Terms and Conditions of www.newdawn.xyz

Voltura Labs Pty Ltd Trading as ‘New Dawn Labs’

Last Updated: Monday, 29th of January 2024 at 3:55 PM AEST

By accessing or continuing to use our Marketplace (Voltura Labs Pty Ltd trading as ‘New Dawn Labs’), you agree to abide by these Terms and Conditions, including our Privacy Policy (https://newdawn.xyz/privacy-policy). If you do not agree with any of these terms, or the terms of our Privacy Policy you should cease using our Marketplace and Services. When you (Purchaser, you) purchase non-fungible tokens (NFTs) or acquire Traits through airdrops, Trait Packs, Trades, Burning, Extraction or Gutter Extraction on our Marketplace you must agree to the terms and conditions set out in this document (Terms and Conditions) and the licence (https://newdawn.xyz/nft-license) attached to these Terms and Conditions (Licence), which apply to you and any subsequent person to whom you sell the NFT(s) you purchase or Traits you acquire from us on the Marketplace in the first instance.

Operative clauses

1. Applicability of Terms and Conditions

   1. Binding Agreement: By purchasing or acquiring Non-Fungible Tokens (NFTs) or Traits from Voltura Labs Pty Ltd, trading as ‘New Dawn Labs’, you unequivocally acknowledge and agree to be legally bound by these Terms and Conditions and the accompanying License Agreement. This agreement is enforceable against you and any subsequent entity to whom the NFTs or Traits are transferred. These Terms and Conditions and License Agreement constitute a legally binding contract between you and Voltura Labs Pty Ltd and supersede any prior agreements or understanding, whether written or oral.
   2. Comprehensive Applicability: The use, transfer and all interaction with the NFTs and Traits acquired from our Marketplace are exclusively governed by these Terms and Conditions, the License Agreement, our Privacy Policy and any related documents or ancillary agreements. Any deviation or exception to these Terms and Conditions and license Agreement will only be recognised if expressly agreed upon in a written document, duly signed by an authorized representative of Voltura Labs Pty Ltd.
   3. Comprehensive Protection: it is imperative to understand that these Terms and Conditions, along with the License Agreement, provide comprehensive protection and delineate the scope of rights and obligations both as the user and for Voltura Labs Pty Ltd. Your compliance with these Terms is fundamental to the use of our Marketplace and Services.
   4. Amendment Rights: Voltura Labs Pty Ltd reserves the right to amend, modify, or update these Terms and Conditions and the License Agreement at any time. It is your responsibility to regularly review these Terms to ensure continued compliance and understanding of your obligations.
      
      By engaging in any transaction on our marketplace, you signify your absolute and unconditional acceptance of these Terms and Conditions, the License Agreement, and any ancillary governing documents.

2. Marketplace Services

   1. Use of Marketplace

      1. Our Website provides you with access to the Marketplace. You may purchase goods from Merchants participating in the Marketplace.
      2. We provide services to you through our Website, including the ability to:
         1. access and interact with the Marketplace;
         2. enter into transactions or trades for NFTs and Traits;
         3. acquire Traits and construct Customised NFTs through the Extraction and Construction processes set out below in clause 2.2;
         4. Ability to purchase Trait packs containing traits or other NFTs; and
         5. other functions and services from time to time.

      (Services)

      3. We expressly disclaim any responsibility or liability for any aspect of interactions between Consumers and Merchants, including, but not limited to, the transaction, purchase, and delivery of Non-Fungible Tokens (NFTs) and Traits. Our role is strictly limited to providing the platform for such interactions, and we do not involve ourselves in the specifics of any transactions or exchanges that occur.

   2. Extraction and Construction

      1. You acknowledge that by using the Extraction and Construction services the affected NFT, also known as a Base NFT, will be placed in the New Dawn Holding Contract and you will not be able to trade or sell the Base NFT whilst in the New Dawn Holding Contract.
      2. You acknowledge that Traits used in the construction of a Customised NFT may be extracted through the Marketplace but are not able to be traded on-chain or separately sold to Merchants;
      3. If you use the Extraction process you must sign a permission request using your Digital Wallet on your first Extraction. Once you finalise the Extraction process, NFTs are separated into:
         1. Traits that are preserved as Web2.0 tokens and held in your New Dawn Account; and
         2. Base NFTs which are sent to the New Dawn Holding Contract;
      4. All extracted Traits will be recorded on your Account until they are reconstructed into a Customised NFT and Base NFTs are stored on the New Dawn Holding Contract until the Construction process begins.
      5. You may use the Services to create a Customised NFT through the Construction Process by combining the Traits stored on your New Dawn Account and the Base NFT held in the New Dawn Holding Contract. You must sign a permission request using your wallet on your first Construction before you build a Customised NFT. Any Traits used in a Construction will be locked for 1 hour after the Construction is initiated, these Traits will be visible in your Account but may not be used until after the 1 hour period.

   3. Gutter Extraction and Construction

      1. You acknowledge that by using the Gutter Extraction services the affected NFT, also known as a Base NFT, will be burnt forever and you will not be able to trade or sell or use the Base NFT ever again.
      2. You acknowledge that Traits used in the construction of a Customised NFT may be extracted through the Marketplace but are not able to be traded on-chain or separately sold to Merchants;
      3. If you use the Extraction process you must sign a permission request using your Digital Wallet on each Gutter Extraction. Once you finalise the Extraction process, NFTs are separated into:
         1. Traits that are preserved as Web2.0 tokens and held in your New Dawn Account; and
         2. Base NFTs which are sent to the Ethereum Burn wallet forever which will never be able to be recovered by the user or marketplace;
      4. All extracted Traits through this Gutter Extraction will be recorded on your Account until they are reconstructed into a Customised NFT
      5. You may use the Services to create a Customised NFT through the Construction Process by combining the Traits stored on your New Dawn Account and the Base NFT held in your wallet. You must sign a permission request using your wallet on your first Construction before you build a Customised NFT. Any Traits used in a Construction will be locked for 1 hour after the Construction is initiated, these Traits will be visible in your Account but may not be used until after the 1 hour period.

