By purchasing, acquiring, or otherwise receiving an NFT that originated from The Nifty ("Nifty NFT"), you agree to these NFT Terms. These NFT Terms, along with The Nifty User Terms of Service, made available below and incorporated herein by reference, are collectively referred to as the "Agreement."
OWNERSHIP OF NIFTY NFTS AND ARTWORK. Each Nifty NFT is a limited-edition digital asset that embodies or includes certain artwork owned or created by The Nifty (the "Artwork"). You acknowledge and agree that Nifty Metaverse, Inc. ("The Nifty") owns all legal right, title and interest in and to the Artwork, and all intellectual property rights therein. Nifty NFTs may also incorporate one or more elements of The Nifty’s trademarks and branding (the "Brand"). Each Nifty NFT is a non-fungible token hosted on the Ethereum blockchain, ownership of which can be transferred through gift, purchase, or sale. The Artwork is neither stored nor embedded in the Nifty NFT, but is accessible through the Nifty NFT. ALTHOUGH THE NIFTY NFT ITSELF IS OWNED BY ITS THEN-CURRENT OWNER, THE ARTWORK EMBODIED THEREBY AND ANY BRAND INCORPORATED THEREIN OR USED THEREWITH IS LICENSED, PURSUANT TO THESE NFT TERMS, AND NOT TRANSFERRED OR SOLD, TO SUCH OWNER. "OWN" MEANS, WITH RESPECT TO A NIFTY NFT, A NIFTY NFT THAT YOU HAVE RIGHTFULLY AND LAWFULLY PURCHASED OR ACQUIRED FROM A LEGITIMATE SOURCE, WHERE PROOF OF SUCH PURCHASE OR ACQUISITION IS RECORDED ON THE RELEVANT BLOCKCHAIN. The rights that you have in and to the Artwork are limited to those expressly stated in the paragraph immediately below. The Nifty and its licensors reserve all rights in and to the Artwork and Brand not expressly granted to you herein.
LICENSES. Subject to your lawful purchase or acquisition of a Nifty NFT and your continued compliance with this Agreement, The Nifty grants you a worldwide, non-exclusive, revocable, royalty-free license, with no right to sub-license, (a) to display the Artwork and any Brand embodied by your Nifty NFTs, solely for the following purposes: (i) for your own personal, non-commercial use (e.g., display in a virtual gallery, on a mobile device, as an avatar, or in your home); (ii) through or as a part of a marketplace that permits the purchase and sale of your Nifty NFTs in connection with such potential purchase or sale, provided that the marketplace cryptographically verifies rights to ensure that only the actual owner can offer a Nifty NFT for sale; or (iii) as part of a third party website or application that permits the inclusion, involvement, or participation of your Nifty NFTs, provided that the website/application cryptographically verifies rights to ensure that only the actual owner can display the Nifty NFT; and (b) to access certain limited features or exercise certain privileges on or through The Nifty website and/or mobile application(s) (collectively, the "Nifty Digital Properties"), in each case in accordance with the functionalities of such Nifty Digital Properties and as may be modified by The Nifty from time to time in The Nifty’s sole discretion. The Nifty provides the Nifty NFT, licenses the Artwork and Brand to the owner of the Nifty NFT, and provides the Nifty Digital Properties on an "AS IS" basis, and expressly disclaims any warranties or conditions of any kind, either express or implied, including, without limitation, any warranties or conditions of title, non-infringement, merchantability, or fitness for a particular purpose. The license to display the Artwork and any Brand embodied by the Nifty NFT is automatically and always transferred with the NFT as provided below. Otherwise the license to display the Artwork and any Brand embodied by the Nifty NFT is non-transferable.
You acknowledge that the license granted to you in this Agreement applies only to the extent that you lawfully purchased or acquired the Nifty NFT and, with respect to a Nifty NFT that you purchase, that you continue to own such Nifty NFT. If at any time you sell, trade, donate, give away, transfer, or otherwise dispose of your Nifty NFT for any reason, the license granted in this Agreement to you will immediately expire with respect to such Nifty NFT without the requirement of notice, and you will have no further rights in or to the Artwork or Brand embodied by such Nifty NFT. The license granted in this Agreement will also automatically terminate, with all rights returning to The Nifty, if: (x) you breach this Agreement, which shall include, transferring or acquiring the Nifty NFT in a way not specifically permitted hereunder or (y) you engage in any unlawful business practice related to the Nifty NFT. In the event that you did not lawfully purchase or acquire the Nifty NFT or upon any termination of the license granted in this Agreement, The Nifty may disable your access to the Artwork and/or Brand and/or deny you access to any further benefits, services or goods associated with the Nifty NFT.
