Dakan Marketplace LLC.,. (“Dakan,” “we,” “us,” “our”) provides its services (described below) to you through its website located at www.Dakan.io (the “Site”) and through our mobile applications and related technologies (“Mobile Apps”, and collectively, such Mobile Apps and the Site, including any updated or new features, functionality, or technology, the “Dakan Platform”), subject to the following Terms of Service (as amended from time to time, the “Terms of Service”).
We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these Terms of Service were last revised. We will also notify you, either through the Dakan Platform user interface, in an email notification or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Dakan Platform or changes made for legal reasons will be effective immediately. Your continued use of the Dakan Platform after the date any such changes become effective constitutes your acceptance of the new Terms of Service.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST DAKAN ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.
Your use of the Dakan Platform, or certain services that are offered through the Dakan Platform, may be subject to certain eligibility requirements. In addition, some services offered through the Dakan Platform may be subject to additional terms, conditions, agreements, policies, guidelines, rules, or schedules, which are posted on our website or made available separately from these Terms of Service (“Additional Terms”). Additional Terms are incorporated into and form a part of these Terms of Service. If there is a conflict between these Terms of Service and Additional Terms, the Additional Terms will control. Any violation of Additional Terms will constitute a violation of these Terms of Service.
Access and Use of the Dakan Platform
DAKAN MARKETPLACE PLATFORM
The Dakan Platform is designed to enable registered users (“Users”) to store, buy, list, exchange, sell, trade, share, and otherwise manage their Dakan alternative assets, digital collectibles, phygital known as (“Assets”) and to communicate and transact directly with other Users about Assets.
SCOPE OF DAKAN SERVICES
As the provider of the Dakan Platform, Dakan does not own, create, sell, resell, provide, manage, offer, or supply any Assets, except for certain Assets that Dakan itself owns, sells, resells, provides, manages, offers, or supplies to the Dakan Platform (“Dakan’s Assets”). For clarity, Dakan’s Assets are not Assets under these Terms of Service, but if you purchase an Dakan’s Asset from Dakan, the Dakan's Asset becomes your Asset. When Users buy or sell Assets on the Dakan Platform, they are entering into a contract directly with each other. You should always exercise due diligence and care when deciding whether to purchase, sell, or share an Asset. Dakan is not and does not become a party to or other participant in any contractual relationship between Users for Assets. Dakan is not acting as an agent in any capacity for any Users, nor is Dakan responsible for the actions or omissions of any Users, or your interactions with other users through the Dakan Platform. Dakan will have no liability or responsibility with respect to Assets.
Dakan will intake, store, secure, outtake and ship Assets that Users deliver to Dakan or purchase on the Dakan Platform for a fee as set forth in our onboarding flow, and at (insert URL to notion doc FAQ (“Vault Services”). All Users must ship their Assets to the Vault Services in compliance with the Dakan Shipping Guidelines set forth at (insert URL)-Vault. The date that any Asset is stored in Dakan’s vault is the “Intake Date” and the date that any Asset is physically redeemed from Dakan’s vault, at the direction of a Customer or its agent in writing, is the “Outtake Date.”
Dakan will verify the authenticity of your Asset promptly on or around the Intake Date by comparing your Asset’s serial number with the Third-Party Authentication (defined below) specified by you when creating a Listing. In addition, Dakan will take an image of your Asset on the Intake Date (“Asset Image”). If your Asset is found to be inauthentic or not as described, we’ll notify you during our verification process and, if you dispute the authenticity of the Asset, we may hold the Asset in our vault and attempt to resolve the dispute in our discretion, or at your election, we may send your Asset back to you pursuant to the Fee Policy. All Assets subject to an authenticity dispute will be held in our vaults for a maximum of 6 months before the Asset is sent back to you pursuant to the Fee Policy.
Dakan agrees to use industry standard measures to ensure the physical integrity and security of all Assets against theft, destruction, and the unauthorized introduction of harmful or dangerous materials. Such measures may include, but are not limited to, physical or electronically enabled security of Dakan’s vault and restrictions on access of unauthorized personnel. Dakan agrees to maintain an insurance policy covering Dakan’s vault with a coverage amount sufficient to cover the User’s currently vaulted Assets up to the aggregated market value of each Asset.
You may engage Dakan to provide member services to facilitate a transaction between you and another Dakan customer. Dakan does not guarantee the authenticity of any Asset or the reliability of any representation made by either counter party to such transactions. Dakan’s fee for providing member services is final and not subject to reimbursement, even if the transaction is reversed or canceled. You agree to provide the information and be bound by the procedures Dakan uses to facilitate such transactions, as may be updated from time to time.
YOUR REGISTRATION OBLIGATIONS
IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT
To help the government fight the funding of terrorism and money laundering activities, federal law requires all financial institutions to obtain, verify, and record information that identifies each person who opens an account. What this means for you: When you open a Dakan account, we will ask for your name, address, date of birth, and other information that will allow us to identify you. We may also ask to see your driver’s license or other identifying documents.Member Account, Password, and Security: You are responsible for maintaining the confidentiality of your account and password, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify Dakan of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Dakan Platform. Dakan will not be liable for any loss or damage arising from your failure to comply with this Section.
MODIFICATIONS TO DAKAN MARKETPLACE PLATFORM
Dakan reserves the right to modify or discontinue, temporarily or permanently, the Dakan Platform (or any part thereof) with or without notice. You agree that Dakan will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Dakan Platform.
General Practices Regarding Use and Storage: You acknowledge that Dakan may establish general practices and limits concerning use of the Dakan Platform, including the Vault Services, including without limitation the maximum period of time that Assets will be retained by the Dakan Platform in its vaults and the maximum storage space for data or other content that will be allotted on Dakan servers on your behalf. You agree that Dakan has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Dakan Platform on its servers. You acknowledge that Dakan reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Dakan reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
Third-Party Providers: Products and services may be provided by us to you directly or by third parties, including links or other access to other sites and resources on the Internet. By authorizing us to perform an action, or process a transaction, you acknowledge and authorize us and our service provider to perform such activity or transaction. If you enter into a transaction with a third-party provider, you are contracting directly with that third party and not with us. We do not guarantee or ensure the availability or terms of any product or service offered by a third-party provider. We are not responsible in any way for any product or service you obtain from a third-party provider. We do not personally endorse any third-party provider, and we make no guarantee that any information provided through our services or the Dakan Platform by any third party is accurate or complete. We have no control over the conduct of, or over any pricing or other information provided by, a third party (including their compliance with applicable law), and we disclaim all liability in this regard.
We use third parties to gather and verify information about your financial accounts, including obtaining your authority and right to access these accounts, as well as manage and initiate transactions involving your accounts. You agree to provide true, accurate, complete, and current information about yourself and your accounts. You authorize us and these third parties to access the websites and sources of your financial accounts, on your behalf, and to gather information about you. You agree to the transfer, storage, and processing of your information by these third parties in accordance with their respective privacy policies. You give us and these third parties a limited power of attorney and appoint us and these third parties as your true and lawful attorney-in-fact, and agent, with full power of substitution and resubstitution, for you and in your name and place, in any capacity, to access third-party websites and sources, servers, or documents, retrieve information, and use this information, with full power and authority, to do anything with the information in connection with our Services. You license to us and these third parties any information, data, passwords, materials, or other content gathered. You agree that we and these third parties may use, modify, display, and distribute this content, create new material with it, and do the same with any new material. We may receive compensation from third-party product and service providers. You understand and agree that the Dakan Platform is not endorsed or sponsored by these third parties and that these third parties are third-party beneficiaries of these Terms of Service with respect to the products or services provided by these third parties.
Affiliate Marketing Programs: When you click on links to various merchants on this site and make a purchase, this can result in this site earning a commission. Affiliate programs and affiliations include, but are not limited to, the eBay Partner Network.
Consent to Doing Business Electronically: Because our platform operates on the Internet, you consent to transact business with us electronically. You agree that we may provide notices to you by electronic means, for example, by posting it on our website, emailing it to any email address that you have provided us, or sending it as a text message to any mobile phone number that you have provided us. We may also send notices to you by postal mail to any postal address that you have provided us. All notices by any of these methods will be deemed received by you no later than the earlier of when received or posted or 24 hours after sent, except for notice by postal mail, which will be deemed received by you no later than the earlier of when received or 3 business days after it is mailed.
The Dakan Platform includes certain services that are available via a mobile device, including (i) the ability to upload content to the Dakan Platform via a mobile device, (ii) the ability to browse the Dakan Platform from a mobile device, and (iii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). Downloading, installing, or using certain Mobile
Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Dakan account information to ensure that your messages are not sent to the person that acquires your old number.
You consent to be contacted by us, our agents, representatives, affiliates, or anyone calling on our behalf for any purposes, at any telephone number, or physical or electronic address you provide or at which you may be reached. You agree we may contact you in any way, including short message service (“SMS”) messages (including text messages), multimedia messaging service (“MMS”), calls using pre recorded messages or artificial voice, and calls and messages delivered using auto telephone dialing systems or automatic texting systems. Automated messages may be played when the telephone is answered, whether by you or someone else. In the event that an agent or representative calls, he or she may also leave a message on your answering machine, voice mail, or send one by text.
You consent to receive SMS messages, calls, and messages (including prerecorded and artificial voice and autodialed) from us, our agents, representatives, affiliates, or anyone calling on our behalf at the specific numbers you have provided to us, or numbers we can reasonably associate with your account (through skip trace, caller ID capture, or other means), with information or questions relating to you, your account, or our Services. You acknowledge and agree that standard call, message, data rates, and other fees may apply. Consent to receive SMS messages is not required as a condition of purchase.
When you create an account on the Dakan Platform, your account will include: (i) a wallet that will receive and hold your funds and which is accessible only via the Dakan Platform (“Dakan Wallet”); and (ii) a record of your purchase or sale activity on the Dakan Platform. Funds in your Dakan Wallet may be held at Stripe or at Dakan.io. Funds in your Dakan Wallet are usable only to buy Assets on the Dakan Platform. Your Dakan Wallet, and the funds therein, are not FDIC insured or otherwise subject to deposit insurance or securities investor protections or insurance.
Authorizations: You hereby authorize us and our employees and agents, in relation to your use of the Dakan Platform and Dakan Wallet, to, among other things:
Access and view your balance in the Dakan Wallet and all other transaction information (including transaction history) relating to the Dakan Wallet for purposes of reconciliation and computation of amounts due to or from you arising from transactions on the Dakan Platform;
Instruct Stripe to affect credit and debit of the Dakan Wallet balance in relation to transactions which have been executed and authorized on the Dakan Platform or for fees and charges arising from transactions conducted through the Dakan Platform, or in relation to transactions which have been reversed;
Freeze (or coordinate with Stripe to freeze) further credit or debit to or from the Dakan Wallet due to reasonable suspicion of your breach of these Terms of Service or breach of applicable law; and
Use any of your data or information obtained through Stripe for purposes of effecting transactions on the Dakan Platform or otherwise and/or share any of your data or information with Stripe for purposes of operating and maintaining the Dakan Wallet.
You may only withdraw or revoke these authorizations upon closure of your Dakan account in accordance with these Terms of Service, except for your right to stop payments or revoke payment authorizations under applicable law. If you instruct Stripe to revoke any of these authorizations prior to the closure of your Dakan account, then you will not be entitled to continue using the Dakan Platform or Dakan Wallet, and we may immediately terminate and/or cancel your Dakan account.
Payment Methods: We support ACH payments as well as credit and debit cards, and Apple and Google Pay. There are fees associated with certain payment methods that you agree to pay. We may change or add payment and withdrawal methods from time to time in our sole discretion. These limits are subject to change. Review our FAQs for more details, at (insert FAQ url)-Payment-methods.
You may only use the funds in your Dakan Wallet for transactions on the Dakan Platform. You will not permit any other person to use your Dakan Wallet, and we will treat each transaction you make with your Dakan Wallet and access credentials as authorized by you, unless prohibited by law. You agree to notify us immediately if you learn or suspect that anyone has made an unauthorized transaction or gained unauthorized access to your Dakan Wallet, or if you identify any errors.
You are responsible to determine what, if any, taxes apply to the transactions you make or receive through the Dakan Platform or Dakan Wallet, and to report and remit those taxes to the appropriate tax authority.
Registering for the Dakan Platform is free, but we charge certain fees based on various transactions and services made available on the Dakan Platform. These fees are outlined on the Dakan Platform during their onboarding experience and are available at enter dakan . io url here), and are incorporated by reference into these Terms of Service (“Fee Policy”). You agree to pay Dakan the amount that is specified on the Dakan Platform. We reserve the right to change, or discontinue, temporarily or permanently, some or all of such fees (including for promotional events), and such changes are effective when we post information about the changes through the Service. We may also change our Fee Policy at any time and in our sole discretion, and any changes to the Fee Policy are effective upon the posting of such changes to the Site or upon written notice to any user. If you continue using the Dakan Platform after notice of any fee change, you agree to the change.
Asset or Dakan’s Asset Transactions: For transactions of Assets or Dakan’s Assets on the Dakan Platform, Dakan will deduct its fees from the sale price before the proceeds are remitted to the Seller’s Dakan Wallet, or from your Dakan Wallet, pursuant to the Fee Policy.
Vault Services: If you use the Vault Services, you agree that Dakan will deduct applicable fees for the Vault Services from your Dakan Wallet on the last day of each month in which you are using Vault Services.
Limits on your Dakan Wallet: We may reject your request to make a transaction using your Dakan Wallet for any reason in our sole discretion, to the extent permitted by law. There are limits on the amount, type, and frequency of transactions you can make using your Dakan Wallet. For security reasons, we may not disclose these limits to you or changes to these limits. We reserve the right to hold or freeze funds in your Dakan Wallet or Asset(s) in the Dakan vault if we reasonably suspect such funds, Asset(s), or your account may be involved in fraud, other criminal activity, or any breach of these Terms of Service. You agree to hold us harmless and to indemnify and defend us against any and all claims arising from and liabilities incurred by reason of any action we take in good faith under these Terms of Service. You also agree that we are not liable for, and you will hold us harmless for, the acts or omissions of third parties, including those we select, to the extent permitted under applicable law, with respect to any hold or freeze of any funds, Asset(s), Wallet, or account. The funds in your Dakan Wallet are not FDIC-insured.
TERMS FOR SPECIFIC MEMBERS
When creating a Listing to sell an Asset on the Dakan Platform, you must:
When purchasing Assets or Dakan’s Assets on the Dakan Platform, you must:
AUCTIONS & TRADES
Assets and Dakan’s Assets may be sold or acquired through auctions on the Dakan Platform (“Auctions”) or (“Trades''). In an Auction or Trade, interested buyers may place “bids' ' to offer to purchase or trade the Asset or Dakan’s Asset at a price or exchange the buyer chooses. Members have a limited time to place bids or accept trade offers. For auctions, at the end of that time, the Asset will be sold to the winning bidder, which is typically the interested buyer that has submitted the highest bid.
Sellers: You may list an Asset for sale in an Auction on the Dakan Platform. To sell an Asset in an Auction, you must first contact Dakan about Dakan curating the Auction. Once you and Dakan agree to the terms of the Auction, including Dakan’s valuation of the Asset, if your Asset is not already in the Dakan vault, you must deliver your Asset to Dakan at least 2 weeks in advance of the Auction start date, for storage in the Dakan vault during the Auction. Assets listed for Auction may not be removed from the Dakan vault. Dakan is under no obligation to accept an Asset for Auction. Once the Asset is in the Dakan vault and accepted for Auction, Dakan will provisionally credit your Dakan Wallet a specified percentage of the value at which Dakan has appraised the Asset (“Initial Deposit”); provided that, Dakan will not make the Initial Deposit, or may withdraw it from your Dakan Wallet if already deposited, if, prior to the Auction, any of the following occurs with respect to the player or person represented in the Asset:
Suffers a season-ending injury or is placed on injured reserve;
Is suspended by their applicable sports league for conduct unbecoming of league rules or because of a criminal action;
Takes a leave of absence that is expected to last for the rest of season;
Is publicly accused of a crime or misconduct that materially damages their reputation.
Auction Cancellation: After agreeing to sell an Asset at Auction, you generally may not cancel the Auction. However, you may request that Dakan cancel the Auction no later than the earlier of a bidder entering a bid on the Auction or 48 hours before the scheduled end time of the Auction. Dakan is under no obligation to honor this request. By requesting to cancel an Auction, you authorize Dakan to debit the Initial Deposit from your Dakan Wallet. Dakan must receive this amount from you before it can honor your request for Auction cancellation. If the Auction is successfully canceled, you may choose to have the Asset returned to you, or you may keep it stored in the Dakan vault for future use, subject to applicable Dakan vault storage fees and shipping fees.
Auction Bidders: You may purchase Dakan’s Assets listed for Auction by submitting bids for the item listed for Auction. To bid on Dakan’s Asset at Auction, Dakan may require you to submit to a pre-authorization charge or debit. Dakan may place a hold or freeze on that amount, and it may not be available to you for your use while your bid is outstanding, or until the Auction is closed and the item is sold to a higher bidder. Dakan may limit the amount of bids that you may make in any Auction. When you enter a bid on an Auction, you make a legally binding oﬀer to purchase an Dakan’s Asset in exchange for a purchase price in the amount of your bid, plus applicable fees and taxes, if you are the winning bidder, as determined by our records, at the time the Auction closes (“Winning Bidder”). Dakan may accept your oﬀer by declaring you the Winning Bidder, and you will be legally required by contract to purchase the Dakan’s Asset from Dakan in exchange for your payment of the purchase price. If you are the Winning Bidder, you must initiate payment for the Asset within 3 days.
Upon our receipt of your payment in full, the legal title and possession of the Asset or Dakan’s Asset you won at Auction will pass to you. Until your payment is received by Dakan for any Asset or Dakan’s Asset for which you were the Winning Bidder, you have no legal right of ownership or possession to any such Asset or Dakan’s Asset. If your payment is not received by the applicable due date, Dakan will not transfer title or ownership of any such Asset or Dakan’s Asset to you, and you will forfeit, and be disqualified from acquiring, any of the Assets or Dakan’s Assets for which you were the Winning Bidder. In addition, Dakan may impose penDakanies, fees, suspension, or termination from the Dakan Platform, or take other action appropriate and not prohibited by law, including selling the Asset(s) or Dakan’s Asset(s) on which you were the Winning Bidder, or any other Assets you store in the Dakan vault, to satisfy your unpaid commitment. You authorize us to debit your Dakan Wallet for the amount of any fees, penDakanies, or damages you owe us as a result of your failure to meet all of your payment obligations as a Winning Bidder.
AUCTION AND BIDDING POLICIES
You are prohibited from engaging in any activity that manipulates the fair market price of any Asset on the Dakan Platform, including shill bidding. Shill bidding is when someone bids on an item to artificially increase its price or desirability. Do not bid on items you do not intend to win at Auction, and do not bid on behalf of other individuals.
TRANSACTING OUTSIDE THE DAKAN MARKETPLACE PLATFORM
Users cannot engage in any of the following acts with another User on the site: (i) engage in any act designed to complete or facilitate a transaction outside of the Dakan Platform; (ii) share or request direct contact information prior to completing a sale; (iii) refer to or promote external websites that facilitate sales outside of the Dakan Platform; or (iv) offer catalogs or other items that are used to order items directly outside of the Dakan Platform.
In addition, you may list an Asset that you own on any other marketplace platform we make available through the Dakan Platform, including, but not limited to, eBay, Alt, PWCC, OpenSea or other marketplace. Because transactions on other marketplace platforms are beyond our control, we are not responsible for any losses you experience related to your Assets listed on other marketplace platforms.
Listing Assets you do not own on other marketplace platforms through the Dakan Platform is a violation of these Terms of Service. If we identify this activity in connection with your account, or if we reasonably suspect you of engaging in this activity, we may immediately suspend or terminate your use of the Dakan Platform at our sole discretion and without prior notice. We may also block, cancel, or revoke any transaction you request or make on the Dakan Platform to purchase any Asset or Dakan’s Asset you have listed on another marketplace platform in violation of these Terms. You will be liable to us for any losses we incur as a result of your violation of this section of this Agreement, including, but not limited to, the cost of the item. We may also charge a cancellation or restocking fee.
You agree that you are solely responsible for your interactions with any other user in connection with the Dakan Platform and Dakan will have no liability or responsibility with respect thereto. While we may help facilitate the resolution of disputes, Dakan does not take ownership of and does not guarantee (i) the quality, suitability, or legality of any Asset, (ii) the truth or accuracy of any Listing descriptions or other User Content, or (iii) the performance or conduct of any User or third party. Dakan does not endorse any User, Listing, or Asset. Dakan reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Dakan Platform.
CONDITIONS OF USE
User Conduct: You are solely responsible for all code, video, images, information, data, text, software, music, sound, photographs, graphics, messages, or other materials (“content”) that you upload, post, publish, display (hereinafter, “upload”), email, or otherwise use via the Dakan Platform, and represent that you have all necessary rights to such content. The following are examples of the kind of content and/or use that is illegal or prohibited by Dakan. Dakan reserves the right to investigate and take appropriate legal action against anyone who, in Dakan’s sole discretion, violates this provision, including without limitation, removing the offending content from the Dakan Platform, suspending or terminating the account of such violators, and reporting you to law enforcement authorities. You agree not to use the Dakan Platform to:
a. email or otherwise upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically, or otherwise objectionable; or (vii) in the sole judgment of Dakan, is objectionable or which restricts or inhibits any other person from using or enjoying the Dakan Platform, or which may expose Dakan or its users to any harm or liability of any type;
b. interfere with or disrupt the Dakan Platform or servers or networks connected to the Dakan Platform, or disobey any requirements, procedures, policies, or regulations of networks connected to the Dakan Platform;
c. violate any applicable local, state, national or international law, or other similar requirements having the force of law;
d. impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
e. solicit personal information from anyone under the age of 18;
f. harvest or collect email addresses or other contact information of other users from the Dakan Platform by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
g. advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;
h. further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or
i. obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Dakan Platform.
Special Notice for International Use; Export Controls: Software (defined below) available in connection with the Dakan Platform and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Dakan Platform or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Dakan Platform, including as it concerns online conduct and acceptable content.
MOBILE SERVICES AND SOFTWARE
Mobile Services: The Dakan Platform includes certain services that are available via a mobile device, including (i) the ability to upload content to the Dakan Platform via a mobile device, (ii) the ability to browse the Dakan Platform and Site from a mobile device, and (iii) the ability to access certain features and content through Mobile Apps (collectively, the “Mobile Services”). To the extent you access the Dakan Platform through a mobile device, your wireless service carrier’s standard charges, data rates, and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that we may communicate with you regarding Dakan and other entities by SMS, MMS, text message, or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Dakan account information to ensure that your messages are not sent to the person that acquires your old number.
Mobile App License: Subject to these Terms of Service, Dakan hereby grants to you a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to (a) install the Mobile App on one mobile device and (b) use the Mobile App for your own personal use solely to access and use the Service. For clarity, the foregoing is not intended to prohibit you from installing the Mobile App on another device on which you also agreed to these Terms of Service. Each instance of these Terms of Service that you agree to in connection with downloading a Mobile App grants you the aforementioned rights in connection with the installation and use of the Mobile App on one device.
Ownership; Restrictions: The technology and software underlying the Dakan Platform or distributed in connection therewith are the property of Dakan, its affiliates, and its licensors (including the Mobile Apps, the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble, or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Dakan.
Special Notice for International Use; Export Controls: Dakan is headquartered in the United States. If you access or use the Dakan Platform from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction. Software available in connection with the Dakan Platform and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Dakan Platform or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.
Third-Party Distribution Channels: Dakan offers Software that may be made available through the Apple App Store, the Google Play Store, or other distribution channels (“Distribution Channels”). If you obtain such Software through a Distribution Channel, you may be subject to additional terms of the Distribution Channel. These Terms of Service are between you and us only, and not with the Distribution Channel. To the extent that you utilize any other third-party products and services in connection with your use of the Dakan Platform, you agree to comply with all applicable terms of any agreement for such third-party products and services.
Apple-Enabled Software: With respect to Mobile Apps that are made available for your use in connection with an Apple-branded product (the, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in these Terms of Service, the following terms and conditions apply:
Dakan and you acknowledge that these Terms of Service are concluded between Dakan and you only, and not with Apple Inc. (“Apple”), and that as between Dakan and Apple, Dakan, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.
You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the Apple Media Services Terms and Conditions.
Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS product that you own or control, as permitted by the “Usage Rules” set forth in the Apple Media Services Terms and Conditions, except that such Apple-Enabled Software may be accessed and used by other accounts associated with the purchaser via Apple’s Family Sharing or volume purchasing programs.
Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
Apple is not responsible for any product warranties, whether expressed or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software, if any, to you; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty, which will be Dakan’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
Dakan and you acknowledge that Dakan, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including: (a) product liability claims; (b) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection, privacy, or similar legislation.
In the event of any third-party claim that the Apple-Enabled Software or your possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between Dakan and Apple, Dakan, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim.
You represent and warrant that (a) 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 (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
If you have any questions, complaints, or claims with respect to the Apple-Enabled Software, they should be directed to Dakan as follows:
The Dakan Marketplace LLC., 1623 Central Avenue Ste 18, Cheyenne, WY 82001
or Email: firstname.lastname@example.org
You must comply with applicable third-party terms of agreement when using the Apple-Enabled Software, e.g., your wireless data service agreement.
Dakan and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms of Service with respect to the Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you with respect to the Apple-Enabled Software as a third-party beneficiary thereof.
Google-Sourced Software: The following applies to any Mobile App you download from the Google Play Store (“Google-Sourced Software”): (a) you acknowledge that these Terms of Service are between you and Dakan only, and not with Google, Inc. (“Google”); (b) your use of Google-Sourced Software must comply with Google’s then-current Google Play Terms of Service; (c) Google is only a provider of Google Play where you obtained the Google-Sourced Software; (d) Dakan, and not Google, is solely responsible for Dakan’s Google-Sourced Software; (e) Google has no obligation or liability to you with respect to Google-Sourced Software or these Terms of Service; and (f) you acknowledge and agree that Google is a third-party beneficiary to these Terms of Service as it relates to Dakan’s Google-Sourced Software.
Open Source Software: The Software may contain or be provided together with open source software. Each item of open source software is subject to its own license terms, which can be found at: dakan.io. If required by any license for particular open source software, Dakan makes such open source software, and Dakan’s modifications to that open source software (if any), available by written request to email@example.com. Copyrights to the open source software are held by the respective copyright holders indicated therein.
INTELLECTUAL PROPERTY RIGHTS
Service Content, Software and Trademarks: You acknowledge and agree that the Dakan Platform may contain content or features, including the Asset Images (“Platform Content”) that are protected by copyright, patent, trademark, trade secret, or other proprietary rights and laws. Except as expressly authorized by Dakan, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute, or create derivative works based on the Dakan Platform or the Platform Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally upload to the Dakan Platform. In connection with your use of the Dakan Platform you will not engage in or use any data mining, robots, scraping, or similar data gathering or extraction methods. If you are blocked by Dakan from accessing the Dakan Platform (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Dakan Platform or the Platform Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Dakan Platform or distributed in connection therewith are the property of Dakan, our affiliates, and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble, or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Dakan.
The Dakan name and logos are trademarks and service marks of Dakan (collectively the “Dakan Trademarks”). Other company, product, and service names and logos used and displayed via the Dakan Platform may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Dakan. Nothing in these Terms of Service or the Dakan Platform should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Dakan Trademarks displayed on the Dakan Platform, without our prior written permission in each instance. All goodwill generated from the use of Dakan Trademarks will insure to our exclusive benefit.
Third Party Material: Under no circumstances will Dakan be liable in any way for any content or materials of any third parties (including users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that Dakan does not pre-screen content, but that Dakan and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Dakan Platform. Without limiting the foregoing, Dakan and its designees will have the right to remove any content that violates these Terms of Service or is deemed by Dakan, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
User Content Transmitted Through The Dakan Platform: With respect to the content or other materials you upload through the Dakan Platform or share with other users or recipients (collectively, “User Content”), you represent and warrant that you own all right, title, and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein. By uploading any User Content, you hereby grant and will grant Dakan and its affiliated companies a nonexclusive, worldwide, royDakany free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify, and otherwise use your User Content in connection with the operation of the Dakan Platform or the promotion, advertising, or marketing thereof, in any form, medium or technology now known or later developed. You acknowledge that the Asset Images are not your User Content, but you have the right to use and share Asset Images in connection with your Listings.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information about the Dakan Platform (“Submissions”), provided by you to Dakan are non-confidential and Dakan will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You acknowledge and agree that Dakan may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws, or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Dakan, its users and the public. You understand that the technical processing and transmission of the Dakan Platform, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
Copyright Complaints: Dakan respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify Dakan of your infringement claim in accordance with the procedure set forth below.
Dakan will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Dakan’s Copyright Agent at firstname.lastname@example.org (Subject line: “DMCA Takedown Request”). You may also contact us by mail or facsimile at:
1623 Central Avenue Ste 18, Cheyenne, WY 82001
To be effective, the notification must be in writing and contain the following information:
an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
a description of the copyrighted work or other intellectual property that you claim has been infringed; a description of where the material that you claim is infringing is located on the Dakan Platform, with enough detail that we may find it on the Dakan Platform;
your address, telephone number, and email address;
a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; and
a statement by you, made under penDakany of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Counter-Notice: If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent:
your physical or electronic signature;
identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within Northern District of California and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, Dakan will send a copy of the counter-notice to the original complaining party, informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
Repeat Infringer Policy: In accordance with the DMCA and other applicable law, Dakan has adopted a policy of terminating, in appropriate circumstances and at Dakan’s sole discretion, users who are deemed to be repeat infringers. Dakan may also, at its sole discretion, limit access to the Dakan Platform and/or terminate any User who infringes any intellectual property rights of others, whether or not there is any repeat infringement.
INDEMNIFICATION AND RELEASE
You agree to release, indemnify, and hold Dakan and its affiliates and their officers, employees, directors, and agents (collectively, “Indemnitees”) harmless from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind, and injury arising out of or relating to your use of the Dakan Platform, your Assets, your Listings, any User Content, your connection to the Dakan Platform, your violation of these Terms of Service, or your violation of any rights of another. Notwithstanding the foregoing, you will have no obligation to indemnify or hold harmless any Indemnitee from or against any liability, losses, damages, or expenses incurred as a result of any action or inaction of such Indemnitee. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
DISCLAIMER OF WARRANTIES
YOUR USE OF THE Dakan PLATFORM IS AT YOUR SOLE RISK. THE DAKAN MARKETPLACE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. DAKAN MARKETPLACE PLATFORM EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
Dakan MAKES NO WARRANTY THAT (I) THE DAKAN MARKETPLACE PLATFORM WILL MEET YOUR REQUIREMENTS, (II) THE VALUE OF ANY ASSET OR DAKAN MARKETPLACE PLATFORM’S ASSET ON THE DAKAN MARKETPLACE PLATFORM IS A FAIR MARKET VALUE, (III) THE PROJECTED “DAKAN MARKETPLACE PLATFORM VALUE” OF AN ASSET WILL BE SUPPORTED BY A BID OR PURCHASE ON OR OFF THE DAKAN MARKETPLACE PLATFORM, (IV) THE DAKAN MARKETPLACE PLATFORM OR ANY OF ITS COMPONENTS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (V) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE DAKAN MARKETPLACE PLATFORM WILL BE ACCURATE OR RELIABLE, OR (VI) THE QUALITY OF ANY ASSETS, DAKAN MARKETPLACE PLATFORM’S ASSETS, PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE DAKAN MARKETPLACE PLATFORM WILL MEET YOUR EXPECTATIONS.
LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT DAKAN MARKETPLACE PLATFORM WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF DAKAN MARKETPLACE PLATFORM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE DAKAN MARKETPLACE PLATFORM; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE DAKAN MARKETPLACE PLATFORM; (III) UNAUTHORIZED ACCESS TO OR DAKAN MARKETPLACE PLATFORM ERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE DAKAN MARKETPLACE PLATFORM; OR (V) ANY OTHER MATTER RELATING TO THE DAKAN MARKETPLACE PLATFORM. IN NO EVENT WILL DAKAN MARKETPLACE PLATFORM’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID DAKAN MARKETPLACE PLATFORM IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE DAKAN MARKETPLACE PLATFORM OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE DAKAN MARKETPLACE PLATFORM.
IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION WILL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
Dispute Resolution By Binding Arbitration: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
a. Agreement to Arbitrate
This Dispute Resolution by Binding Arbitration section is referred to in these Terms of Service as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Dakan, whether arising out of or relating to these Terms of Service (including any alleged breach thereof), the Dakan Platform, any advertising, any aspect of the relationship or transactions between us, will be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into these Terms of Service, you and Dakan are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
b. Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND Dakan AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND DAKAN MARKETPLACE PLATFORM AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
c. Pre-Arbitration Dispute Resolution
Dakan is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at email@example.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Dakan should be sent to 1623 Central Avenue Ste 18, Cheyenne, WY 82001 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Dakan and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Dakan may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Dakan or you will not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Dakan is entitled.
d. Arbitration Procedures
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Dakan though arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Dakan and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination will be made by AAA. If your claim is for $10,000 or less, Dakan agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
e. Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $25,000 or less, at your request, Dakan will pay all Arbitration Fees. If the value of relief sought is more than $25,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Dakan will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Dakan will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement will be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection
(b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement will be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of the Terms of Service will continue to apply.
h. Future Changes to Arbitration Agreement
Notwithstanding any provision in these Terms of Service to the contrary, Dakan agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Dakan Platform, you may reject any such change by sending Dakan written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
You agree that Dakan, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Dakan Platform and remove and discard any content within the Dakan Platform, for any reason, including, without limitation, for lack of use or if Dakan believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of Dakan Platform may be referred to appropriate law enforcement authorities. Dakan may also in its sole discretion and at any time discontinue providing the Dakan Platform, or any part thereof, with or without notice. You agree that any termination of your access to the Dakan Platform under any provision of these Terms of Service may be effected without prior notice, and acknowledge and agree that Dakan may immediately deactivate or delete your account and all related information and files
in your account and/or bar any further access to such files or the Dakan Platform. Further, you agree that Dakan will not be liable to you or any third party for any termination of your access to the Dakan Platform.
You hereby grant Dakan Marketplace LLC., as of the date you enter into these Terms of Service, a security interest in your Dakan Wallet, Assets, and all other funds and personal property you store on the Dakan Platform, now or in the future, whether existing or hereinafter acquired, and the proceeds thereof (the “Collateral”), to secure your performance of any obligations you have to us, our bank partner, service providers, or any of our respective affiliates (either now or in the future), under these Terms of Service or any other agreement you have with us, including your duty to pay us for all obligations you owe us under these Terms of Service, including all future advances, present or hereinafter occurring, when payments are due, and for every transaction made with your Dakan Wallet by you or any other person that uses your Dakan Wallet (“Security Interest”). You also grant us a right of setoff to the Collateral to secure all amounts you owe us under these Terms of Service, except as prohibited by law. You irrevocably and unconditionally relinquish possession and control over the Collateral, and you pledge and assign as security to us all of your right, title, and interest in it. We do not have to give you any prior notice to apply the Collateral or proceeds derived therefrom to satisfy your obligations. This could cause you to lose all of your Assets and funds in your Dakan Wallet and Dakan account. Our Security Interest will be governed by Uniform Commercial Code – Article 9 (as adopted by the applicable state law) whether Article 9 applies by its terms or not.
You must take any action we request to perfect or protect our Security Interest in the Collateral and the priority of our Security Interest. If we must hire an attorney to defend or enforce our Security Interest, you will pay our reasonable attorneys’ fees and court costs, unless prohibited by law. You represent that there are no current lawsuits or bankruptcy proceedings that might affect our Security Interest in the Collateral, and you have not and will not attempt to transfer any interest in or offer the Collateral to any other person as collateral or security for any other obligation. You waive the benefit of any homestead or other exemptions in the Collateral. If we exercise our Security Interest or our right of setoff, we will have sole discretion to determine which Assets are to be sold or liquidated, where, and by which means, and we may be the purchaser. You agree to hold us harmless from any claim arising as a result of our exercise of our right of setoff or Security Interest.
These Terms of Service constitute the entire agreement between you and Dakan and govern your use of the Dakan Platform, superseding any prior agreements between you and Dakan with respect to the Dakan Platform. You also may be subject to additional terms and conditions that may apply when you use affiliate or third-party services, third-party content, or third-party software. By entering these Terms, you represent and warrant that your acceptance of and performance under these Terms does not violate the terms or conditions of any other contract to which you are a party.
These Terms of Service will be governed by the laws of the State of Wyoming without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Dakan agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within the provisions of state of Wyoming Limited Liability Company Act, (W.S. 17-29-101 through 17-29-1105) using Registered Offices and Agents Act (W.S. 17-28-101 through 17-29-1105). The failure of Dakan to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Dakan Platform or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign these Terms of Service without the prior written consent of Dakan, but Dakan may assign or transfer these Terms of Service, in whole or in part, without restriction. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Dakan Platform may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Dakan Platform.
Notice for California Users
Under California Civil Code Section 1789.3, users of the Dakan Platform from California 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 11623 Central Avenue Ste 18, Cheyenne, WY 82001
Questions? Concerns? Suggestions?
Please contact us at firstname.lastname@example.org to report any violations of these Terms of Service or to pose any questions regarding these Terms of Service or the Dakan Platform.
Last Updated: October 2023