Last Updated: March 24 2024
These Gonkbonk Terms of Service (“Agreement” or “Terms of Service”) are entered into by and between you (“you,” or “your”), and Masterfile Co. (“Masterfile,” “we,” “our” or “us”).
BY ACCESSING OR USING THE PLATFORM, OR BY CLICKING TO ACCEPT OR AGREE TO THIS AGREEMENT WHEN THE OPTION IS MADE AVAILABLE TO YOU, YOU REPRESENT AND WARRANT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING CONTRACT WITH US AND HAVE THE AUTHORITY TO DO SO EITHER ON YOUR OWN BEHALF OR ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY. YOU FURTHER ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND ACCEPT AND AGREE TO COMPLY WITH, AND BE LEGALLY BOUND BY, THIS AGREEMENT IN FULL. IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MAY NOT USE THE PLATFORM.
THIS AGREEMENT IS SPECIFIC TO THE USE OF THE GONKBONK SERVICE. IF YOU USE OTHER MASTERFILE PRODUCTS OR SERVICES, OTHER MASTERFILE TERMS IN CONNECTION WITH SUCH OTHER PRODUCTS OR SERVICES WILL BE APPLICABLE TO YOUR USE OF SUCH OTHER PRODUCTS OR SERVICES.
We reserve the right, in our sole discretion, to make changes or modifications to this Agreement for the Platform (as defined in Section 2A below), to reflect changes in applicable laws and regulatory requirements relating to the use of Platform, or to implement technical adjustments and improvements, or to respond to market requirements. All changes are effective immediately when we post them unless we expressly specify otherwise. In any event, no changes will apply retroactively as to any claims existing prior to the “last updated” date. It is your responsibility to regularly check this Agreement to stay informed of updates, as they are binding. If we choose to amend the Terms, we will update the “Last Updated” date at the top of the Terms and post the updated version... Your continued use of the Platform following the posting of the revised Agreement means that you accept and agree to the changes.
A. Background. Masterfile offers a collectible purchase platform (“Platform”) that incorporates transparent methods in connection with the purchase of a physical collectible or other items through the Platform (each a “Collectible”), and Variants with respect to Collectibles (as further described in Section 2(D) below. Transactions and acquired Collectibles through the Platform will be digitally recorded on a transparent digital ledger through the Platform (“Ledger”). The Platform may also include certain services offered by third parties, including software, software services, content, data, goods, products, or other materials, including related documentation (“Third-Party Service(s)”).
B. Access and Use of the Platform. You are hereby granted a non-exclusive, non-transferrable, non-assignable, non-sublicensable, right to access and use the Platform in accordance with these Terms of Service. Masterfile shall have sole and complete control of, and reserves the right at any time to make any changes to, the configuration, appearance, content functionality, and scope of the Platform.
C. Platform Use Restrictions. You shall not use the Platform for any purposes beyond the scope of the access granted in this Agreement. You agree not to, directly or indirectly: (i) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Platform, in whole or in part; (ii) remove any proprietary notices from the Platform; (iii) use the Platform in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; behave in a harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable manner; (iv) impersonate or attempt to impersonate another individual or entity, including, without limitation, any Masterfile employee or agent, or another Platform user; (v) circumvent, remove, alter, deactivate, degrade, or thwart any technological measure or content protections of the Platform; (vi) attack our Masterfile’s information technology systems (or those providing information technology systems of Masterfile’s behalf) via a denial-of-service attack or distributed denial-of-service attack or otherwise; (vii) use any device, software, bot, or routine that interferes with the proper or intended working of the Platform, or otherwise to your unfair advantage to any other user of the Platform or (viii) damage, overburden, disable, or impair Masterfile’s ability to provide the Platform to users.
D. Collectible Variant Rates. Certain Collectibles on the Platform may be released with certain variants including but not limited to limited edition variants (“Variant(s)”). Variants and their availability rates in connection with a respective Collectible may be set by a respective publisher and/or distributer of such Collectible or another third party, and not us, in which case, Masterfile has no control over any such Variant rates.
E. Suspension. Notwithstanding anything to the contrary in this Agreement, in the event you violate any terms of this Agreement, Masterfile may temporarily or permanently, at its discretion, suspend your access to any portion or all of the Platform. Masterfile will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that you may incur as a result of such suspension.
F. Platform Downtime. Masterfile uses commercially reasonable efforts to provide access to the Platform in a reliable and secure manner. From time to time, interruptions, errors, delays, or other deficiencies in providing access to the Platform or a Third-Party Service may occur due to a variety of factors, some of which are outside of Masterfile’s control, and some which may require or result in scheduled maintenance or unscheduled downtime of the Platform (collectively, “Downtime”). Part or all of the Platform may be unavailable during any such period of Downtime, which may include an inability to access the Platform or purchase a Collectible at the time you intended.
