FileTrack Inc. dba Embershot ("Shoot.to") owns and operates the website located at Shoot.to (the “Site) and the Shoot.to application when available (the "Shoot.to App"). The Site or the Shoot.to App are collectively referred to as the “Shoot.to Platform” or the “Platform”. These terms of service (these “Terms of Service”) apply to all Creators and Purchasers (as defined below) who use the Platform.
These Terms of Service are a supplement to and identified as “Additional Terms” in the Terms of Use governing the Embershot Services (as each is defined in those Terms of Use). In the event of any inconsistency between these Terms of Service and those Terms of Use, these Terms of Service will control.
BY LISTING A CONTENT TOKEN ON THE PLATFORM, EACH CREATOR IS FULLY REPRESENTING THAT ITS CONTENT TOKEN IS NOT A SECURITY. THE PLATFORM WILL NEVER OWN, POSSESS, DEAL, OR BROKER ANY SECURITIES FOR ANY REASON. ANY CONTENT TOKEN DEEMED TO BE OR IS LIKELY TO BE DEEMED A SECURITY, IN THE SOLE DISCRETION OF SHOOT.TO, SHALL BE IMMEDIATELY REMOVED FROM THE PLATFORM, ANY SALE REFUNDED AT THE CREATOR’S EXPENSE, AND THE CREATOR MAY BE SUBJECT TO PERMANENT REMOVAL AND/OR OTHER ACTION FROM SHOOT.TO. By registering as a Creator or Purchaser on the Shoot.to Platform you indicate your acceptance of these Terms of Service. If you do not accept these Terms of Service, then you may not use the Shoot.to Platform or the Services as either a Creator or a Purchaser. These Terms of Service may be amended or updated by Shoot.to from time to time and you will be notified of such changes either through a general posting on the Site or a message or pop-up to you when you access the Site after these Terms of Service have been updated. It is your responsibility to review the Terms of Service for any changes. Your use of the Shoot.to Platform after any updates or modifications of these Terms of Service shall constitute your agreement to such updates or modifications. Nothing in this Agreement shall bar Shoot.to from functioning as either a Creator or Purchaser on its Platform.
If you are agreeing to these Terms of Service on behalf of an entity, you hereby represent and warrant that you have all necessary permissions and authority to agree to these Terms of Service and to bind the entity to them.
Definitions. The following terms as used herein shall have the following meanings:
“Agreement” means the terms of your Enrollment Form, the non-conflicting terms of the Embershot Terms of Use, and these Terms of Service.
“Content” means the content that a Creator uploads to the Platform to create the Content Token.
"Content Token" means a non-fungible off-chain token for the purpose of referencing the Content and subject to any restrictions as determined by the Creator within the parameters of the Platform; Content Tokens represent unique artistic works.
“Creator” means a person or entity who creates or offers their own Content to the Platform to be Pre-Minted into Content Tokens for sale only through the Platform, and which may later become Content NFTs.
"Creator Profile" means the Creator’s profile on the Shoot.to Platform, which is available for Purchasers to view and through which a Purchaser may view information regarding the Creator, its location, its terms of supply, Content Tokens for sale, and other such germane information.
“Distribution Limit” means the limit of Tokens set by the Creator when the Creator lists his/her Content Token on the Platform. The Distribution Limit may be set at 1 through unlimited. If the Distribution Limit is finite, then once the Distribution Limit for a Content Token is reached or surpassed, Purchasers will have the option of reselling their Token on the Platform or transferring their Token to a personal wallet. Once the Distribution Limit is created, the Creator may adjust it downward, but may not increase the limit.
“End User” means either a Creator or a Purchaser.
"Enrollment Form" means the online enrollment, signup, or registration form completed by an End User and which refers to these Terms of Service, and which may set out additional commercial terms that will govern the relationship between such End User and Shoot.to. Shoot.to reserves the right not to use an Enrollment Form and rely on these Terms of Service and other documentation.
“Mint” means the creation of an ERC-721 token (or its functional equivalent) on Polygon. Minting occurs when a Purchaser purchases a Content Token. The Platform will create an NFT unique to each Purchaser, but the underlying Content will be the same as referenced in the Content Token through which the NFT was made. Before the Distribution Limit, all NFTs will be non-transferable and held by the Platform.
“NFT” means a non-fungible token supported by a blockchain network, subject to smart contracts. “Content NFT” means the NFT associated with a Content Token. Content NFTs may only be created on the Platform.
“Pre-Mint” means the creation of a Content Token on the Platform, which may later be Minted into unique NFTs.
