Terms of Service

Last Updated: November 6, 2023

PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING THE BAOBAB SERVICES. THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS INCLUDING MANDATORY ARBITRATION, NO CLASS RELIEF AND WAIVER OF YOUR RIGHT TO A JURY TRIAL. By accessing or using any of the Baobab Services you agree to these Terms. If you do not agree to these Terms, please do not access or use the Baobab Services.

1. Terms and Modifications

We may modify these Terms at any time, in our sole discretion. The modified Terms will be posted on the Site or through other communications if we choose to modify the Terms. EACH TIME YOU ACCESS OR USE THE BAOBAB SERVICES YOU ARE ENTERING INTO A NEW AGREEMENT ON THE THEN-APPLICABLE TERMS. You should regularly review the Terms as we modify them. If you continue to use the Baobab Services after we have posted modified Terms, you thereby agree to be bound by the modified Terms. If you don’t agree to be bound by the modified Terms, then you may not use the Baobab Services anymore. We may change or discontinue all or any part of the Baobab Services, at any time and without notice, at our sole discretion. By using the Baobab Services, you agree that we will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Baobab Services, or any portions of them. Certain features of the Baobab Services may be subject to additional guidelines, terms, or rules, which will accompany particular products or be posted on the Site. For example, certain content may be subject to additional terms or a separate end user license agreement (a “EULA” or “Additional Terms”, as applicable), which shall be considered a part of these Terms. If the EULA or Additional Terms and these Terms contain contradicting or inconsistent terms, such terms shall be resolved by Baobab in its sole and absolute discretion.

2. Privacy Policy

Please refer to our Privacy Policy for information on how we collect, use and disclose information from our users.

3. Who May Use the Baobab Services

In order to use certain features of the Baobab Services you will have to create an account (“Account”). You may create an Account if you are of legal age to agree to form a binding contract with Baobab and are not barred from using the Baobab Services under applicable law or regulation or these Terms.

When you create an Account, you will be asked to choose a username and password and create a user profile. We ask that you provide accurate, complete and up-to-date information for your Account and you agree to update such information, as needed, to keep it accurate, complete and up-to-date. Failure to update your information may result in suspension or termination of your Account. You are responsible for maintaining the confidentiality of your password and for any and all use of your Account. You should notify us immediately if you suspect any unauthorized use of your Account or access to your password. You may not (a) use the Account or username of any other user; (b) allow someone else to use your Account or username; or (c) sell, lend, transfer, or otherwise share your Account, temporarily or permanently, with someone else. If you violate these Terms, we reserve the right to issue a warning, suspend, or even terminate your Account (along with your ability to access and use the Services). Any personally identifiable information provided at points of registration on the site will be subject to the Privacy Policy which can be read by clicking https://www.baobabstudios.com/baobab-privacy-policy.

You may not use the Services if you reside in any embargoed countries, e.g., Iran, Cuba, Syria, North Korea, or Iraq.

4. Consent to Electronic Communication

The Baobab Services are constantly evolving and may change over time. We may change, suspend or discontinue any or all aspects of the Baobab Services at any time for any reason without notice or liability to you. You acknowledge that you have no expectation of continued availability of the Baobab Services. We have the right to suspend or terminate access to the Baobab Services and your accounts on the Baobab Services, including due to a violation of these Terms.

The Baobab Services may include sweepstakes, contests, and promotions, which may also have additional rules and eligibility requirements, such as certain age or geographic area restrictions. You are responsible for complying with these rules and requirements.

By using the Baobab Services, you consent to receive electronic communications from us. These communications may involve sending emails to your email address provided during registration, or posting communications on the Baobab Services and may include notices about your account (e.g., payment authorizations, changes in password or payment method, confirmation of e-mails and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosure or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. You should maintain copies of electronic communications by printing a paper copy or saving an electronic copy.

5. Content

The Baobab Services may include content and other materials supplied by Baobab and third parties (“Content”). Content includes, but is not limited to, text, graphics, mages, music, software, audio, video, animation, works of authorship of any kind information or other materials that are posted, generated, provided or otherwise made available through the Baobab Services. As between us and you, we own all rights, title and interest in the Baobab Services and Content, including all related intellectual property rights. Nothing grants you any rights in the Baobab Services or Content except as set forth in these Terms. You acknowledge and agree that the Baobab Services and Content are protected by copyright, trademark, patent, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Baobab Services or Content.

Except as otherwise expressly permitted by applicable law, any reproduction, distribution, modification, retransmission, publication, or other use or exploitation of our Content (or any portion or derivative thereof), directly or indirectly, is strictly prohibited unless written consent is first obtained.

The availability of Content on the Baobab Services may change from time to time and from place to place. You consent to us and our third-party providers determining your geographic location for purposes of providing the Baobab Services. Your location may not be accurately identified by our technology, so you may be unable to access certain features and Content even if you are located in an area where we intend to provide you access. We will not be liable to you for limitations or restrictions on access to Content, including any blackouts, location or device-based limitations, Content-viewing windows, or other limitations regarding availability of Content to you.

Some aspects of the display of Content may vary from device to device and may be affected by factors such as your location, the configuration of your device and the speed of your internet connection. We make no representations or warranties about the quality of your viewing experience on your device or other display.

6. Permitted Uses and License

We grant you a limited, non-exclusive, non-transferable license to access and use the Baobab Services solely for personal and non-commercial entertainment uses in compliance with these Terms as they may be modified from time to time. No other use of the Baobab Content is authorized.

