become aware of any unauthorized use of your password or of your account with us, you agree to notify us immediately at email@example.com.
3. Fees and Payment
A. If you elect to purchase, trade, or sell DADA artworks on the Gallery, or with or from other users via the Gallery, any financial transactions that you engage in will be conducted solely through the Ethereum network via MetaMask. We will have no insight into or control over these payments or transactions, nor do we have the ability to reverse any transactions. With that in mind, we will have no liability to you or to any third party for any claims or damages that may arise as a result of any transactions that you engage in via the Gallery, or using the Smart Contracts, or any other transactions that you conduct via the Ethereum network or MetaMask.
B. Ethereum requires the payment of a transaction fee (a “Gas Fee”) for every transaction that occurs on the Ethereum network. The Gas Fee funds the network of computers that run the decentralized Ethereum network. This means that you will need to pay a Gas Fee for each transaction that occurs via the Gallery, including artworks you can claim free of charge. You agree to pay the Gas Fee for those free artworks.
C. As between us, you will be solely responsible to pay any and all sales, use, value-added and other taxes, duties, and assessments (except taxes on our net income) now or hereafter claimed or imposed by any governmental authority (collectively, “Taxes”) associated with your use of the Gallery (including, without limitation, any Taxes that may become payable as the result of your ownership, transfer, or sales of any of your Artworks). Except for income taxes levied on Showopp, Inc. you: (i) will pay or reimburse us for all national, federal, state, local or other taxes and assessments of any jurisdiction, including value added taxes and taxes as required by international tax treaties, customs or other import or export taxes, and amounts levied in lieu thereof based on charges set, services performed or payments made hereunder, as are now or hereafter may be imposed under the authority of any national, state, local or any other taxing jurisdiction; and (ii) shall not be entitled to deduct the amount of any such taxes, duties or assessments from payments made to us pursuant to these Terms.
4. Ownership; Restrictions
A. You acknowledge and agree that we (or, as applicable, our licensors) own all legal right, title, and interest in and to all elements of the Gallery, and all intellectual property rights therein.
The intellectual property of the individual artworks belongs to the individual artist who created the drawing. The intellectual property of the visual conversations in their entirety or in fragments comprising more than one individual drawing belongs to DADA. The visual interfaces, graphics, design, systems, methods, information, computer code, software, services, “look and feel”, organization, compilation of the content, code, data, and all other elements of the Gallery (collectively, the “DADA Materials”) are owned by DADA, and are protected by copyright, trade dress, patent, and trademark laws, international conventions, other relevant intellectual property and proprietary rights, and applicable laws. All DADA Materials are the copyrighted property of DADA or its licensors, and all trademarks, service marks, and trade names contained in the DADA Materials are proprietary to DADA or its licensors. Except as expressly set forth herein, your use of the Gallery does not grant you ownership of or any other rights with respect to any content, code, data, or other materials that you may access on or through the Gallery. We reserve all rights in and to the DADA Materials not expressly granted to you in the Terms. For the sake of clarity, you understand and agree: (i) that your “purchase” of a DADA artwork, whether via the Gallery or otherwise, does not give you any rights or licenses in or to the DADA Materials (including, without limitation, our copyright in and to the art and drawings associated with that Artwork) other than those expressly contained in these Terms; and (ii) that you do not have the right to reproduce, distribute, or otherwise commercialize any elements of the DADA Materials (including, without limitation, our copyright in and to the art and drawings associated with that Artwork) in any way without our prior written consent in each case, which consent we may withhold in our sole and absolute discretion.
B. You may choose to submit comments, bug reports, ideas or other feedback about the Gallery, including without limitation about how to improve the Gallery (collectively, “Feedback”). By submitting any Feedback, you agree that we are free to use such Feedback at our discretion and without additional compensation to you, and to disclose such Feedback to third parties (whether on a non-confidential basis, or otherwise). You hereby grant us a perpetual, irrevocable, nonexclusive, worldwide license under all rights necessary for us to incorporate and use your Feedback for any purpose.
