NIFTYKIT Terms of Use Last Revised: March 20, 2022
Welcome to NiftyKit! We are happy you chose to inquire about our Platform.
1. Acceptance of the Terms of Use.
These Terms of Use are entered into by and between you (whether as a “Buyer,” “Seller,” “Owner,” or “User,”) and NiftyKit, Inc. a Delaware Corporation with offices at 1455 Frazee Rd., Suite 500, San Diego, CA 92108 (“NiftyKit,” “we,” or “us”).
These following terms and conditions, together with any documents expressly incorporated by reference (Collectively; these “Terms of Use,” “Terms,” or “Agreement”), govern your access to and use of the Platform and Services. Please read the Terms of Use carefully before you start to use the Platform. By using the Platform, or by clicking accept to accept the Terms of Use when this option is made available to you, you agree to be bound and abide by these Terms of Use and the Privacy Notice found at https://niftykit.com/privacy-notice/, incorporated herein by reference. THESE TERMS OF USE CONTAIN WAIVERS OF YOUR CLASS-ACTION RIGHTS, MANDATORY ARBITRATION OF DISPUTES WITH A WAIVER OF A RIGHT TO JURY OR COURT TRIAL, AND LIMITATIONS ON LIABILITY OF NIFTYKIT AND ITS AFFILIATES TO YOU. If you do not want to agree to these Terms of Use or Privacy Notice, you must not access or use the Platform or any of our Services. All information we collect on the Platform is subject to the Terms of Use and Privacy Notice. By using the Platform, you consent to all actions taken by us with respect to your information in compliance with the Terms of Use and Privacy Notice.
If you visit Seller’s Website, additional terms and privacy notices may apply, as provided by the Seller on their website. Please review the Seller’s Website for more information. In the event of any conflict or inconsistency between a supplemental privacy notice and supplemental terms of use (if any) from Seller’s Website with Mint Button embedded and NiftyKit’s Terms of Use and Privacy Notice, NiftyKit’s Terms of Use and Privacy Notice control.
2. Definitions.
“Blockchain Account” means an address on the blockchain that allows the blockchain ledger to associate a specific token—such as cryptocurrency, an NFT, or another type of crypto token—with a specific user.
Blockchain Wallet (“Wallet”) means computer code and programs that read the blockchain and display for the user the assets listed as owned by the user’s Blockchain Account. A Wallet also enables transactions.
“Buyer” A person or entity that, through Seller’s Website, Seller allows to purchase Seller’s NFTs, as well as downstream purchasers of the same NFT.
“Cloud Services IP” means all elements of the Platform, and all intellectual property rights therein (including, without limitation, designs, systems, methods, information, computer code, software, Services, “look and feel”, interface design, underlying technology, financial methods, branding, trademarks (for example, NiftyKit), organization, code, data, and all other elements of the Platform.
“Content” means any photographs, art, designs, drawings, sounds, music, text, video, interactive entertainment, augmented reality, virtual reality, video games, or other content (in any media or data form) that may be associated with an NFT.
“Custom” means Smart Contracts created by NiftyKit’s team at the direction of Owner or Owner’s affiliates. Owners of Custom Smart Contracts use the Platform and other Services.
“Decentralized Storage” means peer-to-peer networks of user-operations that hold a portion of overall Content, creating a resilient file storage sharing system. Examples of Decentralized Storage are Areweave, Filecoin, and the InterPlanetary File System (“IPFS”), the latter is used in conjunction with contract-based persistence or a pinning service such as Pinata or Infura.
“Gas Fee” means the blockchain transaction fees that Users pay to perform a transaction on a Blockchain.
“Lazy Mint(ing)” refers to the practice of not Minting an NFT until there is a recorded sale, at which point the NFT is both Minted and transferred. Buyer pays gas fees and Seller uses Seller’s Website or the Minting Page to sell NFTs and Related Content on or through the Platform for primary sales.
“Metadata,” used herein, means data that provides information about an NFT’s properties, such as its name, description, traits, and other information found important.
“Mint” means a unique token is formed in compliance with the standards set on the blockchain used.
“Mint Button” means Owner/Seller’s giving permission for a Buyer to use the Mint Button to make a Mint Transaction through the Owner/Seller’s Smart Contract.
“Minting Page” means a NiftyKit hosted webpage offered as a Service where a Seller markets their NFTs and Related Content and Buyers purchase Seller’s specific NFTs and Related Content with a Mint Button.
“NFT” means a non-fungible token on the blockchain which points to Content, and the Content may be stored in Decentralized Storage, or if the Owner chooses, in a centralized storage of their choosing. An NFT may also be referred to as a token.
“Owner” means the person or entity who owns or created the Blockchain Account associated with the Smart Contract at the time of Smart Contract Creation. Owner also uploads Content to the Platform.
“Other Platform” means a platform, marketplace, or site which allows people or entities to sell their NFTs on.
“Platform” means NiftyKit’s applications, apps, and websites, including, but not limited to, the website located at NiftyKit.com, user interfaces, and Services offered by or through NiftyKit, and for the avoidance of doubt, also includes Dropkit (Collectively, the “Platform”)
“Platform-Generated” means a Smart Contract created entirely through the Platform and Services, without any Custom portion developed by NiftyKit’s team.
“Proceeds” means any cryptocurrency obtained from the sale of NFTs.
“Redeemables” means Minted, identical NFTs that you may or may not use to provide the utility or the right for Buyer to redeem for services or a physical item. In such instances, once the NFT has been redeemed, the NFT may remain in circulation, but the redemption right will be terminated. Redeemables may also be used as Related Content.
