NiftyKit

Terms of Use

NiftyKit Terms of Use Last Revised: May 18, 2021

1.Introduction

Welcome to NiftyKit! 

1.1 This Terms of Use agreement (“Terms,” Terms of Use,” Agreement”) is intended to be a binding legal agreement between you (Collectively: “You,”  “Yours,” “User”) and NiftyKit, Inc., a Delaware Corporation (Collectively: “NiftyKit,” “We,” “Us,” “Ours”,“NiftyKit.com”). NiftyKit provides a platform (“Platform”) for “Users” to Mint and upload digital Content to the Ethereum, Polygon, or other blockchain. Credits are used to utilize Our Minting Service. NiftyKit creates ease of these transactions by facilitating the upload of digital Content to the blockchain and paying all gas fees associated with the Minting. Additionally, NiftyKit also offers a storefront to sell your NFTs. Further, NiftyKit also provides a link to public marketplace(s) where User’s NFTs will automatically show up and be ready for Users to sell, should you choose to, but please be aware that and agreed upon primary sale percentage is only available when an NFT Minted on NiftyKit is sold on the NiftyKit Platform. NiftyKit offers individual Minting services as well as Minting a Collection. A Collection Owner owns the verified Smart Contract and can invite others to Mint into their Collection.

1.2 THIS AGREEMENT GOVERNS YOUR USE OF THE PLATFORM AND/OR SERVICES UNLESS WE HAVE EXECUTED A SEPARATE AGREEMENT(S) WITH YOU FOR THAT PURPOSE. PLEASE READ THE TERMS OF USE CAREFULLY – THEY ARE IMPORTANT AND AFFECT YOUR LEGAL RIGHTS. BEFORE USING THE PLATFORM PLEASE BE AWARE THAT BY ACCESSING THE PLATFORM, CLICKING THE “I ACCEPT” BUTTON, COMPLETING THE ACCOUNT REGISTRATION PROCESS, AND/OR USING THE PLATFORM, YOU AGREE AND ACCEPT OUR TERMS OF SERVICE AND PRIVACY POLICY.

1.3 If you are accepting these terms on behalf of a company or other legal entity, you represent that you have the legal authority to accept the Terms of Use on that entity’s behalf, in which case “You” will mean that entity. If you do not have this authority OR IF YOU DO NOT AGREE TO OUR TERMS OF USE OR PRIVACY POLICY, YOU MUST NOT ACCESS THIS PLATFORM.

1.4 The terms used in this Agreement have the same meanings as in our Privacy Policy, which is accessible at https://niftykit.com/privacy-policy/,  unless otherwise defined in this Agreement.

1.5 NiftyKit reserves the right, at its sole discretion, to modify, discontinue, or terminate the Services or to modify these Terms of Use or any additional terms and conditions, policies, or guidelines governed by these Terms of Use, at any time and without prior notice. If we make changes to the Terms of Use we will provide notice of such changes, such as updating the “Last Updated” date at the beginning of the Terms of Use posted on our website/Platform. By continuing to access or use the Platform, you confirm your acceptance of the revised Terms of Use and all of the terms incorporated by reference. We encourage you to review the Terms of Use frequently to ensure that you understand the terms and conditions that apply when you access or use the Platform and/or Services. If you do not agree to the revised Terms of Use, you may not access or use the Platform.

1.6 NiftyKit reserves the right to discontinue and/or terminate services, including, but not limited to, account, NFT storage, and/or deletion of any Content Minted to the blockchain, without refund, if, in Our discretion, it appears you violated, or you did actually violate any part of NiftyKit’s Terms of Use of Privacy Policy.

1.7 Please note that Section 17 contains an arbitration clause and class action waiver. By agreeing to these Terms of Use, you agree to resolve all disputes through binding individual arbitration, which means that you waive any right to have the dispute decided by a judge or jury, and you waive any right to participate in collective action, whether that be a class action, class arbitration, or representative action.

