SITE USER AGREEMENT – “THE LOBSTARS”
LAST UPDATED 09.04.2022
ANY PERSON OR ENTITY ("User(s)
" or “You
”) USING OR OTHERWISE ACCESSING THE SITE AT www.thelobstars.com
"). CERTAIN FEATURES OF THE SITE ARE SUBJECT TO ADDITIONAL TERMS, GUIDELINES AND RULES POSTED ON THE SITE IN CONNECTION WITH SUCH FEATURES AND ALL SUCH ADDITIONAL TERMS, GUIDELINES, AND RULES ARE HEREBY INCORPORATED BY REFERENCE INTO THIS AGREEMENT.
Please note that, whilst Company endeavours to provide accurate and up-to-date information, the Site may not be wholly accurate or up-to-date, complete, free of defects, and is subject to change, often at very short notice and in its sole discretion.
1. Contracting Parties
The Site, together with all content, data, and other materials contained therein (“Content
”) are owned or controlled by PopCorn Group Limited, a company registered in England with its registered office at 6 Cobb Street, London E1 7LB (“Company
”, or “our
”). When User registers or otherwise accesses the Site and/or uses the Service, User is contracting with PopCorn Group Limited. User must be at least 14 years of age to register – if User is under 18 User must obtain the permission of User’s parent/guardian to register or access the Site.
2. The Service
The Site is an online marketplace offering the opportunity to purchase certain non-fungible tokens (“Lobstars
”) that: (i) contain or correspond to digital artworks; and/or (ii) access to events and other benefits (“Service
To make a purchase via the Site (and to fully use the Service), User must connect User’s digital e-wallet (“Wallet
”) to the Site to access Ether, which is the necessary cryptocurrency.
An “NFT” is a non-fungible token (i.e. a unique item that cannot be replaced with something else, such as a one-of-a-kind trading card in the form of digital artwork with verified provenance). A Lobstar is a token, stored on the Ethereum blockchain, which serves as a record of ownership of the underlying artwork (or other rights and/or benefits) and cannot be deleted. Collectors may search, browse, click on links, purchase and re-sell Lobstars but shall acquire no intellectual property rights to any Lobstar other than the rights listed hereunder. Purchasing an NFT via the Site is comparable to owning a physical painting or print, insofar as it can be re-sold at any time. When a Lobstar is transferred to a new owner (“Secondary Sale
”), the blockchain entry that it represents is automatically transferred to such new purchaser’s Ethereum address. For full enjoyment of owning an NFT, User must use best efforts to verify the original artist of the NFT by way of online research and, whilst Company uses reasonable efforts to ensure all NFTs available via the Site are offered for sale by the applicable rights holder, Company shall not be liable for any rights-related breach or imperfection.
5. Purchasing a Lobstar
Company will deliver each purchased Lobstar directly to the relevant Wallet. User accepts and agrees that: (i) Company is not a Wallet provider and does not operate, maintain, or affiliate with any e-wallet providers; and (ii) Wallets are provided by unaffiliated third parties; and (iii) use of any Wallet is governed by terms provided by the applicable third-party provider in each case. Company shall not be responsible or liable to User for any loss caused by Wallet-related server failure, data loss and/or corrupted e-wallet files.
By placing an order on the Site to purchase a Lobstar, User agrees that User is submitting a binding offer to purchase a Lobstar. User acknowledges and agrees that the price excludes the transaction and minting (“gas”) fees which shall be charged in addition to the price in the amount(s) listed on the Site from time to time. For the avoidance of doubt, Company accepts payment in Ether only.
It is User’s sole responsibility to assess (and report and pay) any taxes and to comply with any and all laws that may apply in relation to User’s purchase and/or sale of a Lobstar. All sales are final and User’s payment obligations are binding as soon as User authorises a purchase via User’s Wallet. To the fullest extent of the law, all transactions are non-refundable. Nothing hereunder is intended to affect User’s statutory rights.