“Related Content” used herein, includes, amongst other things, tickets, services, proof of attendance, and physical goods.
“Resale Proceeds” Percentage of proceeds you want paid to you on any downstream sales of your Minted NFT that may or may not be recognized by Other Platforms.
“Sell” means selling your NFTs on Seller’s Website or Mint Page.
“Seller” means a person or entity that markets the sale of their NFTs and Related Content on Seller’s Website or their Mint Page. Sellers must create a NiftyKit account.
“Smart Contract” refers to both Custom and Platform-Generated Smart Contracts, unless denoted otherwise, and means code that programmatically executes logic that performs various tasks, processes, or transactions that have been programmed into them to respond to a given set of conditions.
“Smart Contract Creation” means the time when a Smart Contract is created through the connected Blockchain Account or Wallet and is deployed onto a blockchain through the Platform or Services.
“User” means any person or entity accessing the Platform for any purpose. A User may also be a Buyer, Seller, or Owner.
“Seller’s Website” means Seller’s publicly accessible, interlinked web pages, Content, and Related Content that share a common domain name, that are published on at least one server designated by Seller, and that utilizes NiftyKit’s application programming interface (“API”) and integrating mint function to javascript interface with NiftyKit’s permission integrating the Mint Button.
3. Platform; Services.
NiftyKit is an Online Service Provider for facilitating communication among Users. We are not a Wallet provider, exchange, broker, financial institution, creditor, and do not exchange, transfer, or sell “Virtual Goods” (intangible assets traded in virtual economies, such as in online games) or currency.
Use of the Platform and Services enables Owners to configure custom parameters for their Platform-Generated Smart Contract and NFT drop and provides an interface to deploy Smart Contracts on the blockchain. The Platform enables management of Smart Contracts through the Platform’s user interface. Each Smart Contract allows Owner control and ownership of the NFTs created through the Smart Contract and the Smart Contract itself. Services are listed on https://niftykit.com/services/ and are collectively referred to as the (“Services”).
We do not support secondary or resales on or through the Platform.
4. Contracts for Purchase and Sale On Seller’s Website or Mint Page.
4.1 Communication Facilitation. The Platform provides Services for facilitating communication between Users. Sellers may market their sale of NFTs and Related Content and Buyers may purchase the NFTs, Related Content, and Content sold on Seller’s Website or on a Minting Page. You warrant, for purposes of this Agreement, that what you Sell on Seller’s Website or Mint Page are not Virtual Goods and not virtual currency, so as not to implicate any laws or regulations related to virtual asset service providers.
4.2 If a contract for license of NFTs exists, it is between a Buyer and a Seller. NiftyKit is not a party to the transaction but does usually receive a fee as an online service provider. As an online service provider, NiftyKit provides no guarantee related to how Users use the Platform, for example, the existence, accuracy, quality, safety, or legality of the NFTs; the ability, authorization, or legal standing of Sellers to sell NFTs ; the ability of Buyers to pay for NFTs; or that any Seller or Buyer will complete a transaction or return an NFT. NFTs may be for sale on Seller’s Website or on the Minting Page and Seller may also include Related Content.
5. User Qualifications.
5.1 Age Requirement. 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.
5.2 The Platform 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 Use or other applicable policies or notices.
5.3 Organization. If you represent 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 NiftyKit 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 NFTs and interacting with the Platform in any way. If you do not meet all of these requirements, you must not access or use the Platform. Without limiting the foregoing, by using the Platform, you acknowledge and understand that laws regarding cryptographic tokens, including NFTs, 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 Use. 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.
6. Cloud Services IP; Platform Licensing.
6.1 Platform Ownership. You acknowledge and agree that we (or as applicable, our licensors) own all legal rights, title, and interest in and to all Cloud Service IP. You acknowledge that the cloud services IP are protected by copyright, patent, and trademark laws, international conventions, other relevant intellectual property and proprietary rights, and applicable laws. All cloud services IP are the copyrighted property of us and our licensors, and all trademarks, service marks, and trade names associated with the Platform or otherwise contained in the cloud services IP are proprietary to us and our licensors.
6.2 No User License or Ownership of Cloud Services IP. Except as expressly set forth herein, your use of the Platform does not grant you ownership of or any other rights with respect to any cloud services IP that you may access on or through the Platform. We reserve all rights in and to the cloud services that are not expressly granted to you in these Terms of Use.
6.3 License to use Platform. Subject to your compliance with any terms and any payment of applicable fees, we grant you a limited, non-exclusive, non-transferable, non-sublicensable license to access and use of the Platform and Services. This license does not include 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. The preceding sentence is not intended to apply to data and information made available to Sellers through their own administrative console, which are pre-authorized or made available by the Platform in the normal course of business. All rights not expressly granted to you in these Terms of Use are reserved and retained by NiftyKit or its licensors, suppliers, publishers, rightsholders, or other content providers. You may not visit portions of the Platform for which you are not authorized or given password access. 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 Use, the Privacy Notice, or upon your death.
7. NFT Understanding and Licensing
7.1 Through Seller’s Website, Mint Page, or other Service, Seller, consistent with the Terms of Use, will be permitted to Mint or, if Lazy-Minting is used, sell NFTs associated with Content produced by Seller (or its licensors, for which Seller is solely responsible). 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. Each NFT is coded into a blockchain or similar technology, containing built-in methods for evidence of authentication and proof of ownership, but the NFT Content, which usually resides off-chain, could be unauthorized, unavailable, or illegal. When you buy an NFT, the terms of your purchase and the rights you actually purchase and own, may be limited by the license terms or technology of the underlying NFT.