3. Your Account

   1. You may access some areas of the Website and Marketplace without registering your details with us. However, to purchase NFTs or acquire Traits, you must provide us with some of your Personal Information and register an account (Account). The privacy of your Personal Information, which may be used to reasonably identify you (Personal Information), is important and we are committed to complying with requirements of relevant privacy laws.
   2. You must not create an Account if you are under the age of 18.
   3. To create an Account, you must:
      1. Connect your Digital Wallet;
      2. Submit contact information including but not limited to your email address; and
      3. provide any other information we may request to identify you or verify your Account.
   4. All Personal Information you provide through the Website (including through your Account creation process or by using the Services and the Marketplace) will be collected, handled and used in accordance with our Privacy Policy. We reserve the right to make inquiries through third parties to confirm that the information provided by you, to us, is correct.
   5. You agree to keep your Account information accurate and complete. You will not be able to use the Website to access the Services if you provide invalid, expired or incorrect information.
   6. You acknowledge and agree that you are responsible for any activity that occurs through your Account and you will not sell, transfer, license or assign your Account to anyone else. You agree that you will not create an Account for another person, and will not possess more than one Account.

4. Purchasing NFTs and/or Traits

   1. Sale of NFT and/or Traits

      1. We may list NFTs and/or Traits for sale or procurement from time to time, which may be stand-alone or as part of a bundle of other digital goods.
      2. We may allow for Merchants to list NFTs and/or Traits from time to time which may be purchased by Consumers.
      3. Orders placed for NFTs or Traits are non-refundable, cannot be cancelled for change of mind, require payment in full of the Purchase Price at the time of purchase and may require that you connect or provide a Digital Wallet for delivery of the NFT at the time of sale.
      4. If you engage in a secondary sale of your NFT and/or Traits, that transaction may involve third party platforms or blockchain Digital Wallets which are not associated with us, and may be subject to transaction fees charged by that network. Should any transfer be conducted using a marketplace we provide, then fees and charges may apply to those transactions payable to us at the time of the transaction.

   2. Pre-conditions to sale

      1. You must make payment in full in any nominated Digital Currency or via any other nominated payment method as a pre-condition to any purchase of an NFT or Trait
      2. In the case of a primary sale, we will have no obligation to transfer any NFT or Trait to you until we have received the Purchase Price in full for any NFT or Trait. If you make payment to our Digital Wallet, you must ensure your transfer is made to the correct wallet address.
      3. In the event that any payment is reversed or becomes invalid, including via either a double spend attack or recall or refund request by a payment processor, you agree to immediately return to us any NFTs or Traits that are the subject of a sale where the Purchase Price has no longer been retained in full by us.

   3. Title and risk

      Risk and title in any NFT or Trait purchase transfers to you upon purchase of the NFT or Trait and you are responsible for ensuring your Digital Wallet is accurately linked. If you lose your private key or login or seed phrase for your Digital Wallet you will likely lose access permanently to your NFTs or Traits stored in your Digital Wallet. We cannot recover any private key or seed phrase for your Digital Wallet.

   4. Refunds - Risk in value of Digital Currency

      We do not offer refunds for purchases. However, where the Purchase Price has been paid in a Digital Currency and you are entitled to a refund for any reason, you agree the refund is to be made in the same form of Digital Currency used in the initial transaction, or at our option in Australian dollars equivalent to the value of the Digital Currency used in the initial transaction on the date the Purchase Price was paid, whether or not that is a greater or lesser sum.

   5. Disclaimer and Acknowledgment Regarding NFTs and Traits

      1. Limitation of Representations and Warranties:
         
         No Representations or Warranties: Voltura Labs Pty Ltd, operating under the trading as New Dawn Labs, explicitly disclaims making any representations, warranties, assurances, or conditions, explicit or implied, regarding various aspects of Non-Fungible Tokens (NFTs) and Traits.
         
         This includes, but is not limited to:
         1. Value and Pricing: No guarantees or assurances regarding the current or future value, price, or market standing of any NFTs or Traits.
         2. Functionality: No representations about the functionality, operability, or technological aspects of the NFTs or Traits.
         3. Legal Compliance and Status: No assertions regarding the legal status of the NFTs or Traits, including their classification or non-classification as securities or financial products under any jurisdiction.
         4. Fitness or Suitability: No warranties concerning the fitness, suitability, or appropriateness of the NFTs or Traits for any specific purpose.
         5. Future Utility: No assurances regarding the future utility, applicability, or existence of the NFTs or Traits.
      2. Liability Limitation:
         1. Absence of Liability: You expressly acknowledge that Voltura Labs Pty Ltd will bear no liability, under any circumstances, for any loss, claim, or damage arising from or connected to the characteristics, features, or aspects of the NFTs or Traits.
      3. Clarification of Non-Investment Status of NFTs and Traits:
         1. Non-Investment Nature Affirmation: When engaging in transactiosn involving Non-FUngible Tokens (NFTs) and Traits through Voltura Labs Pty Ltd, trading as New Dawn Labs, you explicitly Acknowledge and agree that these NFTs and Traits are neither Investments nor Financial instruments. They should under no circumstance sbe regarded or interpreted as securities, shares, bonds, or any other type of financial product.
         2. No Implied Investment Value: It is imperative to understand that the purchase or acquisition of NFTs and Traits from Voltura Labs Pty Ltd past, present or future is not an investment action. These digital assets do not represent any ownership, equity or similar interest in Voltura Labs Pty Ltd or any other entity. They are not designed to provide a return, dividend, profit or any form of financial gain.
         3. Non-Advisory Nature of Information: Any information, communication or materials provided by Voltura Labs Pty Ltd, whether through our website, publication , social media, or any other channels, do not and should not be considered as financial advice, investment guidance, or a solicitation to invest. Such content is for informational purposes and does not take into account your individual circumstances, financial situation or investment objectives.
      
