GARYBERNSTEINNFT TERMS OF USE

This Site (as defined below) is owned and operated by GaryBernsteinNFT.

These Terms of Use (the “Terms”) shall apply to use by you of the app and website (“Site”) and of any information, text, graphics, audio, video, data or other materials created and/or provided by GaryBernsteinNFT or otherwise appearing on the Site. Your use of the Site signifies your agreement to be bound by these Terms of Use and the Privacy Policy https://garybernsteinnfts.com/privacypolicy/ , which is incorporated into these Terms by reference.

These Terms limit GaryBernsteinNFT’s liability and obligations to you, grant GaryBernsteinNFT certain rights and allow GaryBernsteinNFT to change, suspend or terminate your use of the Site. Your use of the Site is expressly conditioned on your compliance with these Terms. You agree to notify any employees, agents, household members or other individuals who will access the Site of the terms and conditions of these Terms and they must agree to be bound by these Terms, prior to their use of the Site.

YOU UNDERSTAND THAT BY USING THE SITE YOU ARE AGREEING TO BE BOUND BY THESE TERMS. IF YOU DO NOT ACCEPT THESE TERMS IN THEIR ENTIRETY, YOU MAY NOT USE OR ACCESS THE SITE. THIS SITE IS ONLY FOR INDIVIDUAL, NON-COMMERCIAL USE, YOU MAY NOT AGREE TO THESE TERMS ON BEHALF OF A BUSINESS.

YOU MUST BE AT LEAST SIXTEEN (16) YEARS OLD TO USE THE SITE. If you are not yet 16 years old, do not use the Site.

IF YOU ARE BETWEEN 16 AND 18 YEARS OLD: Please have your parents or legal guardian review these Terms with you, discuss any questions you might have, and give you their permission to use the Site with both your and their full understanding of these Terms. By using the Site, you are telling us that you and your parent or guardian, have joined in this agreement.

IF YOU ARE A PARENT OR GUARDIAN: Parents and guardians are advised to exercise supervision over their children’s on-line activities. If you do not agree to these Terms, do not let your child use the Service. If you have any further questions about our Site and our use of personally identifiable information, please take a look at our Privacy Policy page or contact us at [email protected] . If you are the parent or guardian of a child under 16 and believe that he or she is using the Services, please contact us at [email protected] .

1. DEFINED TERMS. For purposes of the Terms, the following defined terms shall have these meanings:

• “IPR” means any rights in or to, but not limited to, copyrights, patents, trademarks, brand names, trade names, business names, know-how or confidential information and any other rights in respect of any other industrial or intellectual property, whether registrable or not and wherever existing in the world and including without limitation all rights to apply for registrations of any of the foregoing rights;
• “Site” means this site and associated sites or applications including any and all audio and/or visual elements thereof, created, licensed or owned by Gary Bernstein, GaryBernsteinNFT or by GaryBernsteinNFT’s approved third party providers (“Third Party Provider”), including, without limitation, any text, graphics, images, illustrations, photographs, animations, applications, video, audio or audiovisual works, designs, logos, and other information and content made available through the Site, as well as all underlying technical elements of all of the foregoing, including without limitation, source code, script, object code, software, computer programs, and other sets of statements and instructions.

2. GRANT OF RIGHTS. GaryBernsteinNFT grants you a limited, non-exclusive, non-assignable, non-transferable right and license to use and display the Site, for non-commercial uses, solely as described in these Terms (“Access”), provided that you comply fully with these Terms. Your Access to the Site shall remain in effect until and unless terminated by you or GaryBernsteinNFT.

3. SITE CHANGES. GaryBernsteinNFT may at any time and in its sole discretion, add, modify, or remove any feature, function or portion of the Site, the Terms, and/or the Privacy Policy, in whole or in part, with or without notice to you, prior or otherwise. Any changes to the Terms will be effective as of the posting date. GaryBernsteinNFT will provide prominent notice on the Site of any major changes to the Terms and/or the Privacy Policy. Your continued use of the Site after GaryBernsteinNFT posts any modifications to the Terms and/or Privacy Policy shall be deemed your explicit acceptance of those modifications and shall constitute your agreement to be the Terms, as modified.