RESTRICTIONS. You agree that you will not, nor will you permit any third party to, do or attempt to do any of the following without The Nifty’s express prior written consent in each case: (i) modify, distort or perform any other change to the Artwork or Brand embodied by your Nifty NFT in any way, including, without limitation, the shapes, designs, drawings, attributes, or color schemes; (ii) use the Artwork or Brand embodied by your Nifty NFTs as a brand or trademark or to advertise, market, or sell any product or service (other than an authorized offering of the Nifty NFT itself); (iii) use the Artwork or Brand embodied by your Nifty 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 or promote illegal activities; (iv) use the Artwork or Brand embodied by your Nifty NFTs in movies, videos, or any other forms of media, except 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 Artwork or Brand embodied by your Nifty NFTs; (vi) attempt to trademark, copyright, or otherwise acquire additional intellectual property rights in or to the Artwork or Brand embodied by your Nifty NFTs; (vii) use the Artwork or Brand embodied by your Nifty NFTs in connection with defamatory or dishonest statements about The Nifty and/or its affiliated companies or which otherwise damage the goodwill, value or reputation of The Nifty or represent or imply that your exercise of the licenses granted hereunder is endorsed by The Nifty and/or its affiliated companies; or (viii) otherwise utilize the Artwork Brand embodied by your Nifty NFTs for your or any third party’s commercial benefit (other than an authorized offering of the Nifty NFT itself). These restrictions will survive the expiration or termination of licenses granted hereunder.
Without limiting the foregoing, the license granted by this Agreement does not include: (i) the right to use the Artwork or Brand in connection with additional NFTs; or (ii) the right to create derivative works of the Artwork. You may not use or attempt to register any asset, including any domain names, social media accounts or related addresses, that contains or incorporates any Artwork, Brand, or any other representation, name or mark that may be confusingly similar to any of The Nifty’s intellectual property.
TRANSFERRING YOUR NIFTY NFT. You may transfer any Nifty NFT that you lawfully own to a third party, subject to this Agreement. After any such transfer, your licenses to the Artwork and Brand will immediately terminate. Your licenses will also immediately terminate if you breach this Agreement. If you transfer any Nifty NFT, you must make the transferee aware of, and you must cause any such transferee to agree in writing to comply with and be bound by, these Terms.
You acknowledge and agree that any transfer of this Nifty NFT, by you or by the then-current owner, may be subject to a fee payable to The Nifty equal to no greater than [10%] of the total consideration paid for the Nifty NFT in connection with any such transfer.
User Terms of Service
Last Updated: January 13, 2022
THE NIFTY OFFERS CERTAIN DIGITAL ASSETS AND ANY DIGITAL OR NON-DIGITAL PRODUCTS, SERVICES AND/OR BENEFITS TO BE FURNISHED IN CONNECTION WITH SUCH SALES. WE ARE NOT A BROKER, FINANCIAL INSTITUTION, OR CREDITOR. YOU AGREE THAT THE NIFTY SHALL NOT BE A PARTY TO OR HAVE ANY RESPONSIBILITY OR LIABILITY FOR, ARISING OUT OF, RELATING TO, ASSOCIATED WITH OR RESULTING FROM ANY DISPUTES IN RESPECT OF THE OFFERING, PURCHASE, SALE, USE, MISUSE, PROVISION OR FAILURE TO PROVIDE ANY TOKEN.
YOU BEAR FULL RESPONSIBILITY FOR VERIFYING THE IDENTITY, LEGITIMACY, AND AUTHENTICITY OF TOKENS YOU PURCHASE.
PLEASE READ SECTION 17 OF THIS AGREEMENT CAREFULLY, AS IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE AGREEING TO MANDATORY INDIVIDUAL ARBITRATION FOR THE RESOLUTION OF DISPUTES AND WAIVING YOUR RIGHT TO A JURY TRIAL ON YOUR CLAIMS.
PLEASE BE AWARE THAT SECTION 6 OF THIS AGREEMENT, BELOW, CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US.