“Purchaser” means the person or entity who placed an order for a Content Token with a Creator with the intent to enjoy it. Purchasers may also be referred to in other materials as “Customers”. To the extent that a Purchaser resells a Content NFT on the Platform (when permitted to do so), such Purchaser agrees to be bound to these Terms of Service.
“Royalty” means a preset percentage set by the Creator on all secondary sales of Content NFTs from one Purchaser to another Purchaser or a purchaser of the Content NFT through another platform. The Royalty will be payable to the Creator.
“Tokens” means either Content Tokens or Content NFTs.
Services.
Generally. The Shoot.to Platform shall provide the End Users during the term various services, which may include, but are not limited to, hosting End User profile pages and associated Tokens, assistance with delivery, managing payments, and providing access to and use of the Platform for all authorized uses (collectively, “Services”).
Clearance. The End Users acknowledge and agree that access to the Services via the Platform may be subject to a review of each such End User’s background, which may include obtaining a consumer report, know-your-customer and anti-money laundering requirements, among other items necessary for Shoot.to’s legal obligations and protection of the Platform and other End Users. The End Users further acknowledge and agree to provide Shoot.to with their written consent and authorization to perform any of the foregoing, and End Users will complete any and all necessary documents (e.g., consent authorization form) required by Shoot.to to complete the review of each such End User’s background. Shoot.to reserves the right to admit or deny any End User to the Shoot.to Platform for any or no reason.
Changes, Delays, Unavailability. Shoot.to reserves the right to alter, suspend, or discontinue the Services or the Shoot.to Platform at any time and for any reason or no reason without any liability to End Users. In such cases, Shoot.to will endeavor to give notice of such changes, delays, or unavailabilities. The Services may be unavailable from time to time due to maintenance or malfunction of computer or network equipment or other reasons.
Consent to be Contacted by Shoot.to and Creators. Each End User consents, when making their account, to be contacted by Shoot.to for the purposes of advertising the Services of the Platform. Each Purchaser consents for Shoot.to to share their contact information with each Creator from which such Purchaser purchases their Content NFT. The Creator may contact each Purchaser of its Content Tokens with information regarding or related to the Content or future content of the Creator. No End User’s contact information shall be sold to third parties.
The Shoot.to Platform.
Marketplace Only. The Shoot.to Platform is an online marketplace that connects Creators to Purchasers to sell their Content Tokens, and, after the Distribution Limit, for Purchasers to resell their Content NFTs. The Shoot.to affiliate, Embershot, stores the content uploaded by Creators to create the Content Tokens. Unless otherwise stated or agreed, Shoot.to only offers the marketplace Platform for connecting Creators to Purchasers and Purchasers to other Purchasers and supporting the Tokens thereto; unless otherwise stated, it does not purchase, sell, resell, provide, offer, quality check, or develop any Content Tokens or Content NFTs. Creators may decide price and other restrictions on the Purchaser(s) of their Content Tokens, which are in addition to these Terms of Service. Such supplemental terms shall be only between Creators and their Purchasers, provided however, that no term in these supplemental terms, whether communicated by the profiles of either party or via direct communications or agreements, or through the settings imposed by the Creator shall contradict these Terms of Service. Shoot.to provides for the licenses described in Section 4.a and other ground rules through these general Terms of Service herein, Shoot.to is not and will not be a party to any contractual relationship between Creators and Purchasers.
Using the Services. Provided that an End User has been accepted by Shoot.to and conditioned on such End User’s continuing compliance with the Agreement, Shoot.to shall make the Services and the Shoot.to Platform available to the End Users on a non-exclusive, non- transferable basis.
Use Guidelines. End Users shall not:
license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise exploit or make the Services or the Shoot.to Platform available to any third party without Shoot.to’s prior written consent, which may be withheld in its sole discretion;
interfere with or disrupt the integrity or performance of the Shoot.to Platform or the data contained therein;
attempt to gain unauthorized access to the Services or the Shoot.to Platform or any of their related systems or networks; or
use the Services for any competitive purposes against Shoot.to.
Restrictions. End Users shall not (and shall not allow any third party to):
modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Services or the Tokens;
circumvent use restrictions that are built into the Services or the Tokens;
remove any proprietary notices, labels, or marks from the Services or the Tokens;
frame or mirror any content forming part of the Services;
access the Service in order to copy any ideas, features, functions or graphics of the Services;
use the Services or the Platform to manage or perform any illegal operations;
use any type of spider, virus, worm, Trojan-horse, time bomb or any other codes or instructions that are designed to distort, delete, damage or disassemble the technology underlying the Service (including Shoot.to’s proprietary software and apps which may be available for download on the Shoot.to Platform);
use the Services or the Shoot.to Platform to send any unsolicited commercial communication not permitted by applicable law or these Terms of Service;
list, post, or otherwise act in a way that would infringe the intellectual property rights of another;
endanger any part of any system or Internet connection of Shoot.to or any third party through use of the Services or the Shoot.to Platform; or
breach any applicable laws (including, without limitation, any privacy or securities laws) when using the Services or the Shoot.to Platform or in respect of information collected by End Users through the use of the Services or the Shoot.to Platform.