4. INTELLECTUAL PROPERTY RIGHTS.

4.1. The Site and all IPR therein are owned by Gary Bernstein and/or his content providers and other licensors, and are subject to protection under the relevant intellectual property laws throughout the world. Except as expressly set forth in these Terms or as otherwise permitted in writing by Gary Bernstein or GaryBernsteinNFT, you agree not to: (1) commercialize, capture, transfer, upload, distribute, sell, license, modify, manipulate, reproduce, perform, publicly display, create derivative works from or based upon, or otherwise exploit the Site, in whole or in part, on any other website or in any medium now known or hereafter developed; and (2) remove or modify any trade names, product names, logos, trademarks, copyrights or other proprietary notices, legends, symbols or labels on the Site (each of the foregoing, “Unauthorized Conduct”).

4.2. Any Unauthorized Conduct constitutes a violation of these Terms and an infringement of the IPR of Gary Bernstein or GaryBernsteinNFT and/or its content providers or other licensors. Any such infringement or violation may subject you to civil and criminal liability and penalties under intellectual property laws throughout the world, including without limitation the payment of damages and attorney’s fees.

5. THIRD PARTY WEBSITES.

• • Some of the information on the Site, such as any music contained on the Site, may be proprietary to Third Party Providers and licensed to Gary Bernstein or GaryBernsteinNFT. The Site may furthermore frame, and/or contain links to or advertisements about, non- GaryBernsteinNFT websites (the “Linked Sites”). The Linked Sites may also reference, advertise, or link to the Sites. Notwithstanding the foregoing, GaryBernsteinNFT does not itself endorse or sponsor the Linked Sites and is not responsible for the content of such sites nor does it warrant any compatibility or continuing compatibility of the Linked Sites with the Site. GaryBernsteinNFT expressly disclaims any statements or assertions made on all non- GaryBernsteinNFT websites, and denies all liability associated with your use of any Linked Site or its content. You are responsible for reviewing and abiding by the privacy statements and terms of use posted on such other websites. Your interactions with third parties (including, without limitation, advertisers) on the Linked Sites and your transactions, and any terms, conditions, warranties or representations associated with such transactions on the Linked Sites, are solely between you and the advertiser or other third party. Third party trademarks, trade names, product names and logos are the trademarks or registered trademarks of their respective owners.
  • You acknowledge and agree that the owners of any content found on the Site and any distributors (such as app store providers) are intended beneficiaries of these Terms and have the right to enforce the Terms directly against you. Other than as stated herein, the Terms are not intended to grant any other third-party rights. If you have downloaded the Site from the Apple, Inc (“Apple”) App Store or Google Play (“App Store”) or if you are using the Site on an iOS device, you acknowledge that you have read, understood, and agree to the following notice regarding app stores. The Terms are an agreement between you and GaryBernsteinNFT and not with the App Store, and GaryBernsteinNFT is solely responsible for the Site. The App Store has no obligation to furnish any maintenance or support for the Site. In the event of any failure of the Site to conform to any applicable warranty, you may notify the App Store and they will refund the purchase price (if applicable) to you, and, to the maximum extent allowed by law, the App Store will have no other warranty obligation whatsoever with respect to the Site. Any other claims, losses, liabilities or expenses arising out of any failure to conform to any warranty shall be the sole responsibility of GaryBernsteinNFT.  The App Store is not responsible for addressing any claims by you or any third party relating to the Site including: product liability claims; claims that the Site fails to conform to any applicable legal or regulatory requirement; and claims arising under any consumer protection law.  In the event of any third-party claim that the Site or your possession and use of that Site infringes that third party’s intellectual property rights, GaryBernsteinNFT will be solely responsible for the investigation, defense, settlement and discharge of any such claim to the extent required by these Terms. You agree that the App Store and its affiliates are third-party beneficiaries of these Terms as related to your license to the Site, and that, upon your acceptance of the Terms, the App Store will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the Site against you as a third-party beneficiary thereof. You represent and warrant that: you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; you are not listed on any U.S. Government list of prohibited or restricted parties; you are not an individual, or associated with an entity, designated under the UK’s Terrorist Asset-Freezing etc. Act 2010 (TAFA 2010); and you are not otherwise subject to or affected in any way by any national security or terrorism related rules whether applicable to you personally or to your location or other circumstances. You must also comply with all applicable third-party terms of service when using the Site.