7. Termination

Baobab may, in its sole discretion, terminate your password, account (or any part thereof) or your access to the Site, or remove and discard any Communication transmitted by you, or information stored, sent, or received via the Site without prior notice and for any reason, including, but not limited to: (i) concurrent access of the Site with identical user identification numbers, (ii) permitting another person or entity to use your user identification number to access the Site, (iii) any other access or use of the Site except as expressly provided in this Agreement, (iv) any violation of the terms and conditions of this Agreement or the rules and regulations relating to the use of, the software and/or data files contained in, or accessed through, the Site, (v) tampering with or alteration of any of the software and/or data files contained in, or accessed through, the Site, or (vi) failure to use the Site or portion thereof on a regular basis. You may terminate your membership hereunder upon thirty (30) days written notice by you to Baobab of your intent to terminate this Agreement. Termination, suspension, or cancellation of this Agreement or your access rights shall not affect any right or relief to which Baobab may be entitled, at law or in equity. Upon termination of this Agreement, all rights granted to you will automatically terminate and immediately revert to Baobab and its licensors.

8. Children Online Protection Act Notification

Pursuant to 47 U.S.C. Section 230 (d) as amended, Baobab hereby notifies you that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available at the American Links Up web site, http://www.netparents.org. To view information on our policy regarding the privacy of information from children under the age of 13, please click https://www.baobabstudios.com/baobab-privacy-policy to read our privacy policy.

9. Terms Applicable to Third Party Platform Providers

If you access or download the Baobab Services via any app store or distribution platform (like the Apple Store or Google Play) (each, an “App Provider”), then you acknowledge and agree that:

These Terms are concluded between you and Baobab,
You must comply with all applicable third-party terms of service when using the Apps.
You agree to comply with all U.S. and foreign export laws and regulations to ensure that neither the Apps nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. By using the Apps you represent and warrant that: (i) 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; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
If you accessed or downloaded the Apps from the Apple Store, then you agree to use the Apps only: (i) on an Apple-branded product or device that runs iOS (Apple’s proprietary operating system software); and (ii) as permitted by the “Usage Rules” set forth in the Apple Store Terms of Service.
If you accessed or downloaded our Software from a separate distribution platform (like Steam) (a “Software Provider”), then you acknowledge and agree that additional terms and conditions may apply to the Software, such as the Steam Subscriber Agreement, available at http://store.steampowered.com/subscriber_agreement/.

10. Health and Safety Notices

The Baobab Content may be viewed in virtual reality (“VR Content”) using third party virtual reality equipment and platforms. You are responsible for reading and following all setup and operating instructions and safety warnings provided with the virtual reality equipment and platform you are using. VR Content produces an immersive virtual reality experience, and users may have reactions to that experience, including simulation sickness, nausea discomfort, eye strain or disorientation. These reactions may be triggered when viewing VR Content for a brief or sustained period of time. Immediately stop viewing the VR Content if you experience any of these symptoms. Do not drive or operate machinery until you have recovered from any symptoms you experienced. See a doctor before viewing VR Content if you have a history of experiencing these symptoms or if you are prone to seizures. Anyone viewing VR Content should take frequent breaks while doing so. Remain seated whenever possible when viewing VR Content and take special care to be aware of your surroundings to ensure you do not injure yourself or other people around you while you are viewing or immediately after Viewing VR Content. Viewing VR Content is not recommended for children without adult supervision.

11. Use of Site Infringement Policy

We respect the intellectual property of others, and we ask our users to do the same. The Baobab Services, including the Content and other materials incorporated by us in the Baobab Services (“Materials”) are protected by copyrights, patents, trade secrets or other proprietary rights. Some of the characters, logos or other images incorporated by us in the Baobab Services are also protected as registered or unregistered copyrights, trademarks, trade names and/or service marks owned by us or others.

We, pursuant to 17 U.S.C. Section 512 as amended by Title II of the Digital Millennium Copyright Act (the “Act”), reserve the right, but without obligation, to terminate your license to use the Baobab Services if we determine in our sole and absolute discretion that you are involved in infringing activity, including alleged acts of first-time or repeat infringement, regardless of whether the material or activity is ultimately determined to be infringing. If you believe that any User Content is defamatory or infringes your intellectual property, please send a written notice to the agent identified below to request a review of the alleged infringement:

By mail:
Baobab Studios, Inc.
1199 Howard Ave, Suite 200
Burlingame, CA 94010

Attn: Legal; DMCA Notice
By e-mail: [email protected]

In addition, any written notice regarding any defamatory or infringing activity, whether of a copyright, patent, trademark or other proprietary right must include the following information:

Your name, address, telephone number, and e-mail address;
A physical or electronic signature of a person authorized to act on behalf of (1) the owner of an exclusive right that is allegedly infringed or (2) the person defamed;
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Baobab Services are covered by a single notification, a representative list of such works. Similarly, for materials that are defamatory or infringe patent, trademark, or other proprietary rights of a third party, please submit a list of such materials;
Identification of the material that is claimed to be infringing, to be the subject of infringing activity, or that is claimed to be defamatory and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright or other proprietary right owner, its agent, or the law; and
A statement that the information in the notice is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed or on behalf of the person defamed.

12. Regulations

We make no representation or warranty that the Content or Baobab Services are appropriate or available for use outside the United States, its territories, possessions and protectorates. If you choose to access the Baobab Services from other locations, you do so on your own initiative and at your own risk.