End User Responsibilities.
Creator Responsibilities. On the Shoot.to Platform, Creators shall fill-out accurately and regularly update: (i) a description of themselves, each of their Content Tokens, and other information necessary for a Purchaser to determine whether it wants to and how to purchase and own a Token, (ii) their preferences and capabilities regarding their Content Token, the price they are willing to sell their Tokens, Distribution Limits, and other practical considerations, and (iii) Creator’s availability to accept new orders, if any. Creators shall cooperate with Shoot.to or its agents as requested to verify any information provided by the Creator. The Creators hereby acknowledge that Shoot.to may, from time to time, make any non-material edits to End User's profiles, including, but not limited to, grammatical, formatting, spelling and punctuation corrections, for the purpose of optimizing End User's profile on the Site and conforming to Site requirements. To the extent that a Creator breaches any of this Section 4.a, such Creator may be removed as a Creator on the Shoot.to Platform as well as risk claims from Purchasers and Shoot.to.
Images and Descriptions. Creators agree that any image, graphic, or information they post on the Shoot.to Platform shall accurately reflect their Content Tokens and the terms by which a Creator is willing to sell a Content Token (the “Content Token Descriptors”).
License to Purchasers. Creators and Shoot.to agree that when a Purchaser purchases a Token, that Purchaser is granted a non-exclusive, worldwide, license to view the Content associated with the Token. The Purchaser may resell their Token, and this corresponding license with it, within the scope of these Terms of Service and any greater restrictions imposed by the Creator or Platform. The Purchaser may not copy or sublicense any of the Content they purchase, or otherwise use the Content in a way not intended by the Creator, as evidenced by the Creator Profile and description of the Content.
Content Token Quality and Liability. The Creators shall be solely responsible for ensuring the quality, delivery, curing of Content defects, and defending any claims of Content liability from Purchasers or third parties, except for those liabilities or other claims only arising as a direct result of Shoot.to’s actions. All End Users shall hold Shoot.to harmless and shall make no claims against Shoot.to relating to the quality, Content Token Descriptors, Content itself, its delivery, infringement, or defects in the Content Tokens or Content.
Purchaser Responsibilities. Purchasers shall comply with all stated terms a Creator may post regarding the sale of its Content Tokens, including, without limitation, any restrictions on where its Content Tokens can be delivered or offered for sale, warnings or instructions for use, and the price that the Creator is willing to sell the Content Token to Purchasers. To the extent that Purchaser breaches the preceding, such Purchaser may be prohibited on the Shoot.to Platform as well as risk claims from the Creators and Shoot.to.
Pricing. Creators shall post the price they are willing to sell their Content Tokens to Purchasers. Creators may not offer a Content Token for sale at a different price than that listed on Shoot.to.
User Relations and Non-Circumvention.NeitherCreators nor Purchasers may include information along with their Content Tokens or Content NFTs for the purpose of setting up a direct selling relationship with a Purchaser or another Purchaser so as to circumvent the Platform, unless Shoot.to has expressly granted permission otherwise, and, then, only within the scope of that permission. No Purchaser may reproduce any Content uploaded to the Platform for sale on another platform or through themselves. An End User shall promptly notify Shoot.to if there is a breach of this section.
Purchaser Agreement. Purchasers agree not to reproduce or make copies of the underlying Content related to their Content NFT. Purchasers agree that if they transfer a Content NFT off the Platform, they will not interfere, remove, or disable functions enabling the Royalty. If Shoot.to, in its sole discretion, has a reasonable belief that a Purchaser has sold a Content NFT off the Platform without the Royalty being paid, then Shoot.to shall notify the Purchaser, shall disable all of the Purchaser’s access to the Content with respect to the Content NFTs then owned by the Purchaser as well as the Purchaser’s access to the Services. Shoot.to may, in its sole discretion, assess a fee to such Purchaser in an amount up to five times the Royalty amount on the sale in question as adequate compensation for the future loss of Royalty payments related to that Content NFT.
