Effective as of September 13, 2023
Welcome! This website is comprised of various web pages, customer portals (collectively,“Site”), including any other features or services made available through the Site or that reference these Terms, are operated or controlled by SYKY, Inc. ( "Company",“SYKY” or “we”). We may make changes and improvements to the Site and update these Terms from time to time, and we changes to these Terms will be posted on the Site, and to the extent required by applicable law, we will also notify you of any significant changes in advance, which may be by email or via a prominent notice on the Site. You can choose to stop using the Site at any time. New versions of these Terms will take effect on the posted effective date. You agree to review these Terms periodically to ensure that you are familiar with the most recent version. Your access or use of the Site constitutes your agreement to all such Terms. Please read these Terms and other terms referenced in this document carefully before using the Site and keep a copy of them for your reference. BY ACCESSING AND USING THE SITE IN ANY WAY, INCLUDING, WITHOUT LIMITATION, BROWSING THE SITE, USING ANY INFORMATION, AND/OR SUBMITTING INFORMATION TO COMPANY, YOU AFFIRM AND AGREE THAT YOU: (1) ARE OF LEGAL AGE TO ENTER INTO THESE TERMS; AND (2) ARE TO BE BOUND BY THE TERMS, CONDITIONS, POLICIES AND NOTICES CONTAINED ON THIS PAGE, INCLUDING, BUT NOT LIMITED TO, CONDUCTING TRANSACTIONS ELECTRONICALLY, DISCLAIMERS OF WARRANTIES, DAMAGE AND REMEDY EXCLUSIONS AND LIMITATIONS, BINDING ARBITRATION, AND A CHOICE OF NEW YORK LAW. IF YOU DO NOT AGREE TO THESE TERMS, PLEASE DO NOT ACCESS OR USE THE SITE.
These Terms require binding arbitration to resolve disputes rather than jury trials or class actions. Please see BINDING ARBITRATION/CLASS WAIVER (Section 11) for details, including the class action waiver. In addition, THESE TERMS CONTAIN THE FOLLOWING SECTIONS: INDEMNIFICATION (SECTION 8) AND LIABILITY DISCLAIMER (SECTION 9) THAT AFFECT YOUR RIGHTS.
Company may, in its sole discretion, and at any time, discontinue this Site or any part thereof, with or without notice, or may prevent your use of this Site with or without notice to you. You agree that you do not have any rights in this Site and that Company will have no liability to you if this Site is discontinued or modified, or your ability to access the Site or any content you may have posted on the Site is terminated or inaccessible. All restrictions, rights granted by you, and all indemnification obligations, disclaimers and limitations of liability will survive any termination.
You should assume that everything on the Site is copyrighted unless otherwise indicated and that it must not be used except as provided in the Terms or with the express written consent of Company. Content on this Site that is provided by Company or its licensors, including non-fungible blockchain-based digital asset or tokens and any content associated with such assets or tokens (each, an “NFT”), graphics, photographs, images, text, video, digitally downloadable files, trademarks, trade dress, logos, product names or packaging, slogans, any other content, and the compilation of the foregoing (“Company Content”) is the property of Company and its licensors, and is protected in the U.S. and internationally under trademark, copyright, and other intellectual property laws. Nothing in these Terms gives you any rights in respect of Company Content or any other intellectual property owned by us or our licensors, and you acknowledge that you do not acquire any right, title or interest or any other rights therein by accessing or otherwise using the Site.
You may not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, transmit or otherwise exploit any Company Content. You warrant to Company that you will not use the Site for any purpose that is unlawful or prohibited by these Terms or that infringes any intellectual property right or violates any person’s rights, including right of publicity or right of privacy, or to harass or promote or facilitate violence or for any obscene, defamatory or other illegal activity. You may not use the Site in any manner which could damage, disable, overburden, or impair the Site or interfere with any other party’s use and enjoyment of the Site. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Site.
You will not modify, publish, transmit, reverse engineer, participate in the transfer or sale, create derivative works, derive the source code of, or in any way exploit the Site or Company Content. Company Content and the Site are not for resale or licensing. Your use of the Site does not entitle you to make any unauthorized use of the Company Content, and in particular you will not delete or alter any proprietary rights or attribution notices in Company Content. You will use Company Content solely for your personal use, and will make no other use of the Company Content without the express written permission of Company and the copyright owner.
The following requirements apply to your use of the Site, including any submission or other materials provided by you or your account, including but not limited to any logo, mark, alias, design, graphic, branding, text or any other content (“User Content”): (a) you will not use any electronic communication feature of the Site for any purpose that is unlawful, tortious, abusive, intrusive on another’s privacy, harassing, libelous, defamatory, embarrassing, obscene, threatening, hateful, invasive of the privacy of another person, abusive, racist, infringing, pornographic, violent or otherwise objectionable or inappropriate as determined by Company; (b) you will not upload, post, reproduce, or distribute any information, software, or other material protected by copyright or any other intellectual property right (as well as rights of publicity and privacy) without first obtaining the permission of the owner of such rights; (c) you will not collect, store, or post any content that (i) contains personal information about other users or any individual, (ii) violates the privacy/publicity of any other individual or entity, or (iii) anything that you are under a contractual obligation to keep private or confidential; (d) you will not use the Site for any commercial purpose not expressly approved by Company in writing; (e) you will not upload, post, email, or otherwise transmit any advertising or promotional materials or any other form of solicitation or unauthorized communication; (f) you will not impersonate any person or organization, including without limitation, the personnel or partners of Company, or misrepresent an affiliation with another person or organization; (g) you will not upload, post, email, or otherwise transmit any material that contains viruses or any other computer code, files, or programs which might interrupt, limit, or interfere with the functionality of the Site, or any computer software or hardware, or telecommunications equipment; and (h) you are further prohibited from using any data mining, crawlers, spiders, robots or similar data gathering, scraping or extraction methods in connection with the Site.
By displaying, publishing, or otherwise submitting any User Content on or through the Site, you hereby grant to Company a non-exclusive, sub-licensable, worldwide, fully-paid, royalty free license to use, host, run, modify, publicly perform, publicly display, reproduce, publish, transmit, translate, and distribute such User Content in any and all media now known or hereinafter developed without the requirement to make payment to you or to any third party or the need to seek any third party permission. Without limiting the foregoing, this license includes permitting Company to: (i) secure, encode, reproduce, host, cache, route, reformat, analyze and create algorithms and reports based on access to and use of User Content; (ii) use, enhance, personalize, exhibit, broadcast, publish, publicly display, publicly perform, distribute, create derivative works of, promote, copy, store, and/or reproduce (in any form) User Content on or through the Site; (iii) use User Content to test Company’s internal technologies and processes; and (iv) use User Content for marketing and advertising purposes. You continue to retain all of your ownership rights in your User Content, and you continue to have the right to use your User Content in any way you choose, subject to these Terms and the license described herein. For the avoidance of doubt, this license includes the right to use your username, voice, image, and likeness to identify you as the provider of any of your User Content. You represent and warrant that you own or have the necessary licenses, rights, consents and permissions to the User Content submitted by you on the Site or otherwise have the right to grant the license set forth herein, and the displaying, publishing or posting of any content you submit, and the license granted to Company hereunder thereof does not and will not violate the privacy rights, publicity rights, copyrights, trademark rights, patents, contract rights or any other intellectual property rights or other rights of any person or entity. You further represent that all information provided by you through this Site is true and accurate. Company reserves the right to remove any User Content you provide, in its sole discretion, without any notice to you. As far as permitted by law, you give up and agree not to use against SYKY any moral rights, work of visual art rights, rights of privacy, publicity, or similar rights under applicable laws in connection with your User Content and you understand that we can use your User Content without referring to you as the author and that we can adapt and amend your User Content without notice to or consent from you or any party.