2.Prohibited Platform Uses  

2.1 You agree that you will not violate any law, contract, intellectual property, or third party right, including, and that you are solely responsible for your conduct and content while accessing or using the Platform and or Service(s). You agree that you will abide by these Terms of Use. You understand and agree that you are prohibited from,  and will NOT:

  1. Provide false or misleading information, as determined by Us;
  2. Upload Content which you did not create yourself, unless the original composer of the Content has granted you the right to use the Content and you can furnish proof of  this permission, to be verified by Us, and we retain the right to determine if the proof is evidence of permission;
  3. Upload Content unless you have all the necessary rights and permissions to use the Content including, but not limited,  to all individuals appearing in the Content;
  4. Use or attempt to use another User’s account without authorization from such User and Us;
  5. Engage in any act where you know, or have reason to know, that such act may interfere with, disrupt, damage, diable, overburden, and/or negatively affect the Platform and.or Service’s functionality, in any manner;
  6. Engage in any act, such as translation,  decompilation, or reverse engineer any aspect of the Service and/or Platform, or otherwise attempt to obtain access to source code or private information of any software located on the Platform and/or that are part of the Services; or bypass or circumvent measures employed to prevent or limit access to any part of the Service and/or the Platform, area, or code of the Service and/or Platform;
  7. Reverse engineer any aspect of the Service and/or Platform, or do anything that might discover source code or private information, or bypass or circumvent measures employed to prevent or limit access to any Service and/or the Platform, area, or code of the Service and/or Platform;
  8. Attempt to circumvent any content-filtering techniques We employ, or attempt to access any feature or area of the Service and/or Platform that you are not authorized to access;
  9. Engage in any act that may utilize the following, including, but not limited to, any  robot, spider, crawler, scraper, script, browser extension, offline reader, or other automated means or interface not directly authorized by Us to access the Service and/or Platform for any purpose, including, but not limited to extracting data or otherwise interfering with or modifying the any aspect of the Service and/or Platform, as subjectively determined by Us;
  10. Use data collected from our Service and/or Platform to contact individuals, companies, or other persons or entities;
  11. Collect or use data from our Service and/or Platform for any direct marketing activity (including, but not limited to: email marketing, SMS marketing, telemarketing, and direct marketing);
  12. Bypass or ignore instructions that control any automated access to the Service and/or Platform;
  13. Use the Service and/or Platform for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms of Use or Privacy Policy;
  14.  Engage in any act that may utilize the Platform/Service, Ethereum, Polygon, or other Networks to carry out any illegal activities, including but not limited to, money laundering, terrorist financing, or engage in activities designed to adversely affect the performance of the Ethereum, Polygon, or other network, and/or the Service/Platform;
  15. Engage in (i) transactions including, but not limited to, transactions involving items that infringe or violate any copyright, trademark, right of publicity or privacy or any other proprietary right under the law; (ii) use NiftyKit content without express written consent from Us; and (iii) engage in any action that implies an untrue endorsement or affiliation with NiftyKit;
  16. Download any portion of the Platform/Service other than for purposes of page caching, except as expressly permitted by Us;
  17. Log in or attempt to log in to access the Service and or Platform through unauthorized third party applications or clients;
  18. Upload illegal Content, such as, but not limited to:
    1. Child pornography or child abuse;
    2. Content that shows extreme sexual violence or materials that are overly violent;
    3. Materials that provoke the viewer into committing crimes and carrying out violent acts. This might be material that instructs, promotes or incites violent acts;
    4. Content that promotes terrorism or encourages terrorist acts;

2.2 If you are unsure whether a contemplated use would violate these Terms of Use or Our Privacy Policy, please contact us at support@niftykit.com.

3. Ownership, License, and restrictions

3.1 When you purchase a Collection, you own the underlying NFTs completely by owning the Smart Contract associated with it/them. Ownership of an NFT is mediated entirely by the Smart Contract and the Ethereum, Polygon, or other Network. NFTs are on the Ethereum, Polygon, or other blockchain, whichever You choose, and are proof of ownership. The Content uploaded is stored on the Interplanetary File System (IPFS). Whoever owns a Collection also owns the Smart Contract associated with it. Users have the right to trade their NFT, sell it, or give it away when they choose, retaining the right to ongoing use of the NFT, if that is how a User chooses to use it. However, the Collection Owner may be able to control portions of the Smart Contract, as is true with any Smart Contract on any platform. (See Subscriptions, credits, payment, fees, and other charges below).

