THE MIAMI HEAT “15 STRONG” OFFICIAL COMMEMORATIVE NFT COLLECTION

TERMS OF USE

Privacy Policy

UNLESS YOU OPT OUT, THESE TERMS AND CONDITIONS CONTAIN A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER THAT IMPACT YOUR RIGHTS ABOUT HOW TO RESOLVE DISPUTES.

These Terms of Use ( “Terms of Use”) between you and Miami Heat Limited Partnership (collectively, “Heat,” “us,” “our,” or “we”) govern your purchase and use of each non-fungible token (“NFT”) collectible and each associated Special Offer (as defined in Section 6), as applicable, in connection with the Miami HEAT “15 Strong” Official Commemorative NFT Collection (the “Collection”) being offered for sale on the online marketplace known as “OpenSea” located at https://opensea.io/ (the “Marketplace”). The Marketplace is a third-party owned and operated website that is not affiliated or administrated by the Heat. By clicking “Bid Now” or “Buy Now” you will be exiting www.NFT.HEAT.com (the “Site”) and entering the Marketplace, and will be subject to the Marketplace’s Privacy Policy and Terms of Service (collectively, the “Marketplace Terms of Service”).

By accessing, purchasing, and/or bidding on the Collection, you agree to be bound by these Terms of Use (including our Privacy Policy), the Marketplace Terms of Service, and all applicable laws. By accessing and interacting with the Site and/or Collection, you signify your assent to these Terms of Use. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS OF USE AND THE MARKETPLACE TERMS OF SERVICE DO NOT PLACE A BID OR ORDER, AND DO NOT SUBMIT ANY INFORMATION TO THE HEAT IN CONNECTION WITH THE SITE AND/OR COLLECTION.

   1.  Modification

We may modify these Terms of Use from time to time without prior notice. Any modifications we make are effective as soon as we post them on the Site. You should read these Terms of Use whenever you visit the Site or Collection on the Marketplace so that you are aware of any modifications. By using the Site or interacting with the Collection on the Marketplace after modifications have been posted you agree to be bound by these Terms of Use (including our Privacy Policy) as modified.

We also reserve the right to change, modify, or discontinue any portion of the Site or our Collection on the Marketplace without notice, on a temporary or permanent basis. You agree that we will not be liable to you or to any third party for any such modification, suspension, or discontinuance.

   2. Eligibility

Placing a bid or an order in connection with the Collection on the Marketplace requires your agreement to these Terms of Use, our Privacy Policy, Marketplace Terms of Service, and any additional terms or conditions of sale set forth by the Heat and/or its designees. If you are under the Age of Consent (as defined in Section 21) (which may vary depending on where you live) or otherwise cannot lawfully enter into a contract, you must have your parent or guardian place a bid or an order in connection with the Collection on the Marketplace on your behalf. When you place a bid or an order in connection with the Collection on the Marketplace you are representing that you have the legal right to enter into a contract, and we rely on that representation.

The products you may purchase relating to the Collection are meant to be for personal use. If we believe that your bid or purchase would violate these Terms of Use or that you are engaging in fraudulent activities, we reserve the right to refuse your bid or purchase. Any bids or purchases placed in violation of this provision shall be null and void.

   3. Privacy

If you purchase a Collection item that includes a Special Offer (as defined in Section 6), we may need to collect additional information from you and confirm your digital wallet identity. For details on how we collect and use your information, please refer to our Privacy Policy. By purchasing a Collection item that includes a Special Offer, you consent to the collection and use of your personal information as described in our Privacy Policy. The term “Special Offer” is defined as physical product(s) offered as supplementary to your purchase of select Collection items (e.g., banners, ticket stubs, and game day tickets).   

   4. Accuracy and Availability of Products and/or Services

We may make improvements or changes to the Site or Collection as listed on the Marketplace, at any time without notice.

From time to time we may change the items offered as part of the Collection and may limit the quantity of products that you may order. All bids or purchases placed through the Marketplace are subject to availability and acceptance by us.  We reserve the right to refuse or cancel bids or purchases at any time, including in the event of a payment dispute or if you violate these Terms of Use or Marketplace Terms of Service.

   5. Auction Items / Purchases

Through the Marketplace you will be able to bid on and purchase an NFT from the Collection. Each Collection item that includes a Special Offer will be offered for sale on the Marketplace via an English styled auction (the “Auction”), which means that you will have the opportunity to purchase a Collection item with a Special Offer by successfully providing the highest bid.  For more information on this type of auction, please see the following article provided on the Marketplace: https://support.opensea.io/hc/en-us/articles/1500003246082-How-do-auctions-work-. The Heat is under no obligation to complete the transaction if it does not meet the reserve price.   

All other Collection items will be offered for sale on the Marketplace at a set price, on a first come first served basis.

