PLEASE READ THESE TERMS AND CONDITIONS CAREFOLLY AS THEY CONTAIN IMPORTANT INFORMATION AND AFFECT YOUR LEGAL RIGHTS. AS OUTLINED IN SECTION 12 BELOW, THE TERMS AND CONDITIONS INCLUDE A MANDATORY ARBITRATION AGREEMENT AND CLASS ACTION WAIVER WHICH (WITH LIMITED EXCEPTIONS) REQUIRE ANY DISPUTES BETWEEN YOU AND PINKFONG USA TO BE RESOLVED THROUGH INDIVIDUAL ARBITRATION RATHER THAN BY A JUDGE OR JURY IN COURT.
BY USING PINKFONG USA’S WEBSITE, YOU AGREE TO BE BOUND BY THESE TERMS AND ALL OF THE TERMS INCORPORATED HEREIN BY REFERENCE. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICE.
1. Your Acceptance
1.1. By using and/or visiting this Pinkfong USA Website and all content available through the site, including without limitation, any capabilities to view, explore, purchase, sell, or transfer Non- Fungible Tokens (“NFTs”) or similar digital items, or any other software, tools, features, or functionalities provided on or in connection with our website or services (collectively the “Pinkfong USA Website”), you signify your consent and agreement to these terms and conditions of use (the “Terms and Conditions” or “Terms”).
1.2. If you do not agree to the Terms and Conditions, please do not use the Pinkfong USA Website.
Please note that we may require you to register to perform certain functions and access certain areas of the Pinkfong USA Website.
2. Website Access and Use
2.1. Pinkfong USA hereby grants you permission to use the Pinkfong USA Website as set forth herein, provided that:
2.1.1. your use of the Pinkfong USA Website is solely for your personal use;
2.1.2. you will not copy or distribute any part of the Pinkfong USA Website in any medium without Pinkfong USA’s prior written authorization;
2.1.3. you will not alter or modify any part of the Pinkfong USA Website; and
2.1.4. you agree that the information provided on the Pinkfong USA Website is provided for convenience or information only.
2.2. We may use “cookie” and/or “web beacon” technology to provide features for the Pinkfong USA Website. While all browsers are different, you may be able to configure your browser to accept or reject all or some cookies, or notify you when a cookie is set. However, you may have to enable cookies in order to use and access the Pinkfong USA Website.
2.3. You agree not to (i) use or launch any automated system, including without limitation, “robots,” “spiders,” “offline readers,” and any other similar or analogous system; and (ii) not to effect fraudOlent or untrue request messages to Pinkfong USA’s servers or to engage third persons to effect fraudOlent or untrue request messages to Pinkfong USA’s servers.
2.4. Notwithstanding the foregoing, Pinkfong USA grants the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of creating publicly available searchable indices of the materials, but not to create caches or archives of such materials. Pinkfong USA reserves the right to revoke these exceptions either generally or in specific cases.
3. Links To and From the Pinkfong USA Website
3.1. The Pinkfong USA Website may contain links to third-party websites that are not owned or controlled by Pinkfong USA, and such links shoOld not be interpreted as an endorsement of any company, content, or products to which the Pinkfong USA Website links. Pinkfong USA has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third-party websites.
3.2. Pinkfong USA disclaims any and all warranties, express or implied, to any such linked sites, including but not limited to any terms as to the accuracy, ownership, validity or legality of any content of a linked website. By using the Pinkfong USA Website, you expressly relieve Pinkfong USA from any and all liability arising from your use of any third-party website.
3.3. Pinkfong USA permits you to link to only the main or “home” page of the Pinkfong USA Website. “Deep links” to sub webpages are not permitted.