  • SITE RULES AND USER REGISTRATION. Any features and/or services provided on the Site by GaryBernsteinNFT are subject to the Terms and the guidelines set forth below or as published or modified by GaryBernsteinNFT from time to time (collectively, the “Rules”). Notwithstanding anything to the contrary in these Rules, in the event that GaryBernsteinNFT determines, in its sole discretion, that you have violated these Rules and/or the Privacy Policy, GaryBernsteinNFT will have the right to immediately suspend your access to the Site, with or without notice to you, prior or otherwise. In the event of your repeated violation of the Rules, GaryBernsteinNFT will have the right to immediately and permanently terminate your account or access to the Site, with or without notice to you, prior or otherwise. In the event that GaryBernsteinNFT, in its sole discretion, determines that your first violation particularly offensive, GaryBernsteinNFT will have the right to immediately and permanently terminate your account or access to the Site, with or without notice to you, prior or otherwise. Any user may report abuse of the Rules by sending an email to [email protected] . The following non-inclusive list of violations may result in GaryBernsteinNFT terminating or suspending your user account and/or your access to the Site and you agree not to engage in any of the following conduct anywhere on the Site:
    • Use any robot, spider, scraper or other automated means to access the Site for any purpose;
    • Impersonate or misrepresent your affiliation with any person in registering for your user account;
    • Intentionally or unintentionally violate any applicable local, state, national or international law, including without limitation, any regulations having the force of law while using or accessing the Site;
    • Use any means to copy, redistribute, reproduce, rip, record, transfer, perform, or otherwise make available any IPR accessed through the Site;
    • Reverse engineering, decompiling, disassembling, modifying, or creating any derivative works of the Site, except to the extent permitted by applicable law; and
    • Providing your password to any other person or using any other person’s username and password.
  • In order to access some features of the Site, you may be required to create or register for a user account. In consideration for your use of the Site, you agree to: (1) comply with the Rules; (2) provide accurate, complete and true information about yourself as may be required on any registration form for the Site (your “Registration Information”) in order to create your user account; and (3) maintain and update, as applicable, your Registration Information with current and complete information. Users who violate the Rules, or provide inaccurate, false, or non-current Registration Information may, at GaryBernsteinNFT’s sole discretion, have their user accounts suspended or terminated, and may be permanently banned from using any current or future features or services of the Site.
  • You are solely responsible maintaining the confidentiality of your username and password. We urge you not to share your login information with others, as this may lead to unauthorized access to your user account and the information therein. You agree that you will: (1) immediately notify GaryBernsteinNFT of any unauthorized use of your user account; and (2) ensure that you properly log out of the Site at the completion of your use session. You are solely responsible for the activity that occurs on or through your user account. GaryBernsteinNFT shall have no liability for any loss or damage arising from your use of a user account, the Site, or your failure to comply with these requirements. GaryBernsteinNFT will not be liable for any losses caused by any unauthorized use of your user account, and you may be liable for the losses of GaryBernsteinNFT or others due to such unauthorized use.

6. RIGHTS YOU GRANT GARYBERNSTEINNFT. In consideration for the rights granted to you under these Terms, you grant GaryBernsteinNFT the right to allow the Site to use the processor, bandwidth, and storage hardware on your device, as necessary to run the Site. If you provide feedback, ideas, comments or suggestions in connection with the Site (“Feedback”) you acknowledge that such Feedback is not confidential and that GaryBernsteinNFT may use such Feedback without any restriction and without payment to you.

7. SERVICE LIMITATIONS. GaryBernsteinNFT will make commercially reasonable efforts to keep the Site operational but certain technical difficulties, required maintenance, testing, and updates may, from time to time, results in temporary interruptions. GaryBernsteinNFT reserves the right to modify, discontinue (either temporarily or permanently) any function or feature of the Site, or the Site in its entirety. GaryBernsteinNFT will always try to give you advance notice of such interruptions, but shall have no liability for any interruptions in service.

