Terms &
Conditions

Introduction

Welcome Aku family! We appreciate you taking the time to read these very important Terms of Service (the “Terms”). As you may know, Aku was created by Micah Johnson to inspire all of us to fearlessly pursue our dreams. Before joining us on this journey, please read these Terms carefully. Please keep in mind that these Terms are necessary to protect you and to protect Aku for the benefit of all of us. 

First, the legal entity operating this website is WYE Media Holdings LLC. Throughout the Terms, we’ll refer to that entity as “WYE” and refer to WYE collectively with its subsidiaries and all of its affiliates, as “Aku” “we”, “us”, “our”.  These Terms govern (i) any access to or use of the website at aku.world and any other website, mobile application, marketplace or application program interface operated or made available by Aku (the “Platform”); (ii) any other software, tools, features, or functionalities provided on or in connection with the Platform, including without limitation, use of the Platform to view, explore, and create NFTs (defined below) and/or (iii) use of the Platform, at your own discretion, to connect directly with others to purchase, sell, or transfer NFTs on public blockchains ((i) – (iii) collectively, the “Service” or “Services”).

PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE PLATFORM. THESE TERMS GOVERN YOUR USE OF THE PLATFORM, AND YOUR USE OF THE PLATFORM IS MADE AVAILABLE TO YOU ONLY IF YOU ACCEPT ALL OF THESE TERMS. BY USING THE PLAFTORM OR ANY PART OF IT, YOU ARE CONFIRMING THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY ALL OF THESE TERMS. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO ACCEPT THESE TERMS ON THAT ENTITY’S BEHALF, IN WHICH CASE “YOU” WILL MEAN THAT ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT ACCEPT ALL OF THESE TERMS, THEN YOU MAY NOT ACCESS OR USE THE PLATFORM.

THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION (SEE SECTION 13).  PLEASE REVIEW THE ARBITRATION PROVISION CAREFULLY, SINCE IT AFFECTS YOUR RIGHTS.  BY USING THE PLATFORM OR ANY PART OF IT, YOU UNDERSTAND AND AGREE TO BE BOUND BY THE ARBITRATION PROVISION.

ANY PURCHASE OR SALE YOU MAKE, ACCEPT OR FACILITATE OUTSIDE OF THIS PLATFORM OF A NFT (AS DEFINED BELOW) WILL BE ENTIRELY AT YOUR RISK. WE DO NOT CONTROL OR ENDORSE PURCHASES OR SALES OF NFTs OUTSIDE OF THIS PLATFORM. WE EXPRESSLY DENY ANY OBLIGATION TO INDEMNIFY YOU OR HOLD YOU HARMLESS FOR ANY LOSSES YOU MAY INCUR BY TRANSACTING, OR FACILITATING TRANSACTIONS, IN NFTs OUTSIDE OF THIS PLATFORM.

For the purposes of these Terms, “NFT” means a non-fungible token or similar digital item implemented on a blockchain (such as the Ethereum blockchain), which uses smart contracts to link to or otherwise be associated with certain content or metadata (“Related Content”).

The NFT together with the license rights to any Related Content (whether or not copyrighted or copyrightable, and regardless of the format in which the Related Content is made available), comprises and is referred to herein as a “Digital Collectible” or “Digital Collectibles.”

For the purposes of these Terms, “user”, “you”, and “your” means you as the user of the Service. If you use the Service on behalf of another person, company or other entity, then “user”, “you”, and “your” includes you and that person, company, or other entity, and you represent and warrant that (i) you are an authorized representative of that person, company, or other entity with the authority to bind that person, company, or other entity to these Terms, (ii) you are authorized to accept these Terms on behalf of that person, company, or other entity (iii) you agree to these Terms on that person’s, company’s, or entity’s behalf, and (vi) in the event you or that person, company, or other entity violates these Terms, both you and that person, company, or other entity agree to be responsible to us.