3.2 You are hereby granted a limited, nonexclusive, non-transferable, non-sublicensable license to access and use the Services and/or Platform; provided, however, that such license is subject to these Terms of Use and Privacy Policy and does not include any right to (a) sell, resell or use commercially the Service or Platform, (b) distribute, publicly perform, or publicly display anything obtained from the Service and/or Platform, (c) modify or otherwise make any derivative uses of the Service and/or Platform, or any portion thereof, (d) use any data mining, robots or similar data gathering or extraction methods, (e) download (other than page caching) any portion of the Service or Platform, except as expressly permitted by us, and (f) use the Service or Platform other than for their intended purposes.

3.3 Hyperlinks: you are hereby granted a limited, non-exclusive, non-transferable, revocable license to create a text hyperlink to the Platform for noncommercial purposes, provided that such link does not portray NiftyKit, our affiliates, or the Services in a false, misleading, derogatory, or otherwise defamatory manner, and provided further that the linking platform does not contain any adult or illegal materials, or other materials that is offensive, harassing, or otherwise objectionable.

4. Obligations

4.1 Account Registration. In order to participate in certain Services and secure any additional applicable benefits, the Platform requires you, through niftykit.com, to create an account with NiftyKit (the “Account”). A user who creates an account with NiftyKit may be referred to herein as a “User” You agree to only create one (1) Account. You agree to provide, maintain and update true, accurate, current and complete information about yourself. You agree not to impersonate any person or entity or misrepresent your identity or affiliation with any person or entity, including, but not limited to; using another person’s username, password or other account information, or another person’s name, likeness, voice, image or photograph.

4.2 Account Access: You understand and agree that access to your NiftyKit Account is limited solely to you. You agree that you will not sell, rent, lease, or grant access to your NiftyKit Account to any person without our prior written permission from NiftyKit.

4.3 Account Security: You understand and agree that you are solely responsible for maintaining the security of your Account and control over any user names, passwords, or any other codes that you use to access the Services and/or Platform. Any unauthorized access to your Account by third parties could result in the loss or theft of NFTs and/or credits held in your Account and any associated accounts, including your outside wallet, linked bank account(s) and/or credit card(s). You understand and agree that you will not hold Us responsible for managing and maintaining the security of your Account. You further understand and agree that We are not responsible (and you will not hold Us responsible) for any unauthorized access to or use of your Account or any compromise of your private key. You are responsible for monitoring your Account. You agree to notify us immediately of any unauthorized use of your password, username, other account information, or any other breach of security that you become aware of involving or relating to the Platform and/or Services.  NiftyKit will not be responsible for any liabilities, losses, or damages arising out of the unauthorized use of your name, password and/or Account.

4.4. Non-Hosted Digital Wallet. You are the owner of the imported digital wallet. We connect a wallet for your convenience. As such, NiftyKit is unable to block any transactions into the wallet. The safest place to keep any digital assets is on a physical ledger.

4.5 Taxes. You agree that you are solely responsible for determining what, if any, taxes apply to your NFT and/or Smart Contract and/or transactions related to them. Neither NiftyKit nor any other NiftyKit party is responsible for determining the taxes that apply to your NFT and/or transactions related to it. For the avoidance of doubt, all tax-related reporting responsibilities by you to relevant tax authorities are entirely your responsibility.

4.6 Communication. You agree and understand that We will communicate with you via electronic means. To ensure that you receive all of our communications, you agree to keep your email address current and notify Us if there are any changes. You agree that any notices, agreements, disclosures, or other communications delivered to your email address on record are considered valid.