C. You agree that you are responsible for your own conduct while accessing or using the Gallery, and for any consequences thereof. You agree to use the Gallery only for purposes that are legal, proper and in accordance with these Terms and any applicable laws or regulations. By way of example, and not as a limitation, you may not, and may not allow any third party to: (i) send, upload, distribute or disseminate any unlawful, defamatory, harassing, abusive, fraudulent, obscene, or otherwise objectionable content; (ii) distribute viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or any other items of a destructive or deceptive nature; (iii) impersonate another person (via the use of an email address or otherwise); (iv) upload, post, transmit or otherwise make available through the Gallery or dada.nyc any content that infringes the intellectual proprietary rights of any party; (v) use the Gallery to violate the legal rights (such as rights of privacy and publicity) of others; (vi) engage in, promote, or encourage illegal activity (including, without limitation, money laundering); (vii) interfere with other users’ enjoyment of the Gallery; (viii) exploit the Gallery for any unauthorized commercial purpose; (ix) modify, adapt, translate, or reverse engineer any portion of the Gallery; (x) remove any copyright, trademark or other proprietary rights notices contained in or on the Gallery or any part of it; (xi) reformat or frame any portion of the Gallery; (xii) display any content on the Gallery that contains any hate-related or violent content or contains any other material, products or services that violate or encourage conduct that would violate any criminal laws, any other applicable laws, or any third party rights; (xiii) use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Gallery or the content posted on the Gallery, or to collect information about its users for any unauthorized purpose; (xiv) create user accounts by automated means or under false or fraudulent pretenses; or (xv) access or use the Gallery for the purpose of creating a product or service that is competitive with any of our products or services.
You may terminate these Terms at any time by canceling your account on the App and discontinuing your access to and use of the App. You will not receive any refunds if you cancel your account, or otherwise terminate these Terms. You agree that we, in our sole discretion and for any or no reason, may terminate these Terms and suspend and/or terminate your account(s) for the App. You agree that any suspension or termination of your access to the App may be without prior notice, and that we will not be liable to you or to any third party for any such suspension or termination. If we terminate these Terms or suspend or terminate your access to or use of the Gallery due to your breach of these Terms or any suspected fraudulent, abusive, or illegal activity, then termination of these Terms will be in addition to any other remedies we may have at law or in equity. Upon any termination or expiration of these Terms, whether by you or us, you may no longer have access to information that you have posted on the Gallery or that is related to your account, and you acknowledge that we will have no obligation to maintain any such information in our databases or to forward any such information to you or to any third party. Sections 2.C and 3 through 16 will survive the termination or expiration of these Terms for any reason.
A. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR ACCESS TO AND USE OF THE GALLERY IS AT YOUR SOLE RISK, AND THAT THE GALLERY IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WE, OUR SUBSIDIARIES, AFFILIATES, AND LICENSORS MAKE NO EXPRESS WARRANTIES AND HEREBY DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE GALLERY AND ANY PART OF IT (INCLUDING, WITHOUT LIMITATION, THE SITE, ANY SMART CONTRACT, OR ANY EXTERNAL WEBSITES), INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, CORRECTNESS, ACCURACY, OR RELIABILITY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE, OUR SUBSIDIARIES, AFFILIATES, AND LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (I) YOUR ACCESS TO OR USE OF THE GALLERY WILL MEET YOUR REQUIREMENTS, (II) YOUR ACCESS TO OR USE OF THE GALLERY WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, (III) USAGE DATA PROVIDED THROUGH THE GALLERY WILL BE ACCURATE, (III) THE GALLERY OR ANY CONTENT, SERVICES, OR FEATURES MADE AVAILABLE ON OR THROUGH THE GALLERY ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (IV) THAT ANY DATA THAT YOU DISCLOSE WHEN YOU USE THE GALLERY WILL BE SECURE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN CONTRACTS WITH CONSUMERS, SO SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
B. YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET, AND AGREE THAT WE HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY BREACH OF SECURITY UNLESS IT IS DUE TO OUR GROSS NEGLIGENCE.
C. WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSSES YOU INCUR AS THE RESULT OF YOUR USE OF THE ETHEREUM NETWORK OR THE METAMASK ELECTRONIC WALLET, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (A) USER ERROR, SUCH AS FORGOTTEN PASSWORDS OR INCORRECTLY CONSTRUED SMART CONTRACTS OR OTHER TRANSACTIONS; (B) SERVER FAILURE OR DATA LOSS; (C) CORRUPTED WALLET FILES; (D) UNAUTHORIZED ACCESS OR ACTIVITIES BY THIRD PARTIES, INCLUDING BUT NOT LIMITED TO THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK AGAINST THE APP, ETHEREUM NETWORK, OR THE METAMASK ELECTRONIC WALLET.
D. DADA ARTWORKS ARE INTANGIBLE DIGITAL ASSETS THAT EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE ETHEREUM NETWORK. ALL SMART CONTRACTS ARE CONDUCTED AND OCCUR ON THE DECENTRALIZED LEDGER WITHIN THE ETHEREUM PLATFORM. WE HAVE NO CONTROL OVER AND MAKE NO GUARANTEES OR PROMISES WITH RESPECT TO SMART CONTRACTS.
E. DADA IS NOT RESPONSIBLE FOR LOSSES DUE TO BLOCKCHAINS OR ANY OTHER FEATURES OF THE ETHEREUM NETWORK OR THE METAMASK ELECTRONIC WALLET, INCLUDING BUT NOT LIMITED TO LATE REPORT BY DEVELOPERS OR REPRESENTATIVES (OR NO REPORT AT ALL) OF ANY ISSUES WITH THE BLOCKCHAIN SUPPORTING THE ETHEREUM NETWORK, INCLUDING FORKS, TECHNICAL NODE ISSUES, OR ANY OTHER ISSUES HAVING FUND LOSSES AS A RESULT.