      By acquiring NFTs, Traits or using the marketplace and agreeing to these Terms and Conditions from Voltura Labs Pty Ltd, you confirm your understanding or their non-financial nature and agree that your decision to purchase or acquire these digital assets past, present or future, is not based on any expression of them being an investment or generating financial returns.

5. Intellectual Property Licence in NFTs

   Your rights in the NFT you Own are limited to those expressly stated in the Licence. We (and our licensors) reserve all rights and ownership in and to the Intellectual Property Rights in the Art associated with an NFT you Own that are not expressly granted in the Licence.

6. Termination

   1. Termination with cause

      These Terms and Conditions and the Licence may be terminated with immediate effect:

      1. by us if any of the Purchaser Warranties in clause 8 are breached by you; or
      2. by us if the limitations of the Licence in clause 2 of the Licence are breached; or
      3. by either party if the other party commits any material breach of its obligations under these Terms and Conditions and fails to remedy such breach (if capable of remedy) within 30 days of receipt of notice from the non-defaulting party requiring it to do so.

   2. Effect of termination

      1. Other than as set out below, termination of these Terms and Conditions does not affect the rights of the parties which have accrued prior to termination.
      2. Upon termination of these Terms and Conditions or the Licence, the rights under the Licence in respect of an NFT or Trait you Own will immediately cease, including the rights to use, copy, display, and otherwise enjoy the Art associated with the NFT or Trait you Own save that any physical objects you have created showing the Art for your personal use shall be deemed to have a continuing personal licence to use.

7. Acknowledgements

   You acknowledge and agree that:

   1. we own or are licensed to use, all legal right, title and interest in and to all other elements of the Website, and all Intellectual Property Rights therein (including, without limitation, all Art, designs, systems, methods, information, computer code, software, services, “look and feel”, organisation, compilation of the content, code, data, and all other elements of the Website (collectively, Website Materials);
   2. the Website Materials are protected by copyright, trade dress, patent, and trademark laws, international conventions, other relevant intellectual property and proprietary rights, and applicable laws. All Website Materials are the copyrighted property of us or our licensors, and all trademarks, service marks, and trade names associated with the Website or otherwise contained in the Website Materials are proprietary to us or our licensors;
   3. NFTs or Traits may experience or may have extreme price or value volatility, including being worthless in the future;
   4. we are not providing and will not provide any fiduciary, advisory, brokerage, exchange or other similar services to you or any other person;
   5. you are solely responsible for any decision to enter into a transaction to acquire an NFT or Trait, including the evaluation of any and all risks related to any such transaction;
   6. a significant degree of IT sophistication is required to safely deal in and store NFTs and Traits of any kind using a Digital Wallet;
   7. we are not a custodian for the purposes of the Corporations Act, and transfers of any NFTs or Traits are for transaction purposes only;
   8. all transactions entered into and conducted under these Terms and Conditions are deemed to have occurred within the jurisdiction of NSW, Australia;
   9. we are not responsible for any Loss caused by your failure to act in accordance with our policies, procedures or in accordance with our reasonable directions;
   10. you acquire NFTs and Traits entirely at your own risk and understanding and we have not made any representations or warranties as to the IT security or ongoing availability of such NFTs and Traits or the Art or that your access to use your NFTs or Traits will be uninterrupted, timely or secure at all times;
   11. you understand and acknowledge that your ownership of NFTs (and Traits) remains contingent upon you remaining in control of the seed phrases and private key(s) associated with your Digital Wallet and that we will not store any information in connection with your Digital Wallet beyond that required for the sale of NFTs or Traits;
   12. we do not and cannot guarantee there will be any use for, or any particular price available for any NFT you purchase, nor do we guarantee the availability of any Trait on our Marketplace; and
   13. we do not represent or guarantee any outcomes, or any financial return from your acquisition of any NFT or Trait, save the ability to Own the NFT and Trait and enjoy the Art the subject of the Licence, conditional upon adherence with the Licence terms.

8. Warranties

   1. Our Warranties

      We represent and warrant that:-

      1. we own, or have the right to use under licence, the Art in the NFTs which we sell and are legally entitled to, and are capable of, selling the NFTs offered for sale; and
      2. we will give you notice before we discontinue or alter the rights or features of any NFTs which you have purchased.