Certain areas of the Site require registration or otherwise ask you to provide information to participate in certain features or access certain content, such as name and email address. If you elect not to provide such information, you may not be able to access certain content or participate in certain features of the Site, or any features at all.
When creating an account (“User Account”) you must complete the specified process by providing us with current, complete, and accurate information as requested by the applicable registration form. It is your responsibility to maintain the currency, completeness, and accuracy of your registration data, and any loss caused by your failure to do so is your responsibility. During the registration process, you may be asked to enter your name and valid e-mail address and choose a sufficiently strong password. It is your responsibility to select a secure password, and to maintain the confidentiality of your password and account. Additionally, you are entirely responsible for any and all activities that occur under or due to your User Account. You agree to notify the Company immediately of any unauthorized use of your User Account. You are responsible for taking precautions and providing security measures best suited for your situation and intended use of the Site. You further agree not to email, post, or otherwise disseminate any user ID, password, or other information which provides you access to the Site. Company is not liable for any loss that you may incur as a result of someone else using your password or User Account, either with or without your knowledge. If you suspect your login credentials have been compromised, please notify us immediately. Company is not responsible for any delay in shutting down your User Account after you have reported a breach of security to us. We may, in our sole discretion, refuse to allow you to create a User Account, or limit the number of User Accounts that you may associate with the Site, or suspend or terminate any User Account or access to the Site.
You also agree that you will not:
● Create multiple User Accounts;
● Use the Site under a different User Account if we have disabled access for you under a different User Account, unless you have our written permission first;
● Buy, sell, rent or lease access to the Site under your email and password combination or User Account to any third party, unless you have our written permission first;
● Share your email and password combination or access to the User Account with anyone; or
● Log in or attempt to log in to access the Site through any unauthorized third party application(s) or client(s).
By creating a User Account, you agree to receive service-related electronic communications from us. You agree that any notices, agreements, disclosures, or other communications that Company sends to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You may opt-out of receiving promotional emails that you have previously opted-in to at any time by following the instructions to unsubscribe, as provided therein.
The Company provides a marketplace for users to buy digital and non-digital items, such as NFTs, clothing, accessories, and other items, through the Site.
You may be asked to supply certain information relevant to a transaction including, without limitation, information about your method of payment (such as your payment card number and expiration date), your billing address, and your shipping information. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY PAYMENT CARD(S) OR OTHER PAYMENT METHOD(S) UTILIZED IN CONNECTION WITH ANY TRANSACTION. By submitting such information, you grant to Company the right to provide such information to third parties for purposes of facilitating the completion of transactions initiated by you or on your behalf. Verification of information may be required prior to the acknowledgment or completion of any transaction. If Company is unable to process your payment using the payment method you provide, Company may cancel or suspend your order in the event of any payment delinquency or until a valid payment method has been provided. All credit and debit card holders are subject to validation checks and authorisation by Company or its third party payment processor. If your card issuer refuses to authorise payment for your order, Company will be unable to dispatch the goods to you, and Company will not be responsible for any delay or non-delivery. Company will not be informed of the reason for refusal and therefore, is unable to inform you of the reason that your card issuer has refused payment. Company is not responsible for any card or bank charges issued by your card issuer as a result of processing payment for your order.
All descriptions, images, references, content, products and prices of goods described or depicted on the Sites are subject to change at any time without notice. By placing an order, you represent that the goods ordered will be used only in a lawful manner.
Company reserves the right, with or without prior notice, to do any one or more of the following: (i) limit the available quantity of or discontinue any good or service; (ii) impose additional conditions on any services or features through the Site including auctions and any promotion or perk; (iii) bar any user from making or completing any or all transaction(s); and (iv) refuse to provide any user with any product or service. You agree to pay all charges that may be incurred by you or on your behalf through the Site, at the price(s) in effect when such charges are incurred including, without limitation, all shipping and handling charges. In addition, you remain responsible for any taxes that may be applicable to your transaction(s).
No Refunds Or Returns
You understand and agree that you are charged at the time you place your order for goods. YOU FURTHER AGREE THAT ALL SALES THROUGH THE SITE ARE FINAL AND COMPLETE AT THE TIME YOU ARE CHARGED AND ITEMS ARE NOT ELIGIBLE FOR RETURN OR REFUND. ONCE AN ORDER IS PLACED, CHANGES CANNOT BE MADE.
Availability, Modifications, Errors & Inaccuracies
All goods available on the Site are subject to change without notice and are available as supplies last. You hereby expressly accept and agree that Company, at its sole discretion, reserves the right (without obligation) to substitute goods (or elements of goods) of greater or equal value in the event supplies of any one item (or elements of an item) run out. Goods may be available only in limited quantities and will be distributed on a first-come, first-served basis or as otherwise described on the Site. You should regularly consult the Site for updates regarding product availability and terms.
Company’s acknowledgement of an order means that your order request has been received; it does not mean that your order has been accepted or shipped or that the price or availability of an item has been confirmed. Company aims to describe and display products accurately on the Site. However, some items on the Site may be mispriced, described inaccurately or unavailable, and Company may experience delays in updating information on the Site and in our advertising on other sites. As a result, Company cannot and does not guarantee the accuracy or completeness of any information, including prices, product images, specifications, and availability. Company reserves the right to change or update information and to correct errors, inaccuracies, or omissions at any time without prior notice.
In most cases, you agree to allow between 4-6 weeks from receipt of full payment for goods to be shipped, unless otherwise stated on the Site. Each item ordered may ship separately or together. All goods will be instructed to ship to the postal address that you specify through the Site. No P.O. boxes allowed. Goods will only be shipped to jurisdictions where delivery is lawful. No responsibility is assumed by Company for any postal mail or overnight deliveries returned as undeliverable without a forwarding address. Company reserves the right to charge you for shipping fees to re-ship any products that have been returned to Company due to your shipment refusal, your failure to include a sufficient address, or if the product is otherwise undeliverable. Company may be unable to change the delivery address after the order confirmation. Delivery dates advised by Company in an order confirmation (consisting of a delivery date for the goods) are approximations and Company will not be liable for any loss or damage due to its failure to meet scheduled delivery dates or for failure to give notice of delay. Time for delivery shall not be of the essence.
If any problems arise with your account, shipping address, or payment method connected with your account that Company is unable to resolve, Company may notify you through the email address associated with your order and your order may be cancelled. Additional orders may not be shipped until the problem has been resolved.
The Site may contain links to other third-party websites and/or applications or otherwise re-direct you to other third-party websites, applications, or services not maintained by or related to Company (collectively, the “Third-Party Websites”). These Third-Party Website are provided as a service and as a convenience to users and are not sponsored by, affiliated with, or under the control of Company. Company is not responsible for any Third-Party Website, including, but not limited to, any content contained in or any activity on a Third-Party Website or any changes or updates to a Third-Party Website. Company does not review, approve, monitor, endorse, warrant or make any representations with respect to the Third-Party Websites or their products or services. You use all links in the Third-Party Websites at your own risk.