Some Lobstars may include rights or access to additional benefits and/or opportunities, including without limitation virtual and/or real-life experiences, goods, and services (“Lobstar Perks
”) as detailed on the Site or communicated to User through Discord and on our social media pages including but not limited to Twitter and Instagram, and by email from time to time.
6. Primary Sales
When each Lobstar is sold for the first time (“Primary Sale
”), the agreement for sale will be between the Company and the User purchasing the Lobstar(s).
Lobstars shall first be made available for purchase on 10 April 2022 at 4.00pm BST. From such time, only some of the (total 7,777) Lobstars will be made available to a limited closed group each of whom will have a 24-hour window to purchase up to three (3) Lobstars. From 5.00pm BST on 11 April 2022, Lobstars, subject to availability and on a first-come-first-served basis, will be made available to a further restricted group of individuals who will have a 24-hour window to purchase one (1) or two (2) Lobstars. Thereafter (subject to availability), any visitor to the Site may purchase any Lobstar(s) from 5.00pm BST on 12 April 2022 (“Public Sale
On 14 April 2022, the allocation of Lobstars will be revealed on the Site and the purchased Lobstars shall be delivered directly to the relevant Users’ Wallets
User hereby acknowledges and agrees that the above dates and times are subject to change. Any such changes shall be posted on the Site and/or on social media including but not limited to Discord, Twitter, and Instagram and it is User’s responsibility to regularly check the Site to confirm dates and times for each sale stage.
Each purchaser during the Primary Sale shall be randomly allocated a unique Lobstar from the curated collection which includes: (i) Everyday Lobstars; (ii) Star Lobstars; (iii) Superstar Lobstars; (iv) Legendary Lobstars; and (iii) Masterpiece Lobstars. All prices and all details regarding artist are as detailed on the Site from time to time.
7. Secondary Sales
Any Lobstar purchases may be subsequently sold or transferred to any third party, via any site or platform that supports the sale of Ethereum-based NFTs, and such third party may in turn sell the Lobstar to additional third parties (each a “Secondary Sale
”). Certain terms regarding use of the Lobstar, Royalties on sales and/or other rights or restrictions may be embedded within the Lobstar (a so-called “Smart Contract”). Any such additional terms (“Smart Contract Terms
”) shall be binding on User and any subsequent purchaser, and may be automatic or self-executing.
User acknowledges and agrees that, as a Smart Contract Term, Company shall receive 7% of the proceeds for each Secondary Sale, excluding any gas fees which shall be additionally charged in the amount listed on the Site from time to time in addition to, in some cases, the commission applied by the relevant platform or marketplace (“Royalties
”). Accordingly, in relation to and as a condition precedent for any Secondary Sale, User (or User’s assignee) shall provide to the purchaser a written description of the relevant Lobstar (in substantially similar form to that on the Site at the time of the Primary Sale) and details of the amount and payment method for the Royalty.
8. Intellectual Property Rights
Any and all licensed rights to each purchased Lobstar are as specified on the Site, but shall include (at least) the worldwide, non-assignable, non-sublicensable, royalty-free right to visually display the purchased Lobstar privately or publicly for the purposes of communicating ownership, sharing, and/or for purposes of onward sale via the Site or any other marketplace, exchange or platform. User may not use the underlying artwork or any Lobstar Perks for any other purpose. By making a purchase hereunder, User warrants and represents that the purchased Lobstar will be used lawfully at all times.
Each User and subsequent purchaser of a Lobstar is granted an exclusive, limited license to such Lobstar in addition to any Lobstar Perks to display, use, or store such Lobstar and/or Lobstar Perks solely for their own personal, non-commercial, non-promotional purposes. User acknowledges and agrees that any commercial exploitation or other breach of this Agreement could subject User to claims of intellectual property infringements.
Unless otherwise stated herein, Company owns or controls all intellectual property rights in the Site and the Content. User may not publish, distribute, extract, re-utilise, or reproduce any part of the Site or the Content in any form (including storing it in any medium) other than as expressly allowed herein or as set out in the Site and the Content (or under applicable law). The brands, products and service names used or appearing within the Site (including, without limitation, “Lobstars”) are the trademarks or trade names of Company or its trading partners (unless otherwise stated). User may not distribute products or offer services under or by reference to or otherwise use or reproduce any such trademarks or trade names without the prior written consent of Company.