7.2 NFT License. Because each NFT purchased or sold is an NFT associated with a hash on a blockchain, when you purchase an NFT in accordance with these Terms of Use, any license you may obtain is from the Seller and not the Platform. You understand that it is up to you to confirm your understanding of what you are selling or buying and any license you are giving or receiving, which may be determined and communicated by the Seller at point-of-sale.
7.3 You further understand that blockchain transactions are usually not reversible. You understand that NFTs and other 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, the functioning of such blockchain, or the persistence or compatibility, or lack thereof, of the NFT or Related Content. In cases where a transaction involving NFTs is revealed to be fraudulent, 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.
8. Electronic Communication.
8.1 When you use our Platform or send emails, text messages, or other communication from your desktop or mobile device to us, you consent to receive communications from us electronically, such as emails, texts, mobile push notifications or notices and messages on this site, and you can retain copies of these messages for your records. You agree that all agreements, notices, disclosures, and other communications we provide to you electronically satisfy any legal requirement that such communication be in writing.
8.2 Obligation. To ensure that you receive all of your 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.
9. Additional Terms and Changes to the Terms of Use.
9.1 Additional Terms and Conditions. Because we have a growing number of services, we sometimes need to provide additional terms for specific services (and such services are deemed part of the “Services” and shall also be subject to these Terms). Those additional terms and conditions then become part of your agreement with us if you use those services. In the event of a conflict between these Terms and any additional applicable terms we may provide for a specific service, such additional terms shall control for that specific service.
9.2 Change to Terms. NiftyKit reserves the right to change or modify these Terms at any time and in our sole discretion. If we make material changes to these Terms, we will use reasonable efforts to provide notice of such changes, such as by providing notice through the Platform or by updating the “Last Updated” date at the beginning of these Terms. By continuing to access or use the Platform or Services, you confirm your acceptance of the revised Terms and all of the terms incorporated therein by reference effective as of the date these Terms are updated. It is your sole responsibility to review the Terms from time to time to view such changes and to ensure that you understand the terms and conditions that apply when you access or use the Service.
10. Payment; Fees; Other Charges.
10.1 Not a Payment Processor. NiftyKit does not process any payments: for Platform usage; on behalf of parties to the purchase or sale of NFTs; or on behalf of any Wallet owner receiving payment from the sale of an NFT.
10.2 Payment Methods; Refunds; Discounts. You agree to comply with all applicable laws, regulations, rules and terms and conditions in connection with your payment methods. Additionally, we reserve the right to offer refunds, discounts, credits, promotional terms, or other consideration in selected circumstances at its sole discretion. Please note that each circumstance is unique and election to make such an offer in one instance does not create the obligation to do so in another. In any case you can submit a refund request by emailing us at support@niftykit.com by providing the reason for such a request.
10.3 Platform Usage Fees – Subscription. You may be required to purchase a subscription to use certain Services. The current offerings of Services through Subscription and prices are listed on our website or will be presented to you at the time you sign up for an account. Fees for use of the Platform and Services included in a subscription may be changed at any time in our sole discretion. You may purchase a term-based subscription for the advertised price, to be paid in full at the commencement of the term. Subscription payments are completed through a third-party payment provider. Subscriptions will automatically renew immediately prior to the end of the applicable term, unless and until you cancel the Subscription. You can cancel your subscription at any time by logging in to your NiftyKit account and going to your profile and then to manage subscription. You will be taken to Stripe to edit or cancel your subscription. Subscriptions are non-transferable and a cancellation of an active subscription(s) will become effective after the end of the then-current billing period, unless there is a change in Stripe’s Agreements. You agree that all sales of subscriptions are final.
10.4 Payment Service Providers. Some payments required for use of the Platform are processed by and through a third-party payment processor, Stripe, and are subject to the Stripe Checkout User Terms of Service, the Stripe Service Agreement, and other relevant Stripe policies (all specific for your country, if applicable) (collectively, the “Stripe Agreements”) found at https://stripe.com. By agreeing to these Terms of Use and/or continuing to utilize the Platform, you agree to be bound by the Stripe Agreements, which may be modified by Stripe from time to time. When you pr10.4 ovide payment information for purchasing 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 subscription or Services purchased, or other fees incurred by you by or through the Platform. As a condition of NiftyKit enabling payment processing services through Stripe, you agree to provide Stripe with accurate and complete personal, payment, and billing information and to keep this information updated with Stripe. Failure to follow third-party terms and conditions, including but not limited to, Stripe Agreements, may result in fees assessed to you or other actions taken by such third parties, and you agree that NiftyKit has no control over, or responsibility or liability for, such fees or actions. We do not receive your payment information from Stripe or other payment processors but we may receive some personal information (please see Privacy Notice). We do not share or sell your information. You hereby explicitly consent to: our use of such third-party service providers and the related transfer of limited data.
11. Smart Contracts and Blockchain Interactions.
11.1 Generally. Generally, NiftyKit utilizes ERC-721 Smart Contract code created by OpenZeppelin. Owner is responsible for ensuring they abide by the open source licenses in their Smart Contract. NiftyKit does not execute any blockchain Transactions and does not: 1) transfer NFTs, 2) hold NFTs or Smart Contracts for safekeeping or keep them in custody, or 3) have any control over NFTs or Platform-Generated Smart Contracts.