The Third-Party Websites may require you to agree to additional terms and conditions between you and such third party. When you move to a Third-Party Website, Company may not warn you that you have left the Site and are subject to the terms and conditions (including privacy policies, if and as applicable) of another website or destination. COMPANY IS NOT RESPONSIBLE FOR ANY SUCH TERMS AND CONDITIONS OR ANY DAMAGES YOU MAY INCUR BY USING THE THIRD-PARTY WEBSITES.
Portions of the Site may include material provided by third parties, in which intellectual property rights subsist (“Third-Party Materials”). The licensors of such Third-Party Materials retain all of their respective rights, title, and interest in and to such Third-Party Materials and all copies thereof, including, but not limited to, any and all intellectual property rights. The use of this Third-Party Material and the associated rights are subject to separate license terms, in which case those license terms will govern the usage of such Third-Party Materials, as applicable and are hereby acknowledged by you, except and then solely to the extent that the foregoing acknowledgment is ineffective in certain countries/states/ provinces/jurisdictions.
This Site may provide certain social media features that enable you to: (a) link from your own or certain Third-Party Websites to certain Company Content or User Content on this Site; (b) cause limited portions of Company Content or User Content on this Site to be displayed or appear to be displayed on your own or certain Third-Party Websites. You may use these features solely as they are provided by us, and solely with respect to the Company Content or User Content they are displayed with, and otherwise in accordance with any additional terms and conditions we provide with respect to such features. You may link to the homepage of the Site, 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. Subject to the foregoing, you must not: (i) establish a link from any website that is not owned by you, (ii) cause the Site or portions of it to be displayed on, or appear to be displayed by, any other site, for example, framing, deep linking, or in-line linking, (iii) link to any part of the Site other than the homepage, or (iv) otherwise take any action with respect to the Company Content or User Content on this Site that is inconsistent with any other provision of these Terms. You agree to cooperate with us in causing any unauthorized framing or linking immediately to stop. We reserve the right to withdraw linking permission without notice. We may disable all or any social media features and any links at any time without notice in our discretion.
Company may, at its option and in its sole discretion, at any time: (a) suspend, restrict or terminate your access to any or all of the Site, and/or (b) deactivate or cancel your User Account, for any reason whatsoever, including, if: (i) we are so required by a facially valid subpoena, court order or binding order of any government authority; (ii) we reasonably suspect you of using the Site in connection with any prohibited uses set forth in Section 3; (iii) your use of the Site is subject to any pending litigation, investigation or government proceeding and/or we, in our sole discretion, perceive a heightened risk of legal or regulatory non-compliance associated with your activity; (iv) any of our service partners are unable to support your use thereof; (v) you take any action that Company deems in its sole discretion as circumventing Company’s controls, or abusing promotions which Company may offer from time to time; or (vi) you breach these Terms.
If Company suspends or closes your User Account or terminates your use of the Site, Company may provide you with notice of our actions, unless a court order or other legal process prevents or prohibits Company from providing you with such notice. You acknowledge that Company’s decision to take certain actions, including limiting access to or suspending your User Account, may be based on confidential criteria that are essential to Company’s risk management and/or security protocols. You agree that Company is under no obligation to disclose the details of its risk management and/or security procedures to you.
On termination of these Terms: (i) you must stop using the Site and delete and uninstall all copies of any of our Company Content, and Third-Party Materials from your device(s); and (ii) we may delete any data you submitted or provided via the Site, except where the law says we must keep it.
You are responsible for ensuring that you comply with, and that your User Content complies with, these Terms and all applicable local laws and regulations. You agree that you will not use the Company Content or Third-Party Materials accessed through the Site in any manner prohibited by any applicable laws, restrictions or regulations.
To the fullest extent permitted by applicable law, you agree to indemnify, defend and hold harmless Company, and our respective past, present and future parents, officers, directors, employees, business partners, agents, contractors, licensors, licensees, users and each of their respective officers, employees, and agents (as applicable) (collectively, “Company Entities”), from and against all actual or alleged claims, damages, awards, judgments, losses, liabilities of every kind and nature whatsoever, whether known or unknown (including reasonable attorney’s fees) relating to or arising out of: (a) your use, misuse, or inability to use the Site, (b) any User Content provided by you or your account, (c) your violation of these Terms, (d) your violation of any rights of a third party, (e) your violation of any applicable laws, rules or regulations; or (f) any items or goods displayed for purchase or purchased through the Site. Company reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Company in asserting any available defenses.
Company makes no representations or warranties about the reliability of the features of this Site, the Company Content or any other Site feature, and disclaims all liability in the event of any service failure. You acknowledge that any reliance on such material or systems or use of the Site will be at your own risk. Company makes no representations regarding the amount of time that any Company Content will be preserved. Company makes no representation or warranties that any material, NFT’s, images, applications or files obtained from or through the Site are free from computer viruses or other faults or defects. It is your responsibility to take customary precautions against computer viruses and/or concerning inaccuracies, typographical errors or other defects on the Site or applications or material available on or through Site. You agree to use this Site, applications and functions at your own risk.
You understand that Company is not responsible for manufacturing, storing, or inspecting any of the items sold or offered for sale through the Site. You further acknowledge that all the items that are offered for sale or sold on or through the Site are produced, listed, and sold directly by independent third party providers. Therefore, the Company cannot and does not make any warranties about their quality, safety, authenticity, or their legality, and you agree to release Company from any legal claim or liability related to or arising out of an item you purchase or that is offered for sale through the Site, including but not limited to, product liability, defects, misrepresentations, or physical injury.
Company does not endorse, verify, evaluate, or guarantee any information provided by users and nothing shall be considered as an endorsement, verification or guarantee of any User Content. You shall not create or distribute information, including but not limited to advertisements, press releases or other marketing materials, or include links to any websites or applications which contain or suggest an endorsement by Company (including its personnel, business partners and owners) without the prior review and written approval of Company.
Company does not guarantee the continuous, uninterrupted, or error-free operability of the Site. There may be times when all of (or certain features, parts, or content of) the Site become unavailable (whether on a scheduled or unscheduled basis) or are modified, suspended, or withdrawn. Such modifications, suspensions, and withdrawals are in Company’s sole discretion and may be without notice to you. The Site is not available in every country and we may restrict access to the Site based on your location. You agree that Company will not be liable to you or to any third-party for any unavailability, modification, suspension, or withdrawal of any of the Site, or any features, parts, or content of the Site.
THE INFORMATION, COMPANY CONTENT, THIRD-PARTY MATERIALS, SOFTWARE, PRODUCTS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE SITE MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION HEREIN. COMPANY AND/OR ITS SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE SITE AT ANY TIME.
COMPANY AND/OR ITS SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, AND ACCURACY OF THE INFORMATION, COMPANY CONTENT, THIRD-PARTY MATERIALS, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS CONTAINED ON THE SITE FOR ANY PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SUCH INFORMATION, COMPANY CONTENT, THIRD-PARTY MATERIALS, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS ARE PROVIDED ON AN “AS IS” “AS AVAILABLE” BASIS WITHOUT WARRANTY OR CONDITION OF ANY KIND AND COMPANY AND/OR ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, COMPANY CONTENT, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
You understand and accept that your access to the Site depends on connectivity over communications networks and facilities that we do not control and that you may experience limitations, delays and other problems when using Site because of your use of these networks and facilities. We are not responsible for any problems caused by your use of these networks and facilities.
