NIFTYKIT Terms of Service Last Revised: September 10, 2021
Welcome to NiftyKit!
1.1 Read this. Thank you for using the NiftyKit Platform and the products, services, software, and features We make available to You as part of the Platform (Collectively, the “Service(s), “Niftykit,” or “Platform”). This Terms of Service agreement (” Terms of Service,” “Terms,” “Terms of Service,” or “Agreement”) is intended to be a binding legal agreement between you, the User (“You,” “Your,” or “User(s)”) and NiftyKit, Inc., a Delaware Corporation (“NiftyKit,” “We,” “Us,” “Ours”,“NiftyKit.com”). By using the Service and/or NiftyKit.com (“Site,” “Website,” or “Platform), You are agreeing to the following Terms of Service whether or not you have registered on the Platform.
1.2 Our Service. The Service may allow You to use fiat currency (such as US dollars) or Cryptocurrency to upload digital Content to the Interplanetary File System (IPFS) and Mint a ERZC-721 non-fungible token (“NFT”) that, along with Your non-custodial Wallet, records ownership of the uploaded Content on a blockchain. NFTs contain a reference to where Your digital Content resides on IPFS. The Service empowers You to own Your own Smart Contract, which means You control the future actions of Your digital Content and the associated NFT. and You can access The owner of a Smart Contract (“Collection Owner”) can invite others to Mint into their Smart Contract (“Collection”) and payments can be made to multiple Wallets if associated with the Collection. Ultimately, the Service gives You control of Your brand.
1.3. The Platform is also an Online Service Provider for facilitating communication between two sets of users: sellers (“Creators”) and buyers (“Collectors”). Creators may market their sale of items (further clarified below to include, amongst other things, NFTs, services, and physical goods) and Collectors may peruse and at their option, bid or buy the items. Auctions shall also be governed by the Company Auction Terms (see below), which are incorporated herein by this reference. The actual contract for sale is between the Creator and Collector. The Platform is not a party to the transaction and is not a Creator or a traditional auctioneer, but does usually receive a fee as an Online Service Provider. The Platform has no control over and provides no guarantee related to: the existence, accuracy, quality, safety or legality of the NFTs and items advertised or user content; the ability or legal standing of Creators to sell NFTs and items; the ability of Collectors to pay for NFTs and items; or that any User will complete a transaction or return an NFT or item. Items for sale can include physical goods with or without shipment, and services, as well as digital items such as non-fungible tokens (“NFTs”), smart contracts, and other digital-based goods (collectively, “Digital Content”). Some Digital Content may relate or interface with distributed applications (“Dapps”) and blockchains, including Bitcoin, Ethereum, Polygon.
1.4. The Platform is offered and available to authorized users who are 18 years of age or older who are acting in compliance with applicable law and who are not in breach of this agreement or legal obligations to third parties. The Platforme is unavailable to users who are convicted sex offenders and users who have previously had their account disabled by Niftykit for violations of these Terms of Service or other applicable policies or notices. If the user is an organization, you affirm you have the right, power, and authority to enter into this agreement on behalf of, and to bind, said organization. If you do not agree to the terms of this agreement, you must not use the Platform or any of our services. By using this Platform, you represent and warrant that you are of legal age to form a binding contract with Kiftykit and meet the foregoing eligibility requirements. You represent that you are legally permitted to use the Platform in your jurisdiction including owning, buying, selling or other transacting in Digital Content and interacting with the Platform in any reasonably foreseeable way. If you do not meet all of these requirements, you must not access or use the Marketplace. Without limiting the foregoing, by using the Platform, you acknowledge and understand that laws regarding Digital Content may vary from jurisdiction to jurisdiction, and it is your obligation alone to ensure that you fully comply with any law, regulation or directive, relevant to your jurisdiction with regard to the use of the Platform. You further represent and warrant that you will not use the Platform if the laws of your country of residency prohibit you from doing so in accordance with these Terms of Service. For the avoidance of doubt, the ability to access the Platform does not necessarily mean that the Platform, or your activities through it, are legal under the laws, regulations or directives relevant to your jurisdiction. All of the Platform, or the Services made available through the Platform, may not be available to all users, and we reserve the right to assess or reassess at any time your eligibility to use all or part in the Platform. The availability of the Platform does not constitute, and may not be used for the purposes of, an offer or solicitation to anyone in any jurisdiction in which such offer or solicitation is not authorized, or to any person to whom it is unlawful to make such an offer or solicitation. By accessing or using the Platform, you explicitly agree that the smart contracts built into the Dapps that comprise the Platform and Services are legally binding and enforceable upon you and the contract counterparty. The Servicefacilitates Your Transactions and does not maintain or store your Digital Content, Your NFTs, or Your personal information.