11.2 Ownership of Smart Contract. When a Smart Contract is deployed to the blockchain, the Smart Contract is tied to the Wallet address or Blockchain Account that Owner provided at the time of Smart Contract Creation. This enables the ownership of the Smart Contract to that Wallet or Blockchain Account. As between NiftyKit and Owner, Owner owns all rights, title, and interest to any Smart Contract. NiftyKit hereby assigns to Owner without additional consideration all right, title, and interest it may have to such Smart Contract.
11.3 Control of Smart Contract; Renouncing Ownership. There are two (2) types of functions on Owner’s Smart Contract, Exclusive Functions and External Functions. An “Exclusive Function gives Owner control over administrative tasks available only to Owner. An “External Function” is executed according to the logic programmed in the Smart Contract, callable by users of the Smart Contract. An example of an External Function is transfer, which enables an NFT to be transferred from one holder to another. Owners of Platform-Generated Smart Contracts have control over Exclusive Functions at Smart Contract Creation. Owners of Custom Smart Contracts have control over Exclusive Functions at the end of Custom Smart Contract development, to be determined by an additional agreement. Owner understands that they can “Renounce Ownership” of their Smart Contract by executing the Exclusive Function referred to as renounce, which removes Owner’s access rights to the Exclusive Functions of their Smart Contract. Owner further understands that Renouncing Ownership leaves their Smart Contract without an owner and the Smart Contract functions can be executed with External Functions, according to the logic programmed therein. Owner agrees and understands that when they Renounce Ownership, this action cannot be undone and Owner CANNOT regain access rights to External Functions of the Smart Contract.
11.4 Gas Fees. NiftyKit does not pay any Gas Fees related to blockchain Transactions. Owner acknowledges that Owner is responsible for paying all Gas Fees. Owner must also have sufficient funds and means available before initiating such Transactions. Owner acknowledges and agrees that NiftyKit has no control over: (a) any Transactions with the blockchain; (b) the method of payment of any Gas Fees; or (c) any actual payments of Gas Fees.
11.5 Airdrop Blockchain Interaction. “Airdrop” is the distribution of NFTs into the Wallet or Blockchain Account of another. If you use our Airdrop feature you are considered a User and these Terms of Use and our Privacy Notice apply to you. If you Airdrop NFTs to Wallets you pay the Gas Fees associated with this blockchain Transaction. If your Wallet receives an Airdropped NFT(s) created with or through the Platform or its Services, or if you used the Platform or Services to Airdrop an NFT, you recognize and accept that Airdropping an NFTs does not establish a connection between NiftyKit and the sender and/or connected entity, and does not obligate us in any way.
12. Payments Related to the Sale and Purchase of NFTs.
12.1 Generally. NiftyKit does not participate in solicitation, negotiation, or execution of finding Buyers or Sellers and does not participate in the buying or selling of NFTs.
12.2 Purchase of NFTs.
(a) Seller-determined prices for NFTs may be displayed on Seller’s Website or Seller’s Mint Page.
(b) The contract for the purchase of NFTs is between Buyer and Seller.
(c) BUYER BEARS FULL RESPONSIBILITY FOR VERIFYING THE IDENTITY, LEGITIMACY, INTEGRITY, IP OWNERSHIP, AND AUTHENTICITY OF NFTS BUYER PURCHASES ON OR THROUGH THE PLATFORM..
12.3 Sale of NFTs. Sellers are responsible for all costs related to or arising out of Calls or Transactions (see Section 11.3) made on their Smart Contract, as well as, if applicable, returns of NFTs sold, taxes, fees, penalties, and fraud. If you market NFTs on Seller’s Website you are also responsible for ensuring that Buyers are aware of and consent to NiftyKit’s Terms of Use and Privacy Policy currently posted on NiftyKit.com.
12.4 Payment Methods and Method of Receiving Payment. You agree to comply with all applicable laws, regulations, rules and terms and conditions in connection with your payment methods and your method of receiving payment. NiftyKit does not process, facilitate, provide brokerage or exchange services, or store any payments, cryptocurrency or otherwise, on behalf of parties for the purchase or sale of NFTs, or on behalf of any Wallet or Blockchain Account receiving payment from the sale of an NFT or Related Content.
12.5 Decentralized Escrow. We utilize base escrow smart contracts which use coded logic to store and transfer cryptocurrency payments from Buyer to the escrow smart contract where the funds are designated for payee(s) until the funds are withdrawn using the withdraw Transaction on Owner’s Smart Contract. You consent to proceeds being transferred and stored via escrow smart contracts.
12.6 Proceeds with Lazy Minting. NiftyKit’s fees include a 5% fee from Lazy Minted NFTs through the Platform and Services. Sellers utilizing Lazy Minting to sell their NFTs on or through the Platform collect primary sale proceeds from the sale of their NFTs. When funds are withdrawn from the base escrow smart contract, the Seller’s Wallet Blockchain Account will receive 95% of the proceeds in the smart contract, subject to any other agreement the Seller has to split proceeds and any prior removal of proceeds, and NiftyKit’s Wallet or Blockchain Account will receive the other 5% of those proceeds. The withdraw transaction will move all of the proceeds from the escrow smart contract into the Wallet address(s) or Blockchain Accounts Owner included in their Smart Contract, as well as NiftyKit’s Wallet or Blockchain Account. Partial amounts of proceeds in the escrow smart contract cannot be withdrawn, however, the withdraw function can be executed multiple times. You acknowledge and agree that NiftyKit is not a party to the transaction but is a designated payee whose Wallet or Blockchain Account will collect a 5% fee on primary sales from the escrow smart contract when you Lazy-Mint your NFTs through the Platform. For avoidance of doubt, Lazy Minting includes Minting via Dropkit or Redeemables. You agree NiftyKit is not required to pay you or other Users out of this 5% fee.