By using the Services, you agree to the Terms. The Terms form a legally binding contract between Aku and you. If you do not agree to the Terms, do not use the Services.

We may make changes to these Terms from time to time by updating the Terms on our website located at aku.world/terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of the Service after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using the Services.

1. Eligibility

1.1 In order to use the Services, you must meet the following eligibility criteria and you acknowledge and confirm that:

  1. You are not located in a country that is subject to the United States government embargo, or that has been designated by the United States government as a "terrorist supporting" country.
  2. You are not listed on any United States government list of prohibited or restricted parties.
  3. You are at least 13 years of age.

1.2 If you are under 18 years of age (and at least 13 years of age), you may use the Services only under the supervision of a parent or legal guardian who agrees to be bound by these Terms. If you are a parent or legal guardian of a user under the age of 18, you agree to be fully responsible for the acts or omissions of such user in relation to the Services.  

2. Purchases of Digital Collectibles

2.1 We do not offer a hosted digital wallet on the Platform or otherwise custody Digital Collectibles for our users. You will be required to link a supported blockchain-based digital wallet (“Supported Wallet”) provided by supported third-party unhosted wallet providers (“Supported Wallet Provider”) to the Platform before you will be able to purchase a Digital Collectible.

Each Supported Wallet Provider is a third-party company that offers unhosted digital wallet products and services. Your use of each Supported Wallet Provider’s products and services is subject to its applicable terms of service. We will not be liable to you for any loss that results from your use of a Supported Wallet Provider’s products and services, including Supported Wallets.

2.2 We will deliver any Digital Collectibles that you purchase from us directly to your Supported Wallet and you will be responsible for safekeeping the passwords and keys associated with your Supported Wallet. We will not be able to recover purchased Digital Collectibles for you in the event that you lose access to your Supported Wallet account or under any other circumstances.

2.3 We currently only accept payments in ETH. 

All pricing and payment terms are as set forth on the Platform, and any payment obligations you incur are binding at the time of purchase. All sales are final. Unless otherwise required by applicable law, we will not provide a refund on any purchase.

2.4 You represent and warrant that any purchase of a Digital Collectible by you is solely for your personal collection, use and enjoyment, and not for speculative or investment purposes, for use as a substitute for currency or other medium of exchange, or for resale or redistribution. You acknowledge and understand that by purchasing a Digital Collectible you are not acquiring any equity or other ownership or profit-sharing interest in Aku, or any of its affiliates or any brand or other business venture.

You will not portray any Digital Collectible as an opportunity to gain economic benefit or profit, or as an investment, equity, or other ownership or profit-sharing interest in Aku, or any of its affiliates or any brand or other business venture. 

LEGISLATIVE OR REGULATORY CHANGES AT THE STATE, FEDERAL OR INTERNATIONAL LEVEL MAY ADVERSELY AFFECT THE USE, TRANSFER, EXCHANGE OR VALUE OF THE DIGITAL COLLECTIBLES.

2.5 You will be solely responsible to pay any and all sales, use, value-added and other taxes, duties, and assessments (except taxes on our net income) now or hereafter claimed or imposed by any governmental authority (collectively, the “Taxes”) associated with your use of the Platform. Except for income taxes levied on us, you: (a) will pay or reimburse us for all national, federal, state, local or other taxes and assessments of any jurisdiction in connection with your purchase, 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, duties or assessments from payments made to us pursuant to these Terms. 

3. Related Content and Limitations

3.1 Related Content is licensed to you, not acquired by you when you acquire the NFT. Ownership of any Related Content is retained by Aku or the third party that developed or acquired ownership of the Related Content (any such third party, a “Third Party Developer”). No ownership or title in or to any Related Content is transferred to you, and no other right or interest in any Related Content is transferred to you. To be clear, owners of a Digital Collectible will not own any intellectual property (“IP”) or other rights to any Related Content.