1.5 BY CLICKING THE “I AGREE” BUTTON OR BY ACCESSING, VISITING, BROWSING, USING, OR ATTEMPTING TO INTERACT WITH OR USE ANY PART OF THIS WEBSITE, OR OTHER NIFTYKIT SOFTWARE, SERVICES, WEBSITES, OR CONTENT YOU AGREE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT AND OUR PRIVACY NOTICE
IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, DO NOT ACCESS OR USE ANY PART OF THIS WEBSITE. WE RESERVE THE RIGHT, WITH OR WITHOUT NOTICE, TO MAKE CHANGES TO THIS AGREEMENT AT OUR SOLE DISCRETION. CONTINUED USE OF ANY PART OF THIS WEBSITE OR THE SERVICES CONSTITUTES YOUR ACCEPTANCE OF SUCH CHANGES…
1.6 Same Meaning. The terms used in this Agreement have the same meanings as in our Privacy Notice, which is accessible at https://niftykit.com/privacy-policy/, unless otherwise defined in this Agreement.
1.7 NiftyKit reserves the right, at its sole discretion, to modify, discontinue, or terminate the Service or to modify these Terms of Service or any additional terms and conditions, policies, or guidelines governed by these Terms of Service, at any time and without prior notice. If we make changes to the Terms of Service we will provide notice of such changes, such as updating the “Last Updated” date at the beginning of the Terms of Service posted on the Platform. By continuing to access or use the Platform, you confirm your acceptance of the revised Terms of Service and all of the terms incorporated by reference. We encourage you to review the Terms of Service frequently to ensure that you understand the terms and conditions that apply when you access or use the Platform and/or Services as You will be held to them. If You do not agree to the revised Terms of Service, you may not access or use the Platform.
1.8 NiftyKit reserves the right to discontinue and/or terminate services, including, but not limited to, account, digital content storage, and/or deletion of an NFT Minted to the blockchain, without refund, if, in our sole discretion, it appears you violated any part of NiftyKit’s Terms of Service of Privacy Notice.
1.9 PLEASE NOTE THAT SECTION 17 CONTAINS AN ARBITRATION CLAUSE AND CLASS ACTION WAIVER. BY AGREEING TO THESE TERMS OF SERVICE, 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. License and Access.
Subject to your compliance with any terms required to access particular functionality or third party offerings (“Service Terms”) and these Terms of Service, and your payment of any applicable fees, we grant you a limited, non-exclusive, non-transferable, non-sublicensable license to access and make personal use of the Platform and related services. This license does not include any resale or commercial use of the Platform data, or its contents; any collection and use of any product listings, descriptions, or prices; any derivative use of any service or its contents; any downloading, copying, or other use of account information for the benefit of any third party; or any use of framing, data mining, robots, or similar data gathering, viewing, and extraction tools. All rights not expressly granted to you in these Terms of Service or any Service Terms are reserved and retained by Niftykit or its licensors, suppliers, publishers, rightsholders, or other content providers. No portion of the Platform may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without our express written consent. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of the Platform without express written consent. You may not use any meta tags or any other “hidden text” utilizing our name or trademarks without our express written consent. You may use the Platform only as permitted by law. The licenses granted by us terminate if you do not comply with these Terms of Service or any Service Terms.
3. NFT License #1.
3.1. Some Digital Content sold on the Platform may include NFTs. When selling or purchasing an NFT, you agree and understand what characteristics NFTs have and how the following terms apply to their sale. An NFT is a digital tool that can represent real-world objects such as photographs, videos, writings, or music. NFTs are usually built using similar technology to digital currencies. But while digital currencies are usually fungible, NFTs usually are not. Each NFT is coded into a blockchain, and contains built-in methods for evidence of authentication and proof of ownership. When you buy an NFT, the terms of your purchase, and the rights you actually purchase and own, may be limited by the terms or technology of the underlying NFT. Some NFTs may include a right to redeem the physical item to which the NFT relates to. In such instances, once the NFT has been redeemed, the NFT will remain in circulation, but the redemption right will be terminated. It is up to you to confirm your understanding of what you are selling or buying and the license you are receiving which is determined by the Seller in its sole discretion and if no custom license is provided by Seller to Buyer at the point of sale for an item, such as an NFT and its related Content, then the NFT Owner Content License (“NOCL”) provided below shall apply as between Seller and Buyer. The license to any purchased NFT is a matter between the Seller and Buyer, and Niftykit is not a party to the licensing transaction. All licenses and all ownership interests in any Digital Content, such as NFTs, shall pass directly from Seller to Buyer.