ANY PRODUCTS AND/OR SERVICES DESCRIBED ON THE SITE ARE OFFERED IN JURISDICTIONS WHERE THEY MAY BE LEGALLY OFFERED FOR SALE. THE INFORMATION ON THE SITE IS NOT AN OFFER OR SOLICITATION BY ANYONE IN ANYONE IN ANY JURISDICTION IN WHICH AN OFFER OR SOLICITATION CANNOT LEGALLY BE MADE, OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE A SOLICITATION.
As far as permitted by law, these Terms will be governed by and construed in accordance with the laws of the State of New York as applied to contracts made and performed entirely therein, and without regard to conflicts of laws principles to the contrary. By using this Site, you hereby agree that, as far as permitted by law, any and all disputes regarding these Terms and/or the Site not subject to the arbitration provision set forth above will be subject to the federal and state courts located in New York, New York. YOU AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL DISPUTES, CLAIMS, AND CAUSES OF ACTION ARISING OUT OF OR CONNECTED WITH THIS SITE OR THESE TERMS WILL BE RESOLVED INDIVIDUALLY, WITHOUT RESORT TO ANY FORM OF CLASS ACTION. These Terms operate to the fullest extent permissible by law. If the courts in your country will not apply the laws of the State of New York, then the laws that apply where you are resident will apply to these Terms and if the arbitration agreement below is unenforceable in such country then the courts in the country where you are resident will resolve the disagreement or claim. The United Nations Convention on Contracts for the International Sale of Goods does not apply.
This Section includes an arbitration agreement and an agreement that all claims will be brought only in an individual capacity (and not as a class action or other representative proceeding). Please read it carefully.
You and Company agree that any controversy or claim (except for any claim of infringement, breach of confidentiality, or misappropriation of any patent, copyright, trademark, or trade secret) arising out of or relating to these Terms, the Site and/or use of the Site, including all questions of arbitrability, shall be settled by arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules (“Commercial Rules”) by a sole arbitrator. You can access the Commercial Rules athttps://www.adr.org/Rulesor by calling +1 800-778-7879. You and SYKY shall endeavor to agree upon the arbitrator, and if they fail to do so within twenty-one (21) days of the commencement of the arbitration, the appointment shall be made by the AAA in accordance with the Commercial Arbitration Rules. The place, or legal seat of arbitration, shall be New York City, New York, and the language of the arbitration shall be English.
YOU MAY ONLY BRING CLAIMS IN YOUR INDIVIDUAL CAPACITY ON YOUR OWN BEHALF, AND NOT IN ANY REPRESENTATIVE CAPACITY OR ON BEHALF OF ANY CLASS OR PURPORTED CLASS AND NOT AS A MASS ARBITRATION, AND NO ARBITRATION YOU COMMENCE HEREUNDER MAY BE JOINED WITH OR INCLUDE ANY CLAIMS BY ANY OTHER PERSONS. EACH PARTY SHALL BE EXCLUSIVELY RESPONSIBLE FOR PAYING ITS OWN ARBITRATION FILING FEES, WHICH MAY LATER BE ALLOCATED BY THE ARBITRATOR AS SET FORTH BELOW.
The arbitrator shall issue a reasoned award and, subject to the limitation of liability set forth above, shall have the power to grant any interim or provisional measures that the arbitrator deems appropriate, including, but not limited to, injunctive relief and specific performance, and any interim or provisional measures ordered by the arbitrator may be specifically enforced by any court of competent jurisdiction as a final award. Nothing herein, however, shall authorize the arbitrator to act as amiable compositeurs, to proceed ex aequo et bono, or to exercise rights of iura novit curia. You and SYKY each retains the right to seek interim measures from a judicial authority, and any such request shall not be deemed incompatible with the agreement to arbitrate nor shall be deemed a waiver of the right to arbitrate. The arbitrator shall award the prevailing party, if any as determined by the arbitrator, its reasonable costs, including reasonable attorney’s fees. Judgment on any award rendered by the arbitrator may be entered in any court of competent jurisdiction. No information concerning an arbitration, beyond the names of the parties, their counsel or the relief requested, may be unilaterally disclosed to a third party by any party unless required by law. Any documentary or other evidence given by any party or witness in any arbitration shall be treated as confidential by any party whose access to such evidence arises exclusively because of its participation in the arbitration and shall not be disclosed to any third party (other than a witness or expert), except as may be required by law. Any party who commences any judicial proceeding in connection with an arbitration initiated hereunder shall endeavor to have the judicial record of any such proceeding sealed to the extent permitted by law.
YOU AGREE THAT ANY CLAIM YOU MAY HAVE ARISING OUT OF OR RELATED TO YOUR RELATIONSHIP WITH SYKY MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER SUCH CLAIM AROSE; OTHERWISE, YOUR CLAIM WILL BE PERMANENTLY BARRED.
As Company asks others to respect its intellectual property rights, it respects the intellectual property rights of others. Company, in appropriate circumstances, may remove from the Site information that might infringe the intellectual property rights of others.
a) Procedure for Reporting Copyright Infringements
If you believe your work has been used or copied in a way that constitutes copyright infringement and such infringement is occurring on the Site, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Designated Agent with the following information in writing (see 17 U.S.C. 512(c)(3) for further detail):
● An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright’s interest;
● A description of the copyrighted work that you claim has been infringed, including the URL (i.e., web page address) of the location where the copyrighted work exists or a copy of the copyrighted work;
● Identification of the URL or other specific location on the Site where the material that you claim is infringing is located; your address, telephone number, and E-mail address;
● A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
● A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid, and we will have no obligation to respond or acknowledge receipt of your notice. Please note that you may be liable for damages (including costs and attorneys’ fees) if you misrepresent or make bad faith claims that any material on the Site infringes your copyrights. You can contact our Designated Agent via e-mail at[email protected].
THE DESIGNATED AGENT SHOULD BE CONTACTED ONLY IF YOU BELIEVE THAT YOUR WORK HAS BEEN USED OR COPIED IN A WAY THAT CONSTITUTES COPYRIGHT INFRINGEMENT AND SUCH INFRINGEMENT IS OCCURRING ON THE SITE.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and Company as a result of these Terms or use of the Site. Company's performance of this agreement is subject to existing laws and legal process, and nothing contained in this agreement is in derogation of Company's right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Site or information provided to or gathered by Company with respect to such use.
If any provision of these Terms shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
Unless otherwise specified herein, the Terms constitute the entire agreement between you and Company with respect to the Site and the Terms supersede all prior or contemporaneous communications and proposals, whether electronic, oral, or written, between you and Company with respect to the Site. A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. It is the express wish to the parties that these Terms and all related documents be written in English.
The failure of Company to comply with these Terms because of an act of God, epidemic, outbreak, war, fire, riot, terrorism, earthquake, actions of federal, state, or local governmental authorities or for any other reason beyond the reasonable control of Company, shall not be deemed a breach of these Terms.
If Company fails to act with respect to your breach or anyone else's breach of these Terms on any occasion, Company is not waiving its right to act with respect to future or similar breaches.
These Terms, and any rights and licenses granted hereunder, may not be transferred, or assigned by you, but Company may assign them without restriction. Any attempted transfer or assignment in violation hereof will be null and void.