8. TERMINATION. You understand and agree that GaryBernsteinNFT may, in its sole discretion and at any time suspend, or terminate your use of the Site for any reason. GaryBernsteinNFT may also, in its sole discretion and at any time, discontinue the Site, in whole or in part, or limit or restrict any access thereto, for any reason. You understand and agree that GaryBernsteinNFT may take any one or more of these actions without any notice to you, prior or otherwise. You understand and agree that GaryBernsteinNFT shall not have any liability to you or any other person for any termination of your access to the Site and/or the removal of information concerning your actions on the Site.

9. INDEMNIFICATION. You agree to indemnify and hold GaryBernsteinNFT harmless for any and all disputes, claims, damages, losses, and causes of action (including without limitation attorney’s fees) arising from these Terms, your use of this Site, or your violation or claimed violation of any law or rights of a third party, or any other breach or claimed breach of the Terms.

10. DISCLAIMER.

YOU AGREE THAT USE OF THE SITE IS ENTIRELY AT YOUR OWN RISK. THE SITE IS PROVIDED “AS IS” “WITH ALL FAULTS” AND “AS AVAILABLE” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, GARY BERNSTEIN AND GARYBERNSTEINNFT DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, TITLE, AND NON-INFRINGEMENT. GARY BERNSTEIN AND GARY BERNSTEINNFT DO NOT WARRANT THAT THE AVAILABILITY OF OR THE FUNCTIONS CONTAINED IN THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THIS SITE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SITE DOES NOT VIOLATE ANY IPR OF ANY PERSON. GARY BERNSTEIN AND GARY BERNSTEINNFT DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SITE IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU (AND NOT GARY BERNSTEIN OR GARY BERNSTEINNFT) ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SITE, AS WELL AS THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION IF THERE ARE ANY DEFECTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY GARY BERNSTEIN OR GARY BERNSTEINNFT OR ANY OF THEIR AFFILIATED ENTITIES SHALL CREATE A WARRANTY. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE FOREGOING EXCLUSION MAY NOT APPLY TO YOU.

If applicable, you waive California Civil Code Section 1542, which states, in relevant part: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”

11. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES, INCLUDING WITHOUT LIMITATION, NEGLIGENCE, SHALL GARY BERNSTEIN OR GARY BERNSTEINNFT OR THEIR AFFILIATED ENTITIES BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL DAMAGES, ATTORNEY’S FEES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA, BUSINESS OR PROFITS THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE SITE EVEN IF THE POSSIBILITY OF SUCH DAMAGES HAS BEEN ADVISED, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE. WHILE GARY BERNSTEINNFT TAKES PRECAUTIONS AGAINST SECURITY BREACHES, NO WEBSITE OR INTERNET TRANSMISSION IS COMPLETELY SECURE, AND AS SUCH, GARY BERNSTEIN OR GARY BERNSTEINNFT OR THEIR AFFILIATED ENTITIES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES THAT MAY RESULT FROM UNAUTHORIZED ACCESS, HACKING, DATA LOSS, OR OTHER BREACHES THAT MAY OCCUR ON THE SITE. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT SHALL THE TOTAL LIABILITY OF GARY BERNSTEIN OR GARY BERNSTEINNFT OR THEIR AFFILIATED ENTITIES TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION, NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT PAID BY YOU TO GARY BERNSTEIN OR GARYBERNSTEINNFT, IF ANY, FOR ACCESSING AND USING THIS SITE.

12. INTERNATIONAL ACCESS. GaryBernsteinNFT makes no representation that the Site content, and its copyrights, trademarks, patents, and licensing arrangements, are appropriate or available for use by certain individuals or in certain countries. Those who choose to access the Site from locations outside of the United States of America do so on their own initiative and at their own risk, and are responsible for compliance with local laws, if and to the extent local laws are applicable.