3.2. You further understand that blockchain transactions are usually not reversible. You understand that NFTs and other Digital Content may only exist by virtue of the ownership record maintained on a blockchain, and further that smart contracts are conducted and occur on decentralized ledgers. Niftykit has no control over and makes no guarantees or promises with respect to such smart contracts or the functioning of such blockchain or the persistence, or lack thereof, of the NFT or related content. In cases where a transaction involving Digital Content is revealed to be fraudulent or illegal or an infringement, or a Buyer or Seller acts fraudulently or illegally or in an infringing manner, then the defrauded or injured Buyer/Seller shall have no recourse against Niftykit, but solely against the respective Seller/Buyer.
3.3. Sellers of Digital Content are responsible for providing all necessary information in compliance with all applicable law and regulations regarding such Digital Content in applicable listings on the Platform.
4. NFT License #2.
- “ Digital Content” means any art, design, audio, video, media of any kind, AR/VR/XR, and drawings that may be associated with, through hash, link, or otherwise, with an NFT that you Own.
- ”NFT” means any distributed ledger-tracked, non-fungible token, such as those conforming to the ERC-721 standard or similar to it.
- “Own” means, with respect to an NFT, an NFT that you have purchased or otherwise rightfully acquired from a legitimate source, where proof of such purchase is recorded on the relevant blockchain or its equivalent.
- “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, use of likeness, know-how or any other intellectual property rights recognized in any country or jurisdiction in the world.
4.2 Ownership. The Buyer acknowledges and agrees that Seller (or, as applicable, its licensors) owns all legal right, title, and interest in and to the Digital Content, and all intellectual property rights therein. The rights that the Buyer has in and to the Digital Content are limited to those described in this License. Seller reserves all rights in and to the Digital Content not expressly granted to the Buyer in this License, unless the Seller states otherwise in the description or other location in the NFT or metadata. If the Seller opts to give a license other than what is provided in this Agreement, both Buyer and Seller agree that the interaction is between them and not with Us.
- General Use. Subject to Buyer’s continued compliance with the terms of this License, Seller (“Seller” herein shall refer to the original Seller) grants you a worldwide, non-exclusive, non-transferable, royalty-free license to use, copy, and display the Digital Content for your Purchased NFTs 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 NFTs, provided that the marketplace cryptographically verifies each NFT owner’s rights to display the Digital Content for their Purchased NFTs to ensure that only the actual owner can display the Digital Content; or (iii) as part of a third-party website or application that permits the inclusion, involvement, or participation of your NFTs, provided that the website/application cryptographically verifies each NFT owner’s rights to display the Digital Content for their Purchased NFTs to ensure that only the actual owner can display the Digital Content, and provided that the Digital Content is no longer visible once the owner of the Purchased NFT leaves the website/application.
- Commercial Use. Buyers have no license or rights to make commercial use of the Digital Content.
- Restrictions. Buyer agrees that they may not, nor permit any third party to do or attempt to do any of the following: (i) modify the Digital for Buyer’s Purchased NFT in any way, including, without limitation, the shapes, designs, drawings, attributes, or color schemes; (ii) use the Digital Content for Buyer’s Purchased NFTs to advertise, market, or sell any third party product or service; (iii) use the Digital Content for the Purchased NFTs in connection with images, videos, or other forms of media that depict hatred, intolerance, violence, cruelty, or anything else that could reasonably be found to constitute hate speech or otherwise infringe upon the rights of others; (iv) use the Digital Content for the Purchased NFTs in movies, videos, or any other forms of media, except to the limited extent that such use is expressly permitted in Section 4(b) above 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 Digital Content for the Purchased NFTs; (vi) attempt to trademark, copyright, create derivative works, or otherwise acquire additional intellectual property rights in or to the Digital Content for thePurchased NFTs; or (vii) otherwise utilize the Digital Content for the Purchased NFTs for the Buyer’s or any third party’s commercial benefit. To the extent that Digital Content associated with the Purchased NFTs contains Third Party IP (e.g., licensed intellectual property from a celebrity, athlete, or other public figure), Buyer understands and agrees as follows: (a) that you will not have the right to use such Third-Party IP in any way except as incorporated in the Digital Content, and subject to the license and restrictions contained herein; The restriction in this Section will survive the expiration or termination of this License.