9. User Code of Conduct
User agrees to obey all applicable laws in using the Site and agrees that User is responsible for the materials and/or communications User uploads to or initiates via the Site. User agrees that User is responsible for everything that User posts or transmits to and/or via the Site.
By accessing and using the Site and the Service, User undertakes to NOT:
use the Service or the Lobstars in a way which contravenes or derogates from this Agreement;modify or prepare any derivate work based upon any Lobstar (or any rights vested therein);use the Site or the Service for any advertising, marketing or commercial activity of any kind;use the Lobstars and/or the Lobstar Perks in any commercial or promotional way, subject to clause 7 of this Agreement;use the Service or any Lobstar for any illegal or unauthorised purpose including but not limited to creating or displaying illegal content of any kind;use the Service or display any Lobstar in any way that might promote suicide, self-harm, discrimination, incite hate or violence or encourage or promote any activity that brings Company into disrepute and/or derogates from this Agreement;use the Site, the Service or any Lobstar to defame, abuse, harass, stalk, threaten or otherwise violate the legal rights of others, including the rights of publicity, and privacy rights, or harvest or collect personally identifiable information about other users of the Site;use the Site, the Service or any Lobstar in a manner that is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable (in Company’s reasonable opinion);purchase any Lobstar if User is on the list of persons named in relation to financial and investment restrictions as provided by the UK Government as amended from time to time by the UK Government;reverse engineer, disassemble, decompile, or otherwise attempt to obtain the source code or structure, sequence, ideas, information, and organisation of all or any part of the Site;attempt to circumvent any content-filtering techniques or attempt to access any feature or area of the Site that Users are otherwise not authorised to access;use the Site or Service in any manner that could interfere with, disrupt, negatively affect, or inhibit other users from enjoying the Service, including by distributing a virus, “Trojan Horse”, hardware, crawlers, data mining tools, robots, or any other harmful code, or through unauthorised access to the Site or other users’ accounts;copy, imitate, or use, in whole or in part, any trademarks, registered or unregistered IP rights, product names, and logos displayed on the Site or the Service without the permission of the applicable right holder;allow or assist anyone else to use User’s Wallet to access or use the Site or the Service;assist anyone who is not a User in obtaining access to any secured area of the Site;engage in phishing or obtaining financial or personal information for fraudulent or misleading, or other unlawful or malicious purposes;use the Site, the Service, or any Lobstar for money laundering, terrorist financing or other illegal finance;use any Lobstar in connection with any product, service, lobbying effort, business, political or charity campaign, or in any manner that could suggest or imply Company’s connection, affiliation, sponsorship or endorsement of any product, service, lobbying effort, business, political or charitable campaign, or in any manner that is likely to cause confusion or tarnish our rights in the Lobstars;pose as another person or claim a username for name squatting;use any Content or the Site in any way that would create a separate content service or that replicates any part of the Site, the Service, or the Lobstars;attempt to sell, lease or trade any Lobstar “off-chain” or on any non-publicly accessible service;use the Site, the Service or any Lobstar in a way that might give anyone rights to participate in a so-called “Initial Coin Offering” or any securities offering, or other offering where purchased items are redeemable for securities, commodities, or other financial instruments;use the Site, the Service, or any Lobstar in any financial or other activity that may require governmental registration or licensing.
10. Risks associated with NFTs
User acknowledges the risk that the price of a Lobstar may have been influenced by activity outside of Company’s control. Company does not warrant the accuracy or fairness of any price of an NFT sold or offered for sale on or off the Site. User acknowledges and agrees that Company has no fiduciary duty to User, including but not limited to the duty to ensure fair pricing or to enforce terms of behaviour by users. User further acknowledges that the Company’s smart contracts may be subject to bugs, malfunctions, timing errors, hacking and theft, or changes to the protocol rules of the BSV blockchain (i.e. "forks"), which can adversely affect smart contract and may expose User to a risk of loss, forfeiture of User’s digital currency or Company items or lost opportunities to buy or sell NFTs, and Company shall not be liable for any such loss or failure.