THIS AGREEMENT IS IMPORTANT AND AFFECTS YOUR LEGAL RIGHTS, SO PLEASE READ CAREFULLY. BY CLICKING ON ANY "I ACCEPT" BUTTON, PURCHASING OR OFFERING TO PURCHASE TOKENS THROUGH THE SERVICE, AND/OR OTHERWISE USING THE SERVICE, YOU AGREE TO BE BOUND BY THIS AGREEMENT AND ALL OF THE TERMS INCORPORATED HEREIN. If you do not agree to this Agreement, you may not access or use the Service or purchase any Tokens.
The Nifty reserves the right to change or modify this Agreement at any time and in our sole discretion. If we make changes to this Agreement, we will provide notice of such changes, such as by sending an email notification, providing notice through the Service or updating the "Last Updated" date at the beginning of this Agreement. By continuing to access or use the Service at any point after such update, you confirm your acceptance of the revised Terms and all of the terms incorporated therein by reference. We encourage you to review this Agreement frequently to ensure that you understand the terms and conditions that apply when you access or use the Service. If you do not agree to the revised Terms, you may not access or use the Service.
2. OUR SERVICE
a. The Service is a software application made available by The Nifty to, among other things, enable users of the Service ("Users") to purchase unique non-fungible tokens ("NFT(s)") and any non-digital products, services and/or benefits to be furnished by or on behalf of sellers in connection with such sales (collectively, "Tokens"), implemented on the Ethereum blockchain (the "Blockchain Platform") using smart contracts. You may only participate in the purchase of any Token by linking an electronic wallet that allows you to purchase, store, and engage in transactions using cryptocurrency and NFTs (each, a "Digital Wallet") on supported bridge extensions. Before purchasing a Token, you must download a supported Digital Wallet bridge extension and use such extension to connect and unlock your Digital Wallet through the Service. Once you submit an order to purchase a Token, your order is passed on to the applicable extension, which completes the transaction on your behalf.
3. USER REPRESENTATIONS AND WARRANTIES
a. You must be eighteen (18) years old to use the Service. By using the Service, you agree to (i) provide accurate, current, and complete information about yourself, (ii) maintain and promptly update from time to time as necessary such information, (iii) maintain the security of your Digital Wallet and accept all risks of unauthorized access to your Digital Wallet and to the information you provide to us, and (iv) immediately notify us if you discover or otherwise suspect any security breaches related to the Service.
b. You agree that you will not:
• buy, sell, rent, or lease access to the Service without our written permission;
• log in or try to log in to access the Service through unauthorized third party applications or clients.
c. The Nifty may require you to provide additional information and documents from time to time, including without limitation at the request of any competent authority or in order to help The Nifty comply with applicable law, regulation, or policy, including laws related to anti-laundering (legalization) of incomes obtained by criminal means, or for counteracting financing of terrorism. The Nifty may also require you to provide additional information and documents in cases where it has reasons to believe that: (i) your Digital Wallet or other access to the Service is being used for money laundering or for any other illegal activity;(ii) you have concealed or reported false identification information and other details; or (iii) transactions effected via your Digital Wallet were effected in breach of this Agreement. In such cases, The Nifty, in its sole discretion, may pause or cancel your transactions until such requested additional information and documents have been reviewed by The Nifty and accepted as satisfying the requirements of applicable law, regulation, or policy. If you do not provide complete and accurate information and documents in response to such a request, The Nifty may refuse to provide any Token, Content (as defined below), product, service and/or further access to the Service to you.
d. When you use the Service, you hereby represent and warrant, to and for the benefit of The Nifty, its affiliates, and its and their respective representatives, as follows:
• Authority. You have all requisite capacity, power and authority to enter into, and perform your obligations under this Agreement. The execution, delivery and performance of, and the performance of your obligations under, this Agreement have been duly authorized by all necessary action on the part of you and, if you are an entity, such entity’s board of directors or comparable authority(ies), and no other proceedings on your part are necessary to authorize the execution, delivery or performance of your obligations under this Agreement by you.
• Due Execution. This Agreement constitutes your legal, valid and binding obligation, enforceable against you in accordance with this Agreement.