3.2 When you buy a Digital Collectible, you will retain the ability to transfer the Digital Collectible to other parties.

3.3 You will not, attempt to, or permit or enable or otherwise induce any third party to: 

  1. separate the Related Content from the Digital Collectible; 
  2. modify the Related Content, unless expressly permitted to do so in writing by Aku; 
  3. register or attempt to register any trademark or copyright or otherwise acquire additional intellectual property rights in or to any Related Content; 
  4. use any Related Content to create, endorse, support, promote or condone any content, material or speech that is defamatory, obscene, pornographic, indecent, abusive, offensive, harassing, violent, hateful, racist, discriminatory, inflammatory or otherwise objectionable or inappropriate as determined by Aku at its discretion; 
  5. commercialize the Related Content or use the Related Content in connection with any business, message, product, or service, or in any manner that may imply endorsement of any business, message, product, or service; 
  6. use the Related Content in any manner that is likely to cause confusion or dilute, blur, or tarnish the Related Content or any intellectual property rights in the Related Content; or 
  7. use the Related Content in any manner that infringes, violates or misappropriates any third party intellectual property or intellectual property right, or that violates the Terms.

3.4 You understand and agree that you will not apply for, register, or otherwise use or attempt to use any of our trademarks or service marks, or any confusingly similar marks, anywhere in the world without our prior written consent in each case, which consent we may withhold at our sole and absolute discretion.

4. Other Prohibited Conduct

4.1 You will not violate any applicable law, contract, intellectual property right or other third-party right or commit a tort, and you are solely responsible for your conduct while using our Services. You will not:

  1. impersonate or otherwise misrepresent your affiliation with a person or entity;
  2. sell, resell or commercially use the Services;
  3. copy, reproduce, distribute, publicly perform or publicly display all or portions of our Services, except as expressly permitted by us or our licensors;
  4. modify the Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Services;
  5. use the Services other than for their intended purpose and in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services in any manner;
  6. reverse engineer any aspect of the Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of the Services;
  7. attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of our Services that you are not authorized to access;
  8. use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract data from the Services;
  9. develop or use any applications that interact with the Services without our prior written consent; or
  10. use the Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.

Enforcement of this Section 4 is solely at Aku's discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. In addition, this Section 4 does not create any private right of action on the part of any third party or any reasonable expectation that our Services will not contain any content that is prohibited by such rules.

5. Intellectual Property Rights 

5.1 All intellectual property rights in any content of the Platform (including text, graphics, software, photographs and other images, videos, sound, trademarks, designs, and logos) are owned by us, our licensors or their respective owners. Except as expressly set forth herein, nothing in these Terms gives you any rights with respect to any of the aforementioned intellectual property rights.

5.2 Aku and our logos, our product or service names, our slogans and the look and feel of our Services are trademarks of Aku and may not be copied, imitated or used, in whole or in part, without our prior written permission. 

5.3 Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by us.

6. CONDITIONS OF USE AND PROHIBITED ACTIVITIES

YOU AGREE THAT YOU ARE RESPONSIBLE FOR YOUR OWN CONDUCT WHILE ACCESSING OR USING THE PLATFORM, AND FOR ANY CONSEQUENCES THEREOF. YOU AGREE TO USE THE PLATFORM ONLY FOR PURPOSES THAT ARE LEGAL, PROPER AND IN ACCORDANCE WITH THESE TERMS AND ANY APPLICABLE LAWS OR REGULATIONS.