4. Intellectual Property Rights
4.1. The Pinkfong USA Website contains a variety of: (i) materials and other items relating to Pinkfong USA and its products and services, and similar items from our licensors and other third parties, including all layouts, information, text, data, files, images, scripts, designs, graphics, button icons, instructions, illustrations, photographs, audio clips, music, sounds, pictures, videos, NFTs, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Pinkfong USA Website, and the compilation, assembly, and arrangement of the materials of the Pinkfong USA Website and any and all copyrightable material (including source and object code); (ii) trademarks, logos, trade names, service marks (collectively, “Trademarks”); and (iii) other forms of intellectual property (collectively “Pinkfong USA Intellectual Property Rights”).
4.2. The Pinkfong USA Website (including past, present, and future versions) and the Pinkfong USA Intellectual Property Rights are owned or controlled by Pinkfong USA and our licensors and certain other third parties. All right, title, and interest in and to the Pinkfong USA Intellectual Property Rights available via the Pinkfong USA Website is owned by or licensed to Pinkfong USA, its parents, subsidiaries, affiliates, or associates, and is protected by U.S. and international copyright, trademark, patent, or other intellectual property rights and laws to the fOllest extent possible. The Pinkfong USA Website is also protected as a collective work or compilation under U.S. copyright and other laws and treaties.
4.3. You may use the Pinkfong USA Website for your personal, non-commercial use only, and you may not copy, reproduce, republish, download, upload, post, transmit, distribute, modify, reuse, repost, or make any other use of the Pinkfong USA Website, or any portion thereof. You may not sell, prepare derivative works based on or modifying the Pinkfong USA Website (including, without limitation, preparation of summaries of the content or “thumbnails” of any images therein), or any portion thereof, or reproduce, publicly display, publicly perform, distribute, or otherwise use the Pinkfong USA Website in any way for any public or commercial purpose. The use of any information contained on the Pinkfong USA Website on any other website, or in any publication, database, catalog or compilation, or in a networked computer environment for any purpose other than personal browsing of the Pinkfong USA Website without the express prior written permission of Pinkfong USA is strictly prohibited.
4.4. If you download or print a copy of content from the Pinkfong USA Website for personal use, you must retain all copyright and other proprietary notices contained therein.
4.5. You agree not to circumvent, disable, or otherwise interfere with security related features of the Pinkfong USA Website or features that prevent or restrict use or copying of any content of the Pinkfong USA Website.
4.6. Pinkfong USA reserves all rights not expressly granted herein.
5. Ownership, License, and Ownership Restrictions for NFTs
For the purposes of this Section 5, the following capitalized terms will have the following meanings:
- “Art” means any art, graphics, images, designs, logos, taglines, drawings, characters, and music and/or copyrights that may be associated with an NFT in which you purchased.
- “Own” means, with respect to an NFT, an NFT that was purchased or otherwise rightfully acquired from a legitimate source.
- “Purchased NFT” means an NFT that you Own.
- “Third Party IP” means any third-party patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, trademarks, know-how, or any other intellectual property rights recognized in any country or jurisdiction in the world.
5.1. You understand and agree: (i) that your purchase of an NFT, whether via the Pinkfong USA Website or otherwise, does not give you any rights or licenses in or to the Pinkfong USA Website or the Pinkfong USA Intellectual Property Rights (including, without limitation, our copyright in and to the associated Art) other than those expressly contained in these Terms; (ii) that you do not have the right, except as otherwise set forth in these Terms, to reproduce, distribute, or otherwise commercialize any elements of the Pinkfong USA Website or the Pinkfong USA Intellectual Property Rights (including, without limitation, any Art) without our prior written consent in each case, which consent we may withhold in our sole and absolute discretion; and (iii) your purchase of the NFT does not give you any separate rights to any of the Art associated with a Purchased NFT, nor the rights to create derivative works.
5.2. Subject to your continued compliance with these Terms, we grant you a worldwide, non- exclusive, non-transferable, royalty-free license to use, copy, and display the Art for your Purchased NFT, solely for the following purposes: (i) for your own personal, non-commercial use; (ii) as part of a marketplace that permits the purchase and sale of your Purchased NFT, provided that the marketplace cryptographically verifies each NFT owner’s rights to display the Art for their Purchased NFT to ensure that only the actual owner can display the Art; or (iii) as part of a third party website or application that permits the inclusion, involvement, or participation of your Purchased NFT, provided that the website/application cryptographically verifies each NFT’s owner’s rights to display the Art for their Purchased NFT to ensure that only the actual owner can display the Art, and provided that the Art is no longer visible once the owner of the Purchased NFT leaves the website/application.