12.7 Resale Proceeds through Other Platforms. We do not currently support secondary sales or the payment of Resale Proceeds. However, you are able to input the amount of secondary sale Resale Proceeds you would like to receive into your Smart Contract. Since you own this Smart Contract, you may take it to Other Platforms that support secondary sales of NFTs. If the Other Platforms do not recognize the Resale Proceeds in your Smart Contract, you may have to set them on the Other Platform itself. Other Platforms have no affiliation with NiftyKit. Rather the affiliation is between you and the Other Platform(s).
12.8 Splitting Proceeds from NFT Sales. You may have the option to edit your Smart Contract to include other Wallet addresses or Blockchain Accounts to receive proceeds from the NFTs you are marketing for sale. Through your Smart Contract, you can add on these additional addresses or accounts. You understand that you are fully responsible for the addresses or accounts of, and for inputting the percentages each Wallet or Blockchain Account is to receive. You warrant that you will not hold NiftyKit liable for any mistake in the payment of cryptocurrency, mistake in resale percentage received, mistake in Wallet address or Blockchain Account, or any other result of any function executed on your Smart Contract.
12.9 Taxes/Exchange Fees for Sale or Purchase of NFTs. You will be solely responsible to pay any and all Taxes, Except for income taxes levied on us, you: (a) will pay or reimburse us for all national, federal, state, local or other taxes and assessments of any jurisdiction, including value added taxes and taxes as required by international tax treaties, customs, or other import or export taxes, and amounts levied in lieu thereof based on charges set, Services performed, or payments made hereunder, as are now or hereafter may be imposed under the authority of any national, state, local, or any other taxing jurisdiction; and (b) will not be entitled to deduct the amount of any such taxes, duties, or assessments from payments (including Gas Charges) made to us pursuant to these Terms of Use. Your purchase of NFTs or use of Services may be subject to foreign exchange fees or differences in prices based on location (e.g. exchange rates), which shall be your responsibility.
13. Blockchain Wallets.
13.1 Third-Party Wallet. Third party (Also known as “Non-custodial:) Wallets (i.e. MetaMask) may be used for Platform Services. Additional rules associated with non-custodial Wallets and outside product(s) and service(s) may apply and are outside our control. You are the owner of the Non-Custodial Wallet. We facilitate the connection of your Wallet for your convenience and do NOT have access to private keys or seed phrases of non-custodial Wallets.
13.2 Wallet Security and Waiver. It is your sole responsibility to maintain the security of your Wallet. If you lose access to your Wallet, a private key, password, or other method of securing your Wallet, any funds or NFTs contained therein, may be irretrievable and we will be unable to assist you in any way. You hereby accept responsibility for any activity transacted on the Platform through or using your Wallet or its associated data. You irrevocably waive, release and discharge all claims, whether known or unknown to you, against us, our affiliates, and respective shareholders, members, directors, officers, employees, agents and representatives related to your use of any Wallet, technology, or software used for interactions with or through the Platform, associated loss of funds or NFTs, transaction failures, or any other defects that arise in the course of your use of your Wallet.
14. Storage.
14.1 Storage of NFT. The Platform does not store, send, or receive NFTs. This is because NFTs exist by virtue of the ownership record maintained on the Platform’s supporting blockchain(s). Any transfer of NFTs occurs within the supporting blockchain network and not on the Platform.
14.2 Storage of Content. Metadata may be imported onto or through the Platform or Services and the Platform and Services may be used to create your metadata. If metadata is imported, the User is responsible for obtaining a centralized or decentralized storage Uniform Resource Locator (“URL”) to be included in your Smart Contract. If the Platform or its tools are used to create metadata, NFTs are stored on IPFS at User direction. By using the Platform, its tools, or Services to create your metadata, you agree that, in doing so, you are asking us, and authorize us to facilitate the storage of your Content for you on the InterPlanetary File System (“IPFS”) or similar decentralized storage. This may include uploading your Content to an IPFS pinning service so there is a link to your Content in your Smart Contract.
15. Beta.
NiftyKit may make available a “beta” version of the Services or a portion of the Platform (“Beta Services”) for evaluation and feedback. Beta Services are Services or the Platform that are in an early development stage and not available as standard product offerings. You are not obligated to use Beta Services, but if you elect to do so, you agree to the following additional terms: (a) Beta Services may contain bugs, errors, and other problems and is provided to you “AS IS”; (b) NiftyKit makes no warranties and bear no liability with respect to the Beta Services; and (c) you agree to respond to of our questions and inquiries regarding your use of the Beta Services. You agree that we have not made any promises or guarantees that Beta Services will be announced or made available in the future and that we have no obligation to announce or introduce the Beta Services. If you provide feedback regarding the Beta Services, you agree that we may use and incorporate into the Platform and Services any suggestions, ideas, recommendations, bug reports, or other feedback that you provide to us without compensation. We may suspend or terminate access to Beta Services (and delete any Content or data provided to us with respect to such Beta Service(s)) with five (5) days notice and without compensation.