6.1 Without limiting the foregoing, you warrant and agree that your use of the Platform will not (and will not allow any third party to in any manner):

  1. involve the sending, uploading, distributing or disseminating any unlawful, defamatory, harassing, abusive, fraudulent, obscene, or otherwise objectionable content;
  2. involve the distribution of any viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or any other items of a destructive or deceptive nature;
  3. involve the uploading, posting, transmitting or otherwise making available through the Platform any content that infringes the intellectual proprietary rights of any party;
  4. involve using the Platform to violate the legal rights (such as rights of privacy and publicity) of others; 
  5. involve interfering with other users’ enjoyment of the Platform;
  6. involve exploiting the Platform for any unauthorized commercial purpose;
  7. involve modifying, adapting, translating, or reverse engineering any portion of the Platform;
  8. involve removing any copyright, trademark or other proprietary rights notices contained in or on the Platform or any part of it;
  9. involve reformatting or framing any portion of the Platform;
  10. involve displaying any content on the Platform that contains any hate-related or violent content or contains any other material, products or services that violate or encourage conduct that would violate any criminal laws, any other applicable laws, or any third party rights;
  11. involve using any spider, site search/retrieval application, or other device to retrieve or index any portion of the Platform or the content posted on the Platform, or to collect information about its users for any unauthorized purpose;
  12. involve accessing or using the Platform for the purpose of creating a product or service that is competitive with any of our products or services;
  13. involve abusing, harassing, or threatening another user of the Platform or any of our authorized representatives, customer service personnel, chat board moderators, or volunteers (including, without limitation, filing support tickets with false information, sending excessive emails or support tickets, obstructing our employees from doing their jobs, refusing to follow the instructions of our employees, or publicly disparaging us by implying favoritism by our employees or otherwise); 
  14. involve using any abusive, defamatory, ethnically or racially offensive, harassing, harmful, hateful, obscene, offensive, sexually explicit, threatening or vulgar language when communicating with another user of the Platform or any of our authorized representatives, customer service personnel, chat board moderators, or volunteers
  15. involve the impersonation of another person (via the use of an email address or otherwise);
  16. involve using, employing, operating, or creating a computer program to simulate the human behavior of a user (“Bots”);
  17. involve using, employing, or operating Bots or other similar forms of automation to engage in any activity or transaction on the Platform;
  18. involve acquiring NFTs through inappropriate or illegal means (including, among other things, using a stolen credit card, or a payment mechanism that you do not have the right to use, or purchasing a NFT and then attempting to charge the cost back to your payment method while still maintaining ownership or control of the NFT or selling, gifting or trading the NFT to someone else); or
  19. otherwise involve or result in the wrongful seizure or receipt of any NFT or other digital assets (the “Prohibited Activities”).

6.2 If you engage in any of the Prohibited Activities, we may, at our sole and absolute discretion, without notice or liability to you, and without limiting any of our other rights or remedies at law or in equity, immediately delete your Related Content from the Platform. 

NOTWITHSTANDING THE FOREGOING, HOWEVER, IF WE REASONABLY BELIEVE THAT YOU ARE ENGAGED IN ANY PROHIBITED ACTIVITIES, IN ADDITION TO OUR RIGHT TO IMMEDIATELY DELETE YOUR RELATED CONTENT, WE ALSO RESERVE THE RIGHT, AT OUR SOLE AND ABSOLUTE DISCRETION, WITHOUT NOTICE OR LIABILITY TO YOU, TO TAKE ANY OR ALL OF THE FOLLOWING ACTIONS: (A) TO DEEM ANY TRANSACTION THAT TOOK PLACE VIA OR AS THE RESULT OF SUCH ACTIVITIES TO BE VOID AB INITIO; AND/OR (B) TO IMMEDIATELY CONFISCATE ANY NFTs (INCLUDING THEIR RELATED CONTENT) THAT WERE PURCHASED OR ACQUIRED AS THE RESULT OF SUCH ACTIVITIES.