   6. Special Offers

Upon the successful conclusion of an Auction, the purchaser and/or holder of the following Collection items will have the opportunity to redeem a Special Offer, subject, at all times, to these Terms of Use:

       a.  2006 Championship Ring:
              i.     The purchaser and/or holder of the 1-of-1 2006 Championship Ring NFT will have the opportunity to receive a physical version of the 2006 Championship Ring  (the “Ring”) custom fitted and designed by Jostens, Inc.
              ii.     The Ring will be a version of the 2006 Championship Ring and not a replica of, identical to, or same as the original 2006 Championship Ring held by the Miami HEAT team. In addition, the Ring will not be identical or the same as the digital image of the 2006 Championship Ring NFT. The Ring will vary from the 2006 Championship Ring held by the Miami HEAT team and the 2006 Championship Ring NFT digital image in a number of ways, including but not limited to, sizing, dimensions, the Ring being made of different materials/stones, different numbers of stones, and/or having different designs. The 2006 Championship Ring NFT is not drawn to scale and does not represent the actual size, design, orientation, or style of the Ring. The final design and specification of the Ring will be determined by the Heat in its sole discretion. Shipment of the Ring may take up to six (6) months, provided that you acknowledge that such delivery may occur after such date and you waive any claims if such delivery is delayed. To the extent that you desire to have a name engraved on the Ring you must provide that name at the time you redeem this Special Offer and once such name is provided there shall be no changes permitted thereto. The Heat and its designees reserve the right to review the requested name and to approve or reject the inclusion of the name in their sole discretion. This Special Offer may be subject to additional terms and conditions set forth by Jostens, Inc.

        b.  2006 Championship Banner:
              i.     The purchaser and/or holder of the 1-of-1 2006 Championship Banner NFT (the “Banner”) will have the opportunity to receive a physical version of the Banner. 

        c.  “15 Strong” Collectible Card:
              i.     The purchaser and/or holder of the 1-of-1 “15 Strong” Collectible Card NFT (the “Collectible Card”) will have the opportunity to receive a framed physical version of the Collectible Card.   

        d.  Commemorative Ticket Stubs:
              i.      The purchaser and/or holder of the following 1-of-1 Commemorative Ticket Stubs NFTs will have the opportunity to receive a framed, physical print of the applicable Commemorative Ticket Stub artwork:

                   1.   2006 Eastern Conference Quarterfinals Commemorative Ticket;  
                   2.   2006 Eastern Conference Semifinals Commemorative Ticket;
                   3.   2006 Eastern Conference Finals Commemorative Ticket; and
                   4.   2006 NBA Finals Commemorative Ticket.

              ii.     In addition, the purchasers and/or holders of the above-referenced Commemorative Ticket Stub NFTs will have the opportunity to receive two (2) lower-level tickets to a Miami HEAT home game, at the FTX Arena (“Arena”) located in downtown Miami, scheduled for the 2021 – 2022  regular NBA Season versus the opponent featured in the purchased Commemorative Ticket Stub NFT.

              iii.     The specific home game, seat locations, and arena tickets, will be determined by the Heat in its sole discretion. The game day tickets will be forfeited if the purchaser and/or holder of this Commemorative Ticket Stub NFT Special Offer is unable to travel and/or attend the game on the designated date. The game day tickets are non-refundable/non-transferable. Additional Commemorative Ticket Stub NFT Special Offer terms will be provided at a later date. Lost, stolen or damaged game day tickets will not be replaced or exchanged. This Special Offer is further conditioned upon all terms and conditions associated with the use of this Commemorative Ticket Stub NFT Special Offer, including, but not limited to, the Heat’s ticketing terms and conditions, the Arena’s health and safety requirements, security provisions, and other conditions set forth by the NBA, Heat, and Arena. Any expenses or incidental costs not specifically mentioned herein are the responsibility solely of the ticket holder and the ticket holder’s guest. For example, meals, personal charges, security fees, gratuities, parking fees, hotel or transportation charges and travel-related expenses are the responsibility solely of the ticket holder and the ticket holder’s guest.  If the holder of this Commemorative Ticket Stub NFT Special Offer is not available to travel/attend the game day specified by the Heat, such holder may forfeit the game day tickets. No responsibility is assumed by the Heat for canceled, delayed, suspended or rescheduled home games. 

Special Offers are limited to the seven (7) NFT Collection items expressly referenced above. All “15-BIT” Collection items do not include Special Offers.  

Upon the successful purchase of a Collection NFT with a Special Offer, you will have access to a secured redemption form (“Redemption Form”) via the “Unlockable Content” link on the Marketplace. In order to redeem your Special Offer, you must: (a) be the holder of the applicable Collection NFT as of July 31, 2021at 11:59 PM EST (August 1, 2021 3:59 AM UTC); (b)successfully submit your completed Redemption Form by August 6, 2021 at 5:00 PM EST (August 6, 2021 9:00 PM UTC); and (c) abide by all instructions, including without limitation, any Special Offer redemption requirements, presented to you by the Heat and its designees. The time clock featured on the Ehterscan website, located at etherscan.io, will be the official timekeeping device for the Auction and any redemption requirements set forth herein. Failure to abide by these Terms of Use and the Heat’s and its designees’ redemption instructions, may result in forfeiture of a Special Offer.  

Holders of Special Offer NFTs will be notified by email, via the email address provided on the Redemption Form, on or around August 9, 2021 to confirm validity. You will be required to respond to the Heat’s email notification by August 13, 2021 at 5:00 PM EST (August 13, 2021 at 09:00 PM UTC). Failure to confirm receipt, may result in forfeiture of the Special Offer. Any e-mail notification or Special Offer returned to the Heat or its designees as undeliverable will result in forfeiture. To help avoid our email notifications from being routed to your spam folder, please add our email address at nft@heat.com to your “Contacts” list. 