5.3. You agree that you may not, nor permit any third party to do or attempt to do any of the foregoing without our (or, as applicable, our licensors’) express prior written consent in each case: (i) modify the Art for your Purchased NFT in any way, including, without limitation, the shapes, designs, drawings, attributes, or color schemes; (ii) use the Art for your Purchased NFT to advertise, market, or sell any of your own product or service or third party product or service; (iii) use the Art for your Purchased NFT in connection with images, videos, or other forms of media that depict hatred, intolerance, sexual conduct violence, cruelty, inappropriate or obscene content, or anything else that could reasonably be found to constitute hate speech or otherwise infringe upon the rights of others; (iv) use the Art for your Purchased NFT in movies, videos, or any other forms of media, except to the limited extent that such use is expressly permitted in these Terms or solely for your own personal, non-commercial use; (v) sell, distribute for commercial gain (including, without limitation, giving away in the hopes of eventual commercial gain), or otherwise commercialize merchandise that includes, contains, or consists of the Art for your NFT; (vi) attempt to trademark, copyright, or otherwise acquire additional intellectual property rights in or to the Art for your Purchased NFT; or (vii) otherwise utilize the Art for your Purchased NFT for your or any third party’s commercial benefit.
5.4. If the Art associated with your Purchased NFT contains Third Party IP, you understand and agree as follows: (i) that you will not have the right to use such Third Party IP in any way except as incorporated in the Art, and subject to the license and restrictions contained herein; (ii) that, depending on the nature of the license granted from the owner of the Third Party IP, we may need to (and reserve every right to) pass through additional restrictions on your ability to use the Art; and (iii) to the extent that we inform you of such additional restrictions in writing, you will be responsible for complying with all such restrictions from the date that you receive the notice, and that failure to do so will be deemed a breach of the license contained in this Section 5.
5.5. The license granted in Section 5.2 above applies only to the extent that you continue to Own the applicable Purchased NFT. If at any time you sell, swap, donate, give away, transfer, or otherwise dispose of your Purchased NFT for any reason, the license granted in Section 5.2 will immediately expire with respect to that Purchased NFT without the requirement of notice, and you will have no further rights in or to the Art for that Purchased NFT. The restrictions in Sections 5.4 and 5.5 will survive the expiration or termination of these Terms.
6. User Generated Content
6.1. The Pinkfong USA Website services may enable you to submit comments, participate in bulletin boards or forums, or upload other user generated content for hosting, display, and distribution to other users (individually and collectively “UGC”). By submitting UGC, you grant to Pinkfong USA and any of its parents, subsidiaries, affiliates, representatives, licensors and assigns an irrevocable, perpetual, non-exclusive, fully-paid, world-wide, royalty-free license, with, among other rights, the right to grant sublicenses, to publicly display, publicly perform, distribute, store, transcode, syndicate, broadcast, reproduce, edit, modify, create derivative works, and otherwise use and reuse your UGC or portions thereof in any manner, in any medium, and for any purpose.
6.2. To the extent that we authorize you to create, post, upload, distribute, publicly display or publicly perform UGC that involves the use of our copyrighted work(s), we grant you a limited, non-exclusive license to create a derivative work using the specifically referenced copyrighted work(s) for the sole purpose of creating such a derivative work, provided that such license shall be conditioned upon your assignment to us of all intellectual property rights worldwide in the derivative work you create for the duration of copyright in the UGC, in all formats and media known or unknown to date, including for use on Pinkfong USA products and on third party sites and platforms. If for any reason such rights are not assigned to us, your license to create derivative works using our copyrighted works shall be null and void.