• Accuracy of Background Check Information. All information provided to The Nifty and/or its third- party designees, including its address and social security number or tax ID number, is accurate and complete. None of: (i) you; (ii) any of your affiliates; (iii) any other person having a beneficial interest in you; or (iv) any person for whom you are acting as agent or nominee in connection with this Agreement is: (A) a country, territory, entity or individual named on an OFAC list as provided at http://www.treas.gov/ofac, or a person or entity prohibited under the OFAC programs, regardless of whether or not they appear on the OFAC list; or (B) a senior foreign political figure, or any immediate family member or close associate of a senior foreign political figure.
• Non-Contravention. This Agreement does not, and your acts and omissions hereunder will not: (i) if you are an entity, conflict with or violate any of the charter documents of such entity or any resolution adopted by its equity holders or other persons having governance authority over the entity; (ii) contravene, conflict with or violate any right of any third party or any applicable legal requirement to which you or any of the assets owned or used by you, is subject; or (iii) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under any material contract or agreement to which you are a party, permit held by you or legal requirement applicable to you.
• Independent Investigation and Non-Reliance. You are sophisticated, experienced and knowledgeable regarding Tokens. Additionally, you have conducted an independent investigation of the Service and the matters contemplated by these Terms, have formed your own independent judgment regarding the benefits and risks of and necessary and desirable practices regarding the foregoing, and, in making the determination to use the Service, you have relied solely on the results of such investigation and such independent judgement. Without limiting the generality of the foregoing, you understand, acknowledge and agree that the legal requirements pertaining to blockchain technologies and digital assets generally, including the Tokens, are uncertain, and you have conducted an independent investigation of such potentially applicable legal requirements and the resulting risks and uncertainties, including the risk that one or more governmental entities or other persons may assert that any digital assets or cryptographic tokens (including the Tokens) may constitute securities under applicable legal requirements. You hereby irrevocably disclaim and disavow reliance upon any statements or representations made by or on behalf of, or information made available by, The Nifty, in determining to enter into this Agreement or use the Service.
• Litigation. There is no legal proceeding pending that relates to your activities relating to Service or other token- or digital asset- trading or blockchain technology related activities.
• Compliance. You have not failed to comply with, and have not violated, any applicable legal requirement relating to any blockchain technologies or token trading activities. No investigation or review by any governmental entity is pending or, to your knowledge, has been threatened against or with respect to you, nor does any government order or action prohibit you or any of your representatives from engaging in or continuing any conduct, activity or practice.
e. You must provide all equipment and software necessary to connect to the Service. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Service.
4. PURCHASING A TOKEN
a. By purchasing a Token, you agree to comply with any terms, including licenses or payment rights that are embedded within or otherwise included with any Token that you purchase. The Nifty does not guarantee that Tokens will be transferable to any other platform.
b. The Nifty may set limits on or other terms regarding the sale of Tokens comprising Nifty’s Content, including, without limitation, any fee payable in connection with any subsequent sale of a Token, whether or not such sale takes place on or through the Service (each such sale, a "Secondary Sale," and such fee, a "Secondary Sale Fee"), and The Nifty will display such terms at point of sale or otherwise within the Service (the "NFT Terms," as set forth above).
c. The Nifty is not and shall not be a party to any transaction or dispute between any initial buyer of a Token and any subsequent owner of such Token, whether arising from any rights granted in that Token or otherwise, unless otherwise set forth in connection with such Token.
5. PRICING AND FEES; PAYMENTS
a. All pricing and payment terms for Tokens are as indicated at point of sale or otherwise on the Service, and any payment obligations you incur are binding at the time of purchase. You may not substitute any other currency, whether cryptocurrency or fiat currency, for the currency in which you have contracted to pay at the time of purchase. For clarity, no fluctuation in the value of any currency, whether cryptocurrency or otherwise, shall impact or excuse your obligations with respect to any purchase.
b. When you purchase a Token, you agree that you have read, understand, and agree to be bound by any terms and conditions applicable to the Secondary Sale of that Token, including any Secondary Sale Fee (regardless of whether such Secondary Sale Fee is enforced or supported by the third-party platform or marketplace that facilitates a Secondary Sale). You further agree that, if you sell a Token, you will bind the purchaser of the Token to such Secondary Sale terms and conditions.
c. The Nifty may add or change any payment processing services at any time. Such services may be subject to additional terms or conditions. Whether a particular cryptocurrency is accepted as a payment method by The Nifty is subject to change at any time in The Nifty’s sole discretion.