The Heat will confirm your identity through a secure transfer of funds from the Heat’s digital wallet to the digital wallet address provided by the applicable Special Offer holder.  The Special Offer holder must accurately confirm the transfer amount by August 20, 2021 at 5:00 PM EST (August 20, 2021 at 09:00 PM UTC). Failure to do so may result in forfeiture of the Special Offer.

Arrangements for delivery of the Special Offers will be made after holder’s verification. The Heat or its designees will confirm the shipping address provided on the Redemption Form once the items are ready for shipment.  Production and delivery of the physical memorabilia varies and may take up to six (6) months to receive.

In the event of non-responsiveness, noncompliance with any of these Terms of Use or any other redemption terms set forth by the Heat or its designees, forfeiture, disqualification, or if any attempted notification or delivery is returned as undeliverable, the Special Offer will be forfeited in connection with the relevant Special Offer holder.  You may be required to complete, sign, and return additional documentation as prescribed by the Heat or its designees prior to receiving the Special Offer. No substitution or cash redemption is permitted, except at the Heat’s sole discretion. All federal, state and local taxes, and all other costs or expenses associated with acceptance or use of the Special Offer not specified herein, are the sole responsibility of the purchaser and/or holder. 

Any portion of the Special Offer not accepted or redeemed in accordance with these Terms of Use by a purchaser and/or holder of the Special Offer NFT will be forfeited.

All purchases of the Collection, as well as associated charges, are non-refundable. This no-refund policy shall apply at all times regardless of your decision to terminate usage of the Collection, any disruption to the operations of any components of the Collection, or any other reason whatsoever.

   7. Ownership

You acknowledge and agree that the Heat owns or has valid right or license to use all art, written content, designs, layout, photographs, graphics, images, illustrations, logos, taglines, drawings, audio, audio-visual, sound or video clips, animation, and other content as well as all trademarks, copyrights, and all other intellectual property rights belonging to or identifying the Heat, its mascot, the NBA, and all other related indicia associated with the Collection (collectively, the “Content”). Except as set forth herein, you may not copy, imitate, or use any Content, in any way, without our prior written permission or the permission of the respective owner. The rights that you have in and to the Licensed NFT (defined below) are limited to those expressly stated in Section 8. Except as specifically provided below, we reserve all rights to the Licensed NFT, Collection, and Content.

   8. Rights

         a.   Licensed Rights. You acknowledge and agree that each Collection items successfully purchased or made available to you through the Auction and/or Marketplace (“Licensed NFT”) is made available solely for personal entertainment purposes. Without limiting the foregoing and subject to your continued compliance with these Terms of Use (and the Marketplace Terms of Service), the Heat grants you a worldwide, non-exclusive, non-transferable (except as specifically provided below in Section 8 (b)), royalty-free license to display the Content for your Licensed NFT, solely for your own personal and non-commercial use.

        b.   Permissible Transfers of Your Licensed NFT. You have the limited right to transfer the Licensed NFT, provided that: (1) the transferee accepts all of the terms of these Terms of Use and the Marketplace Terms of Service; (2) the Heat is paid ten percent (10%) of the gross amounts paid by such party relating to the Licensed NFT, including but not limited to, any transfer price and any other related compensation (e.g., (a) if the transfer price is the Equivalent of $100,000 then the Heat will be entitled to the Equivalent of $10,000 or (b) if the transfer price is Equivalent to $100,000 and an additional $50,000 is paid as related use fee then the Heat would be entitled to $15,000) and such payment shall be paid on the same terms and at the same time as you are paid; (3) you have not, prior to the transfer, breached these Terms of Use or the Marketplace Terms of Service; (4) prior to the transfer, your license to the Licensed NFT has not been terminated; and (5) the party purchasing the Licensed NFT provides the Heat with a valid e-mail address. You acknowledge and agree that the foregoing amounts payable to the Heat under this Section 8 (b) hereof do not include, and are not intended to cover, any additional fees imposed or required by the platform through which you are transferring the Licensed NFT. The term “Equivalent,” as used herein, means the value, in US Dollars, of the market value of the relevant amount of cryptocurrency on the day of the transactions.

   9. Restrictions

We provide the Licensed NFT and Auction only for entertainment purposes and your personal use, and subject to these Terms of Use. In addition to any restrictions covered above, it is a violation of these Terms of Use to take any action that:

            a.   modifies the Licensed NFT, Collection, or Content in any way, including, without limitation, the shapes, designs, drawings, attributes, or color schemes;
            b.   uses the Licensed NFT, Collection, or Content to advertise, market, or sell any product or service;
            c.   uses the Licensed NFT, Collection, or Content in movies, videos, or any other forms of media, except solely for Your own personal, non-commercial use
            d.   sells, distributes for commercial gain (including, without limitation, giving away in the hopes of eventual commercial gain), or otherwise commercialize merchandise that includes, contains, or consists of the Licensed NFT, Special Offers, Collection, or Content;
            e.   otherwise utilize the Licensed NFT, Collection, or Content for your or any third party’s commercial benefit;
            f.    is unlawful, harmful to minors, threatening, harassing, abusive, defamatory, slanderous, vulgar, gratuitously violent, obscene, pornographic, indecent, lewd, libelous, invasive of another's privacy, or racially, ethnically, or otherwise offensive, hateful, or abusive;
            g.    violates, plagiarizes or infringes the Heat’s, NBA’s, or any other entity’s or someone else's legal rights, including, without limitation, patent, trademark, trade secret, copyright, or other intellectual property or other rights, privacy, publicity, or other rights;
            h.   removes any proprietary notices or labels on the Licensed NFT, Collection, or Content;
            i.    advocates or solicits violence, criminal conduct, or the violation of any local, state, national, or international law or the rights of any third party;
            j.    is deceptive in any way, such as an offer to sell fraudulent goods or contains an impersonation of any person or entity or misrepresents an affiliation with a person or entity;
            k.   specifically advertises firearms or ammunition, tobacco, alcohol, illegal drugs, or other contraband;
            l.    constitutes unsolicited or unauthorized advertising, junk or bulk email (SPAM), chain letters, or any other unsolicited commercial or non-commercial communication;
            m.  interferes with others using or accessing the Site or Auction;
            n.   contains software viruses, worms, time bombs, corrupted files, Trojan horses, or any other computer code, files, or programs that are designed or intended to disrupt, damage, overburden, impair, or limit the functioning of any software, hardware, network, server, or communications systems or equipment;
            o.   contains a charity request, petitions for signatures, chain letters, or letters relating to a pyramid scheme;
            p.   uses any robot, spider, or other such programmatic or automatic device, including, but not limited to, automated dial-in or inquiry devices, to obtain information from the Site Auction, the Heat, or otherwise monitor or copy any portion of the Site, Auction, products, and/or services;
            q.   creates a false identity for the purpose of misleading others;
            r.   prepares, compiles, uses, downloads, or otherwise copies any user information and/or usage information or any portion thereof, or transmits, provides, or otherwise distributes (whether or not for a fee) such information to any third party;
            s.   uses any of our copyrights or trademarks or our domain name as a pseudonymous return email address;
            t.   provides material support or resources (or conceals or disguises the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act;
            u.   attempts to disable, bypass, modify, defeat, or otherwise circumvent any of the digital rights management or other security related tools incorporated into the Site, Auction, Collection, or Licensed NFT;
            v.   systematically collects and uses any of the Site, Auction, or Collection, including the use of any data mining, or similar data gathering and extraction methods;
            w.   makes derivative uses of the Site, Auction, Collection, or the Content;
            x.   uses, frames, or utilizes framing techniques to enclose any portion of the Auction, Collection, Content, or Site (including the images found at the Site or any text or the layout/design of any page or form contained on a page); and/or
            y.   modifies, translates, decompiles, disassembles, uses reverse engineering, or otherwise attempts to derive the source code for the computer systems and other technology that operate our Site. For purposes of these Terms of Use, “reverse engineering” shall include the examination or analysis of the Site to determine the source code, structure, organization, internal design, algorithms, or encryption devices of our Site's underlying technology.

To the extent that the Licensed NFT or Collection contains Third Party IP you understand and agree as follows: (i) that you will not have the right to use such Third Party IP in any way except as incorporated in the Content, and subject to the license and restrictions contained herein; (ii) that, depending on the nature of the license granted from the owner of the Third Party IP, the Heat may need to pass through additional terms and/or restrictions on your ability to use the Content; and (iii) to the extent that the Heat informs you of such additional restrictions in writing (email is permissible), you will be responsible for complying with all such restrictions from the date that you receive the notice, and that failure to do so will be deemed a breach of these Terms of Use. “Third Party IP” means any third-party patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, trademarks, know-how or any other intellectual property rights recognized in any country or jurisdiction in the world.

   10.  Termination of the License.

The licensed rights granted to you under Section 8 shall automatically terminate and all rights shall return to the Heat if: (a) at any time you sell, trade, donate, give away, transfer, or otherwise dispose of your Licensed NFT for any reason except as specially provided in Section 8 of these Terms of Use; (b) the email address you provide to the Heat or its designees is no longer valid; (c) you breach any of the these Terms of Use and Marketplace Terms of Service; (d) you have a trustee, receiver or similar party appointed for your property, become insolvent, acknowledge your insolvency in any manner, make an assignment for the benefit of your creditors, or file a petition of bankruptcy; (e) you engage in any unlawful business practice related to the Licensed NFT; (f) you initiate any legal actions, except an arbitration as specifically provided herein, against any of the Released Parties (as defined in Section 12); or (g) you disparage any of the Released Parties or any parties related to any of them.

   11.  Links to Third-Party Sites

The Site and the Auction landing page on the Marketplace may contain links to third-party websites. We are not responsible for the privacy practices or the content of those websites, and you should review the privacy policies and terms of use of those websites. Links are not intended to imply sponsorship, affiliation, or endorsement of the linked website or its content. If you believe that the Site or Auction page links to a website that contains infringing or illegal content or material, please notify us.