You are responsible for complying with local laws, if and to the extent local laws are applicable. You specifically agree to comply with all applicable laws concerning the transmission of technical data exported from the United States or the country in which you reside.

13. Submissions

While we are always happy to hear from you, it is Baobab's policy not to accept or consider creative materials, ideas, or suggestions other than those we specifically request. This is to avoid any misunderstandings if your ideas are similar to those we have developed independently. Therefore, we must request that you do NOT send to us any original creative materials such as screenplays, stories, original artwork, etc. Any communication or material you do transmit to the Site by electronic mail or otherwise will be treated as non-confidential and non-proprietary. Anything you transmit or post shall be deemed the property of and may be used by Baobab, or its affiliates, for any purpose, including, but not limited to, reproduction, disclosure, transmission, publication, broadcast and posting. Furthermore, Baobab is free to use and shall be deemed to own, any ideas, concepts, know-how, or techniques contained in any communication you send to the Site for any purpose whatsoever, including, but not limited to, developing, manufacturing and marketing products using such information. Disclosure, submission, or offer of any submissions to the Site shall constitute an assignment to Baobab of all worldwide rights, titles, and interests in all copyrights and other intellectual property rights in such submission. Baobab may edit, copy, publish, distribute, translate, and otherwise use in any medium any submission that you forward to Baobab and will own exclusively all such rights, titles, and interest and shall not be limited in any way in its use, commercial or otherwise, of the submission. Baobab is and shall be under no obligation to: (1) maintain any of your or any user's submissions in confidence; (2) to pay to you or any user any compensation for any submissions; or (3) to respond to any of your or any other user's submissions. You acknowledge that, with respect to any claim you may have relating to or arising out of Baobab's actual or alleged exploitation or use of any submission hereunder, the damage, if any, thereby caused will not be irreparable or otherwise sufficient to entitle you to injunctive or other equitable relief or to in any way enjoin the production, distribution, exhibition or other exploitation of any production based on or allegedly based on such submission, and your rights and remedies in any such event shall be strictly limited to the right to recover damages, if any, in an action at law.

14. Merchants

Your correspondence or business dealings with, or participation in promotions of, merchants found on or through the Site, including payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such merchant. Baobab will NOT be responsible or liable for any loss and/ or damage of any sort incurred as the result of any such dealings or as the result of the presence of such merchants on the Site.

15. Chat Rooms / Message Boards / Bulletin Boards

The Site may provide you and other users an opportunity to submit, post, display, transmit and/or exchange information, ideas, opinions, photographs, images, video, creative works or other information, messages, transmissions or material to us, the Site or others (“Post” or “Postings”). Postings do not reflect the views of Baobab; and Baobab does not have any obligation to monitor, edit, or review any Postings on the Site. Baobab assumes NO responsibility or liability arising from the content of any such Postings nor for any error, defamation, libel, slander, omission, falsehood, obscenity, pornography, profanity, danger, or inaccuracy contained in any information within such Postings on the Site. You are strictly prohibited from posting or transmitting any unlawful, threatening, libelous, defamatory, obscene, scandalous, inflammatory, pornographic, or profane material that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or otherwise violate any law. Baobab will fully cooperate with any law enforcement authorities or court order requesting or directing Baobab to disclose the identity of anyone posting any such information or materials.

16. Export Control

The Baobab Services are controlled and operated by us from our offices within the State of California. You hereby represent and warrant that: (a) you are not located in a country that is (i) subject to a U.S. government embargo (e.g., Crimea, Cuba, Iran, North Korea or Syria) or (ii) on Title 15, Part 740 Supplement 1 Country Group E of the U.S. Code of Federal Regulations; (b) you are not listed on any U.S., United Nations Security Council (UNSC), UK or EU government list of prohibited or restricted parties, including the list of Specially Designated Nationals and Blocked Persons administered by the U.S. Treasury Department or the U.S. Commerce Department’s Denied Persons List; and (c) you are not otherwise the target of U.S., UNSC, UK or EU economic sanctions. You may not access, download or otherwise use any Baobab Services in violation of United States, UNSC, UK or EU export control or economic sanctions laws and regulations. Software in or from the Baobab Services are further subject to U.S. export controls. No software may be downloaded or otherwise exported or re-exported in violation of applicable laws, including without limitation to any end user in a U.S. embargoed country or territory or an end user included on any U.S., UNSC, UK or EU government list of prohibited or restricted parties.

17. Binding Arbitration of All Disputes. No Class Relief.

Governing Law

These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of law provisions.

Agreement to Arbitrate

This Section 17 is deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and we agree that we intend that this Section 17 satisfies the “writing” requirement of the Federal Arbitration Act. If binding arbitration is adjudged by a tribunal to be unenforceable, the provisions of Section 17 shall apply to all relevant disputes between you and us.

You and Baobab agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Baobab Services or Content (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). The exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in San Francisco, San Francisco County, California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. You acknowledge and agree that you and Baobab are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Baobab otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.

Arbitration Rules

The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.

Arbitration Process

A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175 and a separate form for California residents at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.

Arbitration Location and Procedure

Unless you and Baobab otherwise agree, the arbitration will be conducted in San Francisco, California. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Baobab submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

Arbitrator’s Decision

The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. The arbitrator may award the prevailing party attorneys’ fees and expenses, to the extent provided under applicable law.

Fees

Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.

Changes

Notwithstanding the provisions of the “Changes to Terms or Services” section above, We may modify these arbitration provisions, but such modifications shall only become effective thirty (30) days after we have given notice of such modifications and only on a prospective basis for claims arising from Baobab Transactions and Relationships occurring after the effective date of such notification. If any modification pursuant to this subpart (j) is deemed to be invalid, unenforceable, or illegal, then the arbitration provisions effective at the time of your agreement to these Terms shall govern any dispute or disagreement between you and us regarding Baobab Transactions or Relationships. If we make such a change, you may reject any such change by sending us written notice (including by email to [email protected]) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Baobab’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Baobab in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).

Confidentiality of Arbitration.

You and we agree to maintain the confidential nature of the Arbitration and shall not disclose the fact of the Arbitration, any documents exchanged as part of any mediation, proceedings of the Arbitration, the Arbitrator’s decision and the existence or amount of any Award, except as may be necessary to prepare for or conduct the Arbitration (in which case anyone becoming privy to such confidential information must undertake to preserve its confidentiality), or except as may be necessary in connection with a court application for a provisional remedy, a judicial challenge to an Award or its enforcement, or unless otherwise required by law or court order.

18. Notice for California Users

Under California Civil Code Section 1789.3, California users of the Baobab Services are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.

19. Links to Third Party Websites or Resources

The Baobab Services may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for, and assume all risk arising from, your use of any third-party websites or resources.

20. General

(a) Applicable law. These Terms, any Additional Terms and the relationship between you and us shall be governed by the laws of the U.S. and the State of California without regard to its conflicts of law provisions. The Convention on Contracts for the International Sale of Goods does not apply to your access or use of the Baobab Services or these Terms.

(b) Venue. Subject to the arbitration provisions above, and other than small claims actions as permitted therein, any action or proceeding arising from, relating to or in connection with these Terms will be brought exclusively in the federal or state courts located in San Francisco, California, and you irrevocably consent to the personal jurisdiction of such courts and agree that it is a convenient forum and that you will not seek to transfer such action or proceeding to any other forum or jurisdiction, under the doctrine of forum non conveniens or otherwise.

(c) Limited Time to File Claims. You agree that regardless of any statute or law which establishes a different statute of limitations, to the maximum extent permitted under for connected with the use of the Baobab Services, or these Terms, or other Baobab Transactions or Relationships must be filed within one (1) year after such claim or cause of action arose or be forever barred.

(d) Entire Agreement/ Severability. These Terms, and the additional terms referred to within these Terms, constitute the entire and exclusive understanding and agreement between Baobab and you regarding the Baobab Services and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Baobab and you regarding the Baobab Services and Content. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.

(e) Assignment. You may not assign or transfer your rights and obligations under these Terms, by operation of law or otherwise, without Baobab’s prior written consent. Any attempt by you to assign or transfer these Terms without such consent will be null and void. Baobab may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

(f) Notices. Any notices or other communications provided by Baobab under these Terms, including those regarding modifications to these Terms, will be given by Baobab: (i) via email; or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.

(g) Waiver. Baobab’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Baobab. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.

21. Contact Information

If you have any questions about these Terms or the Baobab Services, please contact us at [email protected].

NFT License Agreement

Last Updated: March 1, 2023

This Baobab NFT License Agreement (this “Agreement”) is legally binding between you and Baobab Studios, Inc. (together with its affiliates, “Baobab”, “we” or “our”), and together with any other Baobab terms, conditions, policies, guidelines, rules or other terms made available by Baobab with respect to its products and services (the “Baobab Services”), including the Baobab Terms of Service and Baobab Privacy Policy (collectively with the Agreement, the “Baobab Terms”), governs your ownership and use of any blockchain-tracked non-fungible token (“NFT”) associated with a Baobab NFT project and made available under this Agreement (a “Baobab NFT”).

When you lawfully own a Baobab NFT, you own all personal property rights to the NFT underlying the Baobab NFT (e.g., the right to freely sell, transfer, or otherwise dispose of that Baobab NFT). However, your rights to the associated artwork, images, video, media, content or other works of authorship and other intellectual property linked to your specific Baobab NFT (“NFT Media”) are only as outlined below. By acquiring ownership of a Baobab NFT, you accept, enter into and agree to be bound by this Agreement, including any later updates, changes and other modifications that Baobab may make in its sole absolute discretion by updating the Agreement on its website at <https://www.baobabstudios.com/terms-of-service>.

In order to purchase and own the Baobab NFT and exercise the rights in the NFT Media under this Agreement: If you are an individual, you must be 18 years of age or older if the age of legal capacity of forming binding contracts is older in the relevant jurisdiction. If you are an entity, the individual agreeing to this Agreement must have the legal authority to bind the entity. If (a) you are an individual, you agree on your own behalf that you are not, and (b) if you are an entity, you agree that neither the entity nor any of your owners or investors or any of their directors, officers, employees, agents or affiliates acting on your behalf are: (i) related in any way to, the governments of, or any persons within, any country or jurisdiction under a U.S. embargo enforced by the Office of Foreign Assets Control (“OFAC”), or any persons who are named on any U.S. list of sanctioned individuals or entities; (ii) prohibited (or has never been prohibited) from engaging in any transaction contemplated by this Agreement pursuant to U.S. anti-money laundering, anti-terrorist, economic sanctions and asset control laws; or (iii) resident in a country or jurisdiction under a U.S. embargo enforced by OFAC (any of the foregoing (i)-(iii), “Restricted Parties”).

1 - NFT MEDIA LICENSE

1.1. Grant of License

For as long as you lawfully own a Baobab NFT and subject to your continued compliance with all Baobab Terms, Baobab grants you a nonexclusive, revocable, worldwide license under our copyrights to use, distribute, reproduce, display, and perform (but not alter or modify) the specific NFT Media linked to your Baobab NFT:

(a) for personal, non-commercial uses as follows: (i) solely to display the NFT Media as part of your participation in a Baobab NFT project community, application, experience or other Baobab Service, and (ii) solely to display the NFT Media as your profile picture; and

(b) for limited commercial uses as follows: (i) solely to display the NFT Media as part of the placement of the Baobab NFT in a physical or digital museum along with other collectibles (viewable without charge or compensation), and (ii) solely to display the NFT Media as part of the placement of the Baobab NFT in a marketplace that permits the display, purchase, and sale or other transfer of NFTs, provided the marketplace has mechanisms in place to (A) verify the owners’ rights to display and sell their NFTs, and (B) ensure that each subsequent purchaser or transferee of a NFT acquires the NFT subject to this Agreement.

The foregoing rights are non-sublicensable except for the limited right to sublicense such rights solely to third parties to enable the right to display the NFT Media, with Baobab being a third party beneficiary to all such sublicenses with the ability to enforce such agreements. For clarification the only monetization permitted under the limited license grant for commercial uses under subsection (b) above is the purchase price paid to you for the transfer of ownership in your Baobab NFT in a transaction, and not for exploitation of any intellectual property or other rights pertaining to the NFT Media.

1.2. Sale Conditions

The licenses granted in these Terms are non-transferrable. If you lawfully transfer ownership of your Baobab NFT, the license to the NFT Media in Section 1.1 shall automatically terminate upon the effective date of such transfer along with any permitted sublicenses you have granted. As a condition to and as part of your sale, transfer or similar transaction of the Baobab NFT, you will not knowingly enter into a Baobab NFT transaction with any person who is a Restricted Party and you must cause the transferee of the Baobab NFT to accept and agree to this Agreement, including by placing a link to this Agreement on any marketplace page, post or other website where you offer the Baobab NFT for sale.

1.3. No Rights to Trademarks

Nothing in these Terms is meant to grant you any rights to any tradenames, logos, trademarks, service marks, and trade dress associated with Baobab or the Baobab NFTs (“Project Trademarks”). Unless you have our prior written approval, you may not use any Project Trademarks for any use that would require a license from us, including to register any domain names or social media accounts using any Project Trademarks or to advertise or promote any other products or services.

1.4. Restrictions

You agree that you may not, nor permit any third party to do or attempt to do any of the foregoing, without Baobab’s express prior written consent in each case in its sole absolute discretion: (i) alter or modify the NFT Media in any way, including, without limitation, its shapes, designs, drawings, attributes, or color schemes or any elements thereof; (ii) use the NFT Media to advertise, market, or sell any third party product or service; (iii) use the NFT Media in connection with images, videos, or other forms of media that depict hatred, intolerance, violence, cruelty, or anything else that could reasonably be found to constitute hate speech, or that constitutes unlawful, defamatory, harassing, abusive, fraudulent, racist, hateful, vulgar, cruel, illegal or obscene content or conduct, or that promotes or could imply endorsement of any such activity, in each case as determined by Baobab in its sole absolute discretion; (iv) use the NFT Media in any way that infringes, violates or misappropriates the rights of others or that violates any law or regulation; (v) use the NFT Media in movies, videos, videogames or other interactive experiences or any other forms of media; (vi) use the NFT Media in connection with any contests, sweepstakes, gambling, wagering, casino games or similar activities or promotions; (vii) sell, distribute for commercial gain (including, without limitation, giving away in the hopes of eventual commercial gain), or otherwise commercialize physical or digital merchandise that includes, contains, or consists of the NFT Media; (viii) attempt to mint, tokenize, or create an additional cryptographic token representing or associated with the NFT Media, whether on or off the Baobab Services; (ix) attempt to make trademark or copyright registrations, use the NFT Media as a trademark, or otherwise seek to acquire intellectual property rights in or to the NFT Media or use the NFT Media in a manner that is likely to cause confusion or dilute, blur, tarnish or disparage the NFT Media or the intellectual property underlying the NFT Media; or (x) otherwise utilize the NFT Media for your or any third party’s commercial benefit, except to the limited extent that such use is expressly permitted in Section 1.1 above.

1.6. Third Party Content

To the extent that NFT Media contains licensed intellectual property or other content from a third party (including any celebrity, athlete, or other public figure) (“Third Party Content”), you understand and agree as follows: (w) that you will not have the right to use such Third Party Content in any way except as incorporated in the NFT Media, and subject to the license and restrictions contained herein; (x) that, depending on the nature of the license granted from the owner of the Third Party Content, Baobab may need to pass through additional restrictions on your ability to use the NFT Media; and (y) to the extent that Baobab 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 this license.

1.7. No Participation

You understand, acknowledge and agree that your ownership of the Baobab NFT, the limited license to the NFT Media granted under Section 1.1 and your activity or contributions with respect to the Baobab NFT project associated with the Baobab NFT, do not represent or constitute any entitlement, participation, investment or other right to participate in: (a) any common enterprise with other owners of Baobab NFTs or Baobab itself, (b) any commercialization of the NFT Media or its underlying intellectual property, including by any of Baobab or its business partners, or (c) any of the business, operations or equity value of Baobab or its business partners; and you will not make any assertions or claims to the contrary.

1.8. Reservation of Rights

All intellectual property rights in and to the NFT Media and any other intellectual property rights related to the Baobab NFT and associated services and platforms not expressly licensed herein are reserved by Baobab and/or its applicable licensors. All goodwill arising out of any use of the NFT Media whether or not in relation to the Baobab NFT shall inure exclusively to the benefit of Baobab and/or its applicable licensors. For the sake of clarity, you understand and agree: (a) that your purchase and ownership of a Baobab NFT, whether via a Baobab Service or otherwise, does not give you any rights or licenses in or to the NFT Media except as expressly contained in this Agreement; and (b) that you do not have the right, except as otherwise set forth in this Agreement, to reproduce, distribute, or otherwise commercialize any elements of the NFT Media without our prior written consent in each case, which consent we may withhold in our sole and absolute discretion.

1.9. Other Terms of License

The license granted in Section 1.1 apply only to the extent that you continue to lawfully own the Baobab NFT. If at any time you sell, trade, donate, give away, transfer, or otherwise dispose of your Baobab NFT for any reason, the license granted in Section 1.1 will immediately expire with respect to that Baobab NFT without the requirement of notice, and you will have no further rights in or to the NFT Media for that Baobab NFT.

2 - DISCLAIMERS, LIMITATIONS OF LIABILITY AND INDEMNIFICATION

2.1. Disclaimers

YOUR ACCESS TO AND USE OF THE BAOBAB NFT AND NFT MEDIA (INCLUDING ASSOCIATED SERVICES AND PLATFORMS) IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, BAOBAB, ITS PARENTS, AFFILIATES, PARTNERS, EMPLOYEES, OFFICERS, DIRECTORS, CONTRACTORS, AGENTS, LICENSORS AND EQUITYHOLDERS (THE “BAOBAB ENTITIES”) DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, QUIET ENJOYMENT, TITLE AND NON-INFRINGEMENT, IN THE BAOBAB NFTS AND NFT MEDIA (INCLUDING ASSOCIATED SERVICES AND PLATFORMS). THE BAOBAB ENTITIES MAKE NO WARRANTY OR REPRESENTATION WHATSOEVER AND DISCLAIM ALL RESPONSIBILITY AND LIABILITY FOR: (A) THE COMPLETENESS, ACCURACY, AVAILABILITY, ACCESSABILITY, TIMELINESS, ORIGINALITY, SECURITY OR RELIABILITY OF THE BAOBAB NFTS AND NFT MEDIA (INCLUDING ASSOCIATED SERVICES AND PLATFORMS), WHICH ARE PROVIDED AS-IS; (B) THEIR OPERATION OR COMPATIBILITY WITH ANY APPLICATION, SYSTEM, TECHNOLOGY, DEVICE, BLOCKCHAIN, DIGITAL WALLET, HARDWARE OR MARKETPLACE; (C) WHETHER THE BAOBAB NFTS AND NFT MEDIA (INCLUDING ASSOCIATED SERVICES AND PLATFORMS) WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, PRIVATE, SECURE OR ERROR-FREE BASIS OR FREE OF HARMFUL COMPONENTS, OR THAT ANY ERRORS WILL BE FIXED; AND (D) THE DELETION OF, OR THE FAILURE TO STORE OR TRANSMIT, THE BAOBAB NFTS AND NFT MEDIA, OR THE SECURITY OR INTEGRITY OF ANY ASSOCIATED DATA TRANSMITTED BY YOU. THE BAOBAB NFTS AND NFT MEDIA ARE INTENDED FOR CONSUMER ENJOYMENT, USE AND CONSUMPTION ONLY.

2.2. Limitations of Liability

TO THE EXTENT NOT PROHIBITED BY LAW, YOU AGREE THAT IN NO EVENT WILL THE BAOBAB ENTITIES BE LIABLE (A) FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA, GOODWILL, EXPECTATION OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE BAOBAB NFT OR NFT MEDIA (INCLUDING ASSOCIATED SERVICES AND PLATFORMS), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, ARISING IN ANY WAY IN CONNECTION WITH THE BAOBAB NFTS AND NFT MEDIA (INCLUDING ASSOCIATED SERVICES AND PLATFORMS) OR THIS AGREEMENT AND WHETHER IN CONTRACT, PRODUCT LIABILITY OR TORT (INCLUDING STRICT LIABILITY OR NEGLIGENCE) OR OTHERWISE, EVEN IF THE BAOBAB ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (B) FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE DELIVERY, USE OR PERFORMANCE OF THE BAOBAB NFTS AND BAOBAB NFT MEDIA (INCLUDING ASSOCIATED SERVICES AND PLATFORMS). THE MAXIMUM AGGREGATE LIABILITY OF THE BAOBAB ENTITIES FOR ALL DAMAGES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING STRICT LIABILITY OR NEGLIGENCE) OR OTHERWISE, SHALL BE THE GREATER OF (I) USD$100 OR (II) THE AMOUNT YOU ACTUALLY PAID DIRECTLY AND LAWFULLY TO BAOBAB FOR YOUR BAOBAB NFT DURING THE THREE (3) MONTH PERIOD PRECEDING THE DATE YOUR UNDERLYING CLAIM FIRST AROSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU.

2.3. Assumption of Risk

THE PRICES OF COLLECTIBLE BLOCKCHAIN ASSETS SUCH AS THE BAOBAB NFT ARE SUBJECTIVE AND CAN BE EXTREMELY VOLATILE. COLLECTIBLE BLOCKCHAIN ASSETS HAVE NO INTRINSIC OR INHERENT VALUE. FLUCTUATIONS IN THE PRICES OF OTHER DIGITAL ASSETS COULD MATERIALLY AND ADVERSELY AFFECT THE VALUE OF THE BAOBAB NFT. LEGISLATIVE OR REGULATORY CHANGES AT THE STATE, FEDERAL OR INTERNATIONAL LEVEL MAY ADVERSELY AFFECT THE USE, TRANSFER, EXCHANGE OR VALUE OF THE BAOBAB NFT. YOU AGREE TO ASSUME ANY AND ALL RISK ASSOCIATED WITH THE USE AND VALUE OF THE BAOBAB NFT AND NFT MEDIA.

2.4. Fundamental Elements

THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE BAOBAB ENTITIES AND YOU.

2.5. Indemnification

By entering into this Agreement and accessing or using the Baobab NFTs or NFT Media, you agree that you shall defend, indemnify and hold the Baobab Entities harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) incurred by the Baobab Entities arising out of or in connection with: (i) your violation or breach of any term of this Agreement or any applicable law or regulation; (ii) your violation of any rights of any third party; (iii) your access to or use of the Baobab NFT or NFT Media; (iv) any modifications to or derivative works of the NFT Media you create, or (v) any fraud, negligence or wilful misconduct committed by you.

2.6. Protocol Release

Without limiting any other part of this Section 2 or any separate terms entered into directly between you and any such third party provider, you agree to release, relieve, waive, relinquish, and discharge any blockchain protocol technology provider from any and all liability, loss, responsibility, and claims, whether known or unknown, and any and all causes of action that you now have, or may in the future have, against such provider or its personnel, suppliers and contractors, arising out of or related to your or Baobab’s use of such protocol technology, including in respect of Baobab NFT transactions.

2.7. Third Party Beneficiaries

For purpose of this section 2, the Baobab Entities (other than Baobab) are third party beneficiaries of this agreement.

3 - ADDITIONAL PROVISIONS

3.1. Representations, Warranties and Covenants

You represent, warrant and covenant: (a) You are 18 years of age or older and have the legal capacity to enter into this Agreement; (b) you will only use and interact with any Baobab NFT and NFT Media in accordance with this Agreement; (c) you will comply with all applicable law in the exercise of your rights and performance of obligations under this Agreement; (d) you will comply with this Agreement and all other Baobab Terms with respect to your use of the Baobab NFT and NFT Media, as well as the terms of any marketplaces, platforms and protocols related to the Baobab NFT and NFT Media (including terms and conditions for Opensea (which can be found at https://opensea.io/tos) and for Immutable X (which can be found at https://support.immutable.com/en/collections/3522585-terms-conditions), and will will not violate any right of the Baobab Entities (as defined in Section 4 below) or any right of any third party; (e) you will not engage in any manipulation of the prices, markets or blockchain networks or protocols for the Baobab NFT; and (f) you will not interfere with the smart contract(s), protocols or other blockchain technologies and systems underlying the Baobab NFT and its functionality or programming, including the calculation and deduction of any royalties or other fees.

3.2. Utility

Baobab may choose to offer from time to time (but does not promise or guarantee) utility, entitlements, features, access, content, items or other benefits available to owners of Baobab NFTs (“Utility”), which may include functionality and enhancements within Baobab Services; but this Agreement does not confer any Utility except as expressly granted by the license in Section 1.1. You acknowledge and agree that Baobab has no duty or obligation to provide you with any Utility, and you do not and should not expect any Utility when acquiring a Baobab NFT. Utility may be subject to additional terms and conditions, which may be presented to you at the time they are made available or through updates of Baobab Terms. For Utility in any Baobab Service related to the Baobab NFT, your compatible digital wallet must be associated with your relevant registered Baobab Service user account, and you must have internet and compatible device access.

3.3. Transactions and Payments

Any cryptocurrency payments or blockchain transactions that you engage in with respect to the Baobab NFT will be conducted solely via its smart contract through third party blockchain networks, marketplaces and protocols. We have no control over these payments or transactions, nor do we have the ability to reverse any such payments or transactions. We have no liability to you or to any third party for any claims, losses or damages that may arise as a result of any cryptocurrency payments or blockchain transactions that you engage in whether or not facilitated by the Baobab Services, and we do not provide refunds for any such transactions that you might make.

Every transaction on a blockchain network requires the payment of a transaction fee (each, a “Gas Fee”). The Gas Fees fund the network of computers that run the decentralized blockchain network. This means that you will need to pay a Gas Fee for each transaction that you initiate via Baobab Services. You will be solely responsible to pay any Gas Fee for any transaction with respect to the Baobab NFT.

In addition to the Gas Fee, each time you utilize the Baobab NFT smart contract to conduct a transaction with another user, you authorize us to collect any royalty or other fee we may charge on the transaction, which may be calculated as a percentage of the total value of that transaction (together, the “NFT Fee”). We will disclose the rates of the NFT Fee from time to time when applicable. Currently the NFT Fee is five percent (5%) of the gross value of the transaction. You acknowledge and agree that the NFT Fee will be transferred directly to us through the applicable blockchain marketplace or protocol and deducted from the transaction payment to you.

3.4. Responsibility for Taxes

You will be solely responsible to pay any and all sales, use, value-added and other taxes, duties, and assessments (except taxes on Baobab net income) now or hereafter claimed or imposed by any governmental authority (collectively, the “Taxes”) associated with your use of the Baobab NFT and NFT Media and any related transactions. Except for income taxes levied on us, you: (a) will pay or reimburse us for all Taxes of any jurisdiction, including value added taxes and taxes as required by international tax treaties, customs or other import or export taxes, and amounts levied in lieu thereof based on charges set, services performed or payments made hereunder, as are now or hereafter may be imposed under the authority of any national, state, local or any other taxing jurisdiction; and (b) will not be entitled to deduct the amount of any such Taxes from payments (including Gas Fees) made to us pursuant to this Agreement or through Baobab Services. To allow us to determine our tax obligations, unless you otherwise notify us in writing, you confirm that you are not a resident in Canada nor are you registered for Goods and services tax / Harmonized sales tax (GST / HST) or Provincial sales taxes (PST) in Canada, and will inform us if your status changes in the future. You are solely responsible for determining what, if any, taxes apply to your Baobab NFT-related transactions.

3.5. Termination of License

If you breach any of the provisions of this Agreement, Baobab may terminate all of the licenses granted to you under this Agreement. Baobab will use commercially reasonable efforts to provide you with notice of such termination, though for the avoidance of doubt your licenses shall terminate regardless of whether such notice is actually received. Without limiting the foregoing, any breach of Section 1 will automatically terminate the licenses granted to you under this Agreement. Upon the termination of your licenses, you shall cease all use of the rights granted in Section 1 and any further use of the NFT Media, and all sublicenses you have granted in the NFT Media shall automatically terminate. The following sections shall survive the termination of these Terms and shall continue in full force and effect subsequent to and notwithstanding any termination of these Terms by Baobab or you: Sections 1.2-1.9, 2, 3 and 4. Termination will not limit any of Baobab’s other rights or remedies at law or in equity.

4. Miscellaneous

4.1. Binding Arbitration of All Disputes; No Class Relief

Agreement to Arbitrate

This Section 4.1 is deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and we agree that we intend that this Section 4.1 satisfies the “writing” requirement of the Federal Arbitration Act. If binding arbitration is adjudged by a tribunal to be unenforceable, the provisions of “Confidentiality of Arbitration” below shall apply to all relevant disputes between you and us.

You and Baobab agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). The exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in San Francisco, San Francisco County, California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. You acknowledge and agree that you and Baobab are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Baobab otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this Section 4.1 will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of this Agreement.

Arbitration Rules

The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section 4.1.

Arbitration Process

Arbitration Location and Procedure

Unless you and Baobab otherwise agree, the arbitration will be conducted in San Francisco, California. If your claim does not exceed USD$10,000, then the arbitration will be conducted solely on the basis of the documents that you and Baobab submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds USD$10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

Arbitrator’s Decision

Fees

Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.

Changes

Notwithstanding Baobab’s absolute right to make changes to this Agreement, we may modify these arbitration provisions, but such modifications shall only become effective thirty (30) days after we have given notice of such modifications and only on a prospective basis for claims arising from transactions and relationships involving us or the Baobab NFT occurring after the effective date of such notification. If any modification pursuant to this paragraph is deemed to be invalid, unenforceable, or illegal, then the arbitration provisions effective at the time of your entry into this Agreement shall govern any dispute or disagreement between you and us regarding transactions or relationships involving us or the Baobab NFT. If we make such a change, you may reject any such change by sending us written notice (including by email to <[email protected]> within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Baobab’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Baobab in accordance with the provisions of this Section 4.1 as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement).

Confidentiality of Arbitration

4.2. Notice for California Users

4.3. Applicable Law

This Agreement, the relationship between you and us and any related action taken shall be governed by the laws of the U.S. and the State of California without regard to its conflicts of law provisions. The Convention on Contracts for the International Sale of Goods does not apply to your ownership, access or use of the Baobab NFTs or NFT Media, or this Agreement.

4.4. Venue

Subject to the arbitration provisions above, and other than small claims actions as permitted therein, any action or proceeding arising from, relating to or in connection with this Agreement will be brought exclusively in the federal or state courts located in San Francisco, California, and you irrevocably consent to the personal jurisdiction of such courts and agree that it is a convenient forum and that you will not seek to transfer such action or proceeding to any other forum or jurisdiction, under the doctrine of forum non conveniens or otherwise.

4.5. Limited Time to File Claims

You agree that regardless of any statute or law which establishes a different statute of limitations, to the maximum extent permitted under applicable laws and regulations, any claim or action under this Agreement or connected with the Baobab NFT must be filed within one (1) year after such claim or cause of action arose or be forever barred.

4.6. Entire Agreement; Severability

This Agreement and the other Baobab Terms constitute the entire and exclusive understanding and agreement between Baobab and you regarding the Baobab NFT, and supersede and replace any and all prior oral or written understandings or agreements between Baobab and you regarding the Baobab NFT. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.

4.7. Assignment

You may not assign or transfer your rights and obligations under this Agreement, by operation of law or otherwise, without Baobab’s prior written consent. Any attempt by you to assign or transfer this Agreement without such consent will be null and void. Baobab may freely assign or transfer this Agreement without restriction. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns.

4.8. Notices

Any notices or other communications provided by Baobab under this Agreement, including those regarding modifications to this Agreement, will be given by Baobab: (i) via email; or (ii) by posting to its websites. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.

4.9. Waiver

Baobab’s failure to enforce any right or provision of this Agreement will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Baobab. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.

4.10. Contact Information

If you have any questions about this Agreement, please contact us at [email protected].