6.3. Regarding UGC, you shall not: (i) publish falsehoods or misrepresentations that could damage Pinkfong USA or any third party; (ii) publish material that is unlawful, obscene, pornographic, defamatory, libelous, hateful, threatening, harassing, racially or ethnically offensive, or encourages anything that would be considered a criminal offense, give rise to civil liability, violate any law, violate the rights, harm, or threaten the safety of any person or is otherwise inappropriate; (iii) impersonate another person; or (iv) post advertisements or solicitations for yourself or for any third parties.
6.4. Pinkfong USA acts as a passive conduit for its users to generate UGC, and Pinkfong USA has no obligation to screen or monitor communications or information, and has no legal obligation to, and does not, control the information provided by other users. Accordingly, you must use caution and common sense when accessing UGC. If notified by a user of communications which allegedly do not conform to these Terms and Conditions, Pinkfong USA may investigate the allegation and determine in good faith and at its sole discretion whether to remove or request the removal of the communication.
6.5. By its very nature, other people’s information may be offensive, harmful or inaccurate, and in some cases may be mislabeled or deceptively labeled. Pinkfong USA does not endorse, represent or guarantee the truthfulness, accuracy, or reliability of UGC and has no liability or responsibility for any UGC or your reliance on UGC. Any such reliance shall be at your own risk.
6.6. Pinkfong USA is not involved in transactions between users. As a result, Pinkfong USA has no control over the quality, safety or legality of UGC. In addition, there are risks, including but not limited to the risk of physical harm, in dealing with strangers or people acting under false pretenses. You assume all risks associated with dealing with other users with whom you come in contact through the Pinkfong USA Website and UGC, and Pinkfong USA has no responsibility or liability for any transactions, online or offline, between you and any third party.
6.7. Because user authentication on the Internet is difficult, Pinkfong USA cannot and does not confirm that each user is who they claim to be. Pinkfong USA is not and cannot be involved in user-to-user dealings or control the behavior of participants; consequently in the event that you have a dispute with one or more users, you release Pinkfong USA (and its parents, subsidiaries, affiliates, agents, representatives, partners, directors, officers and employees) from claims, demands and damages (actual and consequential, direct and indirect) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. If you are a California resident in the United States, you waive California Civil Code § 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
6.8. All information or advice provided as part of the Pinkfong USA Website and/or UGC are intended to be general in nature and you should not rely on any such in connection with the making of any decision and may not be applicable to your personal or professional situation. Pinkfong USA is not liable for any action you may take as a result of relying on such information or advice or for any loss or damage suffered by you as a result of you taking this action.
7. Copyright Infringement Notification (Digital Millennium Copyright Act)
7.1. If you believe that any copyrighted work is accessible through the Pinkfong USA Website in a way that constitutes copyright infringement, please notify Pinkfong USA by providing our designated copyright agent with the following information:
7.2. The physical or electronic signature of either the copyright owner or of a person authorized to act on the owner’s behalf;
7.3. A description of the copyrighted work you claim has been infringed, and a description of the activity that you claim to be infringing;
7.4. Identification of the URL or other specific location on the Pinkfong USA Website where the material or activity you claim to be infringing is located or is occurring;
7.5. You must include enough information to allow us to locate the material or the activity;
7.6. Your name, address, telephone number, and e-mail address;
7.7. A statement by you, made under penalty of perjury, that (i) the information you have provided is accurate and that you are the copyright owner or are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; and (ii) you have a good faith belief that use of the copyrighted materials is not authorized by the copyright owner, any agent of the copyright owner, or the law.
7.8. Please note that the United States Copyright Act prohibits the submission of a false or materially misleading Notice or Counter-Notice, and any such submission may result in liabilities, including perjury. U.S. federal courts have determined that copyright owners must consider whether the work in question qualifies as a “fair use” before submitting a notice of claimed infringement.