7. Limitation of Liability
In no event will DADA, its sponsors, affiliates, officers, directors, employees, representatives, successors and assigns, be liable to any party (i) for any indirect, special, punitive, incidental or consequential damages or any other damages arising in any way out of the availability, use, reliance on, or inability to use the App, even if DADA or its agents shall have been advised of the possibility of such damages, and regardless of the form of action, whether in contract, tort, or otherwise; or (ii) for any claim attributable to errors, omissions, or other inaccuracies in, or destructive properties of the App. Notwithstanding anything to the contrary herein, to the fullest extent allowed by law, you agree to waive and discharge all claims, release DADA from all liability and indemnify and hold harmless DADA, its subsidiaries, affiliates, parent company, officers, agents, and other partners and employees, from any and all liability on account of, or in any way resulting from injuries and damages in any way connected with any events or activities. You agree and understand and intend that this assumption of risk and release is binding upon you and your heirs, executors, agents, administrators and assigns, and includes any minors accompanying the user.
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, DADA’s liability shall be limited to the extent permitted by law.
C. YOU ACKNOWLEDGE AND AGREE THAT WE HAVE MADE THE GALLERY AVAILABLE TO YOU AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN, WHICH REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN THE PARTIES AND FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN US. WE WOULD NOT BE ABLE TO PROVIDE THE GALLERY TO YOU WITHOUT THESE LIMITATIONS.
D. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, AND SOME JURISDICTIONS ALSO LIMIT DISCLAIMERS OR LIMITATIONS OF LIABILITY FOR PERSONAL INJURY FROM CONSUMER PRODUCTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO PERSONAL INJURY CLAIMS.
8. Assumption of Risk
You accept and acknowledge each of the following:
A. The prices of blockchain assets are extremely volatile. Fluctuations in the price of other digital assets could materially and adversely affect the value of your DADA Artworks, which may also be subject to significant price volatility. We cannot guarantee that any purchasers of DADA Artworks will not lose money.
B. You are solely responsible for determining what, if any, taxes apply to your DADA Artworks-related transactions. DADA is not responsible for determining the taxes that apply to your transactions on the Gallery, the Site, or the Smart Contracts.
C. The Gallery does not store, send, or receive DADA Artworks. This is because DADA Artworks exist only by virtue of the ownership record maintained on the Gallery’s supporting blockchain in the Ethereum network. Any transfer of DADA Artworks occurs within the supporting blockchain in the Ethereum network, and not on the Gallery.
D. There are risks associated with using an Internet-based currency, including, but not limited to, the risk of hardware, software and Internet connections, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to information stored within your wallet. You accept and acknowledge that DADA will not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience when using the Ethereum network, however caused.
E. A lack of use or public interest in the creation and development of distributed ecosystems could negatively impact the development of the DADA ecosystem, and therefore the potential utility or value of DADA Artworks.
F. The regulatory regime governing blockchain technologies, cryptocurrencies, and tokens is uncertain, and new regulations or policies may materially adversely affect the development of the DADA ecosystem, and therefore the potential utility or value of DADA Artworks.
G. Upgrades by Ethereum to the Ethereum platform, a hard fork in the Ethereum platform, or a change in how transactions are confirmed on the Ethereum platform may have unintended, adverse effects on all blockchains using the ERC-20 standard, including the DADA ecosystem.
You agree to hold harmless and indemnify DADA and its subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners from and against any claim, liability, loss, damage (actual and consequential) of any kind or nature, suit, judgment, litigation cost, and attorneys’ fees arising out of or in any way related to (i) your breach of these Terms, (ii) your misuse of the Gallery, or (iii) your violation of applicable laws, rules or regulations in connection with your access to or use of the Gallery. You agree that DADA will have control of the defense or settlement of any such claims.
10. External Sites
The Gallery may include hyperlinks to other websites or resources (collectively, “External Sites”), which are provided solely as a convenience to our users. We have no control over any External Sites. You acknowledge and agree that we are not responsible for the availability of any External Sites, and that we do not endorse any advertising, products or other materials on or made available from any External Sites. Furthermore, you acknowledge and agree that we are not liable for any loss or damage which may be incurred as a result of the availability or unavailability of the External Sites, or as a result of any reliance placed by you upon the completeness, accuracy or existence of any advertising, products or other materials on, or made available from, any External Sites.