7. Disclaimers and Assumption of Risk.  

7.1 You accept and acknowledge:

  1. Your use of the Services is at your sole risk. Except as otherwise provided in a writing by us, the Services and any content in the services, and any and all Related Content and Digital Collectible is provided "as is" and "as available" without warranties of any kind, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement.
  2. Aku does not represent or warrant that the Services, Related Content, or any Digital Collectibles are accurate, complete, reliable, current or error-free. While Aku attempts to ensure use of the Services is safe, we cannot and do not represent or warrant that the Services, the Platform or servers are free of viruses or other harmful components.
  3. You assume the entire risk as to the quality and performance of the Services. We cannot guarantee the continuous, uninterrupted, or error-free operability of the Platform and the Services.  There may be times when certain features, parts or content of the Platform, the entire Platform, the Services or certain features parts or content of the Services become unavailable (whether on a scheduled or unscheduled basis) or are modified, suspended or withdrawn by us, in our sole discretion, without notice to you.  You agree that we will not be liable to you or any third party for any unavailability, modification, suspension or withdrawal of the Platform, the Services, or any features, parts or content of the Platform or the Services.
  4. Technological difficulties experienced by the Platform may affect your access to your NFTs and thus your Digital Collectibles.
  5. We will not be responsible or liable to you for any loss and take no responsibility for, and will not be liable to you for, any access to or use of any Related Content, third-party content, or Digital Collectible including but not limited to any loss, damage or claim arising from: (i) user error such as forgotten passwords, incorrectly constructed transactions, or mistyped addresses; (ii) server failure or data loss; (iii) corrupted wallet files; (iv) unauthorized access to applications; or (v) any unauthorized third party activities, including without limitation the use of viruses, phishing, brute-forcing or other means of attack against the site or applicable blockchain.
  6. Blockchain technologies and NFTs are subject to many legal and regulatory uncertainties, and the Platform, the Services, NFTs, Related Content, and Digital Collectibles could be adversely impacted by one or more regulatory, or legal inquiries, actions, suits, investigations, claims, fines or judgments, which could impede or limit your ability to continue the use and enjoyment of such assets and technologies.
  7. The Digital Collectibles are intangible assets and generally exist only by virtue of the ownership record maintained on the blockchain network. Any transfer of control that might occur in any unique digital asset occurs on the applicable blockchain network.
  8. The Digital Collectibles are currently available only on the Ethereum Blockchain. You will not be able to transfer your Digital Collectibles to any digital wallet that is not compatible with the Ethereum Blockchain. In the event that you inadvertently transfer a Digital Collectible to a digital wallet that is not compatible with the Ethereum Blockchain, your Digital Collectible may be lost or destroyed.
  9. We do not own or control the Ethereum network (or any other applicable network supported by the Platform), any digital wallet provider, or any other third-party infrastructure provider used in relation to the Platform, and we are not liable for any defects in, unavailability of, or acts or omissions of such third-party infrastructure.
  10. The Ethereum network may be subject to sudden changes in operating rules, and third parties may, from time to time, fork the Ethereum blockchain and implement changes in the operating rules or other features that might result in multiple versions of the network and, possibly, more than one version of the NFT.  This may affect the value and the function of the initial NFT and we can temporarily suspend our services while we determine, at our sole and absolute discretion, which network to support.  Such networks and forks are outside of our control and we can decide, at our sole and absolute discretion, to abandon or otherwise not support the initial or the copy of the NFT.  We may, at our sole and absolute discretion, obtain and retain the unsupported NFTs.
  11. There are risks associated with accepting and purchasing blockchain-based NFTs, including but not limited to, the risk of losing private keys, theft of NFTs due to hackers obtaining your private key.  You are solely responsible for the safekeeping of the private key associated with the blockchain address used to buy or sell Collectibles.  You accept that Aku will not be able to restore or issue any refund in respect of any Digital Collectibles due to lost or stolen private keys.  If you are not able to use a Digital Collectible due to loss or theft of the corresponding private key or otherwise, you will be unable to exercise your rights with respect to such Digital Collectible.  See details on the Platform as to any processes in place to assist you (which are at our discretion).
  12. The Platform does not store, send, or receive NFTs. Any transfers of  NFTs occur via the smart contract located on the Ethereum blockchain and not on the Platform.
  13.  Aku shall not be liable for any errors, misrepresentations, or omissions in, of, and about, the underlying digital artwork, nor for the availability of the underlying artwork.
  14. Aku shall not be liable for any losses, injuries, or damages from the purchase, inability to purchase, display, or use of the underlying artwork.
  15. You are solely responsible for understanding and determining the level of risk involved in use of the Platform and the Services, and all use of the Platform and the Services is at your own risk.  We are not responsible for any losses you may suffer as a result of any drop in value or other aspects of the sale or purchase of any Digital Collectible.