6. CONSENT TO ELECTRONIC COMMUNICATION
By contacting The Nifty via email, signing up to be white-listed for a sale of Tokens, or by using the Service, you consent to receive electronic communications from The Nifty (e.g., via Discord or by posting notices to the Service). These communications may include notices about your use of the Service (e.g., transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy. We have no obligation to store for your later use or access any such electronic communications that we make to you.
Unless otherwise indicated in writing by us, the Service and all content and other materials contained therein, including, without limitation, the The Nifty logo and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, "Content") are the proprietary property of The Nifty or our affiliates, licensors or Users, as applicable. The The Nifty logo and any The Nifty product or service names, logos or slogans that may appear on the Service are trademarks of The Nifty or our affiliates and may not be copied, imitated or used, in whole or in part, without our prior written permission. You may not use any metatags or other "hidden text" utilizing "The Nifty," or any other name, trademark or product or service name of The Nifty or our affiliates without our prior written permission. In addition, the look and feel of the Service and Content, including, without limitation, all page headers, custom graphics, button icons and scripts, constitute the service mark, trademark or trade dress of The Nifty and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and other names or logos mentioned on the Service are the property of their respective owners and may not be copied, imitated or used, in whole or in part, without the permission of the applicable trademark holder. Reference to any products, services, processes or other information by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by The Nifty.
8. LICENSE TO OUR SERVICE AND CONTENT
a. You are hereby granted a limited, revocable, nonexclusive, nontransferable, non-assignable, non- sublicensable, "as-is" license to access and use the Service and Content for your own personal, non-commercial use; provided, however, that such license is subject to this Agreement and does not include any right to (i) sell, resell, or use commercially the Service or Content, (ii) distribute, publicly perform, or publicly display any Content, (iii) modify or otherwise make any derivative uses of the Service or Content, or any portion thereof, (iv) use any data mining, robots, or similar data gathering or extraction methods, (v) download (other than page caching) any portion of the Service or Content, except as expressly permitted by us, and (vi) use the Service or Content other than for their intended purposes. This license is subject to your compliance with the Acceptable Use Policy set forth in Section 10 below.
b. You are granted a limited, nonexclusive, nontransferable right to create a text hyperlink to the Service for noncommercial purposes, provided that such link does not portray The Nifty or our affiliates or any of our Services, Content, products or services in a false, misleading, derogatory or otherwise defamatory manner, and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable in The Nifty’s sole discretion. This limited right may be revoked at any time. You may not use a logo or other proprietary graphic of The Nifty to link to the Service or Content without our express written permission. Further, you may not use, frame or utilize framing techniques to enclose any The Nifty trademark, logo or other proprietary information, including the images found on the Service, the content of any text or the layout or design of any page, or form contained on a page, on the Service without our express written consent.
c. The Nifty may from time-to-time change or discontinue any or all aspects or features of the Service, including by (i) altering the smart contracts which are included in the Blockchain Platform pursuant to upgrades, forks, security incident responses or chain migrations, (ii) deactivating or deleting Content that The Nifty in its sole discretion determines has been abandoned; or (iii) repossessing any Tokens The Nifty in its sole discretion determines have been abandoned. In such events, you may no longer be able to access, interact with or, read the data from the Service.