   12.  Limitation of Liability

IN NO EVENT WILL THE HEAT, BASKETBALL PROPERTIES, LTD, THE NBA AND ITS MEMBER TEAMS, NBA PROPERTIES, INC., NBA MEDIA VENTURES, LLC, THE PARENTS, SUBSIDIARIES, AFFILIATES, SUCCESSORS AND ASSIGNS OF EACH OF THE FOREGOING, AND EACH OF THEIR  EMPLOYEES, OFFICERS, PARTNERS, REPRESENTATIVES, SERVICE PROVIDERS, SUPPLIERS, LICENSORS, DESIGNEES, OR AGENTS (COLLECTIVELY, THE “RELEASED PARTIES”) BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, INCIDENTAL, OR SPECIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF USE, LOSS OF PROFITS, LOSS OF DATA, PERSONAL INJURY, PROPERTY DAMAGE, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF GOODWILL, WORK STOPPAGE, OR COMPUTER AND/OR DEVICE OR TECHNOLOGY FAILURE OR MALFUNCTION, OR OTHERWISE WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR BASED ON ANY OTHER CAUSES OF ACTION WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH: (A) THE AUCTION, COLLECTION, SPECIAL OFFER, LICENSED NFT, CONTENT, ANY TECHNOLOGY AND/OR PARTIES RELATED TO THE AUCTION, INCLUDING BUT NOT LIMITED TO, THE MARKETPLACE, BLOCKCHAIN, CRYPTOCURRENCIES, ANY DIGITAL WALLET, INCLUDING WITHOUT LIMITATION, THE METAMASK WALLET, THE USE OR INABILITY TO USE THE SITE, AUCTION, COLLECTION, MATERIALS, SOFTWARE, INFORMATION, OR TRANSACTIONS PROVIDED ON OR THROUGH THE MARKETPLACE, SITE OR AUCTION; (B) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN CONNECTION WITH THE MARKETPLACE, SITE, AUCTION, SPECIAL OFFER, COLLECTION, LICENSED NFT, AND ANY OTHER MATERIALS, SOFTWARE, INFORMATION, PRODUCTS, OR SERVICES ON OR AVAILABLE THROUGH THE SITE, AUCTION, OR MARKETPLACE; (C) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY PRODUCTS, DATA, INFORMATION, SPECIAL OFFER, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM OUR SITE, AUCTION, OR MARKETPLACE; (D) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (E) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE MARKETPLACE, THE SITE, OR AUCTION; (F) THE DELAY OR FAILURE IN PERFORMANCE RESULTING FROM AN ACT OF FORCE MAJEURE, INCLUDING, WITHOUT LIMITATION, ACTS OF GOD, NATURAL DISASTERS, COMMUNICATIONS FAILURE, GOVERNMENTAL ACTIONS, WARS, STRIKES, PANDEMIC, GOVERNMENT ORDER, LABOR DISPUTES, RIOTS, SHORTAGES OF LABOR OR MATERIALS, VANDALISM, TERRORISM, NON-PERFORMANCE OF THIRD PARTIES, OR ANY REASONS BEYOND THE RELEASED PARTIES’ REASONABLE CONTROL; OR (G) ANY OTHER MATTER RELATING TO THE SITE, AUCTION, OR MARKETPLACE EVEN IF YOU CLAIM TO HAVE NOTIFIED THE RELEASED PARTIES ABOUT SUCH DAMAGES, OR FOR ANY CLAIMS BY ANY THIRD PARTIES, UNLESS OTHERWISE PROVIDED FOR BY LAW, THEN THE AGGREGATE LIABILITY OF THE RELEASED PARTIES UNDER SUCH CIRCUMSTANCES FOR LIABILITIES THAT OTHERWISE WOULD HAVE BEEN LIMITED SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100).  APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OF LIABILITY SET FORTH ABOVE, SO THIS LIMITATION OF LIABILITY MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS BEYOND THOSE CONTAINED HEREIN. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO RESIDENTS OF NEW JERSEY. WITH RESPECT TO RESIDENTS OF NEW JERSEY, THE RELEASED PARTIES SHALL NOT BE LIABLE FOR ANY LOSSES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SITE, AUCTION, COLLECTION, LICENSED NFT, SPECIAL OFFER, CONTENT, MARKETPLACE, SERVICE, OR ANY CONTENT ON THE MARKETPLACE, UNLESS SUCH DAMAGES OR INJURIES ARE THE RESULT OF OUR OR THEIR NEGLIGENT, FRAUDULENT, OR RECKLESS ACTS OR INTENTIONAL MISCONDUCT.

YOU ACKNOWLEDGE THAT THIS LIMITATION OF LIABILITY IS AN ESSENTIAL TERM BETWEEN YOU AND US RELATING TO THE PROVISION OF THE SITE, AUCTION, COLLECTION, AND LICENSED NFT TO YOU, AND WE WOULD NOT PROVIDE THE SITE, AUCTION, COLLECTION, AND LICENSED NFT TO YOU WITHOUT THIS LIMITATION.

YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SITE, AUCTION, COLLECTION, AND LICENSED NFT IS TO STOP USING THE SITE, AUCTION, COLLECTION, AND LICENSED NFT.

   13.  DISCLAIMER OF WARRANTIES / ASSUMPTION OF RISK

THIS SITE, THE AUCTION, COLLECTION, SPECIAL OFFERS, AND LICENSED NFTS ARE MADE AVAILABLE TO YOU “AS IS,” WITHOUT ANY WARRANTIES WHATSOEVER ABOUT THE NATURE, CONTENT, OR ACCURACY (EITHER WHEN POSTED OR AS A RESULT OF THE PASSAGE OF TIME) OF ANY MATERIAL AS PART OF THE AUCTION AND WITHOUT ANY REPRESENTATIONS OR GUARANTEES.