5. Wallet and Non-Custodial Services

5.1 Wallet services. Users of the Beta version of NiftyKit were provided access to a free hosted Digital wallet(s) for holding NFTs (see also, Obligations, above).

5.2 Digital Wallet. Only Beta version Users may still have access to a hosted digital wallet. Wallets (hosted or not) allow you to store, track, transfer, and manage your digital assets. Services and supported assets may vary by jurisdiction. On hosted wallets we securely store and encrypt NFT private keys and seedphrases, which are used to process transactions, in IPFS storage. Only Beta Users need to understand that your private key(s) is used to access your digital wallet and/orNFTs. As a result of our security protocols, it may be necessary for us to retrieve private keys or related information in order to facilitate NFT transfers in accordance with your instructions. Non-Beta Users must elect to use other services to create other conditions around the custody and transfer of NFT(s) – .

Additional rules associated with third party wallets and outside product(s) and service(s) may apply and may be outside the control of NiftyKit. We do not have access to private keys or seed phrases for non-Beta Users where a third party digital wallet (i.e.MetaMask) is used.

You (Beta and Non-Beta Users) understand and agree that you will not hold NiftyKit liable for transferring, safeguarding, or maintaining your private keys, wallet, or any associated digital asset(s). If you lose, mishandle, or have private keys stolen, you acknowledge that you may not be able to recover associated digital assets, and that NiftyKit is not responsible for such loss. You agree that NiftyKit is merely a facilitator of services to assist you. You acknowledge that NiftyKit is not responsible for any loss, damage or liability arising from your failure to comply with these Terms.

5.3 NFT Storage. We store NFTs on IPFS at User direction. By uploading Content on our Platform or using Our Services, You agree that, in doing so, you are asking NiftyKit to facilitate the storage of your Content for you on IPFS. Moreover, You agree that the act of  uploading your Content on Our Platform or by using Our Services, You are directing NiftyKit to Mint your NFT to the blockchain.

6.Revocation, Suspension, and Termination

6.1 Revocation. When you give NiftyKit instructions to Mint an NFT, you cannot withdraw your consent as your NFT will Minted to the blockchain.

6.2 Suspension/Termination. Without limitation, NiftyKit may terminate or suspend your right to use the Platform/Services if you breach the Terms of Use or Privacy Policy, or should We otherwise determine that you have engaged in inappropriate and/or offensive behavior or behavior that may negatively impact NiftyKit or the Platform and/or Services. Should NiftyKit terminate or suspend your right to use the Platform/Services for any of these reasons, you will not be entitled to any refunds. Upon termination of your access and/or Account, your right to use the Services and Platform will immediately cease. In addition to terminating or suspending your Account, NiftyKit reserves the right to take appropriate legal action, including, without limitation,  pursuing civil, criminal, and injunctive redress. Even after your right to use the Platform/Services is terminated or suspended, these Terms of Use will remain enforceable against you.

You may terminate Terms of Use at any time by ceasing all use of the Services. All sections which by their nature should survive the expiration or termination of these Terms of Use shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of these Terms of Use.

7. Credits, payment, fees, and other charges

7.1 Subscription Service and credits: We charge credits to Mint NFTs on the blockchain. Credits and added to your account do not expire and are non-refundable and non-transferable, except as provided by applicable law and herein. Credits do not constitute a personal property right, have no value outside of the Services, and can only be used to purchase Services on the Platform. NiftyKit reserves the right to change the Subscription and credit offerings from time to time.

7.2 In addition to purchasing Credits to pay for Services, you may also purchase a NiftyKit subscription, which entitles you to certain exclusive benefits and services that cannot be purchased with credits (“Subscription”). Such benefits may include opportunities to earn virtual assets that can be used on the Platform, access to special design features like icons or other indicators, exclusive art tiers, and/or accelerated access to certain Services. The current offerings of Services and benefits offered through a Subscription are listed on the NiftyKit website/Platform, and NiftyKit reserves the right to change the Subscription offerings from time to time. You may purchase a monthly Subscription for the advertised monthly price, or an annual Subscription at a discounted rate, to be paid in full at the commencement of the annual term. Payment for a Subscription will be charged to your linked financial account at the point of purchase, and subscriptions will automatically renew immediately prior to the end of the applicable term unless and until you cancel the Subscription.To cancel your subscription contact us at hello@niftykit.com. Subscriptions are non-transferable and a cancellation of an active subscription(s) will become effective after at the end of the then-current Subscription period. You agree that all sales of subscriptions are final and we will not refund any transaction once it has been made. Any credit balance remaining in your account upon the cancellation of your subscription does not reflect any stored value and cannot be exchanged for real money, real goods, or real services from NiftyKit or anyone else.