User acknowledges and agrees the following risks to User when accessing the Site and/or using the Lobstars:
- Prices and/or values of NFTs are volatile and may be subject to fluctuation (including without limitation due to reasons or activities beyond User’s or Company’s control);
- Transactions relating to NFTs are dependent on “gas fees”, which themselves are volatile and may be subject to fluctuation;
- Fluctuations in the price of other digital assets, including without limitation cryptocurrencies such as Ether, can materially and adversely affect the Lobstars;
- Company does not warrant the accuracy or fairness of any price listed on the Site or Service; Unexpected surges in activity or other operational or technical difficulties can occur as a result of using blockchain technologies;
- The regulatory and tax regime governing blockchain technologies, NFTs, cryptocurrency, and any crypto-based items is uncertain. As a result, legislative and regulatory changes, or actions at state or international level may materially adversely affect the development and use of the Lobstars, and the use, utility, transfer, exchange, and value of the Lobstars. User is solely responsible for determining what, if any, taxes and/or regulatory regimes apply to User’s transactions;
- Transactions on blockchain technology and transactions relating to NFTs, including the minting of NFTs are irreversible. User understands that losses due to fraudulent or accidental transactions may not be recoverable. Company has no ability to reverse any transactions on the blockchain;
- NFTs exist as a manifestation of the ownership record stored in the associated blockchain, and (after a Primary Sale) Company has no right or ability to control the transfer of title or right in any NFT or underlying asset or associated items or content;
- Losing seed phrases, usernames, passwords, private key, or other credentials as well as any digital wallet problems or custodial or purchaser error might lead to User losing access to an NFT.
User understands and agrees that: (i) User is solely responsible for determining the nature, potential value, suitability, and appropriateness of the foregoing risks for themselves; (ii) each Lobstar is intended only for User’s personal enjoyment and use; (iii) Company has no obligation to take any action whatsoever to maintain or enhance a Lobstar’s value.
User may ask questions or provide comments to Company by sending an email to firstname.lastname@example.org
but User understands and accepts that Company shall not in any case give legal or commercial advice or any recommendations regarding the purchase of any Lobstar or use of the Site or Service generally and that User should take and rely only on User’s own independent advice.
Each party hereby warrants and represents that it has the right and power to enter and perform all its respective obligations under this Agreement. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW IN USER’S TERRITORY, ALL COMPANY PRODUCTS AND SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THE WARRANTY OF NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, COMPANY MAKES NO WARRANTY THAT (A) THE SERVICES WILL MEET USER’S REQUIREMENTS, (B) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THE RESULTS OBTAINED FROM THE USE OF THE SERVICES WILL BE EFFECTIVE, ACCURATE OR RELIABLE, OR (D) THE QUALITY OF ANY MATERIALS OR SERVICES OBTAINED BY USER FROM THE SITE OR THE APP, FROM US, OR FROM ANY THIRD PARTIES' WEBSITES TO WHICH THE SITE OR THE APP IS LINKED, WILL MEET USER’S EXPECTATIONS OR BE FREE FROM MISTAKES, ERRORS OR DEFECTS. THE USE OF THE SERVICES IS AT USER’S OWN RISK AND WITH USER’S AGREEMENT THAT USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO USER’S COMPUTER DEVICE OR SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITIES. ALL CONTENT IS PROVIDED WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND (IMPLIED OR EXPRESS) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
User agrees that the liability of Company to User under this Agreement shall be limited to the greater of the amount Company has received from User hereunder and £200. Except as set out herein, Company shall not be liable for any indirect or consequential loss of any kind in contract, tort or otherwise arising out of User’s use of the Site or in relation to the goods and/or services that Company provides. Nothing in this Agreement shall operate to limit or exclude liability for death or personal injury caused by negligence.