   2. Purchaser Warranties

      You warrant and assure us that in acquiring an NFT or Trait (from us or from a third party or existing NFT or Trait holder):

      1. you use the Services and the Marketplace at your own risk;
      2. prior to accepting these Terms and Conditions you have been given a reasonable opportunity to examine and satisfy yourself regarding the Services which are the subject of these Terms and Conditions;
      3. at no time prior to accepting these Terms and Conditions have you relied on our skill or judgement and that it would be unreasonable for you to do so;
      4. we do not make any guarantees as to the NFTs and Traits advertised on the Marketplace, or have any control over, the purchase, delivery or accuracy of those NFTs and Traits acquired from Merchants;
      5. we do not make any representations or warranties concerning any content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services;
      6. you are sufficiently experienced and educated to make decisions regarding the procurement or purchase of NFTs and Traits from us, including sufficient experience in dealing with and storing NFTs and Traits using a Digital Wallet;
      7. you have all necessary experience, resources, certificates, licences, permits and approvals to procure or purchase NFTs and Traits applicable in Your Jurisdiction, and that any transactions under these Terms and Conditions or in your use of the NFT or Trait will be legal under the applicable laws of Your Jurisdiction;
      8. all information you supply is true and accurate as at the time it is given, and that any Digital Wallet address you provide to us has been generated in accordance with best practice security measures and no other party, other than you or your authorised representative, has used, or has access to, the seed phrases, private keys or analogous passwords required to effect transfers from, the Digital Wallet;
      9. as far as you are aware, there are no facts, circumstances or other information which:
         1. you have not fully and fairly disclosed to us in a manner and to an extent that it would impact out ability to make a reasonable assessment of those facts, matters and circumstances prior to entering into a transaction to sell you an NFT; and
         2. is of such nature and materiality that a reasonable person, had it been made aware of, could not reasonably be expected to consider prior to entering into a transaction for the sale of NFTs;
      10. you are not involved in any capacity in any claim, legal action, proceeding, suit, litigation, prosecution, investigation, enquiry, mediation or arbitration (nor which are pending or threatened) concerning NFTs or Traits;
      11. if we request, you will identify and substantiate the source of funds involved in transactions to acquire NFTs;
      12. no Digital Currency transferred to us as part of a Purchase Price has been derived from any illegal or unlawful activity;
      13. you are the lawful owner of any Digital Wallet nominated for delivery of NFTs or Traits and each Digital Wallet is owned and operated solely for your benefit, and no person has any right, title or interest in your nominated Digital Wallet; and
      14. you have had the opportunity to obtain independent legal advice in relation to the terms and effect of these Terms and Conditions.

   3. Continuous warranties

      You represent and warrant to us that each of the Purchaser Warranties is true and accurate, and not misleading or deceptive as at the date of these Terms and Conditions and, except as expressly stated, will be true, accurate and not misleading or deceptive each time an NFT/s or Trait/s are provided to you.

   4. Notification

      You must disclose to us anything that has or will constitute a material breach of a Purchaser’s Warranty or cause a Purchaser’s Warranty to be untrue or inaccurate, as soon as you become aware of it.

   5. Mutual warranties

      Each party warrants and assures the other party that:

      1. if it is a company, it is duly incorporated and validly exists under the law of its place of incorporation;
      2. it is not subject to an Insolvency Event; and
      3. these terms constitute a legal, valid and binding terms enforceable in accordance with its terms by appropriate legal remedy.

   6. Consumer Guarantees

      1. Certain legislation, including the Australian Consumer Law (ACL) contained in the Competition and Consumer Act 2010 (Cth) and similar consumer protection laws and regulations, may provide you with rights, warranties, guarantees and remedies relating to your purchase of NFTs which cannot be excluded, restricted or modified in these Terms and Conditions (Statutory Rights).
      2. Nothing in these Terms and Conditions does, or is intended to, exclude any Statutory Rights to which you are entitled.

   7. Knowledge and awareness

      Where a warranty is given ‘to the best of a party’s knowledge, belief and awareness’, or ‘as far as the party is aware’ or with a similar qualification as to the relevant party’s awareness or knowledge, the party giving the warranty will be deemed to know or be aware of a particular fact, matter or circumstance if that party’s directors or senior management employees are aware of that fact, matter or circumstance, or would have become aware if they had made reasonable enquires as at the date of these Terms and Conditions.

9. Indemnity

   1. You agree to indemnify us and our Personnel and will keep us and our Personnel indemnified at all times to the fullest extent permitted by law in respect of any Loss or Claim which we or our Personnel may suffer, sustain or incur arising from, or connected with, a breach of a Purchaser Warranty without limitation.
   2. In addition, you must indemnify us and our Personnel and keep us and our Personnel indemnified at all times to the fullest extent permitted by law in respect of any Claim which we or our Personnel may suffer, sustain or incur arising from, or connected with, any breach of these Terms and Conditions, other than a breach of a Purchaser Warranty, or any breach of all applicable laws, reduced to the extent of the Loss in respect of the Claim was caused by the negligent act or omission of us or our Personnel.

10. Limitation of liability

    1. Limitation of liability

       1. In the absence of a material breach of these Terms and Conditions by us or the gross negligence, fraud or wilful misconduct by us when providing NFTs or Traits to you under these Terms and Conditions, we will not be liable to you on account of anything done, omitted or suffered by us acting in good faith when providing NFTs or Traits to you pursuant to these Terms and Conditions, including in respect of a Force Majeure Event.
       2. To the maximum extent permitted by law, we do not accept responsibility for any loss or damage (including indirect, special or consequential loss or damage), however caused and whether or not foreseeable (whether in contract, tort, for breach of statutory duty or otherwise), even if we have previously been advised of the possibility of such loss or damage which you may directly or indirectly suffer in connection with:
          1. your use of the Services, the Website or any linked content, products and services (together, the Linked Services) (including interference with or damage to your computer or mobile devices arising in connection with any such use);
          2. the Services or the Marketplace being interrupted or unavailable;
          3. errors or omissions from the Services or the Marketplace;
          4. any failure or lack of any security measures by us, or any third party including in relation to the storage or transfer of data;
          5. viruses, malicious codes or other forms of interference effecting the Services, the Marketplace or any Linked Services;
          6. your use of or reliance on information contained on or accessed through the Services, the Marketplace, the Website or any Linked Services, which information may be incorrect, incomplete, inadequate or outdated;
          7. goods or services supplied pursuant to or in any way connected with the Services or the Marketplace;
          8. unauthorised access to or use of, our servers and/or any information stored on them; or
       3. Any failure or omission on our part to comply with our obligations as set out in these Terms and Conditions. Voltura Labs Pty Ltd T/A newdawn.xyz endeavours to ensure you will have access to your Base NFT or Customised NFT through the Extraction and Construction Process, however we do not accept responsibility for any Loss you suffer if, at any stage, you lose control of your NFT for any reason, including but not limited to any Loss directly or indirectly caused by the interruption of your access to the Services or Marketplace.