7.3 Payment processing services. Payments on NiftyKIt are processed via Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to these Terms of Use and/or continuing to utilize the Platform, you agree to be bound by the Stripe Services Agreement, which may be modified by Stripe from time to time. As a condition of NiftyKit enabling payment processing services through Stripe, you agree to provide Stripe with accurate and complete information. NiftyKit does not access or share the Personal Data you provide to Stripe.

7.4 When you provide payment information for purchasing credits, a Subscription, or other Services to Stripe, you represent that you are the authorized user of the card, PIN, key or account associated with that payment, and you authorize Stripe to charge your credit card or to process your payment for any credits, a Subscription, or Services purchased, or other fees incurred by you. You agree to notify Stripe promptly of any changes to your credit card account number, its expiration date, and/or your billing address, and you agree to notify NiftyKit promptly if your credit card or payment account expires or is canceled for any reason. As the account holder and/or User, you are responsible for all charges incurred, including applicable taxes, and all purchases made by you or anyone that uses your account, including, but not limited to, your family or friends. If your use of the Services is subject to any type of use or sales tax, then NiftyKit may also charge you for those taxes.

7.5 ALL CHARGES INCURRED AND ALL PURCHASES OF CREDITS, SUBSCRIPTIONS AND SERVICES MADE VIA THE SERVICES ARE PAYABLE IN ADVANCE AND ARE NOT REFUNDABLE IN WHOLE OR IN PART, REGARDLESS OF THE PAYMENT METHOD, EXCEPT AS EXPRESSLY SET FORTH IN THIS TERMS OF USE OR REQUIRED BY APPLICABLE LAW. NIFTYKIT RESERVES THE RIGHT AT ANY TIME TO APPLY DISCOUNTS OR OTHER PROMOTIONAL TERMS ON ANY OF ITS SERVICES, AT ITS SOLE DISCRETION.

7.6 IF YOU ARE A EUROPEAN UNION USER YOU HAVE THE RIGHT TO WITHDRAW FROM A PURCHASE TRANSACTION FOR DIGITAL CONTENT WITHOUT CHARGE AND WITHOUT GIVING ANY REASON UNTIL DELIVERY OF SUCH CONTENT HAS STARTED OR PERFORMANCE OF THE SERVICE HAS COMMENCED. YOU DO NOT HAVE A RIGHT TO WITHDRAW FROM A TRANSACTION OR OBTAIN A REFUND ONCE DELIVERY OF THE CONTENT HAS STARTED OR THE PERFORMANCE OF THE SERVICE HAS COMMENCED, AT WHICH POINT YOUR TRANSACTION IS FINAL. YOU AGREE THAT DELIVERY OF DIGITAL CONTENT, INCLUDING WITHOUT LIMITATION THE ART, AND/OR PERFORMANCE OF THE ASSOCIATED SERVICE, COMMENCES AT THE MOMENT THE DIGITAL CONTENT IS ADDED TO YOUR ACCOUNT OR INVENTORY OR OTHERWISE MADE ACCESSIBLE TO YOU FOR VIEWING OR USE.