- Terms of License. The license granted in Section 4 above applies only to the extent that Buyer continues to Own the applicable Purchased NFT. If at any time Buyer sells, trades, donates, gives away, transfers, or otherwise disposes of the NFT they purchased for any reason, the license granted in Section 4 will immediately expire with respect to those NFTs without the requirement of notice, and Buyer will have no further rights in or to the Digital Content for those NFTs. Any secondary transfer of the Purchased NFT and its related Digital Content is prohibited and null and void unless the acquirer or Buyer as the case may be, agrees to and takes subject to this License Agreement and evidence of the same is provided in writing to the Seller immediately upon transfer. This license agreement is governed by California law. Exclusive jurisdiction for any and all disputes related to or arising out of this license agreement, or breaches of the same, shall be in San Diego County, state and federal courts as applicable.
- The license terms in section 4 apply unless the Seller describes a license in the description or elsewhere in the listing of their NFT. The seller’s terms will supersede this agreement.
5. User Standards.
5.1 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 Service. You understand and agree that You are prohibited from, and will NOT:
- Provide false or misleading information, as determined by Us;
- Use or attempt to use another User’s account without authorization from such User and Us;
- 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. Including, but not limited to, engaging 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.
- 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;
- Use data collected from our Service and/or Platform to contact individuals, companies, or other persons or entities;
- 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/or direct marketing);
- Bypass or ignore instructions that control any automated access to the Service and/or Platform;
- Engage in any act that may utilize the Platform/Service, Ethereum, Polygon, or other blockchains or 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;
- 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;
- Download any portion of the Platform/Service other than for purposes of page caching, except as expressly permitted by Us;
- Log in or attempt to log in to access the Service and or Platform through unauthorized third party applications or clients;
- Commit any act that is likely to deceive any person or impersonate any person or misrepresent your identity or affiliation with any person or organization; or
- promote any illegal activity, or advocate, promote or assist any unlawful act;
6. Content Standards.
These Content Standards apply to all Users and use of the Services. Users must, in their entirety, comply with all applicable federal, state, local and international laws and regulations. Without limiting the foregoing, Users must not upload Content that:
- contains any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable;
- promotes sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
- provokes the viewer into committing crimes and carrying out violent acts. This might be material that instructs, promotes or incites violent acts;
- promotes terrorism or encourages terrorist acts;
- Infringes on any patent, trademark, trade secret, copyright or other intellectual property or other rights of any other person;
- violates the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms of Service and our Privacy Notice;
- promotes any illegal activity, or advocate, promote or assist any unlawful act;
- causes annoyance, inconvenience or needless anxiety or be likely to upset, embarrass, alarm or annoy any other person;
- is likely to deceive any person or impersonate any person or misrepresent your identity or affiliation with any person or organization; or
- involves commercial activities or sales, such as contests, sweepstakes and other sales promotions, barter or advertising
7. Listing Standards.
When listing an item for sale or license with our Services, you agree to comply with the Listing Standards, set forth below:
- You assume full legal and financial responsibility for the item offered and the accuracy, legal compliance, and content included with the listing and for the terms of sale, license and offer language, and smart contracts used.
- You represent, covenant, and warrant that you own or lawfully possess all the intellectual property, use of likeness, and other rights in the item or content listed for sale such that you are in full legal compliance worldwide and not infringing on third party rights of any kind.
- You represent, covenant, and warrant that the offer or sale of your item does not constitute a security or an illegal lottery or a deceptive, unfair, or illegal business practice.
- Your listing may not be immediately searchable by keyword or category for several hours (or days in some circumstances). Company does not guarantee exact listing duration.
- Your fixed-price listings may renew automatically every calendar month, based on the listing terms at the time, until all quantities sell or the listing is ended by you or Company, in its sole discretion.
- Content that violates any Company policies may be modified, obfuscated or removed at our sole discretion.
- We may revise product data associated with listings to supplement, remove, or correct information.
- You agree not to market, sell, offer for sale, or otherwise engage in transactions related to child pornography.
- We strive to create a marketplace where Buyers find what they are looking for. Therefore, the appearance or placement of listings in search and browse results will depend on a variety of factors, including, but not limited to:
- Buyer’s location, search query, browsing site, and history;
- item’s location, listing format, price and shipping cost, terms of service, end time, history, and relevance to the user query;
- Seller’s history, including listing practices, Seller ratings, Company policy compliance, feedback, and defect rate; and
- number of listings matching the Buyer’s query.
- To drive a positive user experience, a listing may not appear in some search and browse results regardless of the sort order chosen by the Buyer.
- Some advanced listing upgrades will only be visible on some portions of the Marketplace.
- Duplicate listings may also affect whether your listing appears in search results.