9. THIRD-PARTY SERVICES; THIRD-PARTY TERMS
The Service may contain links to third-party properties ("Third-Party Properties") and applications ("Third-Party Applications"). When you click on a link to a Third-Party Property or Third-Party Application, such as a bridge extension, you are subject to the terms and conditions (including privacy policies) of such other property or application. Such Third-Party Properties and Third-Party Applications are not under the control of The Nifty. The Nifty is not responsible for any Third-Party Properties or Third-Party Applications. The Nifty provides links to these Third-Party Properties and Third-Party Applications only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Properties or Third-Party Applications, or their products or services. You use all links in Third-Party Properties, and Third-Party Applications at your own risk. When you leave our Service, our Terms and policies no longer govern. You should review all applicable agreements and policies, including privacy and data gathering practices, of any Third-Party Properties or Third-Party Applications, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
10. ACCEPTABLE USE POLICY
You agree that you are solely responsible for your conduct while participating in the purchase or sale of Tokens or otherwise accessing or using the Service. You agree that you will abide by this Agreement and will not:
a. Provide false or misleading information to The Nifty;
b. Use or attempt to use another User’s linked Digital Wallet without authorization from such User and The Nifty;
c. Pose as another person or entity;
d. Use the Service in any manner that could interfere with, disrupt, negatively affect or inhibit other Users from fully enjoying the Service, or that could damage, disable, overburden or impair the functioning of the Service in any manner;
e. Develop, utilize, or disseminate any software, or interact with any API in any manner, that could damage, harm, or impair the Service;
f. Reverse engineer any aspect of the Service, or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any service, area, or code of the Service;
g. Attempt to circumvent any content-filtering techniques we employ, or attempt to access any feature or area of the Service that you are not authorized to access;
h. Use any robot, spider, crawler, scraper, script, browser extension, offline reader, or other automated means or interface not authorized by us to access the Service, extract data or otherwise interfere with or modify the rendering of Service pages or functionality;
i. Collect or harvest data from our Service that would allow you to contact individuals, companies, or other persons or entities, or use any such data to contact such entities;
j. Use data collected from our Service for any direct marketing activity (including without limitation, email marketing, SMS marketing, telemarketing, and direct marketing);
k. Bypass or ignore instructions that control all automated access to the Service;
l. Use the Service for any illegal or unauthorized purpose, or engage in, encourage, or promote any activity that violates any applicable law or this Agreement;
m. Use the Blockchain Platform to carry out any illegal activities in connection with or in any way related to your access to and use of the Service, including but not limited to money laundering, terrorist financing or deliberately engaging in activities designed to adversely affect the performance of the Blockchain Platform, or the Service;
n. Engage in or knowingly facilitate any "front-running," "wash trading," "pump and dump trading," "ramping," "cornering" or fraudulent, deceptive or manipulative trading activities, including:
• trading a Token at successively lower or higher prices for the purpose of creating or inducing a false, misleading or artificial appearance of activity in such Token, unduly or improperly influencing the market price for such Token trading on the Service or establishing a price which does not reflect the true state of the market in such Token;
• for the purpose of creating or inducing a false or misleading appearance of activity in a Token or creating or inducing a false or misleading appearance with respect to the market in a Token: (A) executing or causing the execution of any transaction in a Token which involves no material change in the beneficial ownership thereof; or (B) entering any order for the purchase or sale of a Token with the knowledge that an order of substantially the same size, and at substantially the same price, for the sale of such Token, has been or will be entered by or for the same or different parties; or
• participating in, facilitating, assisting or knowingly transacting with any pool, syndicate or joint account organized for the purpose of unfairly or deceptively influencing the market price of a Token.
If The Nifty becomes aware of any possible violations by you of this Agreement, The Nifty reserves the right to investigate such violations. If, as a result of the investigation, The Nifty believes that criminal activity may have occurred, The Nifty reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. The Nifty is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Service, including your Content, in The Nifty’s possession in connection with your use of the Service, to (i) comply with applicable laws, legal process or governmental request; (ii) enforce this Agreement, (iii) respond to any claims that your Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of The Nifty, its Users, or the public, and all law enforcement or other government officials, as The Nifty in its sole discretion believes to be necessary or appropriate. By agreeing to this Agreement, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning your use of the Service, including without limitation text, voice, or video communications.
You hereby release and forever discharge The Nifty and our officers, employees, agents, successors, and assigns (the "The Nifty Entities") from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Service (including any interactions with, or act or omission of, other Users of the Service or any Third- Party Properties). IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
13. ASSUMPTION OF RISK RELATED TO TOKENS
You acknowledge and agree that:
a. The prices of digital assets are extremely volatile. Fluctuations in the price of other digital assets could materially and adversely affect the Tokens, which may also be subject to significant price volatility. We cannot and do not guarantee that any purchasers of Tokens will not lose money.
b. You are solely responsible for determining what, if any, taxes apply to your transactions involving Tokens. Neither The Nifty nor any other The Nifty Entity is responsible for determining the taxes that may apply to transactions involving Tokens.
c. Tokens exist and can be transferred only by virtue of the ownership record maintained on the blockchain supporting such Tokens.
d. There are risks associated with using digital currency and digital assets, including but not limited to, the risk of hardware, software and Internet connections, the risk of malicious software introduction, the risk that third parties may obtain unauthorized access to your information, and the risk of purchasing (i) counterfeit or mislabeled assets, (ii) assets that are vulnerable to metadata decay, (iii) assets on smart contracts with bugs, and (iv) assets that may become untransferable.
e. Upgrades to the Ethereum platform, a hard fork in the Ethereum platform, a failure or cessation of Ethereum, or a change in how transactions are confirmed on the Ethereum platform may have unintended, adverse effects on all blockchains using such technologies, including without limitation your transactions involving Tokens purchased on The Nifty.
f. The legal and regulatory regime governing blockchain technologies, cryptocurrencies, and tokens is evolving, and new regulations or policies may materially adversely affect the development of the Service and the utility of Tokens.
g. The Nifty reserves the right to hide collections, contracts, and assets that The Nifty suspects or believes may violate this Agreement. Tokens you purchase may become inaccessible on the Service. Under no circumstances shall the inability to access or view your assets on the Service serve as grounds for a claim against The Nifty.
To the fullest extent permitted by applicable law, you agree to indemnify, defend, and hold harmless The Nifty and the The Nifty Entities from and against all actual or alleged third party claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses (including, without limitation, attorneys’ fees and expenses) and costs (including, without limitation, court costs, costs of settlement, and costs of or associated with pursuing indemnification and insurance), of every kind and nature whatsoever arising out of or related to this Agreement or your use of the Service, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise (collectively, "Claims"), including, but not limited to, damages to property or personal injury, that are caused by, arise out of or are related to (a) your use or misuse of the Service, Content or Tokens, including, without limitation, any act or omission involving any third party in connection with the listing, buying, selling, or trading of any Tokens hereunder; (b) any feedback you provide; (c) your violation of this Agreement; (d) your violation of the rights of any third party, including another User; (e) any breach or non-performance of any covenant or agreement made by you; (f) your listing, buying, selling, or trading of any Tokens; or (g) any off- chain benefits (including the furnishing, or any failure to furnish, or any acts or omissions of or attributable to you or any third party in respect of the same). You agree to promptly notify The Nifty of any third-party Claims and cooperate with The Nifty Entities in defending such Claims. You further agree that The Nifty Entities shall have control of the defense or settlement of any third-party Claims. THIS INDEMNITY IS IN ADDITION TO, AND NOT IN LIEU OF, ANY OTHER INDEMNITIES SET FORTH IN A SEPARATE WRITTEN AGREEMENT BETWEEN YOU AND THE NIFTY.
THE SERVICE, CONTENT CONTAINED THEREIN, AND TOKENS LISTED THEREIN ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE NIFTY (AND ITS SUPPLIERS) MAKE NO WARRANTY THAT THE SERVICE: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, COMPLETE, LEGAL, OR SAFE. THE NIFTY DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT AS TO THE SERVICE OR ANY CONTENT CONTAINED THEREIN. THE NIFTY DOES NOT REPRESENT OR WARRANT THAT CONTENT ON THE SERVICE IS ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE. WE WILL NOT BE LIABLE FOR ANY LOSS OF ANY KIND FROM ANY ACTION TAKEN OR TAKEN IN RELIANCE ON MATERIAL OR INFORMATION, CONTAINED ON THE SERVICE. WHILE THE NIFTY ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF THE SERVICE AND CONTENT SAFE, THE NIFTY CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICE, CONTENT, OR ANY TOKENS LISTED ON OUR SERVICE OR OUR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE CANNOT GUARANTEE THE SECURITY OF ANY DATA THAT YOU DISCLOSE ONLINE. YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET AND WILL NOT HOLD US RESPONSIBLE FOR ANY BREACH OF SECURITY UNLESS IT IS DUE TO OUR GROSS NEGLIGENCE.
WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSSES YOU SUSTAIN AS A RESULT OF YOUR USE OF THE SERVICE. WE TAKE NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO YOU FOR, ANY USE OF TOKENS, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (I) USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED ADDRESSES; (II) SERVER FAILURE OR DATA LOSS; (III) CORRUPTED DIGITAL WALLET FILES; (IV) UNAUTHORIZED ACCESS TO APPLICATIONS; OR (V) ANY UNAUTHORIZED THIRD PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK AGAINST THE SERVICE OR TOKENS.