11. Changes to the Terms
We may make changes to the Terms from time to time. When we make changes, we will make the updated Terms available in the Gallery and update the “Last Updated” date at the beginning of these Terms accordingly. Please check these Terms periodically for changes. Any changes to the Terms will apply on the date that they are made, and your continued access to or use of the Gallery after the Terms have been updated will constitute your binding acceptance of the updates. If you do not agree to any revised Terms, you may not access or use the Gallery.
You affirm that you are over the age of 13, as the Gallery is not intended for children under 13. IF YOU ARE 13 OR OLDER BUT UNDER THE AGE OF 18, OR THE LEGAL AGE OF MAJORITY WHERE YOU RESIDE IF THAT JURISDICTION HAS AN OLDER AGE OF MAJORITY, THEN YOU AGREE TO REVIEW THESE TERMS WITH YOUR PARENT OR GUARDIAN TO MAKE SURE THAT BOTH YOU AND YOUR PARENT OR GUARDIAN UNDERSTAND AND AGREE TO THESE TERMS. YOU AGREE TO HAVE YOUR PARENT OR GUARDIAN REVIEW AND ACCEPT THESE TERMS ON YOUR BEHALF. IF YOU ARE A PARENT OR GUARDIAN AGREEING TO THE TERMS FOR THE BENEFIT OF A CHILD OVER 13, THEN YOU AGREE TO AND ACCEPT FULL RESPONSIBILITY FOR THAT CHILD’S USE OF THE GALLERY, INCLUDING ALL FINANCIAL CHARGES AND LEGAL LIABILITY THAT HE OR SHE MAY INCUR.
15. Dispute Resolution; Arbitration
Please read this Section 15 carefully. It requires you to arbitrate disputes with DADA, and limits the manner in which you can seek relief from us.
WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATED TO THESE TERMS, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THE GALLERY, THE SITE, THE SMART CONTRACTS, OR ANY PRODUCTS SOLD OR DISTRIBUTED THROUGH THE GALLERY, THE SITE, OR THE SMART CONTRACTS: (I) YOU HEREBY EXPRESSLY GIVE UP YOUR RIGHT TO HAVE A TRIAL BY JURY; AND (II) YOU HEREBY EXPRESSLY GIVE UP YOUR RIGHT TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS IN ANY LAWSUIT, INCLUDING BUT NOT LIMITED TO CLASS ACTION LAWSUITS INVOLVING ANY SUCH DISPUTE.
16. Applicable laws/Jurisdiction
You agree to comply with all local rules and laws regarding online conduct and acceptable content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or any other country in which you reside.
Notwithstanding local rules or laws regarding your use of the Gallery, you agree that the laws of the state of New York, excluding its conflicts-of-law rules, shall govern these terms and conditions. You expressly agree that exclusive jurisdiction for any claim or dispute with DADA or relating in any way to your use of the site shall be in the federal or state courts located in New York County, New York, and you further agree and expressly consent to the exercise of personal jurisdiction in such courts in connection with any such dispute, including any claim involving DADA or its affiliates, officers, directors, employees, representatives, successors, assigns, or content providers.
We operate the site from our offices in New York, New York. We do not represent that materials on the site are appropriate or available for use outside of New York. Persons who choose to access this site from other locations do so on their own initiative, and are responsible for compliance with local laws, if and to the extent local laws are applicable.
These Terms constitute the entire legal agreement between you and DADA, govern your access to and use of the Gallery, and completely replace any prior or contemporaneous agreements between the parties related to your access to or use of the Gallery, whether oral or written. There are no third party beneficiaries to these Terms. The parties are independent contractors, and nothing in these Terms create any agency, partnership, or joint venture. The language in these Terms will be interpreted as to its fair meaning, and not strictly for or against any party. You may not assign any of your rights or obligations under these Terms, whether by operation of law or otherwise, without our prior written consent. We may assign our rights and obligations under these Terms in our sole discretion to an affiliate, or in connection with an acquisition, sale or merger. Should any part of these Terms be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions will remain in full force and effect. Our failure to enforce any provision of these Terms will not be deemed a waiver of such provision, nor of the right to enforce such provision. These Terms will be governed by and construed in accordance with the laws of the State of New York and the federal laws of the United States of America applicable therein, excluding its conflicts of law rules and principles. Subject to Section 15, any legal action or proceeding arising under these Terms will be brought exclusively in the federal or local courts located in New York, NY, and the parties irrevocably consent to the personal jurisdiction and venue there. We will not be liable for any failure or delayed performance of our obligations that result from any condition beyond our reasonable control, including, but not limited to, governmental action, acts of terrorism, earthquake, fire, flood, acts of God, labor conditions, power failures, Internet disturbances, or acts or omissions of third parties. You agree that we may provide you with notices (including, without limitation those regarding changes to these Terms) by email, regular mail, or postings on the Gallery. By providing us with your email address, you consent to our using the email address to send you any notices required by law in lieu of communication by postal mail.