16. Prohibited Uses.
You may use the Platform for lawful purposes and in accordance with these Terms of Use. You agree not to use the Platform:
(a) to sell NFTs that in any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries);
(b) for the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise;
(c) to attempt to circumvent any Platform security or access controls or to interfere with the operation of the Platform;
(d) to impersonate or attempt to impersonate or misrepresent your affiliation with, NiftyKit, NiftyKit’s employee, another User or any other person or entity (including, without limitation, by using e-mail addresses or screen names associated with any of the foregoing);
(e) to transmit or exchange goods, services, payments, or NFTs that are the direct or indirect proceeds of any illegal, criminal or fraudulent behavior;
(f) in combination with any robot, spider or other automatic device, process or means to access the Platform for any purpose, including monitoring or copying any of the material on the Platform;
(g) in combination with any manual process to monitor or copy any material on the Platform or for any other unauthorized purpose without our prior written consent;
(h) in combination with any device, software or routine that interferes with the proper working of the Platform;
(i) to introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful;
(j) to infringe the patent, trademark, copyright, moral, database, publicity and/or other intellectual property rights of third parties or that belong to or are licensed to NiftyKit;
(k) to obtain information about another User and use such information for any purpose other than the intended uses of the Platform, unless given consent by said User; or to otherwise attempt to interfere with the proper working of the Platform;
(l) to upload, post, email, transmit or otherwise make available any content that is unlawful, harmful, threatening, deceptive, abusive, harassing, tortious, defamatory, obscene, libelous, invasive of another’s privacy, violates gambling, consumer protection, or securities laws anywhere in the world, hateful, or racially, ethnically or otherwise objectionable;
(m) to violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, but not limited to, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;
(n) to provide material support or resources (or conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act;
(o) “stalk” or otherwise harass another person or User;
(p) collect or store personal data about Users without their consent (including, but not limited to, through the use of scripts, bots, or web crawlers); or
(q) create , buy, or sell NFTs for payment or investment purposes.
PLEASE REPORT ANY VIOLATION OF THIS SECTION IN THESE TERMS OF USE TO OUR CUSTOMER SERVICE DEPARTMENT AT support@niftykit.com.
17. Content Standards.
These “Content Standards” apply to all Content and use of the Platform and related Services. Content must, in its entirety, comply with all applicable federal, state, local, and international laws and regulations. Without limiting the foregoing, Content must not:
(a) contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable;
(b) promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
(c) infringe any patent, trademark, trade secret, copyright, or other rights of any other person;
(d) violate 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 Use and our Privacy Notice;
(e) promote any illegal activity, or advocate, promote, or assist any unlawful act;
(f) cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person; or
(g) Be likely to deceive any person or impersonate any person or misrepresent your identity or affiliation with any person or organization.
18. Sales Standards.
When selling an NFT or Related Content on or through the Platform, you agree to comply with our Sales Standards, set forth below:
(a) You assume full legal and financial responsibility for the NFT and Related Content offered and the accuracy, legal compliance, and Content included with the sale, and for the terms of sale, license and offer language.
(b) You represent, covenant, and warrant that you own or lawfully possess all the intellectual property, use of name, likeness, copyright, moral rights, trademark, and other rights in the NFT and Related Content for sale such that you are in full legal compliance worldwide and not infringing on third party rights of any kind.
(c) You represent, covenant, and warrant that the offer or sale of your NFT and Related Content does not constitute a violation of applicable laws, such as a security, an illegal lottery, contest, or sweepstakes, or a deceptive, unfair, or illegal business practice.
(d) We may assist with data revision to supplement, remove, or correct information when requested by User.
(e) You agree not to market, sell, offer for sale, or otherwise engage in transactions related to child pornography.
(f) You will not sell any NFT and Related Content if the sale is prohibited by law or regulation or poses a health or safety hazard as specified by any governmental agency applicable to you. We have no responsibility or liability for the legitimacy, validity, existence, of any Content sold on or through the Platform.
19. Purchase Standards.
When purchasing an item for sale on or through NiftyKit’s platform, you agree to comply NiftyKit’s purchase standards for Buyers, set forth below:
a) You are responsible for reading the full item listing before committing to buy and you are fully responsible for legal compliance and paying any applicable taxes.
(b) We do not transfer legal ownership or license of NFTs and Related Content from the Seller to you. Legal transfer of license is affected by the Seller.
(c) You are authorized and in compliance with applicable laws and all agreements to use the cryptocurrency, Wallet, and Blockchain Account you use on the Platform or through the Services.
(d) 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.
20. Monitoring; Enforcement; Termination.
20.1 Our Rights.
We have the right to:
a) take any action with respect to any Content that we deem necessary or appropriate in our sole discretion, if we believe that such Content violates these Terms of Use (including the Content Standards set forth above) or our Privacy Notice, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of Users of the Platform or the public, or could create liability for NiftyKit;
(b) disclose your information to any third-party claiming that your Content violates their rights, such as intellectual property rights or right to privacy;
(c) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Platform; and/or
(d) terminate or suspend your access to all or part of the Platform for violation of these Terms of Use or Privacy Notice, or upon death.
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 Platform. YOU WAIVE AND HOLD HARMLESS NIFTYKIT AND ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTIONS 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.
20.2 We do not undertake to review all NFTs and Related Content.
20.3 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 non-performance of the activities described in this section.
21. Reliance on Information Posted.
21.1 The information presented on or through the Platform is made available solely for general information purposes. We do not warrant the accuracy, completeness or usefulness of this information. We do not warrant that product descriptions or other content on the Platform are accurate, authentic, complete, reliable, current or error-free. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other User of the Platform, or by anyone who may be informed of any of its contents.