    2. Third part services

       Subject to clause 10.1, we will not be liable for the performance, errors or omissions of unaffiliated, nationally or regionally recognised third parties or decentralised networks such as, by way of example and not limitation: blockchain networks (whether private/permissioned or public), courier companies, national postal services and other delivery, telecommunications and other companies not under our reasonable control, and third parties not under our reasonable control providing services to the blockchain industry generally, such as, by way of example and not limitation, companies and other entities providing processing and payment or transaction services (including “Layer 2” or similar “roll-up” or optimisation services), banking partners, custody services, market making services and/or third party pricing services and decentralised blockchain networks such as, by way of example and not limitation, the blockchain(s) upon which any NFT or Trait depends or forks of those blockchain(s).

    3. Compliance with laws – No monitoring responsibilities

       1. We will have no liability or responsibility for your compliance with laws or regulations governing the transfer and use of NFTs or Traits. Further, you are solely responsible for compliance with all applicable requirements of any laws, rules, and regulations of governmental authorities in Your Jurisdiction.
       2. You further acknowledge that neither we nor any of our Personnel is, and will not be, by virtue of providing NFTs or making Traits available to you, an advisor or fiduciary to you.

    4. No liability for consequential loss

       Neither party will be liable to the other for any Loss or Claim in the nature of consequential or indirect loss, including without limitation loss of profits, loss of chance, loss of expectations, or loss or opportunity.

    5. Liability Cap

       1. Our total liability to you under circumstances where you make a purchase of an NFT from us is limited to the Purchase Price of an NFT was originally sold by us to you and we shall not be liable for any amount above that sum.
       2. To the extent that we are in breach of any consumer guarantee or any other warranty or condition that cannot be excluded from these Terms and Conditions:
          1. your sole remedy will be for us to provide the features or services that were previously provided; and
          2. our maximum liability to you is limited to the Purchase Price of the goods or services you purchased in your last transaction using our Services or $50, whichever is lower.

11. Tax

    1. The Purchase Price for any transaction will be considered to be inclusive of any applicable Sales Tax.
    2. If any additional Sales Tax is applicable by virtue of any law under Your Jurisdiction, you agree to pay such amount as is payable on behalf of us, and inform us of that payment forthwith.
    3. If you are a resident of Australia you must declare your residency during the Account set up process for the purposes of determining applicable Sales Tax.
    4. Any reference to a cost or expense incurred by a party in these Terms and Conditions excludes any amount of Sales Tax forming part of the relevant cost or expense when incurred by the party for which the party can claim an input tax credit.
    5. Each party is solely responsible for any taxation which arises as a result of dealing in the NFTs or Traits, including capital gains or income tax and you shall have no Claim for any Loss against us in respect of any taxation amounts you are due to pay howsoever such amounts arise.

12. Notices

    1. Unless a provision of these Terms and Conditions expressly state otherwise, a notice, consent, approval, waiver or other communication (notice) in connection with these Terms and Conditions must be in writing and in English and sent to, in the case of us, our nominated email, of in the case of you, to your nominated email or published on the Website with public access to such notice.
    2. Any notice will be deemed to be received within 24 hours of sending the electronic message (unless a rejection message is received) or publication online.
    3. A party must immediately notify the other party in writing of any changes to its contact details.

13. Disputes

    1. Proceedings suspended

       You must not begin legal proceedings in connection with a dispute arising out of or in connection with these Terms and Conditions unless the steps in this clause 13 have been followed. However, this limitation does not apply:

       1. to a party who wants to apply for equitable relief or urgent interlocutory relief; or
       2. to a party who attempts in good faith to comply with clauses 13.2, 13.3 and 13.4 but cannot do so because the other party does not comply with those clauses.

    2. Notice of dispute

       If a dispute arises out of or in connection with these Terms and Conditions (including the validity, breach or termination of it), a party may notify the other party to the dispute. The notice must specify the dispute and indicate that the notifying party wants the dispute to be referred to mediation.

    3. Commencement of mediation

       1. If the dispute is not resolved within 10 Business Days after a notice under clause 13.2 has been served (Notice Period), the dispute is by this clause 13.3 submitted to mediation.
       2. The mediation must be conducted in New South Wales, Australia in accordance with the mediation guidelines/rules of the Resolution Institute, save any process in these Terms and Conditions which is inconsistent with those guidelines or rules will take precedence to the extent of any inconsistency.
       3. If the parties have not agreed on the mediator and the mediator’s remuneration within 5 Business Days after the end of the Notice Period:
          1. the mediator is the person appointed by; and
          2. the remuneration of the mediator is the amount or rate determined by,

          the President of the Law Institute of New South Wales or the President’s nominee, acting on the request of any party.

    4. If dispute not resolved

       If the dispute is not resolved within 1 month after the appointment of the mediator, you may take legal proceedings in connection with the dispute.