IN ADDITION, THE HEAT MAKES NO WARRANTIES, REPRESENTATIONS, OR GUARANTEES THAT: (A) THIS SITE, AUCTION, COLLECTION, OR MARKETPLACE WILL BE FREE OF INFECTION OR VIRUSES, WORMS, TROJAN HORSES, OR OTHER CODE THAT MANIFESTS CONTAMINATING OR DESTRUCTIVE PROPERTIES; (B) THIS SITE AND THE AUCTION WILL BE TIMELY, CONTINUOUS, AND WITHOUT INTERRUPTION; (C) THIS SITE AND THE AUCTION WILL BE SECURE (INCLUDING FREE FROM UNAUTHORIZED ACCESS), PROVIDE CONTINUOUS STORAGE OR ACCESS, OR BE ERROR-FREE; (D) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF OUR SITE OR AUCTION WILL BE ACCURATE, COMPLETE, OR RELIABLE; (E) THE QUALITY OF ANY SPECIAL OFFERS, LICENSED NFTS, COLLECTION, OR ANY OTHER PRODUCTS, SERVICES, SOFTWARE, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH OUR AUCTION WILL MEET YOUR EXPECTATIONS; AND (F) ANY ERRORS IN OUR SITE, AUCTION, OR COLLECTION WILL BE CORRECTED.

THE HEAT HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, STATUTORY, ORAL, OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, REASONABLE CARE, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY AND ALL WARRANTIES OF TITLE, ACCURACY OF DATE, AND/OR NON-INFRINGEMENT, UNLESS OTHERWISE PROHIBITED BY LAW. YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET AND AGREE THAT WE HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY BREACH OF SECURITY UNLESS IT IS DUE TO OUR GROSS NEGLIGENCE.

YOU VOLUNTARILY ASSUME THE FOLLOWING RISKS AND DANGERS: (A) TO THE EXTENT THERE IS A PRICE OR MARKET FOR A BLOCKCHAIN ASSET SUCH AS AN NFT, SUCH MARKETS AND PRICES ARE EXTREMELY VOLATILE, AND VARIATIONS IN THE PRICE OF OTHER DIGITAL ASSETS COULD MATERIALLY AND ADVERSELY AFFECT THE VALUE OF ANY DIGITAL ASSET(S) YOU OWN, INCLUDING YOUR LICENSED NFT, AND THERE IS NO GUARANTEE THAT YOUR LICENSED NFTS WILL HAVE OR RETAIN ANY VALUE; (B) THE COMMERCIAL OR MARKET VALUE ON A LICENSED NFT THAT YOU PURCHASE MAY MATERIALLY DIMINISH IN VALUE AS A RESULT OF A VARIETY OF REASONS; (C) THERE ARE RISKS ASSOCIATED WITH USING AN INTERNET-NATIVE ASSETS (E.G., NFT, CRYPTOCURRENCIES, ETC.) INCLUDING, BUT NOT LIMITED TO, THE RISK OF HARDWARE, SOFTWARE AND INTERNET CONNECTIONS AND/OR FAILURES, THE RISK OF MALICIOUS SOFTWARE INTRODUCTION, AND THE RISK THAT THIRD PARTIES MAY OBTAIN UNAUTHORIZED ACCESS TO INFORMATION STORED WITHIN YOUR DIGITAL WALLET OR ELSEWHERE, AND THE RELEASED PARTIES WILL NOT BE RESPONSIBLE FOR ANY OF THESE, HOWEVER CAUSED; (D) THE RELEASED PARTIES DO NOT MAKE ANY PROMISES OR GUARANTEES ABOUT THE AVAILABILITY OF THE LICENSED NFT, COLLECTION, OR CONTENT ON THE INTERNET OR THAT THEY WILL HOST THE LICENSED NFT, COLLECTION, OR CONTENT AT ANY SPECIFIC LOCATION AND/OR FOR ANY SPECIFIC PERIOD OF TIME; (E) UPGRADES TO THE ETHEREUM PLATFORM, A HARD FORK OR OTHER CHANGE IN THE ETHEREUM PLATFORM, A FAILURE OR CESSATION OF ETHEREUM, OR A CHANGE IN HOW TRANSACTIONS ARE CONFIRMED ON THE ETHEREUM PLATFORM MAY HAVE UNINTENDED, ADVERSE EFFECTS ON ALL BLOCKCHAINS USING SUCH TECHNOLOGIES, INCLUDING WITHOUT LIMITATION, LICENSED NFTS; (F) THE RELEASED PARTIES DO NOT MAKE ANY PROMISES OR GUARANTEES RELATED TO METAMASK WALLET, THE MARKETPLACE, BLOCKCHAIN OR ANY OTHER THIRD PARTIES RELATED TO THIS AUCTION AND EACH OF THEIR APPLICATIONS AND/OR SERVICES, INCLUDING BUT NOT LIMITED TO, THE CONTINUED AVAILABILITY OF EITHER AND/OR THE PROTECTION AND/OR STORAGE OF ANY DATA YOU PROVIDE TO THOSE PARTIES; (G) THE RISK OF LOSING ACCESS TO LICENSED NFT DUE TO LOSS OF PRIVATE KEY(S), CUSTODIAL ERROR OR PURCHASER ERROR; (H) THE RISK OF MINING ATTACKS; (I) THE RISK OF HACKING, SECURITY WEAKNESSES, FRAUD, COUNTERFEITING, CYBER-ATTACKS AND OTHER TECHNOLOGICAL DIFFICULTIES; (J) THE RISK OF CHANGES TO THE REGULATORY REGIME GOVERNING BLOCKCHAIN TECHNOLOGIES, CRYPTOCURRENCIES, AND TOKENS AND NEW REGULATIONS, UNFAVORABLE REGULATORY INTERVENTION IN ONE OR MORE JURISDICTIONS OR POLICIES ANY OF WHICH MAY MATERIALLY ADVERSELY AFFECT THE USE AND VALUE OF THE LICENSED NFT; (K) THE RISKS RELATED TO TAXATION; (L) THAT NFTS ARE NOT LEGAL TENDER AND ARE NOT BACK BY ANY GOVERNMENT; AND (M) THE RELEASED PARTIES ARE NOT RESPONSIBLE FOR ANY TRANSACTION BETWEEN YOU AND A THIRD PARTY (E.G., YOUR TRANSFER OF A LICENSED NFT FROM A THIRD PARTY ON THE SO-CALLED “SECONDARY MARKET”), AND THE RELEASED PARTIES SHALL HAVE NO LIABILITY IN CONNECTION WITH ANY SUCH TRANSACTION. IN ADDITION TO ASSUMING ALL OF THE ABOVE RISKS, YOU ACKNOWLEDGE THAT YOU HAVE OBTAINED SUFFICIENT INFORMATION TO MAKE AN INFORMED DECISION TO LICENSE THE LICENSED NFT OR OTHERWISE INTERACT WITH THE AUCTION AND THAT YOU UNDERSTAND AND AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR DETERMINING THE NATURE, POTENTIAL VALUE, SUITABILITY AND APPROPRIATENESS OF THESE RISKS FOR YOURSELF. THE RELEASED PARTIES CANNOT AND DO NOT REPRESENT OR WARRANT THAT ANY LICENSED NFT, COLLECTION, SPECIAL OFFERS, OR ITS SUPPORTING SYSTEMS OR TECHNOLOGY, IS RELIABLE, CURRENT OR ERROR-FREE, MEETS YOUR REQUIREMENTS, OR THAT DEFECTS IN THE LICENSED NFT, COLLECTION, SPECIAL OFFERS, OR ITS SUPPORTING SYSTEMS OR TECHNOLOGY, WILL BE CORRECTED. THE RELEASED PARTIES CANNOT AND DO NOT REPRESENT OR WARRANT THAT THE LICENSED NFT, INCLUDING SPECIAL OFFERS, OR THE DELIVERY MECHANISM FOR IT ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACCEPT AND ACKNOWLEDGE THAT THE RELEASED PARTIES WILL NOT BE RESPONSIBLE FOR ANY COMMUNICATION FAILURES, DISRUPTIONS, ERRORS, DISTORTIONS OR DELAYS YOU MAY EXPERIENCE RELATED TO THE AUCTION.