21.2 The Platform may include, or link to, content provided by third -parties, including materials provided by other Users, third-party licensors, syndicators, or aggregators. All statements and/or opinions expressed in such materials, and all articles and responses to questions and other content, other than the content provided by NiftyKit, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of NiftyKit. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
23. Changes to the Platform and Services.
We may update the content on the Platform and Services from time to time, but its content is not necessarily complete or up-to-date. We reserve the right to withdraw, take down, or amend the Platform, and any Service or functionality we provide in our sole discretion without notice. In the event of a change in the operation of the Platform or Services, you agree we may temporarily or permanently suspend our operations without liability to you.
24. Account Obligations and Account Cancellation.
You hereby accept responsibility for any activity transacted on the Platform through your account. You agree to provide, maintain, and update true, accurate, current, and complete information about yourself. You may cancel your account by requesting so via email at support@niftykit.com.
25. Linking to the Platform.
25.1 You may link to the Platform 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. The Platform may provide certain features that enable you to: link from your own or certain third-party websites or Other Platforms to certain content on the Platform; or cause limited portions of content on the Platform to be displayed or appear to be displayed on your own marketplace, Seller’s Website, or Other Platforms. 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 may provide with respect to such features. Subject to the foregoing, you must not:
(a) establish a link from any Other Platform or website that is not owned by you; and
(b) otherwise take any action with respect to the materials on the Platform that is inconsistent with any other provision of these Terms of Use.
25.2 The Other Platforms or websites 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 Use. You agree to cooperate with us in causing any unauthorized framing or linking immediately to cease. We reserve the right to withdraw linking permission and may disable any social media features and any links if you are, in our reasonable discretion, found to be in violation of these Terms of Use.
26. Additional Terms and Conditions.
Additional terms and conditions (“Additional Terms”) may apply to specific portions, Services, or features of the Platform provided by NiftyKit or third parties. The use of such Services or features shall be governed by the Additional Terms associated with them, and all such Additional Terms are hereby incorporated by this reference into these Terms of Use. 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.
27. Disclaimer of Warranties.
27.1 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 NFTS OBTAINED THROUGH THE PLATFORM, ANY THIRD-PARTY LINKS ACCESSED THROUGH OR IN CONJUNCTION WITH THE PLATFORM, OR ON ANY OTHER PLATFORM LINKED TO IT.
27.2 YOUR USE OF THE PLATFORM, ITS CONTENT, AND ANY SERVICES, OR NFTS AND RELATED CONTENT OBTAINED THROUGH THE PLATFORM IS AT YOUR OWN RISK. THE PLATFORM, ITS CONTENT AND ANY SERVICES OR NFTS AND RELATED CONTENT 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. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
27.3 NFTS ARE INTANGIBLE ASSETS. THEY EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE BLOCKCHAIN. ANY TRANSFER OF TITLE THAT MIGHT OCCUR IN ANY UNIQUE NFT OCCURS ON THE DECENTRALIZED LEDGER WITHIN THE BLOCKCHAIN. WE DO NOT GUARANTEE THAT NIFTYKIT OR ANY RELATED PARTY CAN EFFECT THE TRANSFER OF TITLE OR RIGHT IN ANY NFTS OR COMPATIBILITY WITH ANY WALLETS OR BLOCKCHAINS.
27.4 NIFTYKIT IS NOT RESPONSIBLE FOR SUSTAINED CASUALTIES DUE TO VULNERABILITY OR ANY KIND OF FAILURE, ABNORMAL BEHAVIOR OF SOFTWARE (E.G., WALLET, PLATFORM-GENERATED SMART CONTRACT), BLOCKCHAINS OR ANY OTHER FEATURES OF THE NFTS. NIFTYKIT IS NOT RESPONSIBLE FOR CASUALTIES DUE TO LATE REPORT BY DEVELOPERS OR REPRESENTATIVES (OR NO REPORT AT ALL) OF ANY ISSUES WITH THE BLOCKCHAIN SUPPORTING NFTS INCLUDING FORKS, TECHNICAL NODE ISSUES, OR ANY OTHER ISSUES HAVING FUND LOSSES AS A RESULT.
28. Limitations on Liability.
IN NO EVENT WILL NIFTYKIT, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OWNERS, OFFICERS OR DIRECTORS BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR SALE OR PURCHASE, USE, OR INABILITY TO USE, THE PLATFORM, ANY OTHER SITES, SERVERS, OR APPS LINKED TO IT, ANY SMART CONTRACT, ANY LOSS OF FUNDS OR COLLATERAL, ANY CONTENT ON THE PLATFORM OR ANY SERVICES OR NFTS OBTAINED THROUGH THE PLATFORM, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF PROCEEDS, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE. UNDER NO CIRCUMSTANCES WILL WE BE RESPONSIBLE FOR ANY DAMAGES, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE PLATFORM OR ITS CONTENTS. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF NIFTYKIT (INCLUDING ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OWNERS, OFFICERS AND DIRECTORS) ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS OF USE, THE PLATFORM, THE SERVICES, NFTS, OR ANY PRODUCTS OR SERVICES OBTAINED ON OR THROUGH THE PLATFORM EXCEED THE GREATER OF (A) $100 OR (B) THE AMOUNTS YOU HAVE ACTUALLY AND LAWFULLY PAID US UNDER THESE TERMS OF USE IN THE TWO (2) MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE. THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. FURTHERMORE, NIFTYKIT SHALL NOT BE LIABLE FOR ANY DAMAGES DONE TO ANY PHYSICAL GOODS, INCLUDING, BUT NOT LIMITED TO ART, BY THE PLACEMENT OF ANY IDENTIFICATION MATERIAL ON, OR THE PRESENCE, USE, REMOVAL, MAINTENANCE, OR MALFUNCTION OF ANY IDENTIFICATION MATERIAL ON ANY PHYSICAL GOODS, INCLUDING, BUT NOT LIMITED TO ART.