7.7 Fees: Minting, buying, selling, and/or transferring NFTs may be subject to fees, commissions, and other charges (“Fees”). At the time of this document’s primary creation, Ethereum, Polygon, and other blockchains require the payment of a transaction fee for every transaction that occurs on their individual networks (“Gas Fee”). The Gas Fee funds the network of computers that run decentralized networks. Gas fees associated with transaction(s) to and/from the Ethereum. Polygon, and other blockchains ONLY during the Minting are included in the purchase of credits. Fees related to buying NFTs are set by public marketplaces and do not include gas fees. Collection Owners may collect primary sale royalties directly from NiftyKit if you sell on the NiftyKit Platform, but may not receive the royalties if you sell on another public marketplace. These marketplaces have no affiliation with NiftyKit. Rather the affiliation is between the User and the public marketplace itself and the User should look at the terms of use and privacy policies of these marketplaces. You acknowledge and agree that NiftyKit may collect a 5% fee on primary sales, even on other public marketplaces, to be paid by the seller and NiftyKit is not required to pay Users out of this fee. This fee helps Us pay for resources that help us keep information secure, pay for gas fees, and help us run the Platform.

8. User-Generated Content

8.1 You understand and agree that you are responsible for any User Content you submit or contribute, and you, not NiftyKit, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness. We are not responsible or liable to You or any third party for the content, accuracy, or appropriateness of any User Content posted by you or any other User on the Platform.

8.2 You agree that NiftyKit is acting as a passive conduit for your NFT publication, Minting, distribution, purchase, and transmission to a public market or a third-party wallet of your Content. However, NiftyKit reserves the right to remove any Content from the Services and/or Platform if the Terms of Use or Privacy Policy are, or appear to be violated, in our discretion.

9. Warranties; Disclaimers; Limitation on Liability

9.1 THE NIFTYKIT SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, NIFTYKIT EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NIFTYKIT MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. NIFTYKIT MAKES NO WARRANTY REGARDING THE QUALITY OF ANY PRODUCTS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICES OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SERVICES.

9.2 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM NIFTYKIT OR THROUGH THE PLATFORM AND/OR SERVICES, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

9.3 YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES AND/OR USERS, AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE PLATFORM/SERVICES. YOU UNDERSTAND THAT NIFTYKIT DOES NOT SCREEN OR INQUIRE INTO THE BACKGROUND OF ANY USERS, NOR DOES NIFTYKIT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SERVICES. NIFTYKIT MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE SERVICES AND/OR USERS. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE PLATFORM AND/OR SERVICES.

9.4 YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE PLATFORM AND/OR SERVICES REMAINS WITH YOU. NEITHER NIFTYKIT NOR ANY OTHER PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE PLATFORM AND/OR SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF USE OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM AND/ORSERVICES, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICES OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT NIFTYKIT HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

9.5 IN NO EVENT WILL NIFTYKIT’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF USE OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM AND/OR SERVICES EXCEED THE AMOUNTS YOU HAVE PAID TO NIFTYKIT FOR USE OF THE SERVICES, OR FIFTY DOLLARS ($50.00 USD) IF YOU HAVE NOT PAID ANY SUCH AMOUNTS, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN NIFTYKIT AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

9.6 NIFTYKIT DOES NOT WARRANT THAT THE PLATFORM WILL OPERATE ERROR-FREE, CONTINUOUSLY OR WITHOUT INTERRUPTION, OR THAT THE PLATFORM OR ITS SERVER ARE FREE OF COMPUTER VIRUSES OR OTHER HARMFUL CONTENT. IF YOUR USE OF THE PLATFORM OR THE SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, WE ARE NOT RESPONSIBLE FOR THOSE COSTS.

10. Third Party Liability.

10.1 We neither own nor control outside wallets, data storage companies, outside marketplaces, the Ethereum, Polygon, or other networks, or any other third party site, product, or service that you might access, visit, or use for the purpose of enabling you to use the various features of the Platform and/or Services. We are not liable, and You agree not to hold Us liable, for the acts or omissions of any such third parties, nor are we liable for any damage that you may suffer as a result of your transactions or any other interaction with any such third parties.

11. Indemnification

11.1 You agree to defend, indemnify, and hold harmless NiftyKit and its affiliates, and their officers, directors, employees and agents, from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, alleging or resulting from your breach of these Terms of Use, including but not limited to any representations and warranties contained herein.