8. Disclaimer of Damages

8.1 To the fullest extent permitted by applicable law, Aku and our subsidiaries and affiliates, and each of our respective officers, directors, agents, partners and employees (individually and collectively, the "Aku Parties") will not be liable to you under any theory of liability—whether based in contract, tort, negligence, strict liability, warranty, or otherwise—for any indirect, consequential, exemplary, incidental, punitive or special damages or lost profits, even if Aku or the other Aku parties have been advised of the possibility of such damages.

9. Limitation of Liability

9.1 The total liability of Aku and the other Aku parties for any claim arising out of or relating to these terms or our services, or any and all Related Content, and Digital Collectible, regardless of the form of the action, is limited to the greater of $100 or the amount paid by you to use our services.

9.2 The limitations set forth in Sections 8 and 9 will not limit or exclude liability for the gross negligence, fraud or intentional misconduct Aku or the other Aku parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.

10. Release

10.1  To the fullest extent permitted by applicable law, you release Aku and the other Aku Parties from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to

  1. Disputes between users,
  2. Acts or omissions of third parties, or
  3. Anything else for which you have agreed that Aku will have no responsibility or liability pursuant to these Terms. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which provides, inter alia: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”

11. Indemnification

11.1 To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless Aku and Aku Parties from and against any losses, liabilities, claims, demands, damages, expenses or costs ("Claims") arising out of or related to:

  1. Your access to or use of our Services (including, without limitation, Digital Collectibles and Related Content); (b)
  2. Your violation of these Terms (including, without limitation, the applicable terms and conditions with respect to any Digital Collectible and Related Content);
  3. Your violation, misappropriation or infringement of any intellectual property, privacy, or other rights of another; or
  4. Your conduct in connection with our Services. You will cooperate with Aku and the Aku Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys' fees). 

11.2 Aku will have control of the defense or settlement, at Aku's sole option, of any third-party Claims.

12. Force majeure

12.1 We will not be liable or responsible to the you, nor be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any of these Terms, when and to the extent such failure or delay is caused by or results from the following force majeure events (“Force Majeure Event(s)”): 

  1. acts of God; 
  2. flood, fire, earthquake, epidemics, pandemics, including the 2019 novel coronavirus pandemic (COVID-19), tsunami, explosion; 
  3. war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; 
  4. government order, law, or action; 
  5. embargoes or blockades in effect on or after the date of this agreement; 
  6. strikes, labor stoppages or slowdowns or other industrial disturbances; 
  7. shortage of adequate or suitable Internet connectivity, telecommunication breakdown or shortage of adequate power or electricity; and 
  8. other similar events beyond our control.

12.2 If we suffer a Force Majeure Event, we will use reasonable efforts to promptly notify you of the Force Majeure Event, stating the period of time the occurrence is expected to continue. We will use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. We will resume the performance of our obligations as soon as reasonably practicable after the removal of the cause. In the event that our failure or delay remains uncured for a period of forty-five (45) consecutive days following written notice given by us under this Section 12, we may thereafter terminate these Terms upon ten (10) days' written notice.

13. Dispute Resolution; Binding Arbitration

PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH AKU AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US, UNLESS YOU OPT OUT OF ARBITRATION BY FOLLOWING THE INSTRUCTIONS SET FORTH BELOW. NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS ARE ALLOWED UNDER THIS ARBITRATION PROVISION. IN ADDITION, ARBITRATION PRECLUDES YOU FROM SUING IN COURT OR HAVING A JURY TRIAL.