ACCEPTANCE OF DISCLAIMER BY SHOOT.TO OF RESPONSIBILITY FOR END USER SERVICES AND CONTENT TOKENS. The Creators shall remain solely responsible for the Content Tokens and Content Token Descriptors provided by such Creators or any of their employees, delegates or other representatives. Other than as provided in these Terms of Service, Shoot.to shall not in any way interfere with the independence of or otherwise participate in the Creator’s Content Tokens or Creator’s services. The End Users acknowledge that: (i) Shoot.to is not a Creator or developer of Content Tokens of any kind, except for those expressly listed as Shoot.to Content Tokens on a Shoot.to Creator Profile, if any; (ii) other than its own clearly marked Content Tokens, Shoot.to cannot and will not assume responsibility for the Content Tokens, descriptions of Content Tokens, or the delivery of Content NFTs to any Purchasers other than as expressly stated, including any work provided by any other End Users, which shall, at all times remain the responsibility of such involved End Users; and (iii) Shoot.to will not be responsible for the assignment by End Users of staff or other persons to work with Purchasers or any other activity that involves providing Content Tokens to Purchasers.
Indemnification. Each End User when relevant to the claims below will defend, indemnify and hold Shoot.to and its affiliates, directors, officers, employees, consultants, and agents (each, a “Shoot.to Indemnified Party”) harmless from any losses, liabilities, damages, and expenses (including reasonable attorney fees and amounts awarded by a court or paid in settlement) that are incurred by a Shoot.to Indemnified Party, arising out of or in connection with any third party claim arising from (i) any Content Token listed on the Platform developed by an entity other than Shoot.to, (ii) any misrepresentation by a non-Shoot.to End User of a Content Token, and (iii) any breach by an End User of any representation or warranty in the Agreement; provided that (1) Shoot.to provides End User with written notice of any such claim, (2) End User has sole control of the defense or settlement of such claim, except to the extent that any settlement or defense cannot create any liability for Shoot.to without Shoot.to’s consent, and (3) Shoot.to reasonably cooperates with respect to any such defense or settlement thereof, at End User’s reasonable expense.
Orders.
Agreement between End Users. When a Creator sources an order for a Content Token, the Creator and Purchaser will form a contract whereby the Creator agrees to supply that Content Token to the Purchaser for the terms set forth in these Terms of Service, the Creator Profile, or as otherwise agreed between the End User parties, provided that any additional terms do not violate any applicable law or this Agreement.
Refunds and Returns.Creators shall notify Shoot.to of any Purchaser desiring to return a Content Token as well as the contact information of any such Purchaser. All disputes regarding refunds are between the Creator and its Purchasers. In the event of a dispute, Shoot.to may attempt to mediate, but is not obligated to do so and is otherwise not a party to the dispute. Notwithstanding the Creator’s lack of consent, Shoot.to shall have the right to make refunds on a Creator’s behalf as set forth below:
Shoot.to believes in its discretion that the refund request, if not granted, will lead to a chargeback that Shoot.to is more likely than not to lose;
Shoot.to believes in its discretion that specific orders are fraudulent (e.g., made with stolen credit cards or otherwise not bona fide transactions);
Shoot.to believes in its discretion that a Creator has engaged in any fraudulent activity or made any misrepresentations;
Shoot.to believes in its discretion that there is a substantial risk of nonperformance by a Creator with respect to the applicable transaction or future transactions;
Shoot.to believes in its discretion that it is likely to receive bona fide complaints, refund requests, transaction reversals and/or chargebacks with respect to a substantial amount of orders;
Shoot.to believes in its discretion that a Creator is a sanctioned person, or used the Services to manage or process unlawful transactions; or
Failing to make the refunds would otherwise expose Shoot.to to legal liability.
If a refund must be issued after Shoot.to has paid the Creator, the Creator unequivocally promises to remit the refund amount to Shoot.to within 5 days of Shoot.to’s request for the same. Any amounts withheld by a Creator shall be subject to the highest compound interest then allowable by law, the Creator shall be removed from the Platform, and risk litigation with Shoot.to
Taxes.Unless otherwise stated, prices do not include any direct or indirect local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, goods and services, harmonized, use or withholding taxes, if any are applicable (collectively, "Taxes"). Shoot.to shall be responsible for collecting sales tax on any Content Token sold through the Platform. At this time, Shoot.to does not believe any sales tax applies to the sale of Content Tokens.
Fee and Payment.
Fees. Shoot.to and Creators agree to split the gross revenue on the sale of any of the Creator’s Content Tokens or on the Royalty on any Content NFT as follows: 90% of the sale or Royalty shall be payable to the Creator and 10% of the fee shall be payable to Shoot.to (the “Creator Revenue Split”). Shoot.to also assesses an additional fee of $0.10 for transactions under $10. The Creator Revenue Split shall be managed by Shoot.to or Stripe, PayPal/Venmo, or any other third party payment processor engaged by Shoot.to. Shoot.to is responsible for collecting the funds from a Purchaser and distributing them to the appropriate parties.