To use certain features of the Platform, you may be asked to provide certain registration details or other information to create an account as applicable (“Account”). It is a condition of your use of the Platform that all the Account information you provide to us through the Platform is correct, current, and complete. It is your responsibility to update any Account information when it becomes out-of-date. Any personal data processed by us with respect to your Account will be done so in accordance with our privacy policy https://gonkbonk.com/privacy . You also acknowledge that your Account is personal to you and agree not to provide any other person with access to the Platform or portions of it using your user name, password or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security.
Certain features on the Platform related to the process of purchasing a Collectible and obtaining the assigned variant, may require you to link an accepted digital wallet (“Digital Wallet”) to the Platform for so long as you use the Platform. We neither own nor control your Digital Wallets. You have the sole responsibility to (a) establish, and maintain, in fully operational, secure and valid status, access to your Digital Wallet, and (b) maintain, in your fully secure possession, the credentials for accessing your Digital Wallet and the private key for your Digital Wallet. In the event of any loss, hack or theft of any digital asset from your Digital Wallet, you acknowledge and agree that you shall have no right(s), claim(s) or causes of action in any way whatsoever against us for such loss, hack or theft.
A. Platform Ownership. Masterfile and, if applicable, its licensors, are and shall remain, the sole and exclusive owners of all right, title and interest in and to the Platform including all intellectual property rights therein and thereto, and further including, without limitation, all graphics, design, systems, methods, processes, architectures, structures, functions. information, computer code, software, services, “look and feel”, organization, compilation of the content, code, and data related to the Platform (collectively “Masterfile IP”). Your use of the Platform does not grant you ownership or any other rights with respect to the Masterfile IP, whether expressly, by implication, estoppel, reliance or otherwise, all of which are specifically excluded and disclaimed.
B. Feedback. If you transmit any communication or material to us by mail, email, telephone, or otherwise through the Platform, suggesting or recommending changes to the Platform, including, without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), we are free to use such Feedback irrespective of any other obligation or limitation between you and us governing such Feedback. All Feedback is and will be treated as non-confidential, except as provided by applicable law. You hereby assign to us on your behalf, all right, title, and interest in, and we are free to use, without any attribution or compensation to you or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although we are not required to use any Feedback.
A. Collectible Price. You may purchase a Collectible through the Platform at the price set forth in the Platform at checkout (“Price”). Price may include shipping fees and other fees expressly set forth at checkout. The Price does not include any sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by you, and to the extent any such taxes must be charged by us in accordance with applicable law, such additional fees shall be listed at the checkout in addition to the Price. You shall be responsible for all such charges, costs, and taxes.
B. Payment. You agree to pay the Price in full upon checkout for a respective purchased Collectible through the Platform. All payments shall be made in US dollars, unless expressly set forth otherwise at checkout.
A. Shipping Fees. You shall be responsible for paying all shipping and handling fees in accordance with Section 5(B) above.
B. Shipping Timing. We make no guarantee on when a Collectible will ship and be delivered to you. As a retailer, we can only fulfill orders once we have received the physical Collectible goods that were purchased. The purchased Collectible will be delivered within a reasonable time after our receipt of the physical Collectible in our inventory. Masterfile shall not be liable for any delays, loss, or damage in transit.
C. Shipping Terms. Delivery shall be made FOB of the respective Collectible’s distributor’s location. Risk of loss passes to you upon the carrier’s receipt of the respective Collectible.
We can accept returns only if the Collectible or Variant you receive is incorrect, as verified by the Ledger. Otherwise, all requests for returns will be handled on a case-by-case basis, and may be subject to a twenty percent (20%) restocking fee.
A. PLATFORM DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL MASTERFILE IP IS PROVIDED “AS IS.” EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT MASTERFILE SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
B. COLLECTIBLE DISCLAIMER OF WARRANTIES. MASTERFILE MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE COLLECTIBLES, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. MASTERFILE USES COMMERCIALLY REASONABLE EFFORTS TO PROVIDE COLLECTIBLES IN GOOD CONDITION TO YOU, HOWEVER, SOME ITEMS MAY BE SENT TO MASTERFILE IN LESSER CONDITION AND WE MAY BE UNABLE TO EXCHANGE SUCH COLLECTIBLE FOR ANOTHER IN A BETTER CONDITION. WE MAKE NO GUARANTEE AS TO THE FINAL CONDITION THAT ANY COLLECTIBLE WILL ARRIVE IN.
C. VARIANT COLLECTIBLE DISCLAIMER. CERTAIN VARIANTS OF COLLECTIBLES CANNOT BE REPLACED AND MASTERFILE MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND AND DISCLAIMS ALL LIABILITY WITH RESPECT ANY LOSS OR DAMAGES RELATED TO A PARTICULAR VARIANT.
D. PLATFORM DOWNTIME. MASTERFILE SHALL NOT BE LIABLE OR RESPONSIBLE TO YOU FOR ANY INCONVENIENCE, LOSSES OR ANY OTHER DAMAGES AS A RESULT OF DOWNTIME, INCLUDING, WITHOUT LIMITATION, YOUR INABILITY TO ACCESS THE PLATFORM OR PURCHASE A COLLECTIBLE AS A RESULT OF SUCH DOWNTIME. YOU HEREBY WAIVE ANY CLAIM AGAINST MASTERFILE IN CONNECTION WITH DOWNTIME.