USER AGREES AND ACKNOWLEDGES THAT ANY LOBSTAR PURCHASED BY USER MAY BE SUBSTANTIALLY SIMILAR TO ANOTHER USER’S LOBSTAR AND USER WARRANTS AND REPRESENTS THAT USER IS AWARE OF SUCH POTENTIAL SIMILARITY. USER SHALL INDEMNIFY COMPANY AGAINST ANY LOSS INCURRED IN CONNECTION WITH SUCH SIMILARITY. Company shall not be responsible for any communication failures, errors, delays, disruptions, or delays User may experience when using the Site, User’s E-wallet, the Service, or any blockchain network, however caused. User acknowledges and accepts that colours displayed within images on the Site may vary according to devices and other factors such as descriptions, availability, references and features are subject to change on short (or without) notice. Company shall not be liable for any errors or omissions in any Content or for any related damage or loss. Company has no duty of care to any User in relation to Content or how a User may interpret and use Content.
13. Third party websites and services
User shall indemnify Company (and each of its parents, subsidiaries, affiliates, directors, officers, employees, and agents) against any and all losses incurred in relation to any claim, demand, cause of action, debt or liability brought by or claimed by any third party, including attorneys’ fees, to the extent that any such claim is based upon or arises out of a breach of any of User’s representations, warranties, covenants, or obligations hereunder.
15. No Partnership.
User’s use of the Site, the Service, and/or the Content creates no partnership, client, fiduciary, joint venture, employer-employee, agency, franchisor-franchisee relationship or other professional relationship between User and Company.
16. Entire Agreement
This Agreement constitutes the entire agreement between the parties on the subject matter hereof. There are no understandings, undertakings, agreements, or representations, oral or written, not specified herein regarding this Agreement.
If any part, term, or provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, unenforceable, or in conflict with any relevant law, the remaining portions or provisions shall remain valid and continue in full force and effect.
Company may at any time terminate this legal Agreement, in Company’s sole discretion without prior notice to User and without reimbursement, if Company believes that User may have breached (or acted in a manner indicating that User does not intend to or is unable to comply with) any term herein, or if Company is legally required to do so by law, or if continuation is likely to no longer be commercially viable. User acknowledges that Company will cooperate fully with investigations of violations of systems or network security at other sites, including cooperating with law enforcement authorities in investigating suspected criminal violations. For the avoidance of doubt, Company reserves the right to take down any item of content at any time for any reason. Notwithstanding anything contained in this Agreement, Company reserves the right, with or without notice and in Company’s sole discretion, to suspend, disable, terminate, or delete User’s ability to access or use the Service, the Site, or any part of the foregoing, at any time and for any or no reason, and User acknowledges and agrees that Company shall have no liability or obligation to User in such event and that User will not be entitled to a refund of any amounts that User has already paid to Company. Additionally, if User breaches this Agreement, Company reserves the right to terminate or suspend, without notice, User’s use or ownership of, or rights in, any Lobstar(s), including without limitation by way of the Smart Contract.
19. No Waiver
No waiver, express or implied, by either party of any term or condition or of any breach by the other of any of the provisions of this Agreement shall operate as a waiver of any breach of the same or any other provision of this Agreement.
20. Force Majeure
Company will not be liable or responsible for any failure to perform, or delay in performance of, any of Company’s obligations hereunder that is caused by events outside Company’s reasonable control.
This Agreement may be varied from time to time by our posting new terms on the Site, and any such amendment will be applicable to all Users from the date and time such revised terms have been posted on the Site. User’s continued use of the Site or Service constitutes agreement with and acceptance of any such amendment or other changes. Company constantly experiments and innovates with the Site to provide a better experience for Users and User hereby acknowledges and agrees that the form and nature of the Service may change from time to time without prior notice to User.
22. Law and Jurisdiction
This Agreement shall be governed by and will be construed in accordance with English Law. Any disputes arising under or in connection with this Agreement shall be subject to the exclusive jurisdiction of the English Courts in London.