- We may provide you with optional recommendations to consider when creating your listings. Such recommendations may be based on the aggregated sales and performance history of similar sold and current listings; results may vary for individual listings. To drive the recommendations experience, you agree that we may display the sales and performance history of your individual listings to other Sellers.
- For items listed in certain categories, subject to certain programs, and/or offered or sold at certain price points, Company may require the use of certain payment methods. For example, for inventory covered by authentication services, Buyer and Sellers may be subject to escrow and/or payment handling requirements.
- You will not sell and will promptly remove all listings for any product if the sale of the product is prohibited by law or regulation or the product poses a health or safety hazard as specified by any governmental agency applicable to you. Company has no responsibility or liability for the legitimacy, validity, existence, of any product that is listed or sold through the Marketplace.
8. Purchase Standards.
When purchasing an item for sale on our Marketplace, you agree to comply with Company’s purchase standards for Buyers, set forth below:
- You are responsible for reading the full item listing before making a bid or committing to buy and you are fully responsible for legal compliance and paying any applicable taxes.
- You enter into a legally binding contract to purchase an item when you commit to buy an item for buy-now listings, or you have the winning bid (or your bid is otherwise accepted) for auction listings.
- We do not transfer legal ownership or license of items from the Seller to you. Legal transfer of license is affected by the Seller.
- California Commercial Code § 2401(2) and Uniform Commercial Code § 2-401(2) as applicable apply to the transfer of ownership between the Buyer and the Seller, unless the Buyer and the Seller agree otherwise.
9. Monitoring and Enforcement.
We have the right to:
- remove or refuse to post any User Contributions for any or no reason in our sole discretion;
- take any action with respect to any User Contribution that we deem necessary or appropriate in our sole discretion, including if we believe that such User Contribution violates the Terms of Service (including the Content Standards set forth below), infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Marketplace or the public, or could create liability for the Company;
- disclose your information to any third-party claiming that your User Contribution violates their rights, such as intellectual property rights or right to privacy;
- take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Marketplace; or
- terminate or suspend your access to all or part of the Marketplace for any or no reason, including without limitation, any violation of these Terms of Service.
Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone using or posting any materials on or through the Marketplace. YOU WAIVE AND HOLD HARMLESS THE COMPANY AND ITS AFFILIATES, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
However, we do not undertake to review all material before it is posted on or through the Marketplace and cannot ensure prompt removal of objectionable material after it has been posted. We assume no liability for any action or inaction regarding transmissions, communications or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
If a Buyer or Seller issue arises, we may consider a variety of factors, including specific circumstances regarding the issue, or a user’s performance history, in applying our policies. In our effort to do the best thing for both Buyers and Sellers, we may decide to be more lenient with policy enforcement. The foregoing does not limit our right to refuse, modify, or terminate all or part of our services to anyone, or to terminate this agreement with any user, for any reason at our sole discretion.
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.
11.1 Access to the Platform. To access the Platform, Platform resources, the Service, links or other content, You may be asked to provide certain registration details or other information. It is a condition of Your use of this Site that all the information You provide will be correct, current, and complete. If We subjectively believe the information You provide is not correct, current, or complete, We have the right to deny access to the Platform and the Services, and to terminate or suspend Your access at any time.
11.2 Account Registration. In order to participate in certain Services and secure any additional applicable benefits, the Platform may require You to create an account with NiftyKit (“Account”). 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.
11.3 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.
11.4 Applicable use of Site. You may use this Site and the Services only for purposes expressly permitted by this Agreement. As a condition of Your use of the Platform and Services, you warrant to Us that you will not use the Platform for any purpose that is unlawful, immoral, or otherwise prohibited by these terms, conditions, and notices.
11.5 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. You can contact Us at firstname.lastname@example.org .
11.6. Non-Hosted Digital Wallet. You are the owner of the imported digital wallet. We assist you in connecting a wallet for your convenience. As such, NiftyKit is unable to block any transactions into the wallet.
11.7 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. Please contact a tax professional for more information.
11.8 Communication. You agree and understand that We will communicate with You via electronic means. To ensure that You receive all of Uur 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.
11.9 No Unlawful Access. You agree that you will not use the Platform and/or Services in any manner that could in any way disable, overburden, damage, or impair the Platform and/or Service or otherwise interfere with any other party’s use and enjoyment of the Platform and Service. You further agree that you will not obtain, or attempt to obtain, any materials, content, or information by any means not expressly made available or provided for through the authorized use of the Platform and Service.