Payments.
The Creator Revenue Split will be paid to Shoot.to, when Shoot.to receives payment for the purchase.
The Creator Revenue Split or the amount due to a Purchaser selling their Content NFT will be paid to the Creator or Purchaser after the 7 days have passed without a return request. Any individual purchases over $1000 will paid 30 days after time of purchase, provided the purchase amount is received.
Stripe or Paypal/Venmo Accounts. Shoot.to uses Stripe or Paypal/Venmo as its payment processor for the receipt of payments. Shoot.to only uses Paypal/Venmo for the remittance of payments due to an End User as described in these Terms of Service. To receive payments, each End User must agree to set up or have set up for them either Stripe or Paypal/Venmo account or other accounts with a different approved third party payment processor as may be required by Stripe Paypal/Venmo or Shoot.to. Shoot.to only uses Stripe for receiving payments. It does not use it for sending payments. End-Users may also purchase via the Ethereum network, provided however, that each End User doing so is knowledgeable of and accepts the risks of using the Ethereum network to process payments.
Receiving Payments. A Purchaser will be prompted to set up an account with the Platform and accept these Terms of Service, and accept the relevant terms and conditions of the relevant payment processor when s/he purchases the Content Token.
Remittance of Payments. A Creator or a Purchaser selling their Tokens will need to use, set up, or have set up an account with the Platform, accept these Terms of Service and other relevant terms as descried in Shoot.to’s sole discretion, and accept the relevant terms of service to receive their Creator Revenue Split or proceeds from a sale of the Content NFT. Payments will only be sent via PayPal/Venmo, unless otherwise notified by Shoot.to.
By using a Stripe or Paypal/Venmo account or other centralized third party payment processor, the End Users agree to the Stripe or Paypal/Venmo terms of service for the same, found here: https://stripe.com/connect-account/legal or https://www.paypal.com/us/webapps/mpp/ua/useragreement-full. Shoot.to will provide End Users with payment collection services for the purchases of Tokens through the Platform or Services.
Logistics.
Transferability of Tokens. Content Tokens and their related Content NFTs are, by their nature, meant to be non-fungible. However, Shoot.to and the Creators agree that Purchasers may sell their Content NFTs on the Platform after the Distribution Limit is reached or surpassed. Moreover, the Purchasers may elect to transfer their Content NFT to their own wallet.
Content NFT Ownership. The metadata URI in the Content NFT points to metadata stored on the Shoot.to server and the link in the metadata points to the unique URI from the Shoot.to system for the relevant Content stored on the Shoot.to server. The blockchain defined 'owner' of the Content NFT, when made, is Shoot.to. Shoot.to will track the Purchaser as owner of the Content NFT off-chain in its database. The Content NFT will also contain the royalty functions described in ERC-2981 protocol or a functional equivalent to effect the Royalty. The payto address in the royalty function contained in such a token is Shoot.to and royalties paid via this mechanism will be passed in fiat to Creator in accordance with these Terms of Service.
Royalties. While the Content NFTs are owned by Shoot.to, it will ensure that any subsequent sale of the Content NFT from one Purchaser to another, will include the Royalty payable to Shoot.to, which it will split with the relevant Creator according to these Terms of Service. However, if a Purchaser transfers a Content NFT to his/her wallet, then Shoot.to cannot guarantee that the royalty feature function of the ERC-2981 token will be maintained, although Shoot.to will use its best efforts to keep such feature.
Stream of Commerce. The following is a description of the functionality of the Platform and how Content becomes a Content Token, which becomes a Content NFT, which may then later be resold or sent to a Purchaser’s wallet.
The Creator uploads their Content to the Platform (subject to the license terms herein) and the Distribution Limit, price, and several other parameters or features that affect the access to the Content. The Platform Pre-Mints a Content Token to reflect these parameters; the Content Token has a unique URL and corresponding QR Code. The Content is stored on the Shoot.to servers.
Links to Content Tokens may be posted on any social media site or shared via links directly.
A person wishing to purchase or learn more about the Content clicks the link, which may be support by an in-app browser or the viewing device's default browser. The data for this link is delivered by the Shoot.to server.
The potential Purchaser may then view a preview of the Content if the Creator has allowed previewing. The potential Purchaser may then pay and view/stream the Content inside their browser or functional equivalent. This purchase triggers the Minting of an ERC-721 NFT (or functional equivalent) on Polygon. The NFT for each Purchaser will be unique to such Purchaser but will reference the same Content offered to each such Purchaser of the relevant Content Token. The Purchaser must create an account with Shoot.to using their cell phone number or email, if allowed. Such Purchaser will be notified of these Terms of Service and must agree to them before completing the Purchase.