TO THE EXTENT THAT YOU MIGHT OTHERWISE BELIEVE THAT WARRANTIES, REPRESENTATIONS, OR GUARANTEES HAVE BEEN MADE TO YOU, YOU HEREBY AGREE THAT SUCH STATEMENTS, WHETHER MADE ORALLY OR IN WRITING, ARE TO BE CONSTRUED MERELY AS NONBINDING EXPRESSIONS OF POLICY RATHER THAN AFFIRMATIVE REPRESENTATIONS, OBLIGATIONS, GUARANTEES, OR WARRANTIES. IN THE EVENT OF ANY CONFLICT BETWEEN THIS SECTION AND OTHER TERMS OR PROVISIONS OF THESE TERMS OF USE, THIS SECTION SHALL BE CONSTRUED TO TAKE PRECEDENCE.

   14. Governing Law

By interacting with and placing a bid or order in connection with the Collection, Site, and/or Auction, you agree to be bound by the laws of the State of Florida and the Federal Arbitration Act, without regard to principles of conflicts of law, which will govern these Terms of Use and any dispute of any sort that might arise between you and the Heat.

   15. Dispute Resolution

READ THIS SECTION CAREFULLY - IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE SUIT IN COURT.

Any dispute or claim relating in any way to your use of the Site, Auction, Collection, Special Offer, or Licensed NFT, or in connection with any other products or services sold or distributed via the Site or Auction, as applicable, will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to these Terms of Use.

There is no judge or jury in arbitration, and court review of an arbitration award is limited. An arbitrator can, however, award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow these Terms of Use as a court would.  The decision of the arbitrator will be in writing and binding and conclusive on you and the Heat, and judgment to enforce the decision may be entered by any court of competent jurisdiction.

To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent, Alan Fein, Esq., at 150 West Flagler Street, Suite 2200, Miami, Florida 33132. THE ARBITRATION OF DISPUTES PURSUANT TO THIS SECTION SHALL BE IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA's Supplementary Procedures for Consumer-Related Disputes. The AAA's rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration, and arbitrator fees will be governed by the AAA's rules. We will reimburse the foregoing fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Notwithstanding the foregoing, you and the Heat agree not to seek any attorney's fees and expert-witness costs unless the arbitrator finds that a claim or defense was frivolous or asserted for an improper purpose. You and the Heat understand that, absent this mandatory arbitration provision, you and the Heat would have the right to sue in court and have a jury trial. You and the Heat further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. The arbitrator shall apply Florida law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized at law.