11.10 Proprietary information. You acknowledge and agree that the Platform and Service, including any necessary software used in connection with the Platform and/or Service, contain proprietary and confidential information that is the property of NiftyKit and its licensors and is protected by applicable intellectual property and other laws. No rights or title of or to any of the content or Software used in connection with the Platform and Service is provided, transferred or assigned to you. You further acknowledge and agree that content contained in advertisements or information presented to you through the Website or advertisers is protected by copyright, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly authorized by the Platform or its advertisers, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Platform, Service, or Software, in whole or in part. You also acknowledge NiftyKit’s exclusive rights in the Platform and Service’s trademarks and service marks.
12. Wallet and Non-Custodial Services
12.1 Digital Wallet. Wallets allow you to store, track, transfer, and manage your digital assets. Services and supported assets may vary by jurisdiction. 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 where a third party digital wallet (i.e.MetaMask) is used.
You 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.
12.2 NFT Storage. NFTs are stored on IPFS at User direction. By uploading Content on the 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.
13. Revocation, Suspension, and Termination.
13.1 Revocation. When you give NiftyKit instructions to Mint an NFT, you cannot withdraw your consent as your NFT will Minted to the blockchain.
13.2 Suspension/Termination. Without limitation, NiftyKit may terminate or suspend your right to use the Platform/Services if you breach the Terms of Service or Privacy Notice, 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 Service will remain enforceable against you.
This Terms of Service is effective indefinitely, unless terminated in accordance with the below. We may terminate this Terms of Service by giving written notice fourteen (14) days prior via email to your registered email address. However, we may also terminate this Terms of Service on less notice or with immediate effect in the following scenarios: We are required to do so by law or a court order; a governmental authority requires us to do so to comply with anti-money laundering or counter-terrorism financing obligations; we have reasonable grounds to believe you are carrying out a prohibited or illegal activity; we are unable to verify your or your business’s identity, or any other information regarding your account; or you are otherwise in breach of a material contractual obligation, or seriously or persistently violating any provisions of these terms in any other way.
You may terminate this Terms of Service by closing your account. Termination of this Terms of Service shall not affect the rights or liabilities of either party accrued until termination and/or any terms intended (expressly or implicitly) to survive termination. If there are pending payment transactions at the time the termination takes effect, they will be processed pursuant to these terms unless prohibited by law. As of the effective date of the termination, you will be unable to utilize Our Services.
14. Credits, payment, fees, and other charges.
14.1 Credits: We may charge credits to Mint NFTs on the blockchain. Credits 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.
14.2 Subscription. In addition to purchasing Credits to pay for Services, you must 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, but are not limited to, 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 term-based Subscription for the advertised price, to be paid in full at the commencement of the term. Payment for a Subscription will be charged to your linked financial account at the point of purchase, or through your wallet if using cryptocurrency, 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 email@example.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.
14.3 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 Service 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.
14.4 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.
14.5 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 SERVICE 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.
14.6 European Union Users. 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.
14.7 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 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. Collection Owners may collect primary sale royalties directly from NiftyKit if you sell on or through the NiftyKit Platform, but may not receive the royalties if you sell on another public marketplace. Marketplaces other than NIFTYKIT 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 service and privacy policies of these marketplaces. You acknowledge and agree that NiftyKit may collect a 10% fee on primary sales, even on other public marketplaces, to be paid by the seller and You agree that 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.
15. User-Generated Content.
15.1 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.
15.2 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.
16. Linking to the Platform.
16.1 You may link to our Marketplace, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part without our express written consent. This Platform may provide certain features that enable you to: link from your own or certain third-party platforms or marketplaces to certain content on this Platform; or cause limited portions of content on this Platform to be displayed or appear to be displayed on your own or certain third-party Marketplaces. You may use these features solely as they are provided by us and solely with respect to the content they are displayed with and otherwise in accordance with any additional terms and conditions we provide with respect to such features. Subject to the foregoing, you must not:
- establish a link from any Platform, marketplace, or site that is not owned by you;
- otherwise take any action with respect to the materials on this Platform that is inconsistent with any other provision of these Terms of Service.
16.2 The platform or marketplace from which you are linking, or on which you make certain content accessible, must comply in all respects with the content standards set out in these Terms of Service. You agree to cooperate with us in causing any unauthorized framing or linking immediately to cease. We reserve the right to withdraw linking permission without notice. We may disable all or any social media features and any links at any time without notice, at our discretion.
17. Additional Terms and Conditions.
Additional terms and conditions may apply to specific portions, services or features of the Platform provided by Niftykit or third parties, including any consumer offers or sweepstakes made available through the Platform, either alone or in conjunction with the functionality provided by us. The use of such services or features shall be governed by the terms of service associated with them, and all such additional terms of service are hereby incorporated by this reference into these Terms of Service. We accept no liability or responsibility for any third-party functionality or any of our open-source functionality that has been modified by third parties.