12. Notices for Claims of Copyright Infringement: Digital Millennium Copyright Act

12.1 NiftyKit respects the intellectual property rights of others and expects our Users to do the same. To that end, in accordance with the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 512, NiftyKit has implemented procedures for reporting instances of copyright infringement.

12.2 If you are a copyright holder, or its authorized representative, and believe in good faith that content residing or accessible on or through our Platform or Services infringes your copyrighted work, you may submit a notice of copyright infringement by filling out our online form, located at https://niftykit.com/dmca-reporting/.

12.3 NiftyKit will respond to notices of alleged copyright infringement under the United States Digital Millennium Copyright Act (“DMCA”). We will not actively prevent copyright owners from gathering the necessary information for such notices. For NiftyKit to respond, the complaint must provide, in writing,  all the following information:

  1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
  2. A description of the copyrighted work that you claim has been infringed;
  3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material;
    1. For example, a URL, name of item, blockchain address, transaction has, block number, 
  4. Your address, telephone number and e-mail address;
  5. A written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and
  6. A statement by you, made UNDER PENALTY OF PERJURY, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

12.4 Alternatively, you may send a written notice of copyright infringement to our designated agent, whose contact information is listed below:

  • By Email: compliance@niftykit.com
  • By Mail to:

Compliance Department
NIFTYKIT, INC.
1455 Frazee Rd., Suite 500 San Diego, CA 92108
858-683-3262

12.5 Please be aware that, pursuant to 17 U.S.C. § 512(f), you may be liable for any damages—including costs and attorneys’ fees incurred by Us or our Users—if you knowingly materially misrepresent that content or activity is infringing. You may therefore wish to seek the advice of legal counsel before submitting a notice of copyright infringement.

12.6 It is NiftyKit’s policy, at its discretion, to terminate the accounts of Users who may infringe or repeatedly infringe the copyrights of third parties, Burn any Content Minted to a blockchain, as well as cancel any service that may host the alleged infringer’s NFT.

12.7 Please note that we may forward the notice of copyright infringement (or information contained therein), as well as the Complainant’s contact information, to the User who posted the allegedly infringing content. Additionally, if we remove or disable access to the content pursuant to a valid DMCA notice, NiftyKit will notify the User that the content has been removed or disabled.

13. Export Control

13.1 Without limiting any portion of this Agreement, the Platform, software, and certain Services may be subject to export controls imposed by the U.S. and may not be downloaded or otherwise exported or re-exported into (or otherwise shared or sent to any national or resident of) a country subject to U.S. embargo; (b) to any person listed on the Office of Foreign Assets Control (“OFAC”) Specially Designated Nationals (“SDN”) list; or (c) the U.S. Commerce Department’s Table of Denial Orders. If you use the software, Platform, and/or Services,  you represent and warrant that you are not on any of the above-referenced lists or otherwise located in, or subject to the control of, any such country on any of the foregoing lists.

14. Governing Law.

14.1 NiftyKit operates in southern California and this agreement shall be treated as though executed and performed in San Diego, California. These Terms of Use, your use of the Platform and/or Services, your rights and obligations, and all actions contemplated by, arising out of or related to these Terms of Use shall be governed by the laws of the State of California, as if these Terms of Use are a contract wholly entered into and wholly performed within the State of California. YOU UNDERSTAND AND AGREE THAT YOUR USE OF NIFTYKIT AS CONTEMPLATED BY THESE TERMS OF USE SHALL BE DEEMED TO HAVE OCCURRED IN THE STATE OF CALIFORNIA  AND BE SUBJECT TO THE INTERNAL LAWS OF THE STATE OF CALIFORNIA  WITHOUT REGARD TO ITS CONFLICTS OF LAWS PROVISIONS.

15. Privacy

15.1 You acknowledge and agree to the collection, use, and disclosure of your Personal Data  in accordance with NiftyKit’s Privacy Policy, which is incorporated into these Terms of Use by reference.