7.9. Notifications of claimed copyright infringement and counter notices must be sent to our designated agent:
Attn: Pinkfong USA Designated Agent
Pinkfong USA, Inc
1925 Century Park E
Los Angeles, California 90067
7.10. We are only able to accept notices in languages in which these Terms and Conditions are made available by us.
7.11. If you believe in good faith that a notice of copyright infringement has been wrongly filed against, you can send Pinkfong USA a counter-notice that includes:
- Your name and address, and telephone number.
- The source address of the removed content.
- A statement under penalty of perjury that you have a good faith belief that the content was removed in error.
- A statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located, or if your address is outside of the United States, for any judicial district in which the Website may be found, and that you will accept service of process from the person who provided the original complaint.
8. Warranty Disclaimer
8.1. You agree that your use of the Pinkfong USA Website shall be at your sole risk.
8.2. To the fullest extent permitted by law, Pinkfong USA, its parents, subsidiaries, affiliates, officers, directors, employees, and agents disclaim all warranties, express or implied, in connection with the Pinkfong USA Website and your use thereof.
8.3. The Pinkfong USA Website is provided AS IS and Pinkfong USA makes no warranties or representations about the accuracy or completeness of this site’s content and assumes no liability or responsibility for any (i) errors, mistakes, or inaccuracies of content; (ii) personal injury or property damage, of any nature whatsoever, resulting from your access to and use of the Pinkfong USA Website; (iii) any unauthorized access to or use of our secure servers and/or any and all personal information and/or financial information stored therein; (iv) any interruption or cessation of transmission to or from the Pinkfong USA Website; (v) any bugs, viruses, trojan horses, or the like which may be transmitted to or through the Pinkfong USA Website; and/or (vi) any loss or damage of any kind incurred as a result of use of any content posted, emailed, transmitted, or otherwise made available via the Pinkfong USA Website.
8.4. Pinkfong USA does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through the Pinkfong USA Website, and Pinkfong USA will not be a party to or in any way be responsible for monitoring any transaction between you and third-party providers of products or services. As with the purchase of a product or service through any medium or in any environment, you should use your best judgment and exercise caution where appropriate.
9. Limitation of Liability
9.1. In no event shall Pinkfong USA, its parents, subsidiaries, affiliates, officers, directors, employees, or agents, be liable to you for any direct, indirect, incidental, special, punitive, or consequential damages whatsoever resulting from (i) your access to and use of the Pinkfong USA Website; (ii) any unauthorized access to or use of our servers and/or any and all personal information and/or financial information stored therein; (iii) any interruption or cessation of transmission to or from the Pinkfong USA Website; (iv) any bugs, viruses, trojan horses, or the like, which may be transmitted to or through our Pinkfong USA Website; and/or (v) any errors or omissions in any content or for any loss or damage of any kind incurred as a result of your use of the Pinkfong USA Website, whether based on warranty, contract, tort, or any other legal theory, and whether or not the company is advised of the possibility of such damages. The foregoing limitation of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction.
9.2. The Pinkfong USA Website is controlled and offered by Pinkfong USA from its facilities in the United States of America. Pinkfong USA makes no representations that the Pinkfong USA Website is appropriate or available for use in other locations. Those who access or use the Pinkfong USA Website from other jurisdictions do so at their own volition and are responsible for compliance with local law.
10.1. You agree to defend, indemnify and hold harmless Pinkfong USA, its parents, subsidiaries, affiliates, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your violation of any term of these Terms and Conditions; or (ii) your violation of any third party right, including without limitation any copyright, property, or privacy right. This defense and indemnification obligation will survive termination of these Terms and Conditions and your use of the Pinkfong USA Website.
11.1. Pinkfong USA reserves the right to discontinue, modify, and alter any and all aspects of the Pinkfong USA Website at any time and without notice.
11.2. Pinkfong USA reserves the right to immediately terminate your access to the Pinkfong USA Website if Pinkfong USA determines that you are in breach of the Terms and Conditions.