TOKENS ARE INTANGIBLE DIGITAL ASSETS. THEY EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE BLOCKCHAIN NETWORK. ANY TRANSFER OF TITLE THAT MIGHT OCCUR IN ANY UNIQUE DIGITAL ASSET OCCURS ON THE DECENTRALIZED LEDGER WITHIN THE BLOCKCHAIN PLATFORM. WE DO NOT GUARANTEE THAT THE NIFTY OR ANY THE NIFTY ENTITY CAN EFFECT THE TRANSFER OF TITLE OR RIGHT IN ANY TOKENS. WE CANNOT AND
DO NOT GUARANTEE THAT ANY TOKEN WILL HAVE OR RETAIN ANY INHERENT VALUE, OR THAT YOU WILL BE ABLE TO SELL OR RESELL ANY TOKEN PURCHASED THROUGH THE SERVICE.
The Nifty is not responsible for any losses or harms sustained by you due to vulnerability or any kind of failure, abnormal behavior of software (e.g., smart contract), blockchains, or any other features of or inherent to the Tokens. The Nifty is not responsible for casualties due to developers’ or representatives’ delay or failure to report any issues with any blockchain supporting Tokens, including without limitation forks, technical node issues, or any other issues that result in losses of any sort.
Nothing in this Agreement shall exclude or limit liability of either party for fraud, death or bodily injury caused by negligence, violation of laws, or any other activity that cannot be limited or excluded under the laws applicable to your jurisdiction. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN CONTRACTS WITH CONSUMERS, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
16. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE NIFTY BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM THIS AGREEMENT, THE SERVICE, ANY TOKENS, OR FOR ANY DAMAGES RELATED TO LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, OR LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE AND EVEN IF THE NIFTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICE IS UNDERTAKEN BY YOU AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA RESULTING THEREFROM.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF THE NIFTY ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, YOUR ACCESS TO AND USE OF THE SERVICE, CONTENT (INCLUDING YOUR CONTENT), OR ANY TOKENS MINTED, PURCHASED, OR SOLD THROUGH THE SERVICE EXCEED THE GREATER OF (A) $100 OR (B) THE AMOUNT RETAINED BY THE NIFTY IN THE TRANSACTION OR INCIDENT THAT IS THE SUBJECT OF THE CLAIM.
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.
17. DISPUTE RESOLUTION. PLEASE READ CAREFULLY THE FOLLOWING ARBITRATION AGREEMENT ("ARBITRATION AGREEMENT"). IT REQUIRES YOU TO ARBITRATE DISPUTES WITH THE NIFTY AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
a. Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Service, to any products sold or distributed through the Service, or to any aspect of your relationship with The Nifty, will be resolved by binding arbitration, rather than in court, except that (a) you may assert claims or seek relief in small claims court if your claims qualify; and (b) you or The Nifty may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
b. Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to us at [email protected] The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, The Nifty will pay them for you. In addition, we will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
c. Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitrator will decide the rights and liabilities, if any, of you and us. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including the Arbitration Agreement). 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. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
d. Waiver of Jury Trial. YOU AND THE NIFTY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and we are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 17(a) (Application of Arbitration Agreement) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
e. Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this section’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of New York All other disputes, claims, or requests for relief shall be arbitrated.
f. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to [email protected] within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your username (if any) or the wallet address you used to connect to the Service (if any), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
g. Severability. Except as provided in Section 17(e) (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts 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. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with us.
h. Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if we make any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing us at [email protected] and expressly opting out of this Arbitration Agreement.
We reserve the right in our sole discretion to modify, suspend, or discontinue the Service, or any features or parts thereof, whether temporarily or permanently, at any time with or without notice to you in our sole discretion. This Agreement, and your access to and use of the Service, shall be governed by and construed and enforced in accordance with the laws of the State of New York, without regard to any conflict of law rules or principles that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, shall be resolved in the state or federal courts of New York, New York. Notwithstanding anything contained in this Agreement, we reserve the right, without notice and in our sole discretion, to terminate your right to access or use the Service at any time and for any or no reason, and you acknowledge and agree that we shall have no liability or obligation to you in such event and that you will not be entitled to a refund of any amounts that you have already paid to us, to the fullest extent permitted by applicable law. If any term, clause or provision of this Agreement is held invalid or unenforceable, then that term, clause or provision will be severable from this Agreement and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of this Agreement. Your relationship to The Nifty is that of an independent contractor, and neither party is an agent or partner of the other. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of The Nifty. The Nifty’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. Except as otherwise provided herein, this Agreement is intended solely for the benefit of The Nifty and you and shall not confer third party beneficiary rights upon any other person or entity.
19. CONTACT INFORMATION
Nifty Metaverse Inc.