If your claim is solely for monetary relief of $10,000 or less, and does not include a request for any type of equitable remedy, you may choose whether the arbitration will be conducted solely based on documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing under the AAA Rules in Miami-Dade County, Florida. You and the Heat agree to submit to the personal jurisdiction of any state or federal court in Miami-Dade County, Florida to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.

You have the right to opt-out and not be bound by these arbitration provisions by sending written notice of your decision to opt-out to the following address: ATTN: EVP / Chief Legal Officer, 601 Biscayne Boulevard, Miami, Florida 33132 and nft@heat.com.

You must provide your name, address, email that is associated with your bid or purchase, Licensed NFT, or Special Offer, and a clear statement that you want to opt out of this arbitration provision, within the later of 30 days after your first use of the Site, or within 30 days of substantive changes, if any, being made to these Terms of Use, otherwise you shall be bound to arbitrate any disputes, claims, or controversies in accordance with the terms of this section. If you opt out of these arbitration provisions, the Heat will similarly not be bound by them. If you do not affirmatively elect to opt out as described above, your use of the Site and/or Auction will be deemed to be your irrevocable acceptance of these Terms of Use and any changes/updates to this section or otherwise.

If any clause within these arbitration provisions is found to be illegal or unenforceable, that specific clause will be severed from these arbitration provisions, and the remainder of the arbitration provisions will be given full force and effect. If, however, the portion that is deemed invalid, unenforceable or illegal is that claims will not be arbitrated on a class or representative basis, then the entirety of this arbitration provision shall be null and void, and neither you nor the Heat shall be entitled to arbitrate the dispute. In the event some or all of these arbitration provisions are determined to be unenforceable for any reason, or if a claim, dispute, or controversy is brought that is found by a court to be excluded from the scope of these arbitration provisions, you and the Heat agree to waive, to the fullest extent allowed by law, any trial by jury.

   16. Class Action Waiver

READ THIS SECTION CAREFULLY - IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.

You agree that you and the Heat will resolve any disputes, claims, or controversies on an individual basis, and that claim(s), if any, brought under these Terms of Use in connection with the Site will be brought in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding. You and the Heat further agree that you shall not participate in any consolidated, class, or representative proceeding (existing or future) brought by any third party arising under these Terms of Use or in connection with the Site or Auction.

The terms of this provision will also apply to any claims asserted by you against any of the Heat’s affiliates, to the extent that any such claims arise out of your access to, and/or use of the Site, Auction, and/or the provision of content, services, and/or technology on or through the Site and/or Auction.

   17. Taxes

You are responsible for all applicable tax including any VAT, sales or compensating use tax or equivalent tax wherever such taxes may arise. The successful bidder and/or purchaser is responsible for any applicable taxes including any sales or use tax or equivalent tax wherever such taxes may arise on the price, the buyer’s premium, and/or any other charges related to this Auction. The applicable sales tax rate will be determined based upon the state, county, or locale. The Released Parties are not responsible for determining the taxes that may apply to your transaction(s).

   18. Indemnification

You agree to indemnify, hold harmless and, at our option, defend the Released Parties from and against all damages, claims, demands, liabilities, losses, costs, and expenses, including reasonable attorney’s fees, in connection with or arising out of your license, purchase, sale or possession of the Licensed NFT and/or your participation in the Auction, including: (a) your breach of these Terms of Use or the documents it incorporates by reference; (b) your violation of any law or the rights of a third party as a result of your own interaction with such third party; (c) any allegation that any materials that you submit to us or transmit in the course of the Auction or Special Offer infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property, privacy rights, or any other rights of any third party or entity; and/or (d) any other activities in connection with the Auction, Collection, Site, or the Licensed NFT. This indemnity shall be applicable without regard to the negligence of any party, including any indemnified person.

   19. No Waiver

No delay or omission by the Heat to exercise any right or power occurring upon any breach of these Terms of Use shall impair any such right or power or be construed to be a waiver thereof. A waiver by the Heat of any breach of these Terms of Use shall not be construed to be a waiver of any subsequent breach. 

   20. Severability

The determination that any provision of these Terms of Use is invalid or unenforceable will not affect the validity or enforceability of the remaining provisions or of that provision under other circumstances. Any invalid or unenforceable provision will be enforced to the maximum extent permitted by law.

   21. Minors

This Auction is not directed to children under 13 years of age (or such other digital age of consent in your jurisdiction) (together, the “Age of Consent”) and we do not knowingly collect personal information from children under the Age of Consent.  If you are under the Age of Consent you should not use this Site, and under no circumstances should you send information about yourself to us.  If we are made aware that a child under the Age of Consent has provided us with personal information, we will immediately delete that child’s information from the Site. 

   22. Survival

The parties’ obligations under Sections 2, 3, and 6 – 21 will survive any termination or expiration of your relationship with the Released Parties or your use of the Site and/or Auction.

   23. Contact Us

If you have any questions or concerns, including if you need to access these Terms of Use in an alternative format, we encourage you to contact us via e-mail at nft@heat.com.

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