12. Binding Arbitration and Class Action Waiver
12.1. Any dispute, controversy, or claim arising out of or related in any manner to these Terms and Conditions which cannot be amicably resolved between you and Pinkfong USA shall be solely and finally settled by arbitration, except as explicitly provided herein.
12.2. Arbitration shall be administered by the JAMS Mediation, Arbitration and ADR Services (“JAMS”) in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “JAMS Rules”). The JAMS Rules and instructions about how to initiate an arbitration are available at www.jamsadr.com or 1-800-352-5267. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitration shall take place before a panel of one (1) arbitrator sitting in Los Angeles County, California. The language of the arbitration shall be English. The arbitrator will be bound to adjudicate all disputes in accordance with the laws of the State of California. The decision of the arbitrator shall be in writing with written findings of fact and shall be final and binding on the parties. The arbitrator may award damages to you individually as a court could, including declaratory or injunctive relief, but only to the extent required to satisfy your individual claim. You and Pinkfong USA empower the arbitrator with the exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of these terms or the formation of this contract, including the arbitrability of any dispute and any claim that all or any part of these Terms and Conditions are void or voidable. Each party shall bear its own costs relating to the arbitration proceedings irrespective of its outcome. This section provides the sole recourse for the settlement of any disputes arising out of, in connection with, or related to these Terms and Conditions. Notwithstanding the foregoing, either party may bring an action before the federal courts of the United States seeking a restraining order, temporary or permanent injunctive relief, or other equitable relief to protect its intellectual property rights.
12.3. YOU AND PINKFONG USA HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Pinkfong are instead electing that all claims and disputes shall be resolved by arbitration except as provided herein.
12.4. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A REPRESENTATIVE OR COLLECTIVE CLASS BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE USER, PERSON, OR ENTITY CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER USER, PERSON, OR ENTITY. Accordingly, under the arbitration procedures outlined in this section, an arbitrator shall not combine or consolidate more than one party’s claims without the written consent of all affected parties to an arbitration proceeding. Without limiting the generality of the foregoing, you and Pinkfong USA agree that no dispute shall proceed by way of class arbitration without the written consent of all affected parties. If a decision is issued stating that applicable law precludes enforcement of any part of this subsection’s limitations as to a given claim for relief, then that claim must be severed from the arbitration and brought in the state or federal courts located in Los Angeles County in the State of California. All other claims shall be arbitrated.
13. General Terms
13.1. You agree that: (i) the Pinkfong USA Website shall be deemed solely based in the State of California; (ii) the Pinkfong USA Website shall be deemed a passive website that does not give rise to personal jurisdiction over Pinkfong USA, either specific or general, in jurisdictions other than the State of California, and (iii) by accepting the Terms and Conditions you are submitting yourself to the jurisdiction of the State of California for any issues related to the Terms and Conditions and/or your use of the Pinkfong USA Website.
13.2. These Terms and Conditions shall be governed by the laws of the State of California without respect to its conflict of laws principles. These Terms and Conditions, together with any other legal notices published by Pinkfong USA on the Pinkfong USA Website, shall constitute the entire agreement between you and Pinkfong USA concerning the Pinkfong USA Website.
13.3. If any provision of these Terms and Conditions is deemed invalid, void, or for any reason unenforceable, then that provision shall not affect the validity of the remaining provisions of these Terms and Conditions, which shall remain in full force and effect.
13.4. No waiver of any term of these Terms and Conditions shall be deemed a further or continuing waiver of such term or any other term, and Pinkfong USA’s failure to assert any right or provision under these Terms and Conditions shall not constitute a waiver of such right or provision.
13.5. Pinkfong USA reserves the right to amend these Terms and Conditions at any time and without notice, and it is your responsibility to review these Terms and Conditions for any changes.
13.6. Your use of the Pinkfong USA Website following any amendment of these Terms and Conditions will signify your assent to and acceptance of its revised terms.
13.7. You and Pinkfong USA agree that any cause of action arising out of or related to the Pinkfong USA Website must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently time barred.