A purchase can be paid for with a variety of payment services, such as, without limitation: Apple Pay, Google Pay, Venmo, credit card, or Ethereum, and the Purchaser shall agree to the relevant terms of service associated with their selected payment method. Shoot.to reserves the right to modify its payment methods at any time for any reason. Whatever the kind or source of the funds, Shoot.to shall transfer a fiat amount to the account of the Creator less the fees indicated herein.
Once the Distribution Limit is reached the Purchasers will be able to transfer their Content NFT to their blockchain wallet or resell it on Shoot.to. The Purchasers will receive a text or email confirmation once the Distribution Limit is reached and important information for use thereafter.
If a Purchaser wishes to transfer their Content NFT to their wallet, Shoot.to will facilitate this transfer, and the Purchaser will pay the gas fees associated with that transfer. The Purchaser would then be the on-chain owner (as opposed to Shoot.to), able to keep the Content NFT in their wallet, and able to list it for sale on any marketplace that supports Polygon NFTs or other such protocol as Shoot.to may support in the future. A Purchaser wishing to transfer a Content NFT agrees both for itself, and to bind the next transferee to the same terms as these, not to disable or remove any royalty function embedded within the Content NFT.
If the Purchaser does not wish to transfer the Content NFT to their wallet, they can list their Content NFT for sale on the Platform, and the Content NFT may be resold as much as permitted, off-chain, with the Royalty split as defined herein.
Confidentiality.
End User Obligations. End Users shall not disclose any other agreements entered into with Shoot.to, which are Shoot.to’s confidential information. Without limiting the foregoing, End Users shall safeguard the confidentiality of such agreements or other information which are either marked or intended to be a confidential communication between Shoot.to and the End User with the same degree of care, but no less than reasonable care, that End User uses to protect End User’s own confidential information. The foregoing obligations shall not apply to the extent that such applicable portion of the confidential information is already or becomes publicly known through no wrongful act of End User. End User may disclose Shoot.to confidential information to the extent minimally necessary to provide service a Purchaser, comply with an order of a court or governmental administrative body of competent jurisdiction, or as otherwise required by law; provided that the End User shall first give notice to Shoot.to such that Shoot.to has the opportunity to contest such order or requirement of disclosure, or seek an appropriate protective order.
Shoot.to Obligations. Shoot.to shall not disclose any End User confidential information it may collect without an End User’s prior consent, except that Shoot.to may (i) disclose as required by law, (ii) disclose if such information is no longer confidential through no fault of Shoot.to, (iii) disclose to Shoot.to’s service providers to the extent necessary for such to perform their job duties for Shoot.to, provided that such service providers are bound by at least as restrictive a confidential information agreement as contained herein, and (iv) aggregate and anonymize rates data for reporting and analytical purposes, provided that in such case Shoot.to will not individually identify any End User in such reporting or analytics. Shoot.to shall safeguard the confidentiality of the End User confidential information with the same degree of care, but no less than reasonable care, that Shoot.to uses to protect Shoot.to’s own confidential information.
Representations and Warranties.
General. Each party represents and warrants to the other party that (i) it has the full power to enter into this Agreement and to perform its obligations hereunder, (ii) the execution and delivery of this Agreement will not result in any breach of any terms and conditions of, or constitute a default under, any other agreement to which such party is bound, and (iii) the individual executing this Agreement (electronically or by written signature) is authorized to execute this Agreement on such party’s behalf.
End Users. End Users further represent and warrant that they (i) are in compliance with all obligations to Shoot.to, including, but not limited to all responsibilities and obligations set forth herein, and shall behave in a responsible and professional manner when interfacing with the Shoot.to Platform and other users of the Shoot.to Platform, and (ii) have the ability to obtain all appropriate insurance and licenses to develop or sell the Content Tokens, and will provide the relevant licenses if requested by Shoot.to.
Creators. Creators represent and warrant that they have the necessary licenses and approvals to sell the Content Tokens they list and that their Content Tokens are free from Content Token liability defects. Creators further warrant that they have the necessary licenses and approvals for worldwide distribution of the relevant Content. Creators represent and warrant that they are not selling their Content Tokens to Purchasers with either the express or implicit encouragement that the Purchaser will be able to sell the same Content Token for greater value than the terms of the sale on the Platform. Creators shall fully indemnify and hold Shoot.to harmless if any of their Content Tokens or their resulting NFTs are later deemed to be securities.