13.1 You and Aku agree that any dispute arising out of or related to these Terms or our Services is personal to you and Aku and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action or any other type of representative proceeding.

13.2 Except for small claims disputes in which you or Aku seeks to bring an individual action in small claims court located in the county of your billing address or disputes in which you or Aku seeks injunctive or other equitable relief for the alleged infringement or misappropriation of intellectual property, you and Aku waive your rights to a jury trial and to have any other dispute arising out of or related to these Terms or our Services, including claims related to privacy and data security, (collectively, “Disputes”) resolved in court. Instead, for any Dispute that you have against Aku you agree to first contact Aku and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to Aku by email at notice@wyecompany.com. The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the Dispute; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and Aku cannot reach an agreement to resolve the Dispute within thirty (30) days after such Notice is received, then either party may submit the Dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court. All Disputes submitted to JAMS will be resolved through confidential, binding arbitration before one arbitrator. Arbitration proceedings will be held in Manhattan (New York County) in the state of New York unless you are a consumer, in which case you may elect to hold the arbitration in your county of residence. For purposes of this Section 13, a “consumer” means a person using the Services for personal, family or household purposes. You and Aku agree that Disputes will be held in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”). The most recent version of the JAMS Rules are available on the JAMS website and are hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason.

13.3 You and Aku agree that these Terms affect interstate commerce and that the enforceability of this Section 13 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.

13.4 The arbitration will allow for the discovery or exchange of non-privileged information relevant to the Dispute. The arbitrator, Aku, and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including information gathered, prepared and presented for purposes of the arbitration or related to the Dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.

13.5 You and Aku agree that for any arbitration you initiate, you will pay the filing fee and you and Aku will split equally the remaining JAMS fees and costs; provided that if you are a consumer the maximum amount you will be required to pay for the filing fee is $250 and Aku will pay any remaining amount of the filing fee and the remaining JAMS fees and costs. For any arbitration initiated by Aku, Aku will pay all JAMS fees and costs. You and Aku agree that the state or federal courts of the State of New York and the United States sitting in in the boroughs of Brooklyn (Kings County) or Manhattan (New York County) in the state of New York have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.

13.6 Any Dispute must be filed within one year after the relevant claim arose; otherwise, the Dispute is permanently barred, which means that you and Aku will not have the right to assert the claim.

13.7 You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section 13 by emailing us at notice@wyecompany.com. In order to be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 14.

13.8 If any portion of this Section 13 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 13 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 13; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 13 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 13 will be enforceable.

14. Governing Law and Venue

14.1 Any dispute arising from these Terms and your use of the Services and the Platform will be governed by and construed and enforced in accordance with the laws of the state of New York without regard to conflict of law rules or principles that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts located in Manhattan (New York County) in the state of New York and you consent to jurisdiction and venue in such courts.

15. Modifying and Terminating our Services

15.1 We reserve the right in our sole discretion to modify the Services or to suspend or stop providing all or portions of the Services at any time. You have the right to stop using the Services at any time. We are not responsible for any loss or harm related to your inability to access or use our Services.

16. Severability

16.1 If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.

17. Miscellaneous

17.1 The failure of Aku to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. 

17.2 The section titles in these Terms are for convenience only and have no legal or contractual effect. 

17.3 You agree that communications and transactions between you and us may be conducted electronically and satisfy any legal requirement that such communication be in writing.

17.4 These Terms may not be transferred, assigned or delegated by you, by operation of law or otherwise, without our prior written consent, and any attempted transfer, assignment or delegation without such consent will be void and without effect. 

17.5 We may freely transfer, assign or delegate the Terms or the Services, in whole or in part, without your prior written consent.

17.6 Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity.

17.7 Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of the Terms.