    5. Confidentiality

       Each party must keep confidential, all information relating to the subject matter of a dispute as disclosed during or for the purposes of dispute resolution under this clause 13, unless that party is compelled by an regulatory or government authority, court or tribunal to disclose that information.

14. General

    1. Governing law and jurisdiction

       These Terms and Conditions are governed by the laws of NSW and Australia. The parties irrevocably submit to the exclusive jurisdiction of the courts of NSW and the NSW division of the Federal Court of Australia and the courts of appeal from them.

    2. Amendment

       We reserve the right to amend these Terms and Conditions from time to time in our absolute discretion. Amendments will be effective as soon as such changes are notified to you in writing from time to time.

    3. Precedence

       Where there is inconsistency between these Terms and Conditions and other content displayed as part of the Website, the content of these Terms and Conditions will prevail to the extent of any inconsistency.

    4. Force Majeure

       We will not be liable for any delay or failure to perform our obligations under these Terms and Conditions if such delay is due to any circumstances beyond our reasonable control (including but not limited to epidemics, pandemics, blockchain congestion or attacks, Government sanctions or orders, whether known or unknown at the time the parties enter into these Terms and Conditions) (Force Majeure Event).

    5. Waiver

       A provision of these Terms and Conditions or a right created under it may not be waived except in writing signed by the party granting the waiver.

    6. Exercise of a right

       A party may exercise a right at its discretion and separately or together with another right. If a party exercises a single right or only partially exercises a right, then that party may still exercise that right or any other right later. If a party fails to exercise a right or delays in exercising a right, then that party may still exercise that right later.

    7. Remedies cumulative

       The rights and remedies provided in these Terms and Conditions are cumulative with and not exclusive of the rights and remedies provided by law independently of these Terms and Conditions.

    8. No merger

       The rights and obligations of the parties (including under the warranties) will not merge on completion of any transaction under these Terms and Conditions. They will survive the execution and delivery of any assignment or other document entered into for the purpose of implementing any transaction.

    9. Assignment

       1. These Terms and Conditions are for the benefit of the parties and their successors and assigns. The parties and their successors and assigns are bound by these Terms and Conditions.
       2. To the extent that any party purchases an NFT from you, they are deemed to have taken an assignment of these Terms and Conditions as published at the time of the purchase and you must provide that party with a link or copy of these Terms and Conditions.
       3. We may assign our rights under these Terms and Conditions without your consent, including at any time.

    10. Severance

        If any provision of these Terms and Conditions are void, voidable, unenforceable, illegal, prohibited or otherwise invalid in a jurisdiction, in that jurisdiction the provision must be read down to the extent it can be to save it but if it cannot be saved by reading it down, words must be severed from the provision to the extent they can be to save it but if that also fails to save it the whole provision must be severed. That will not invalidate the remaining provisions of these Terms and Conditions nor affect the validity or enforceability of that provision in any other jurisdiction where it is not invalid.

    11. Entire agreement

        1. These Terms and Conditions constitute the entire agreement of the parties in respect of the subject matter of these Terms and Conditions and supersedes all prior discussions, representations, undertakings and agreements.
        2. None of our agents or representatives are authorised to make any representations, conditions or agreements not expressed by us in writing nor are we bound by any such statements.

    12. Further assurances

        Each party must, at its own expense, do everything reasonably necessary to give effect to these Terms and Conditions and the transactions contemplated by it, including but not limited to the execution of documents.

    13. Relationship

        Nothing in these Terms and Conditions constitutes the parties as partners or agents of the other and no party has any authority to bind the other legally or equitably save as expressly stated in these Terms and Conditions.

    14. Knowledge

        In these Terms and Conditions, a reference to the awareness or knowledge by you is a reference to the actual knowledge, information and belief you have as at the date of any transaction taking place pursuant to these Terms and Conditions.

    15. Costs

        Each party must pay its own fees, costs and expenses incurred by it incident to or in connection with the negotiation, preparation, execution, delivery and completion of these Terms and Conditions and the transactions contemplated by these Terms and Conditions including without limitation its own legal, accounting and corporate advisory fees.

15. Definitions

    In these NFT Terms:

    Art means any art, design, wording and drawings (in any form or media, including, without limitation, video or photographs) that are associated with an NFT that you Own;

    Base NFT means the ERC721 token which is deconstructed during the Extraction Process;

    Business Day means any day except a Saturday or a Sunday or other public holiday in New South Wales, Australia;

    Claim includes a claim, notice, demand, action, proceeding, litigation, investigation, however arising whether present, unascertained, immediate, future or contingent, whether based in contract, tort or statute and whether involving a third party or a party to these NFT Terms and where and to the extent the context permits, includes all associated Loss;

    Construction is the process whereby a user can create a Customised NFT using the Traits and Base NFT acquired from the Extraction process;

    Consumer means a user that creates an Account on the Marketplace to purchase NFTs or acquire Traits;

    Corporations Act means the Corporations Act 2001 (Cth);

    Customised NFT is an NFT that a user can create through the Construction process using Traits and a Base NFT;

    Digital Currency means a cryptographically secured virtual currency or virtual asset which we identify as an acceptable means of payment or transacting with us;

    Digital Wallet means the applicable “Metamask” location, public key or wallet address, account or storage device which we choose to support for the delivery of the NFTs and Traits provided by us through use of the Marketplace;

    Extraction is the process whereby a users NFT is deconstructed into individual parts called Traits in accordance with Service;

    Insolvency Event means the happening of any of the following events in relation to a body corporate:

    1. the body corporate becomes an externally-administered body corporate;
    2. a person is appointed a controller (as defined in section 9 of the Corporations Act), administrator, receiver, provisional liquidator, trustee for creditors in bankruptcy or an analogous appointment is made in respect of the body corporate;
    3. in Australia, the body corporate is taken to have failed to comply with a statutory demand within the meaning of section 459F of the Corporations Act;
    4. the body corporate suspends payment of its debts, or enters, or takes any step towards entering, a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors;
    5. a secured creditor of the body corporate enforces its security in relation to its debt for an amount in excess of $50,000; or
    6. the body corporate is, or its directors state that it is, unable to pay its debts as and when they become due and payable;

    Intellectual Property Rights means any and all present and future intellectual property rights, conferred by statute, at common law or in equity and wherever existing, including:

    1. patents, inventions, discoveries, designs, copyright, moral rights, trade marks, service marks, trade names, brand names, business names, product names, domain names or rights in designs, art, images, drawings, know how, product names, trading styles, get-up, processes, methodologies, trade secrets and any other rights subsisting in the results of intellectual effort in any field, whether or not registered or capable of registration;
    2. any application or right to apply for registration of any of these rights or other rights of a similar nature arising or capable of arising under statute or at common law anywhere in the world;
    3. other intellectual property as defined in Article 2 of the Convention Establishing the World Intellectual Property Organisation 1967;
    4. any registration of any of those rights or any registration of any application referred to in paragraph (b); and
    5. all renewals and extensions of these rights;

    Loss includes any loss, damage, cost, charge, liability or expense (including legal costs and expenses);

    Marketplace means the New Dawn software platform or software (including a Blockchain Digital Wallet) which permits the transfer, purchase or sale of an NFTs and the acquisition of Traits, provided that the Marketplace at all times cryptographically verifies the NFT owner’s right to Own the NFT or Trait;

    Merchant means a user that creates an Account on the Marketplace to advertise for sale NFTs;

    New Dawn Holding Contract means the smart contract held by New Dawn that contains users Base NFTs after Extraction;

    Own means, with respect to an NFT, any NFT we have issued, that you have purchased or otherwise rightfully acquired from a legitimate source, where proof of ownership is recorded on a blockchain system and you control the private key associated with a Digital Wallet to which the NFT is associated or located;

    Personnel means any employee, contractor, subcontractor, agent, partner, shareholder, ultimate beneficial owner, director or officer of a party;

    Privacy Policy means the privacy policy on the Website as may be varied from time to time;

    Purchase Price means the amount for the purchase (or pre-purchase) of any NFT or bundle containing an NFT, which may be denominated in a Digital Currency;

    Purchaser Warranties means the warranties set out in clause 8.2;

    Sales Tax means any form of value added tax including GST as defined in section 195-1 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth) or other similar sales tax;

    Trait means individual components comprising an NFT which include characteristics that affect the look and rarity of the NFT which are deconstructed and acquired through the Marketplace or the Extraction process;

    Website means https://newdawn.xyz and/or any other website we may operate from time to time;

    Website Terms means the terms and conditions on the Website as may be varied from time to time; and

    Your Jurisdiction means the country or state where you are ordinarily resident or from which you enter into any agreement with us.

16. Interpretation

    The following rules of interpretation apply in these NFT Terms unless the context requires otherwise:

    1. singular includes plural and plural includes singular;
    2. reference to legislation includes any amendments to it, any legislation substituted for it, and any statutory instruments issued under it and in force;
    3. reference to a person includes a corporation, joint venture, association, government body, firm and any other entity;
    4. reference to a thing (including a right) includes a part of that thing;
    5. reference to a party includes that party’s personal representatives, successors and permitted assigns;
    6. references to time mean that time in New South Wales, Australia;
    7. if a party comprises two or more persons:
       1. reference to a party means each of the persons individually and any two or more of them jointly;
       2. a promise by that party binds each of them individually and all of them jointly;
       3. a right given to that party is given to each of them individually;
       4. a representation, warranty or undertaking by that party is made by each of them individually;
    8. headings do not affect interpretation;
    9. another grammatical form of a defined expression has a corresponding meaning;
    10. a provision must not be construed against a party only because that party put the provision forward; and
    11. a provision must be read down to the extent necessary to be valid; if it cannot be read down to that extent, it must be severed.

Annexure - Licence Terms

1. Grant of Licence

2. We, Voltura Labs Pty Ltd (ACN 655 142 644) (Voltura Labs, us, we) grant, to the party who Owns an NFT we have issued (Licensee, you), for the time that party Owns the NFT, a worldwide, non-exclusive, royalty-free licence in respect of the Art associated with the NFT owned, subject always to the Owners strict compliance with clauses 2, 3 and 4 below (Licence).
3. The Licence is transferrable only via a Permitted Transfer, is revocable and is for the Owners to use, copy, display, and enjoy the Art associated with the NFT:
   1. for the Owner’s personal and non-commercial use;
   2. as part of the Marketplace which permits the sale or transfer of an NFT you Own; and
   3. as part of an online gallery which displays the Art associated with the NFT you Own.
4. Except as expressly stated in this Licence, nothing in these Licence Terms is intended to, or shall operate to, give an Owner ownership of any Intellectual Property Rights in, or other rights in respect of the Art or an NFT you Own.
5. For the avoidance of doubt, any individual layered files, traits and Art associated with an NFT you Own may not be used individually, separately or in combination of each other, other than as provided for under the Licence.