These Terms constitute a binding agreement between you, your heirs, successors, affiliates, and representatives and Company, and are accepted by you upon your use of the Site. By using the Site you represent that you are capable of entering into a binding agreement.
We welcome your questions or comments regarding the Terms or the Site. Please email us at [email protected]for more information.
You can complain or submit your opinion about SYKY or the Site by contacting us at [email protected]. This does not prevent you from making any legal claim or complaint to a regulator outside of this process.
These Additional Terms and Conditions apply to the services SYKY makes available for sale of NFTs and Associated Materials (as defined below) as well as, wherein applicable, physical (non-digital) items available at: www.syky.com (the “Marketplace”).
By (1) participating (whether as a seller or a purchaser) in any sale of and/or acquiring any non-fungible blockchain-based digital asset or token (each, an “NFT”) through the Marketplace, or otherwise acquiring any such NFT from a previous holder of the NFT, and/or (2) indicating your acceptance of these Terms on the Service, you agree to be bound by these Terms of Service, along with any additional terms provided to you on the Marketplace or otherwise in the process of making a purchase (collectively, these “Marketplace Terms”). These Marketplace Terms apply to any person selling NFT (a “Seller”) or purchasing NFTs (a “Purchaser”) on the Marketplace. NFTs available for purchase on the Marketplace may include NFTs created by SYKY, including (unless otherwise stated) NFTs created by the designers participating in The SYKY Collective ("SYKY NFTs") as well as NFT created by other parties ("3rd Party NFTs") that Sellers choose to list for sale on the Marketplace. Except where otherwise indicated, these Marketplace Terms apply equally to sale and purchase of SYKY NFTs and 3rd Party NFTs.
We may make changes and improvements to the Marketplace and update these Marketplace Terms from time to time. Changes to these Terms will be posted on the Site, and to the extent required by applicable law, we will also notify you of any significant changes in advance, which may be by email or via a prominent notice on the Site. You can choose to stop using the Marketplace at any time. New versions of these Marketplace Terms will take effect on the posted effective date. You agree to review these Marketplace Terms periodically to ensure that you are familiar with the most recent version.
a. By using the Marketplace you represent and warrant that you have the full right, power and authority to agree to, abide by and comply with these Marketplace Terms, to access the Marketplace, and purchase or sell any NFT(s) as set forth herein. You further represent and warrant that you are of the legal age of majority in your applicable jurisdiction. You acknowledge and agree that you are solely responsible for ensuring compliance with any and all applicable laws and/or regulations in your local jurisdiction, and that neither SYKY nor any other purchase or seller shall be liable to any extent for your compliance or failure to comply with any such laws and/or regulations.
b. You further represent and warrant that you have lawfully obtained all funds and/or assets (e.g., digital assets, such as Ethereum (ETH)) you may use for Marketplace transactions (e.g., for payment of the Purchase Price (as defined below) for any NFT), in compliance with all applicable laws and/or regulations. You acknowledge that SYKY may require you to provide additional information and/or documentation and/or take certain action(s) in order to ensure compliance with applicable laws and/or regulations (e.g., those related to tax withholding, or anti-money laundering), compliance with these Terms, and/or any other reason (e.g., to facilitate “allowlist” access to the sale of any NFT(s)), and agree that you will provide any such additional information and/or documentation upon request. You further acknowledge and agree that SYKY and/or its designee(s) may remove your access to the Marketplace and your ability to purchase any NFT(s) at any time, for any reason, with or without notice to you.
c. SYKY reserves the right to terminate your access to and use of the Marketplace, in whole or in part, at any time, with or without notice, for any or no reason.
2. Sales, Prices and Taxes.
a. Any purchase on the Marketplace for NFT(s) requires immediate payment in full of the applicable purchase price (as set forth on the Marketplace) (the “Purchase Price”) at the time of purchase, and is non-refundable. You acknowledge and agree that, due to the nature of blockchain technology, once any transaction has been executed, the transaction cannot be cancelled or reversed for any reason.
b. A Seller is permitted to change the Purchase Price for any NFT at any time prior to the applicable sale thereof. If you are a Purchaser, you authorize SYKY or its third party payment processor to charge you the applicable Purchase Price for any NFT that you purchase on the Marketplace, as in effect at the time your purchase is confirmed.
c. Buying, selling, or transferring NFTs may be subject to fees, commissions, royalties and other charges including:
(1) Commission fee charged by SYKY on mints from primary drops on the Marketplace, currently set at 10%;
(2) Marketplace service fee charged by SYKY on all secondary transactions on the Marketplace (“Marketplace Fees”), currently set at 3%;
(3) Royalty fee on secondary transactions of NFTs, payable to the original creator of such NFTs, currently set at 10%; and
(4) Gas Fees, as further described below (collectively “Fees”).
Fees are subject to change from time to time without prior notice. SYKY will inform you of any changes in applicable Fees by publishing these on the Marketplace or through another method of our choice. It is your responsibility to inform yourself of applicable Fees before engaging in any transaction on the Marketplace. Fees are generally non-refundable except as to the extent required by applicable law.
d. You further acknowledge and agree that, the consensus rules of the Applicable Blockchain (as defined below) may require the payment of an additional per-transaction fee, paid to the nodes or validators operating the Designated Blockchain (a “Gas Fee”). You will be solely responsible to pay any and all Gas Fee(s) associated with the blockchain-based transactions that you conduct in connection with the sale and/or acquisition of any NFT(s), as well as all taxes, fees, duties and governmental assessments that are imposed or become due in connection with your use of the Marketplace (including, without limitation, any transactions involving your ownership or transfer of any NFT(s)). Except for income taxes directly levied on SYKY, you (1) will pay or reimburse SYKY for all taxes and assessments of any jurisdiction, including value added taxes and taxes as required by any national, state, local or any other taxing jurisdiction or international tax treaties, customs or other import or export taxes; and (2) will not be entitled to deduct the amount of any such taxes, duties or assessments from any payment(s) made to SYKY on the Marketplace.
e. You further acknowledge and agree that any subsequent sale or transfer of any NFT may be subject to royalties and/or other fees imposed by the Marketplace or any third-party marketplace that facilitates such sale or transfer, and, in the event that any such royalties and/or fees are paid or accrue, SYKY and/or the applicable Seller(s) may receive a portion thereof. Any such sale or transfer shall be subject to the terms and conditions applicable to any such third-party marketplace.