E. BLOCKCHAIN TECHNOLOGY DISCLAIMER. THE PLATFORM UTILIZES BLOCKCHAIN TECHNOLOGY TO RECORD PURCHASED COLLECTIBLES AND ASSOCIATED VARIANTS OF SUCH PURCHASED COLLECTIBLES ON THE LEDGER. THE LEDGER IS NOT INTENDED TO REFLECT ANY DIGITAL ASSET OWNED BY YOU AND STRICTLY SERVES AS AN IMMUTABLE RECORD FOR TRANSPARENCY PURPOSES BEHIND THE ASSIGNABILITY OF VARIANTS RELATED TO A PURCHASED COLLECTIBLE. RECORDS POSTED TO THE LEDGER CANNOT BE ALTERED BY MASTERFILE OR OTHERWISE ONCE IT HAS BEEN POSTED.
A. IN NO EVENT SHALL MASTERFILE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT MASTERFILE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
B. IN NO EVENT SHALL MASTERFILE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO MASTERFILE FOR COLLECTIBLES SOLD HEREUNDER IN THE THREE (3) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
C. The limitation of liability set forth in this Section shall not apply to (i) liability resulting from Masterfile’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from Masterfile’s acts or omissions.
You shall defend, indemnify and hold harmless, Masterfile and its respective officers, directors, managers, members, shareholders, employees, agents, representatives, successors and permitted assigns from any and all losses, liabilities, damages (including attorneys’ fees), causes of actions, and any other claims by any third party for any violation of this Agreement.
This Agreement shall be governed by and interpreted in accordance with the laws of California without regard to any conflict of law principles. All disputes, claims and actions, at law or in equity, in connection with this Agreement or the breach, termination, enforcement, interpretation or validity thereof, use of the Platform or any subject matter related thereto (collectively, “Disputes”) shall be settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules (“AAA Rules”), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall take place in Los Angeles, California before a single neutral arbitrator appointed in accordance with the AAA Rules and shall be conducted in the English language. All arbitrations shall be conducted and resolved on an individual basis and not a class-wide, multiple plaintiff or similar basis. No arbitration shall be consolidated with any other arbitration proceeding involving any other person or entity.
EXCEPT WHERE PROHIBITED UNDER APPLICABLE LAWS, ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THE ARBITRATION AGREEMENT IN THIS SECTION 10 MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A COLLECTIVE CLASS BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE.
You have the right to opt-out and not be bound by these arbitration by sending written notice of your decision to opt-out to support@gonkbonk.com within thirty (30) days of your earliest use or access of the Platform.
Subject to the above arbitration provisions, you and Masterfile agree that all Disputes shall be settled in the federal or state courts located in Los Angeles, California, and each of us agrees that such courts shall have exclusive jurisdiction and venue for any such actions. Notwithstanding anything to the contrary, Masterfile also may seek injunctive or other equitable relief for breach of this Agreement in any court of competent jurisdiction wherever located. You consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum. The prevailing party in any suit, action or proceeding, including any arbitration proceeding, will be entitled to recover its reasonable legal fees and costs and expenses from the other party.
Notices from one party to any other party must be in the English language and must be reasonably detailed. Notices shall be effective on the date on which the notice is delivered to the notified party’s authorized email address or as published by Masterfile as described herein. Until you receive notice of a different email address from us, Masterfile authorized email address for all purposes of this Agreement shall be the following: support@gonkbonk.com.
The failure by us to enforce any right or provision of this Agreement shall not prevent any party from enforcing such right or provision in the future. No waiver by a party of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by such party. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
A. Assignment. The parties’ rights and obligations under this Agreement inure to the benefit of their respective successors, heirs, executors, administrators and permitted assigns. Masterfile may freely assign this Agreement with prior notice to you. You shall not assign this Agreement without the prior written consent of Masterfile.
B. Amendments; No Waiver. The provisions of this Agreement or any SOW may not be altered, amended or repealed, in whole or in part, except with the written consent of each of the parties to this Agreement. No delay or omission to exercise any right, power or remedy accruing to any party under this Agreement, upon any breach or default of any other party under this Agreement, shall impair any such right, power or remedy of such non-breaching or non-defaulting party nor shall it be construed to be a waiver of any such breach or default.
C. Severability. Each provision of this Agreement shall be considered separable; and if, for any reason, any provision or provisions herein are determined to be invalid and contrary to any existing or future law, such invalidity shall not impair the operation of or affect those portions of this Agreement which are valid, which portions shall be interpreted to give effect, as much as possible, to the original intent of the parties.
D. Entire Agreement. This Agreement constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter.
E. Headings. The headings of the sections and subsections contained in this Agreement are included for reference purposes only, solely for the convenience of the parties, and shall not in any way be deemed to effect the meaning, interpretation or applicability of this Agreement or any term, condition or provision hereof.