6. Restrictions on Use

   1. The Owner of an NFT must not:
      1. associate or display the Art in connection with images depicting hatred, violence, intolerance, cruelty, or other inappropriate behaviour that could be reasonably considered to bring the owner of the Art into disrepute, or that could be reasonably considered to infringe on the rights of others; or
      2. seek to trademark or acquire Intellectual Property Rights in the Art or take, appropriate, or represent any ownership in the Art; or
      3. cause, directly or indirectly, the further issue of an NFT which claims an association with the Art or which purports to be an NFT of the Art or which is a derivative work of the Art or
      4. assert any right to or over the Art in any manner inconsistent with the rights under this Licence; or
      5. take any action which would or might invalidate, challenge, oppose, infringe, or otherwise put in dispute any Intellectual Property Rights in the Art; or
      6. be reasonably seen to disparage the Intellectual Property Rights of the owner; or
      7. cause, permit, or assist any other person directly or indirectly to do any of the above acts.
   2. You understand and agree that if the Art associated with the NFT you Own may contain Third Party IP, including Intellectual Property Rights of Voltura Labs Pty Ltd, and that:
      1. you will not have the right to use such Third Party IP in any way except as incorporated in the Art, and subject to this terms and conditions of this Licence;
      2. depending on the nature of the licence granted from the owner of the Third Party IP, we may need to, subject to our discretion, place additional restrictions on the Licence; and
      3. to the extent that we inform you in writing of additional restrictions under clause 2.2(b) of this Licence, you will be responsible for complying with all such restrictions from the date that you receive such written notice, and that failure to do so will be deemed a breach of this Licence.
   3. For the avoidance of any doubt:
      1. the restrictions on the Licence survive termination or assignment transfer of this Licence;
      2. this Licence is limited to the time you Own the NFT and upon your sale of the NFT to another party the Licence is assigned to the purchaser of the NFT and your rights under the Licence cease to have any effect, and you must draw to the other party’s attention the contents of this Licence prior to your sale of the NFT; and
      3. the sale of your NFT does not constitute a “commercial use” of your NFT for the purposes of this Licence.

7. Commercial and derivative rights

   1. The Intellectual Property Rights in all aspects of the Art is owned or licensed by us.
   2. The NFT you Own may only be used for commercial purposes in its entirety as a whole, or as a basis for derivative works which are substantially altered from the original NFT and Art, but the NFT and Art may not be used to:
      1. create merchandise using the NFT, once you no longer Own that NFT; or
      2. create, sell or promote Counterfeit NFTs or associated collections.
   3. Any derivative works created in accordance with the terms of this Licence will be deemed to be sub-licenced under the terms of this Licence and subject to the terms of this Licence.

8. Permissible transfers of the NFT you Own

   1. You and any future owner of the NFT you Own have a limited right to transfer the NFT you Own (Secondary Sale), provided that:
      1. the transferee accepts all of the terms of this Licence and the current Terms and Conditions; and
      2. prior to the transfer, you have not breached this Licence or the current Terms and Conditions.
   2. For the avoidance of doubt, the additional fees under clause 1.1 of this Licence do not include, and are not intended to cover, any additional fees imposed or required by the platform through which any Secondary Sale is being conducted.
   3. Upon the sale of any NFT you Own, this Licence transfers to the purchaser who then Owns the NFT and the ownership of that NFT will be subject to, and conditional upon, compliance with the terms and conditions set out in this Licence.
   4. With immediate effect upon your sale of an NFT you Own, your rights under the Licence under shall cease to apply and will no longer be in force and effect.

9. Termination

   1. In the event that the Owner of an NFT breaches any of the terms of this Licence, we may terminate the Licence without notice and may take further steps including publishing the termination of the Licence and/or taking steps to seek to block the Art or the listing of an NFT subject to termination from any third party sites.
   2. Upon termination any right to use the Art associated with an NFT which is Owned, whether under the Licence or otherwise, immediately ceases.

10. Definitions

    In this document:

    Art means any art, design, wording and drawings (in any form or media, including, without limitation, video or photographs) that are associated with an NFT that you Own;

    Counterfeit NFT means an NFT that contains art that is identical or substantially indistinguishable from the NFT you Own, including:

    1. an NFT described as a knock-off, replica, imitation, clone, faux, fake, mirror image, or similar term used to described an NFT; or
    2. an NFT that mimics the layers, features or traits of the NFT you Own,
    3. in an attempt to pass it off as a genuine creation by us;

Intellectual Property Rights means any and all present and future intellectual property rights, conferred by statute, at common law or in equity and wherever existing, including:

1. patents, inventions, discoveries, designs, copyright, moral rights, trade marks, service marks, trade names, brand names, business names, product names, domain names or rights in designs, art, images, drawings, know how, product names, trading styles, get-up, processes, methodologies, trade secrets and any other rights subsisting in the results of intellectual effort in any field, whether or not registered or capable of registration;
2. any application or right to apply for registration of any of these rights or other rights of a similar nature arising or capable of arising under statute or at common law anywhere in the world;
3. other intellectual property as defined in Article 2 of the Convention Establishing the World Intellectual Property Organisation 1967;
4. any registration of any of those rights or any registration of any application referred to in paragraph (b); and
5. all renewals and extensions of these rights;

Marketplace means a software platform or software (including a Blockchain digital wallet) which permits the transfer, purchase or sale of an NFT, provided that the Marketplace at all times cryptographically verifies the NFT owner’s right to Own the NFT;

Own means, with respect to an NFT, any NFT we have issued, that you have purchased or otherwise rightfully acquired from a legitimate source, where proof of ownership is recorded on a blockchain system and you control the private key associated with a digital wallet to which the NFT is associated or located;

Owners means the person or entity that Owns an NFT we have issued;

Permitted Transfer means a permitted transfer of an NFT on the Marketplace;

Third Party IP means any third party Intellectual Property Rights; and

Website means https://psychedelicsanonymous.com and https://newdawn.xyz or any other website we may operate from time to time.