Purchasers. Purchasers represent and warrant that they are purchasing the Tokens for their own account and for no other purpose than to personally possess and enjoy the Token. Purchasers shall not offer for sale any Content NFTs to regions where such Content NFTs cannot be sold and shall not speculate on their Content NFTs. Purchasers shall comply with all applicable rules and regulations regarding the ownership of Tokens. If, after the Distribution Limit is reached, a Purchaser wishes to resell their Content NFT, the Purchaser may do so on the terms set forth by the Purchaser within the bounds of these Terms of Service and any other restriction or limitation Shoot.to may require. Purchasers understand that any resale of their Content NFT is subject to the Royalty, which shall be split between the Creator and Shoot.to. Purchaser understands that any resale of their Content NFT will deprive them of their rights in such Content NFT.
Disclaimer of Warranties. End Users acknowledge and agree that Shoot.to is not responsible for (a) the accuracy, reliability, timeliness, or completeness of any information or data provided by any user of the Shoot.to Platform, including End Users, (b) the results that may be obtained from the use of the Shoot.to Platform or the Services, (c) the provision of any Token, or (d) the cancelling of, refunding of, or issues with any Token for sale to any Purchaser, other than as provided herein. THE SITE, PLATFORM, AND THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. SHOOT.TO, ON BEHALF OF ITSELF AND ITS END USERS AND LICENSORS, HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE. SHOOT.TO DOES NOT REPRESENT THAT THE SITE, PLATFORM, OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
Limitation of Liability. NEITHER SHOOT.TO NOR ITS CREATORS NOR LICENSORS SHALL BE LIABLE OR OBLIGATED TO THE END USERS UNDER ANY NEGLIGENCE, CONTRACT, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR: (A) INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES; (B) LOSS OF DATA, USE, PROFITS, SALES, OR TOKENS; OR (C) COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, RIGHTS, REFUNDS, OR TECHNOLOGY. IN NO EVENT WILL THE MAXIMUM AGGREGATE LIABILITY OF SHOOT.TO OR ITS LICENSORS FOR ANY LOSS OR DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT, WHETHER BASED IN NEGLIGENCE, CONTRACT, TORT OR ANY OTHER FORM OF ACTION, EXCEED ONE THOUSAND DOLLARS ($1,000). THE EXCLUSIONS AND LIMITATIONS OF LIABILITY IN THIS SECTION 12 SHALL NOT APPLY TO A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. SOME LIMITATIONS OF LIABLITY ARE NOT PERMITTED BY SOME STATES’ LAWS, IN THE EVENT ANY LIMIATION HEREIN IS INCOMPATIBLE WITH SUCH LAWS, THEN THE LIMITATIONS HERE SHALL BE CONSTRUED AS CLOSELY AS POSSIBLE TO THE INTENT HEREIN AND COMPLIANCE WITH SUCH LAWS.
Trademarks; Publicity. End Users shall not use any name, trade name, trademark or service mark of Shoot.to (each a “Mark”) in any promotion, advertising or other similar materials or in any publicity or news releases without the prior written approval of Shoot.to, which may be given generally, and which is given insofar as a Creator wishes to link the Platform on any social media post, provided however, that Shoot.to reserves the right at any time to bar a Creator or Purchaser from posting about the Platform in any medium that, in the sole discretion of Shoot.to, it deems reputationally damaging. Any such use of a Mark will be subject to Shoot.to’s quality control guidelines and trademark usage policies provided to End Users from time to time. Shoot.to reserves the right to terminate End User’s right to use any Mark, immediately upon the issuance of written notice.
Intellectual Property.
Shoot.to Ownership. Except as otherwise herein provided, all right, title and interest, including without limitation all related intellectual property rights, in and to the Services, the Shoot.to Platform, and the Site shall be and remain the valuable and exclusive property of Shoot.to. In addition, Shoot.to retains all proprietary rights, title, and interest, including, without limitation, all patents, copyrights, trademarks, service marks and trade secrets embodied in the Services or the Shoot.to Platform that originated with Shoot.to, and to any inventions, data, information, know-how, logos, technology, software and documentation related to the Services or the Shoot.to Platform that originated with Shoot.to.
License to End User Information. The End Users grant to Shoot.to all rights and licenses to use and exploit End Users’ name, nickname, pseudonym, initials, biography, likeness, trademarks, image, profile and other information provided by End User (“Profile Materials”), subject to on and in connection with the Site or the Shoot.to Platform. Shoot.to will not use Profile Materials to be used or published outside of the Shoot.to Platform without End User’s prior consent. End Users grant Shoot.to all necessary licenses to their content or Content necessary for Shoot.to to perform the Services described herein.
End User Provided Content. End Users shall retain ownership of any Content they post to the Site or on the Shoot.to Platform, subject to the licenses above and the licenses granted herein. However, End Users represent and warrant that any information or Content posted to the Shoot.to Platform shall not infringe the intellectual property rights of another.