16. Assignment, Delegation, and Transfer

16.1 You may not assign, delegate, or transfer these Terms of Use, by operation of law or otherwise, without NiftyKit’s prior written consent. Any attempt by you to assign or transfer these Terms of Use, without such consent, will be null and of no effect. No third-party beneficiaries. NiftyKit may assign, delegate, or transfer these Terms of Use, at its sole discretion, without restriction. Subject to the foregoing, these Terms of Use will bind and inure to the benefit of the parties, their successors and permitted assigns.

17. Disputes

17.1 Please read the following agreement to arbitrate (“Arbitration Agreement”) in its entirety. This clause requires you to arbitrate disputes with Us and limits the manner in which you can seek relief from Us.

  1. You agree that any dispute or claim relating in any way to: your access, use, or attempted access or use of the Platform and/or Services; any products and/or Services sold or distributed through the Platform; or any aspect of your relationship with NiftyKit will be resolved by binding arbitration, except that (1) you may assert claims in small claims court if your claims qualify; and (2) you or NiftyKit may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyright, or patent). You agree that any such arbitration shall be settled solely and exclusively by binding arbitration held in San Diego, California, administered by JAMS and conducted in English, rather than in court.
  2. Any such arbitration shall be conducted in accordance with the then-prevailing JAMS Streamlined Arbitration Rules & Procedures, except that any dispute involving claims and counterclaims over $250,000, not inclusive of attorneys’ fees and interest, shall be subject to the then-prevailing JAMS Comprehensive Arbitration Rules and Procedures.
  3. The arbitrator shall have exclusive authority to (1) determine the scope and enforceability of this Arbitration Agreement; and (2) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including but not limited to any claim that all or part of this Arbitration Agreement is void or voidable; (3) decide the rights and liabilities, if any, of you and NiftyKit; (4) grant motions dispositive of all or part of any claim; (5) award monetary damages and grant any non-monetary remedy or relief available to a party under applicable law, arbitration rules, and these Terms of Use (including the Arbitration Agreement). The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. Such an award is final and binding upon you and us.
  4. You understand that by agreeing to this Arbitration Agreement, you and NiftyKit are each waiving their right to trial by jury and to participate in a class action or class arbitration.
  5. If any part of this Arbitration Agreement is found to be invalid or unenforceable, then such part shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
  6. This Arbitration Agreement shall survive the termination of your relationship with NiftyKit.

18. General Information

18.1 Entire Agreement. These Terms (and any additional terms, rules and conditions of participation that NiftyKit may post on the Platform and/or Services) constitute the entire agreement between you and NiftyKit with respect to the Platform and/or Services and supersedes any prior agreements, oral or written, between you and NiftyKit. In the event of a conflict between these Terms of Use and the additional terms, rules and conditions of participation, the latter will prevail over the Terms of Use to the extent of the conflict.

18.2 Waiver and Severability of Terms. The failure of NiftyKit to exercise or enforce any right or provision of the Terms of Use shall not constitute a waiver of such right or provision. If any provision of the Terms of Use is found by an arbitrator or court of competent jurisdiction to be invalid, the parties nevertheless agree that the arbitrator or court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms of Use remain in full force and effect.

18.3 Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Platform and/or Services or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.

18.4 Section Titles. The section titles in the Terms of Use are for convenience only and have no legal or contractual effect.

18.5 Feedback. We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Platform and/or Services (the “Feedback”). You may submit Feedback by emailing us at support@niftykit.com or through any other means provided in the Platform/Services. You acknowledge and agree that all Feedback will be the sole and exclusive property of NiftyKit and you hereby irrevocably assign to NiftyKit and agree to irrevocably assign to NiftyKit all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent rights, copyright rights, trade secret rights, and other proprietary or intellectual property rights therein. At NiftyKit’s request and expense, you will execute documents and take such further acts as NiftyKit may reasonably request to assist NiftyKit to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback. The preceding does not apply for any Feedback which contains Personal Data. For any such Feedback, NiftyKit will treat the personal data in accordance with our Privacy Policy.