13. COPYRIGHT NOTICE. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law.  If you believe in good faith that materials hosted by GaryBernsteinNFT infringe your copyright (for example, materials available to be streamed on the Site), you (or your agent) may send GaryBernsteinNFT a notice requesting that the material be removed or access to it blocked.  The notice must include the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works located on the Site is covered by a single notification, a representative list of such works); (c) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow GaryBernsteinNFT to locate the material on the Site; (d) the name, address, telephone number and e-mail address (if available) of the complaining party; (e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

If you believe in good faith that a notice of copyright infringement has been wrongly filed by GaryBernsteinNFT against you, the DMCA permits you to send GaryBernsteinNFT a counter-notice.  Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.copyright.gov for details.  Notices and counter-notices with respect to the Site should be sent to our Copyright Agent for Notice of claims of copyright infringement at: [email protected] .

14. NOTICE FOR CALIFORNIA USERS: This notice is for our California users: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.

15. OTHER.

Disputes, Governing Law and Venue. Except in the case where emergency injunctive relief is necessary, the parties hereto agree to enter into good faith negotiations to resolve any dispute, claim or controversy at law or equity that arises out of or is related to use of the Site, or the contents of the Terms or the Privacy Policy (each, a “Claim”), for a period of thirty (30) days from the date the Claim arose. If such negotiation is unsuccessful, with respect to any Claim arising under or related to this Agreement or relating to your use of this Site, any such Claim shall be resolved exclusively by a court of law within the jurisdiction and venue of the state and federal courts located in the State of California in Los Angeles County, for the purposes of any legal action or claim pertaining to these Terms of Use, or arising from the use of the Site and you hereby waive any defenses such as lack of personal jurisdiction or forum non conveniens, and your use of this Site constitutes your consent and submission to service of process under applicable United States law in such jurisdiction. These Terms of Use shall be construed and enforced in accordance with the law of the State of California, and without regard to the choice of law principles thereof.

All Claims you bring against GaryBernsteinNFT must be resolved in accordance with this section. All Claims filed or brought contrary to this section shall be considered improperly filed. Should you file a Claim contrary to this section, GaryBernsteinNFT may recover reasonable attorney’s fees and costs, provided that GaryBernsteinNFT has notified you in writing of the improperly filed Claim, and you have failed to promptly withdraw the Claim within thirty (30) days of such notice.

Any Claim must be filed within one (1) year after such Claim arose regardless of any status or law to the contrary. In the event any such Claim is not filed within such one (1) year period, such Claim shall be barred.

Any failure to act by GaryBernsteinNFT with respect to a breach by you or others does not waive GaryBernsteinNFT’s right to act with respect to subsequent or similar breaches.

Notwithstanding anything to the contrary, GaryBernsteinNFT reserves the right to seek the remedy of specific performance of any term of these Terms, or a preliminary or permanent injunction against the violation of these Terms or in aid of the exercise of any power granted in these Terms, or any combination thereof.

Captions and Headings. All captions, indices, titles, subject headings, section titles and similar items contained in these Terms are provided for the purpose of reference and convenience only and are not intended to be inclusive, definitive or to affect the meaning or content of these Terms.

Relationship. The relationship between the Parties is as set out in these Terms and no employment, joint venture, partnership or agency relationship shall be deemed to subsist between the Parties and neither shall have the power to bind the other, except as otherwise set forth herein.

Severability. If any of the provisions of the Terms are held illegal, inapplicable or non-executable by a court of competent jurisdiction, such provisions shall be limited or eliminated to the minimum extent necessary so that the Terms shall otherwise remain in full force and effect and remain enforceable and said ruling will not affect any other provision set forth in this the Terms and will not render such other provisions invalid, inapplicable or non-executable.

Compliance with Laws. You agree to comply with all applicable laws, rules and regulations in connection with your activities under the Rules.

Miscellaneous. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Gary Bernstein or GaryBernsteinNFT as a result of these Terms or your use of the Site. These Terms are subject to existing laws and legal process, and nothing contained in these Terms is in derogation of any obligation on our part to comply with governmental, court and law enforcement requests or requirements relating to your use of the Site or information provided to or gathered by us with respect to such use.

Entire Agreement. These Terms set forth the entire understanding and agreement between you and GaryBernsteinNFT with respect to the subject matter of these Terms.

Last Modification. This Terms of Use was last modified on 3/27/2022 .