29. Indemnification.
29.1 You agree to pay the costs of defense, indemnify and hold harmless 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 User-right or 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 Content, any use of the Platform other than as expressly authorized in these Terms of Use, or your use of NFTs or information obtained from or arising out of the Platform.
29.2 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. You expressly waive the provisions of California Civil Code Section 1542, which provides:
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.
30. Notices for Claims of Copyright Infringement: Digital Millennium Copyright Act.
NiftyKit respects the intellectual property rights of others and expects you and users of our Platform 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 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) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(b) a description of the copyrighted work that you claim has been infringed;
(i) For example, a URL, name of item, blockchain address, transaction has, block number,
(c) 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;
(d) your address, telephone number and e-mail address;
(e) 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
(f) 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: compliance@niftykit.com
By Mail to:
Compliance Department
NIFTYKIT, INC.
1455 Frazee Rd., Suite 500 San Diego, CA 92108
858-683-3262
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 our policy, and at our discretion, to terminate accounts when they are found to infringe or repeatedly infringe on the copyrights of third parties.
Please note that we may forward the notice of copyright infringement (or information contained therein), as well as the Complainant’s contact information, to whomever uploaded or added the allegedly infringing Content onto our Platform. Additionally, if we remove or disable access to the Content pursuant to a valid DMCA notice, we will notify whomever uploaded or added the allegedly infringing Content that the Content has been removed or disabled via the email on file.
31. Export Outside of the United States.
NiftyKit expressly disclaims any representation or warranty that the Service complies with all applicable laws and regulations outside of the United States. If you use the Service outside of the United States, you expressly understand and agree that you are responsible for determining compliance with different laws, regulations, or customs that may apply in connection with your use of the Service. No software for the Platform may be downloaded or otherwise exported or re-exported in violation of any applicable laws or regulations. You represent that you are not (1) located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country, or (2) listed on any U.S. government list of prohibited or restricted parties.
32. 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 Use, your use of the Platform, your rights and obligations, and all actions contemplated by, arising out of or related to these Terms of Use shall be governed by the laws of the State of California, as if these Terms of Use are a contract wholly entered into and wholly performed within the State of California. YOU UNDERSTAND AND AGREE THAT YOUR USE OF NIFTYKIT AS CONTEMPLATED BY THESE TERMS OF USE SHALL BE DEEMED TO HAVE OCCURRED IN THE STATE OF CALIFORNIA AND BE SUBJECT TO THE INTERNAL LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO ITS CONFLICTS OF LAWS PROVISIONS.
33. Data Preservation and Cooperation.
You shall maintain records related to the Platform and shall provide such information to and cooperate with NiftyKit upon request as reasonably necessary for, including, but not limited to, due diligence, investigation into Platform conduct, litigation, governmental compliance, and financial reporting.
34. Assignment.
You may not assign your rights or obligations, including, but not limited to Buyer or Seller accounts, without our express written permission.
35. Dispute Resolution, Arbitration, and Class Action Waiver.
35.1 All matters relating to the Platform and these Terms of Use 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.
35.2 Any legal suit, action or proceeding arising out of, or related to, these Terms of Use or the Platform shall be brought exclusively in California, in each case located in the County of San Diego, although we retain the right to bring any suit, action or proceeding against you for breach of these Terms of Use 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 San Diego 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).
36. Unsolicited ideas.
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 us 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 us.
The sole purpose of this notice is to avoid potential misunderstandings or disputes when our products, Services, or marketing strategies might seem similar to unsolicited ideas submitted to us. If, despite our notice, you send us unsolicited creative suggestions, ideas, notes, drawings, concepts, or other information, you agree that the following terms shall apply to your submissions:
(a) your submissions and their content will automatically become the property of NiftyKit without any compensation to you;
(b) we may use or redistribute the submissions and their contents for any purpose and in any way; (c) there is no obligation for us to review the submission; and (4) there is no obligation to keep any submissions confidential.
37. General Information.
37.1 Entire Agreement. These Terms (and any additional terms, rules and conditions of participation that NiftyKit may post on the Platform) constitute the entire agreement between you and NiftyKit with respect to the Platform and supersedes any prior agreements, oral or written, between you and NiftyKit. In the event of a conflict between these Terms of Use and the additional terms, rules and conditions of participation, the latter will prevail over the Terms of Use to the extent of the conflict.
37.2 Waiver and Severability of Terms. No waiver by NiftyKit of any term or condition set forth in these Terms of Use shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of NiftyKit to assert a right or provision under these Terms of Use shall not constitute a waiver of such right or provision.
37.3 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 or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
37.4 Section Titles. The section titles in the Terms of Use are for convenience only and have no legal or contractual effect.
37.5 If any provision of these Terms of Use is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Use will continue in full force and effect.
37.6 Force Majeure: We will not be liable or responsible to the you, nor be deemed to have defaulted under or breached these Terms of Use, 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 Use upon fifteen (15) days’ written notice.
37.7 Feedback. We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Platform (the “Feedback”). You may submit Feedback by emailing us at hello@niftykit.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.
38. Limitation on Time to File Claims.
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF USE 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.
39. 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.
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