In certain cases, NFTs and/or physical (non-digital) items may be offered for sale on the Marketplace through an auction process (an “Auction Sale”). Auction Sales are subject to the following additional terms and conditions, as well as any additional terms as may be published on the Marketplace page on which the Auction Sale is conducted:
a. The auction will have a designated start date and time, and an ending date and time (the “Auction Period”).
b. Bids placed by users will be denominated in the ETH. In order to place a successful bid, a user must be logged into their account, have a valid email address associated with their account, and have a sufficient quantity of ETH in their linked wallet at the time their bid is placed, else the bid will be disqualified. It is the user’s responsibility to ensure their wallet is adequately funded before participating in an Auction Sale.
c. Unless otherwise indicated on the Auction Page, (i) bids may be placed at a start price of 0.65 ETH, and (ii) there will be no ‘reserve price’ i.e. the auctioned asset will be sold to the user placing the highest qualified bid without regard to any minimum price.
d. Once a bid is placed, the bid is binding and irrevocable and cannot be withdrawn or cancelled. If the bid you submit is the highest bid received during the Auction Period, the sale to you will be completed at the bid price. By placing a bid, you authorize SYKY to withdraw the bid price from your wallet in the event you place the winning bid.
e. You may continue to place higher bids through the end of the Auction Period. However any new bid placed must be at least 5% higher than the highest existing bid price.
f. No bidding will be permitted after the end of the posted Auction Period, unless a new high bid is placed within the last 10 minutes before the end of the Auction Period, in which case the Auction Period will be extended for an additional 30 minutes. There may be more than one such extension.
g. Winning bidders will be notified by email following the conclusion of the Auction Sale.
h. Participating bidders in the Auction Sale represent and warrant that (1) they do not ordinarily reside in Iran, Syria, Cuba, North Korea, or the Crimea, Donetsk, Luhansk, Kherson, Zaporizhzhia regions of Ukraine (“Sanctioned Jurisdictions”); (2) they are not found on any of the sanctions lists (“Sanctioned Person”) promulgated by any of the government agencies or authorities of the United States, the European Union, or the United Kingdom; (3) they are not entering the auction on behalf of a person ordinarily residing in one of the Sanctioned Jurisdictions or on behalf of a Sanctioned Person; and (4) they will not re-sell any items won to any persons ordinarily residing in Sanctioned Jurisdictions or to an otherwise Sanctioned Person, or use the items in any manner that would cause SYKY to violate any applicable sanctions, including the U.S., EU and the UK sanctions.
4. Transfer of NFTs.
a. In order to purchase and receive any NFT(s) through the Marketplace, you may be required to connect your digital-asset wallet to the Marketplace. Likewise, to sell an NFT, you will need to connect your digital-asset wallet to the Marketplace, and ensure that the NFT to be sold is contained in the wallet and available for transfer. You hereby grant the Marketplace permission to access and/or interact with such a wallet to the extent necessary to the NFT(s) to be purchased or sold. Following the purchase of any NFT(s) pursuant hereto, such NFT(s) will be delivered to the Purchaser’s wallet. If the Marketplace is unable to deliver such NFT(s) to the Purchaser’s wallet for any reason (e.g., a failure to broadcast the transaction representing the order of such NFT(s) to the Designated Blockchain), the purchase may be voided. Neither SYKY or any applicable Seller shall bear any responsibility for any NFT(s) misdelivered as a result of incorrect information provided by a Purchaser. Purchasers and Sellers are responsible for ensuring that their respective digital-asset wallet is accurately and properly connected to the Marketplace.
b. You are solely responsible for keeping your wallet secure. You should never share your wallet credentials or seed phrase with anyone. You are responsible for complying with the terms and conditions of the applicable provider of the wallet you use and connect with the Marketplace. SYKY does not operate or maintain any digital-asset wallets and is not affiliated with parties who do. We do not have custody or control over the contents of your Wallet and we have no ability access or retrieve its contents. We do not take responsibility for the operation of your wallet or whether your wallet will interact with the Marketplace as expected or in the manner you intend.
c. With respect to secondary sale transactions, SYKY operates the Marketplace solely as an interface to facilitate transactions between Buyers and Sellers. SYKY does not itself buy, sell or take custody or possession of NFTs in any secondary sale, nor does it act as an agent or custodian for any user of the Marketplace. If you elect to buy or sell any NFTs, any transactions that you engage in will be conducted solely through the relevant blockchain network governing such NFT. We will have no insight into or control over these transactions, nor do we have the ability to reverse any transactions. Accordingly, we will have no liability to you or to any third party for any claims or damages that may arise as a result of any secondary sale transactions that you engage in via the Marketplace.
5. License to any Associated Materials.
Holding a given NFT may grant the holder license rights with respect to any digital artwork, models, software or other materials directly associated with such NFT (with respect to a given NFT, such artwork is referred to as “Associated Materials”). Associated Materials are separate from the corresponding NFT. Purchase of an NFT does not assign or transfer ownership of the Associated Materials to the NFT Purchaser. Any rights with respect to the Associated Materials shall be licensed to the Purchaser solely as set forth in Section 6 below.
6. Grant of Rights.
a. With respect to SYKY NFTs: Unless otherwise expressly agreed to between a Purchaser and Seller of the applicable NFT, the Purchaser of the NFT will (for so long as they continue to hold the NFT) have a limited, personal, non-exclusive, non-sublicensable, worldwide license with respect to the Associated Materials directly and identifiably associated with, applicable and specific to such NFT solely to display, perform and distribute such Associated Materials for non-commercial, personal use, including within audiovisual media (e.g., displaying such Associated Materials on a platform or service, including online games or online environment(s) that may be commonly known as “metaverse(s)”, for personal, non-commercial purposes), in each case subject to the terms and conditions set forth herein.
b. With respect to 3rd Party NFTs, the terms and conditions that apply to any Associated Materials will be set by the sellers and/or creators of the relevant NFT. These terms may be contained in a link included in the Marketplace listing for the NFT or embedded in the NFT metadata (“3rd Party NFT Terms’). SYKY does not set 3rd Party NFT Terms and is not party to any such terms. The Purchaser and Seller (and if applicable the creator of the relevant NFT) are entirely responsible for communicating, informing themselves of, agreeing to, and enforcing any such terms. As a Purchaser or Seller, you are responsible for reviewing such 3rd Party NFT Terms before engaging in any transaction involving 3rd Party NFTs.
c. Each Seller represents and warrants that (i) it has the full power and authority to grant the foregoing rights; (ii) it has not entered into, and shall not enter into, any agreement, engagement, or other commitment that would interfere or conflict with the rights granted in these Marketplace Terms; (iii) its agreement to and performance under these Marketplace Terms will not violate the contractual, intellectual property, or proprietary rights (including, without limitation, copyrights, trademarks, and rights of publicity and privacy) of any third party; and (iv) it will not knowingly do or permit to be done any act that will, in whole or in part, materially deprive an owner of an applicable NFT of its rights, privileges and benefits arising under or by reason of the Marketplace Terms and/or 3rd Party NFTs.
7. Ownership and Limitations.
Except as specifically set forth in Section 6 above, a Purchaser does have any right, title or interest in or to any Associated Materials and will not be deemed to be granted any rights, whether express or implied, with respect to any Associated Materials or any derivative works thereof.
a. create, sell or attempt to create or sell fractionalized interests in any NFT and/or any Associated Materials associated therewith;
b. separate, unlink or decouple any Associated Materials from the NFT(s) with which it is associated;
c. use any Associated Materials to create, sell or attempt to create or sell any new cryptographic token (e.g., any additional NFT(s));
d. reverse-engineer, decompile or otherwise attempt to discover the source code for any NFT or Associated Materials;
e. use any Associated Materials to produce, manufacture, promote, market or offer any physical or digital product or service;
f. transacting in securities, commodities futures, options, real estate interests or leases, leveraged or margined assets, debt instruments, or other financial instruments or other similar transactions;
g. transacting in any other assets that entitle owners to financial rewards, including but not limited to yield payouts, staking bonuses, or burn proceeds;
h. placing false, deceptive or misleading bids or offer, ‘wash trading’ or otherwise attempting to manipulate the market for any asset;
i. using the Marketplace to offer, promote, sell, purchase or solicit personal services;
j. using the Marketplace to raise financial or capital for any business, enterprise, investment fund, development project, DAO, or other organization, entity or collective;
l. use any NFT or Associated Materials in connection with any illegal product or service or any other use in violation of applicable law or any product, service, content, material or speech that is defamatory, obscene, pornographic, indecent, abusive, offensive, harassing, violent, hateful, racist, discriminatory, inflammatory or otherwise objectionable or inappropriate, as determined by SYKY or the applicable Seller(s) in its/their sole discretion; and/or
m. use any Associated Materials and/or exercise any license rights in any manner not expressly authorized herein.