18. Warranties; Disclaimers; Limitation on Liability.
18.1 YOUR USE OF THE PLATFORM, ITS CONTENT, AND ANY SERVICES, OR ITEMS OBTAINED THROUGH THE PLATFORM IS AT YOUR OWN RISK. THE PLATFORM, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORM ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. NIFTYKIT HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE. N-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. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
18.2 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.
18.3 YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES 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 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.
18.4 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 SERVICE 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.
18.5 IN NO EVENT WILL NIFTYKIT’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE 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.
18.6 WE DO 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.
18.7 WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, HACKS, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE PLATFORM OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE PLATFORM, ANY THIRD-PARTY LINKS ACCESSED THROUGH OR IN CONJUNCTION WITH THE PLATFORM, OR ON ANY PLATFORM OR MARKETPLACE LINKED TO IT.
19. Third Party Liability.
19.1 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.
20.1 You agree to pay the costs of defense, indemnify and hold harmless the Niftykit, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, successors and assigns, from and against any claims, liabilities, damages, judgments, losses, costs, debts and fees (including reasonable attorneys’ fees) arising out of or relating to: your violation of any third-party right; your provision of false or misleading information; your violation of any law or regulation; your violation of these terms; your breach of any representation or warranty; your negligent or willful misconduct; or your use of or access to the Platform, including, but not limited to, your User contributions, any use of the MPlatform other than as expressly authorized in these Terms, or your use of information obtained from the Platform.
20.2 If you have a dispute with one or more Users, you release Niftykit (and our affiliates and subsidiaries, and our and their respective officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. By entering into this release, you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
21. Notices for Claims of Copyright Infringement: Digital Millennium Copyright Act.
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.
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, A DMCA notice.
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:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- A description of the copyrighted work that you claim has been infringed;
- 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;
- For example, a URL, name of item, blockchain address, transaction has, block number,
- Your address, telephone number and e-mail address;
- 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
- 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.
Alternatively, you may send a written notice of copyright infringement to our designated agent, whose contact information is listed below:
- By Email: firstname.lastname@example.org
- By Mail to:
1455 Frazee Rd., Suite 500 San Diego, CA 92108
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.
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.
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.
22. Export Control.
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.
23. Governing Law.
NiftyKit operates in southern California and this agreement shall be treated as though executed and performed in San Diego, California. These Terms of Service, 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 Service shall be governed by the laws of the State of California, as if these Terms of Service 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 SERVICE 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.
You acknowledge and agree to the collection, use, and disclosure of your Personal Data in accordance with NiftyKit’s Privacy Notice, which is incorporated into these Terms of Service by reference.
25. Assignment, Delegation, and Transfer.
You may not assign, delegate, or transfer these Terms of Service, by operation of law or otherwise, without NiftyKit’s prior written consent. Any attempt by you to assign or transfer these Terms of Service, without such consent, will be null and of no effect. No third-party beneficiaries. NiftyKit may assign, delegate, or transfer these Terms of Service, at its sole discretion, without restriction. Subject to the foregoing, these Terms of Service will bind and inure to the benefit of the parties, their successors and permitted assigns.
26. Dispute Resolution, Arbitration, and Class Action Waiver.
26.1 All matters relating to the Platform and these Terms of Service and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule whether of the State of California or any other jurisdiction.
Any legal suit, action or proceeding arising out of, or related to, these Terms of Service or the Platform shall be brought exclusively in California, in each case located in the County of San Francisco, although we retain the right to bring any suit, action or proceeding against you for breach of these Terms of Service in your country of residence or any other relevant country. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
(a) ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS) BETWEEN YOU AND US OR ANY OF OUR AFFILIATED ENTITIES OR OURS OR THEIR AGENTS, EMPLOYEES, PRINCIPALS, SUCCESSORS, OR ASSIGNS ARISING FROM OR RELATING TO THESE TERMS, ITS INTERPRETATION, OR THE BREACH, TERMINATION OR VALIDITY HEREOF, OR THE RELATIONSHIPS WHICH RESULT FROM THESE TERMS (INCLUDING, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, RELATIONSHIPS WITH THIRD PARTIES WHO ARE NOT SIGNATORIES TO THIS AGREEMENT), SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION ADMINISTERED BY JAMS before a retired judge in Los Angeles County, California under the applicable JAMS arbitration rules and will be administered by the before a single retired judge. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitration is subject to the Federal Arbitration Act, 9 U.S.C. sec. 1-16 (FAA), as amended. Any award of the arbitrator shall be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction. The arbitration proceeding will be limited solely to the dispute or controversy between you and us. YOU ACKNOWLEDGE THAT YOU ARE GIVING UP YOUR RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY WITH RESPECT TO ANY SUCH CLAIM. Nothing in this Section shall be deemed to prohibit us from seeking an injunction or other equitable relief in any court of competent jurisdiction to protect or preserve ours or our licensors’ rights in and to intellectual property or confidential information.
(b) IN ANY DISPUTE, NEITHER YOU NOR ANY OTHER PERSON SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER AFFILIATES OR PERSONS, OR ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. YOU ACKNOWLEDGE THAT YOU ARE GIVING UP YOUR RIGHTS TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO ANY SUCH CLAIM(S)
26.2 If a Buyer or the owner of a payment instrument initiates a return, cancellation, direct debit reversal, Buyer protection claim, or otherwise asks their financial institution to open a payment dispute (all referred to solely within this paragraph as “Dispute”) in connection with a transaction, you agree that we may investigate and, at our discretion, re-present the Dispute with the payment method providers. You agree to provide timely information to assist in our Dispute investigations and understand that your failure to provide requested information on the timeline we require and as specified by credit and debit card networks’ and other payment service providers’ rules could adversely impact the outcome of an investigation, including forfeiture of the amounts in dispute. You will not contest the resolution of any Dispute that we investigate and/or re-present, nor will you reopen resolved Dispute investigations. You authorize us to pay on your behalf any amounts resulting from a Dispute, including costs and fees associated with re-presentment
27. Unsolicited ideas.
27.1 We are pleased to hear from our loyal customers and fans, and We welcome comments regarding our products and services. Unfortunately, however, neither NIFTYKIT nor anyone affiliated with NIFTYKIT can accept or consider unsolicited ideas, including, without limitation, ideas for new advertising campaigns, new promotions, new or improved products or technologies, product enhancements, processes, materials, marketing plans or new product names. Please do not submit any unsolicited ideas in any form to NIFTYKIT.
The sole purpose of this policy is to avoid potential misunderstandings or disputes when NIFTYKIT’s products, Servie, or marketing strategies might seem similar to unsolicited ideas submitted to NIFTYKIT. If, despite our policy, you send us unsolicited creative suggestions, ideas, notes, drawings, concepts, or other information, you agree that the following terms shall apply to your submissions.
27.2 Terms of idea submission. You agree that: (1) your submissions and their contents will automatically become the property of NIFTYKIT, without any compensation to you; (2) NIFTYKIT. may use or redistribute the submissions and their contents for any purpose and in any way; (3) there is no obligation for NIFTYKIT to review the submission; and (4) there is no obligation to keep any submissions confidential.
28. General Information.
28.1 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 Service and the additional terms, rules and conditions of participation, the latter will prevail over the Terms of Service to the extent of the conflict.
28.2 Waiver and Severability of Terms. The failure of NiftyKit to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. If any provision of the Terms of Service 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 Service remain in full force and effect.
28.3 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.
28.4 Section Titles. The section titles in the Terms of Service are for convenience only and have no legal or contractual effect.
28.5 Do Not Rely on NIFTYKIT.COM’s opinions, advice, statements or other comments and these should not necessarily be relied upon and are not to be construed as professional advice from NIFTYKIT or Website Owner.NIFTYKIT and Website Owner do not guarantee the accuracy or completeness of any of the information provided, and are not responsible for any loss resulting from your reliance on such information.
28.6 Force Majeure: We will not be liable or responsible to the you, nor be deemed to have defaulted under or breached these Terms of Service, for any failure or delay in performance, when and to the extent such failure or delay is caused by or results from force majeure events (“Force Majeure Event”), including but not limited to: acts of God, flood, fire, epidemics, pandemics, natural disasters, explosion, war, hostilities, civil unrest, government action, industrial disturbances, shortage of adequate Internet connectivity, telecommunication or utilities breakdown, and other similar events beyond our control. If we suffer a Force Majeure Event, we will use reasonable efforts to promptly notify you of such, stating the period of time the occurrence is expected to continue. We will use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event(s) are minimized. We will resume the performance of our obligations as soon as reasonably practicable after the removal of the cause. In the event that our failure or delay remains uncured for a period of forty-five (45) consecutive days following written notice given by us under this section, we may thereafter terminate these Terms of Service upon fifteen (15) days’ written notice.
28.7 Limitation on Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE OR THE PLATFORM MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
28.8 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 email@example.com or through any other means provided on the Platform/Service. 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 Notice.
28.9 California Residents. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.