Feedback. Shoot.to shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual, unrestricted license to use and/or incorporate into its services and business any suggestions, enhancement requests, recommendations or other feedback provided by End Users relating to the operation of the Services.
Termination.
General. End Users may terminate this Agreement at any time provided that they have no current fulfillment obligations to any Purchaser, other End User, or Shoot.to. Creators may indicate that they are not accepting any more Token orders by notice on their Creator Profiles or through the limits they put on their Content Token, and Creators may stop selling their Tokens. Shoot.to may terminate this Agreement at any time for any reason with any End User by notice to such End User, provided that Shoot.to shall remit to End User any amounts that would be owed to the End Users as a result of actions before the notice of termination. Upon receipt of the notice, the End User shall cease having access to the Site, the Shoot.to Platform, or the Services.
Effect of Termination. Upon termination of this Agreement, all rights and licenses granted to either party automatically terminate. Additionally, Sections 1, 5, 6, 8, 10 – 13, 15, this 16(b), and 17 [KW1]shall survive any termination of this Agreement. If Shoot.to has featured End User’s Profile Materials in any marketing materials or other content with End User’s consent, Shoot.to may continue to display such information in those marketing materials or content following the termination of this Agreement but may not create new marketing materials with such information.
Miscellaneous.
Sign-In Name; Password; Unique Identifiers. End User accounts include a sign-in name (“Sign-In Name”), a password (“Password”), and perhaps certain additional information that will assist in authenticating End User identity when logging-in (“Unique Identifiers”). When creating an End User account, you must provide true, accurate, current, and complete information. End Users are solely responsible for the confidentiality and use of their Sign-In Name, Password, and Unique Identifiers, as well as for any use, misuse, or communications entered or payments made through the Site using one or more of them. End Users will promptly inform Shoot.to of any need to deactivate a Password or Sign-In Name or change any Unique Identifier. Shoot.to reserves the right to delete or change your Password, Sign-In Name, or Unique Identifier at any time and for any reason and shall have no liability to you for any loss or damage caused by such action. Shoot.to will not be liable for any loss or damage caused by any unauthorized use of your account.
Assignment. Neither party may assign this Agreement, and/or any of its rights and obligations hereunder, without the prior written consent of the other party, provided that Shoot.to may assign this Agreement without consent to an affiliate or to a successor to all or substantially all of Shoot.to’s assets or business to which this Agreement relates. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.
Notices. Any notices given under this Agreement shall be in writing and shall be sufficiently given if: sent by a guaranteed delivery service and, in the case of notices sent to End User, addressed to such address, email address or addressee as indicated on the End User’s profile on the Site or otherwise known to Shoot.to; in the case of notices sent to Shoot.to, addressed to such address or email address as indicated at support@embershot.com unless either party designates an alternative address to the other by prior written notice.
Force Majeure. Except for a party’s payment obligations, the performance of either party under this Agreement may be suspended to the extent and for the period of time that such party is prevented or delayed from fulfilling its obligations due to causes beyond its reasonable control (including, without limitation, acts of God, acts of civil or military authority including government attorneys, new legislation or regulatory requirements, strikes or other labor disturbances, fires, floods, epidemics, wars or riots).
Modifications. No modification, amendment or waiver of this Agreement or any of its provisions shall be binding upon Shoot.to unless made in writing and agreed to by Shoot.to. Shoot.to may amend the terms and conditions of this Agreement at any time in its sole discretion and will provide notice thereof. If the End User does not agree to such amendments, it may terminate this Agreement immediately upon written notice to Shoot.to. End User’s continued use of the Services or the Site following such change notice shall be deemed to be End User’s acceptance of such amendments.
Severability. In the event any provision of this Agreement is held by a competent court or arbitrator to be invalid, illegal or unenforceable, it shall be limited or eliminated to the minimum extent necessary so that the remaining provisions of this Agreement shall remain in full force and effect.
Entire Agreement. This Agreement and the policies and Terms of Use and any other restrictions which may be required pursuant to the foregoing are incorporated herein constitute the entire agreement between the parties and supersedes all previous or contemporaneous agreements, promises, or representations, whether written or oral, between the parties with respect to the subject matter hereof.
Relationship of Parties. Neither party will represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, or to represent the other party as agent, employee, or in any other capacity. Any employee, servant, subcontractor or agent of a party shall remain at all times under the exclusive direction and control of that party and shall not be deemed to be an employee, servant, subcontractor or agent of the other party.
Remedies Cumulative. Unless expressly stated otherwise in this Agreement, no remedy afforded to a party under this Agreement shall preclude other remedies available under equity or law.