For avoidance of doubt, you have no right to, and you will not, and you will not authorize, permit or assist any third party to, use any name, trademark, logo, branding or other intellectual property of SYKY or any affiliate, commercial partner or licensor of SYKY for any purpose not specifically set forth herein, or otherwise do or say anything to indicate or imply that SYKY or any of its affiliates sponsors, promotes or endorses any product, service or media or provides any representations or warranties with respect to any product, service or media.
Also for the avoidance of doubt, if at any time you transfer an NFT to a third party, any rights granted to you hereunder with respect to the Associated Materials associated therewith shall immediately terminate (without the requirement of notice) with no outstanding or ongoing obligation or liability to you.
8. Blockchain Forks.
a. You acknowledge and agree that each SYKY NFT sold through the Marketplace shall be created and subsequently held on the version of the Ethereum digital blockchain ledger and network that is recognized by the nodes or validators of such network as canonical as of the time of such sale (the “Designated Blockchain”); provided that, for the avoidance of doubt, the Designated Blockchain does not refer to any Persistent Forks (as defined below), any digital blockchain ledgers which are not operating in a production environment or blockchains which are referred to as a “testnet”. As used herein, a “Persistent Fork” means a digital blockchain ledger and network generally recognized in the blockchain industry as the mainnet and consensus blockchain of a persistent “contentious hardfork” from the Designated Blockchain, which such hardfork has or would reasonably be expected to have material value independent from the Designated Blockchain.
b. In the event of a Persistent Fork that creates a copy(ies) of any NFT at the same addresses at which it was then held on the Designated Blockchain, the scope of the term “you” under these Marketplace Terms, and all licenses granted to and other rights of you under these Marketplace Terms, shall be deemed expanded to include each person who lawfully holds exclusive title to and ownership of the copy(ies) of the applicable NFT(s) that are included on the Persistent Fork. You hereby acknowledge and agree that, as a result of the preceding sentence, in the event of a Persistent Fork, the aggregate number of the NFTs may be increased and/or unlimited minting of such NFT may be permitted, which could have an adverse effect on the value of each NFT and/or the aggregate value of the total NFTs.
9. Assumption of Risk.
You acknowledge that any and all NFT(s) and/or Associated Materials is/are made available solely for entertainment purposes and not as an investment instrument of any kind. Accordingly, you acknowledge and agree that as a Purchaser you assume the following risks:
a. to the extent there is a secondary market and/or price for any NFT, such markets and/or prices are extremely volatile, and variations in the price of other digital assets could materially and adversely affect the value of any digital asset(s) you own, such NFT, and as such there is no guarantee that such NFT will have or retain any value;
b. risks associated with digital assets (e.g., NFTs) including, but not limited to, (i) hardware, software and/or Internet failures, (ii) the loss of access to NFT(s) due to, e.g., loss of so-called “private key(s)” or third-party custodial error, (iii) malicious software introduction (e.g., hacking or cyber-attacks), and/or (iv) that third parties may obtain unauthorized access to information stored within your so-called “digital wallet” or elsewhere (e.g., fraud);
c. upgrades, so-called “hard forks,” failures, cessations or other changes to the blockchain(s) underlying the NFTs that may affect your access to and/or use of any NFT or Associated Materials;
d. risks associated with third-party software providers, marketplaces and/or other actors that may be associated with any NFTs or Associated Materials, including with respect to the continued availability of such third party services and/or the protection and/or storage of any digital assets or other data that may be stored or hosted by such third party;
e. the risk of changes to the regulatory and/or policy regime(s) governing blockchain technologies (e.g., NFTs) which may adversely affect your access to and/or use of any NFT or Associated Materials;
f. risks associated with transaction(s) between you and any third party(ies) (e.g., your transfer of an NFT to any such third party).
With respect to 3rd Party NFTs, you are fully responsible for verifying the authenticity and legitimacy of any asset you choose to purchase on the Marketplace. SYKY does not evaluate or verify any claims made by Sellers of 3rd Party NFTs with respect to the assets they offer for sale on the Marketplace.
In addition to assuming all of the above risks, as a Purchaser you acknowledge that you have obtained sufficient information to make informed decision(s) with respect to any NFT (including, without limitation, the acquisition thereof and/or your entering into these Marketplace Terms) and that you understand and agree that you are solely responsible for determining the nature, suitability and appropriateness of these risks for yourself.
To the fullest extent permitted by applicable law, you agree to indemnify, defend and hold harmless SYKY, each applicable Seller or Purchaser with who you transact and each of their respective commercial partners and licensors, and each of their respective past, present and future employees, officers, directors, contractors, consultants, equity holders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors and assigns (individually and collectively, the “Indemnified Parties”), from and against all actual or alleged claims, damages, awards, judgments, losses, liabilities of every kind and nature whatsoever (including, without limitation, attorneys’ fees and other legal expenses), whether known or unknown, that are caused by, arise out of or are related to (a) your ownership, use or misuse of any NFT and/or Associated Materials; (b) your breach or violation of these Marketplace Terms; and/or (c) your breach or violation of any right(s) of any third party (collectively, “Claims”). You agree to promptly notify SYKY of any Claim(s) and shall cooperate fully with the Indemnified Parties in defending such Claims. You further agree that the Indemnified Parties, as applicable, 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 ANY WRITTEN AGREEMENT(S) BETWEEN YOU. ON THE ONE HAND, AND SYKY AND/OR ANY APPLICABLE PURCHASER OR SELLER, ON THE OTHER HAND.
11. Limitation of Liability.
a. SYKY PROVIDES THE MARKETPLACE AND ALL SYKY SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. OUR SERVICES MAY NOT BE AVAILABLE DUE TO A VARIETY OF FACTORS INCLUDING, BUT NOT LIMITED TO, PERIODIC SYSTEM MAINTENANCE, SCHEDULED OR UNSCHEDULED, ACTS OF GOD, UNAUTHORIZED ACCESS, VIRUSES, DENIAL OF SERVICE OR OTHER ATTACKS, TECHNICAL FAILURE OF OUR SERVICES AND/OR TELECOMMUNICATIONS INFRASTRUCTURE. SYKY AND/OR ITS BUSINESS ASSOCIATE(S)) MAKE NO WARRANTY THAT THE FOREGOING: (A) WILL MEET A PURCHASER’S OR SELLER’S REQUIREMENTS; (b) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; OR (C) WILL BE ERROR-FREE, RELIABLE, COMPLETE, LEGAL OR SAFE. SYKY DISCLAIMS ALL 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 MARKETPLACE AND SYKY SERVICES. YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET AND WILL NOT HOLD SYKY OR ANY SELLER RESPONSIBLE FOR ANY BREACH OF SECURITY UNLESS IT IS DUE TO SYKY’S OR SUCH SELLER’S GROSS NEGLIGENCE.
b. EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY SYKY AND/OR ANY APPLICABLE SELLER(S), NFT(S) AND/OR ASSOCIATED MATERIALS ASSOCIATE THEREWITH ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. SYKY AND THE APPLICABLE SELLER(S) (AND THEIR AFFILIATE(S), LICENSOR(S) AND/OR OTHER BUSINESS ASSOCIATE(S)) MAKE NO WARRANTY THAT THE FOREGOING: (A) WILL MEET A PURCHASER’S REQUIREMENTS; OR (B) WILL BE ERROR-FREE, RELIABLE, COMPLETE, LEGAL OR SAFE. SYKY AND THE APPLICABLE SELLER(S) DISCLAIM 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 NFT(S) AND/OR ASSOCIATED MATERIALS ASSOCIATE THEREWITH.
c. TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL SYKY, THE APPLICABLE SELLER(S) OR ITS OR THEIR AFFILIATES, OR ITS OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, CONTRACTORS, AGENTS, OFFICERS OR DIRECTORS, BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, LOSS OF DIGITAL ASSETS (E.G., NFTS), LOSS OF SO-CALLED “PRIVATE KEY(S)”, LOSS OF SO-CALLED “SEED PHRASE(S)”, LOSS OF ACCESS TO ANY SO-CALLED “DIGITAL WALLET(S)”, OR ANY OTHER DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH A PURCHASER’S USE, OR INABILITY TO ACCESS OR USE, THE MARKETPLACE AND/OR ANY NFT(S) AND/OR ASSOCIATED MATERIALS, INCLUDING BUT NOT LIMITED TO ANY CONTENT ON THE MARKETPLACE OR ANY OTHER WEBSITES AND/OR MOBILE APPLICATIONS AND/OR ANY ITEMS OBTAINED THROUGH THE MARKETPLACE OR SUCH OTHER WEBSITES AND MOBILE APPLICATIONS, WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.
d. IN NO EVENT WILL SYKY’S OR ANY SELLER’S AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE NFT(S) AND/OR ASSOCIATED MATERIALS, AND/OR THE ACCESS TO AND/OR USE THEREOF, EXCEED $100.
e. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE MARKETPLACE TERMS OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM SHALL BE DEEMED PERMANENTLY WAIVED AND BARRED.
f. THIS SECTION DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW, THEREBY MINIMIZING OUR LIABILITY TO YOU TO THE LOWEST AMOUNT PERMITTED BY APPLICABLE LAW.
12. Governing Law.
These Marketplace Terms will be construed in accordance with the laws of the state of New York as applied to contracts made and performed entirely therein, and without regard to conflicts of laws principles to the contrary.
13. Dispute Resolution.
a. Any controversy or claim arising out of or relating to these Marketplace Terms, or the breach thereof, including all questions of arbitrability, shall be settled by arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules by a sole arbitrator. The parties thereto shall endeavor to agree upon the arbitrator, and if they fail to do so within twenty-one (21) days of the commencement of the arbitration, the appointment shall be made by the AAA in accordance with the Commercial Arbitration Rules. The place, or legal seat of arbitration, shall be New York City, New York, and the language of the arbitration shall be English.
b. You may only bring claims in your individual capacity on your own behalf, and not in any representative capacity or on behalf of any class or purported class, and no arbitration you commence hereunder may be joined with or include any claims by any other persons. Each party shall be exclusively responsible for paying its own arbitration filing fees, which may later be allocated by the arbitrator as set forth below.
c. The arbitrator shall issue a reasoned award and, subject to the limitation of liability set forth above, shall have the power to grant any interim or provisional measures that the arbitrator deems appropriate, including, but not limited to, injunctive relief and specific performance, and any interim or provisional measures ordered by the arbitrator may be specifically enforced by any court of competent jurisdiction as a final award. Nothing herein, however, shall authorize the arbitrator to act as amiable compositeurs, to proceed ex aequo et bono, or to exercise rights of iura novit curia. The parties each retain the right to seek interim measures from a judicial authority, and any such request shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate. The arbitrator shall award the prevailing party, if any as determined by the arbitrator, its reasonable costs, including reasonable attorney’s fees. Judgment on any award rendered by the arbitrator may be entered in any court of competent jurisdiction. No information concerning an arbitration, beyond the names of the parties, their counsel or the relief requested, may be unilaterally disclosed to a third party by any party unless required by law. Any documentary or other evidence given by any party or witness in any arbitration shall be treated as confidential by any party whose access to such evidence arises exclusively because of its participation in the arbitration and shall not be disclosed to any third party (other than a witness or expert), except as may be required by law. Any party who commences any judicial proceeding in connection with an arbitration initiated hereunder shall endeavor to have the judicial record of any such proceeding sealed to the extent permitted by law.
d. YOU AGREE THAT ANY CLAIM YOU MAY HAVE ARISING OUT OF OR RELATED TO THESE MARKETPLACE TERMS AND/OR THE RELATIONSHIP(S) CONTEMPLATED HEREIN MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER SUCH CLAIM AROSE; OTHERWISE, YOUR CLAIM WILL BE PERMANENTLY BARRED.
In addition to any other rights and remedies to which SYKY and/or the applicable Seller(s) may be entitled under contract, at law or in equity, in the event that you breach these Marketplace Terms at any time, your right to copy, display, perform and/or distribute the Associated Materials and any and all other license rights that you may have under these Marketplace Terms will immediately terminate without any requirement of notice and with no outstanding or ongoing obligation or liability to you. Upon any termination of your license rights hereunder, you will immediately cease all use of any Associated Materials. SYKY and/or the applicable Seller(s) may, if and as applicable, disable digital-wallet and/or similar functionality(ies) with respect to the Marketplace and/or the affected Associated Materials, prohibit any platform or service from retrieving or rendering any such Associated Materials in connection with the services they provide and/or take any other steps to prevent unauthorized use of any Associated Materials. SYKY and the applicable Seller(s) will have no obligation or liability to you for any such actions and you will not interfere with, or seek to prevent, any such actions.
These Marketplace Terms do not, and may not be construed to, create any partnership, joint venture or agency relationship between or among you, SYKY and/or any Seller. For the avoidance of doubt, you acknowledge and agree that in no event shall SYKY be deemed hereunder to be party to any agreement or arrangement by and between you and any seller, holder, purchaser and/or acquirer of any NFT that is not SYKY. These Marketplace Terms (including any Exhibits hereto) may be amended and/or modified by SYKY, in its sole discretion, at any time without notice to you. Such amendments and/or modifications shall be effective upon posting. By continuing to access or use the Marketplace and/or own any NFT made available on the Marketplace, you will be deemed to have accepted such amendments and/or modifications. You are advised to regularly review these Marketplace Terms. If any term, clause or provision of these Marketplace Terms is held invalid or unenforceable, then that term, clause or provision will be severable from these Marketplace Terms 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 these Marketplace Terms. If SYKY fails to insist that you perform any of your obligations under these Marketplace Terms, or if SYKY does not enforce its rights against you, or if it delays in doing so, that will not mean that SYKY has waived its rights against you and will not mean that you do not have to comply with those obligations. If SYKY does waive a default by you, it will only do so in writing, and that will not mean that it will automatically waive any later default by you. These Marketplace Terms are personal to you, and are not assignable, transferable or sublicensable by you except with SYKY’s prior written consent, unless otherwise specifically set forth herein. All notices under these Marketplace Terms will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized.