LITERARY NON-FUNGIBLE NIFTYLIT TOKEN AGREEMENT
FOR INDIVIDUAL, NON-COMMERCIAL USE
This Literary Non-Fungible NiftyLit Token Agreement (this “Agreement”) is a legally binding agreement between you and NiftyLit, LLC, a Delaware domestic limited liability company with offices at 634 Dapplegray Court, Walnut Creek, CA (“NiftyLit”) that describes the rights in Artwork (as such term is defined below) you may obtain when you purchase a literary non-fungible NiftyLit Token from us (the “NiftyLit Token”). This Agreement is in addition to, but not instead of, any contracts you make with the NFT marketplace making a NiftyLit Token available to you, as well as any related decentralized technologies, websites, services, tools, applications, smart contracts, or application program interfaces (“API”) provided by NiftyLit or third party-vendors (including without limitation Ozone Networks, Inc. d/b/a OpenSea). Should any third-party Agreement of use conflict with or otherwise be inconsistent with this Agreement, the Agreement of this Agreement shall prevail.
Your purchase of a NiftyLit Token signifies you accept and agree to be bound by this Agreement.
1. The NiftyLit Token is created by or on behalf of NiftyLit and is specifically associated with one or more works of authorship (the “Creative Work”) such that, if you own the NiftyLit Token, you can access such Creative Work through the NiftyLit Token pursuant to this Agreement. It is important to understand, and you hereby acknowledge and agree, that the NiftyLit Token is separate from the Creative Work. Although the NiftyLit Token itself is sold or otherwise transferred to you, the Creative Work associated with the NiftyLit Token is only licensed to you, and not sold or otherwise transferred to you. You therefore acknowledge and agree that NiftyLit or its licensors own all legal right, title, and interest in and to the Creative Work and all intellectual property rights therein.
2. Subject to your compliance with these Agreement, NiftyLit hereby grants to you, to the extent of its respective rights in the Creative Work, and solely for so long as you are the legal owner of the NiftyLit Token, a non-exclusive, non-transferable, non-sublicensable license to access or display the Creative Work using the NiftyLit Token, solely for your personal, non-commercial purposes. Except for the license granted above, NiftyLit and its affiliates retain all right, title, and interest in and to the Creative Work. Should you wish to use any portion of the NiftyLit Token for commercial purposes, you must contact NiftyLit for a separate license.
3. In connection with the Creative Work, you may not, or attempt to, or permit or enable any third party to: (a) separate the Creative Work from the NiftyLit Token either digitally or by creating physical copies of any portion of the Creative Work; (b) modify the Creative Work or NiftyLit Token; (c) trademark, copyright, or otherwise acquire additional intellectual property rights in or to the Creative Work; (d) use the Creative Work in connection with images, videos, other media or content including without limitation merchandise that includes, contains, or consists of the Creative Work; (e) associate the Creative Work to include content that is hateful, intolerant, violent, cruel or that could reasonably be found to constitute hate speech or infringe upon the rights of others; (f) create, sell, sublicense, share, publish, or attempt to sell fractionalized interests in the NiftyLit Token or Creative Work; (g) use the Creative Work to advertise, market, or sell any product or service; (h) attempt to mint, tokenize, or create an additional cryptographic token representing the Creative Work on any platform; (i) falsify, misrepresent, or conceal the authorship of the Creative Work or the NiftyLit Token; (j) otherwise commercially use or exploit any Creative Work for your or any third party’s benefit, including by selling copies of any Artwork or selling derivative works embodying any Creative Work; or (k) alter the NiftyLit Token to include any software, link, or other technology or means to cause access of the NiftyLit Token to expose the owner to any virus, worm, malware, or other malicious computer code that either permits unauthorized access to, destroys, disrupts, disables, distorts, compromises the security or confidentiality of information contained in a computer system, or otherwise harms or impedes in any manner any computer, software, firmware, hardware, system, network.
4. The Creative Work may incorporate intellectual property, including copyright-protected materials, trade names, trademarks or service marks, and the names, likenesses, or images (the “IP”). As between you and NiftyLit, such IP is owned by NiftyLit or its affiliates. Your use of such IP is subject to the license granted, and you may not use any such IP in connection with any business, product, or service, or in any manner that may imply endorsement of any business, message, product, or service, or that is likely to cause confusion or dilute, blur, or tarnish such IP. All use of such IP, including any goodwill generated by such use, shall inure to the benefit of NiftyLit or its affiliates. The rights that you have in and to the Creative Work are limited to those expressly described in Section 2 of this Agreement. NiftyLit (on behalf of itself and its licensors) reserves all other rights in and to the Creative Work, including all copyrights (e.g., the right to reproduce and make copies, to prepare derivate works, to distribute, sell, or transfer, to display, to perform, and to publicly display and publicly perform).
5. You may not alter any of the content provided with the NiftyLit Token, including without limitation: (a) identification of NiftyLit and any others designated to receive attribution and (b) a copyright, trademark, or other intellectual property notice. Other than your compliance with the foregoing obligation, you have no right to use NiftyLit’s name or any trademarks, logos, or other IP rights.
6. The license granted in Section 2 applies only to the extent that you continue to own the applicable NiftyLit Token. If at any time you sell, trade, donate, give away, or transfer your NiftyLit Token to a new owner, the license granted in Section 2 shall be transferred to that new owner, and you will have no further rights in or to the NiftyLit Token or Creative Work associated with the NiftyLit Token. If at any time you dispose of your NiftyLit Token for any reason, or sell, trade, donate, give away, or transfer your NiftyLit Token, the license granted in Section 2 will immediately expire with respect to that NiftyLit Token without the requirement of notice or any further action, and you will have no further rights in or to the NiftyLit Token or Creative Work associated with that NiftyLit Token. Your license to the Creative Work will also immediately terminate (without the requirement of notice) if you breach this Agreement.
7. You may sell or otherwise transfer the NiftyLit Token to a third party, provided that the following conditions are met:
7.1. such sale or other transfer must be cryptographically verified (i.e., proof of such sale or other transfer must be recorded on the relevant blockchain);
7.2. such sale or other transfer must comply with (i) any applicable Agreement of the marketplace or other platform on which such sale or other transfer takes place and (ii) any applicable laws, regulations, and rules; and
7.3. prior to such sale or other transfer, you must (i) provide notice to the would-be transferee that such transferee’s use of (including any access to) the Creative Work will be conditional upon such transferee entering into the then-current version of these Agreement, and (ii) ensure that such transferee is provided with an opportunity to review these Agreement. This Agreement is available on the NiftyLit’s website or available via a link through a secondary sales platform at the time of a sale or transfer will satisfy the notice requirement.
8. You acknowledge and agree that NiftyLit, its licensors, or its designees may receive royalties or other compensation from your sale of, and any other future sale of, the NiftyLit Token.
9. NiftyLit may terminate this Agreement at any time if NiftyLit determines in its sole discretion that you have breached any of the terms of this or any other agreement with NiftyLit. Should such termination occur, you immediately cease using the NiftyLit Token and Creative Work; delete or destroy all copies of the NiftyLit Token or Creative Work; and confirm to NiftyLit in writing that you have complied with these requirements. Should you post a dispute, uses stolen payment information to purchase a NiftyLit Token, or breach this Agreement, your license to the NiftyLit Token will terminate immediately.
10. NiftyLit may discontinue licensing for the Creative Work with reasonable written notice. Upon notice from NiftyLit, or upon your knowledge that the Creative Work may be subject to a third-party intellectual property infringement claim, NiftyLit may require you to immediately, and at your own expense: cease using the Creative Work and delete or otherwise destroy all copies of the NiftyLit Token and Creative Work.
11. You affirm that you are of the legal age of majority in your jurisdiction to enter into these Agreement. However, if you are not of the legal age of majority in your jurisdiction, you affirm that you have obtained parental or guardian consent to enter into this Agreement.
12. You shall indemnify, defend, and hold harmless NiftyLit, its affiliates and licensors, and their respective officers, agents, directors, representatives, contractors, and employees, from and against any and all claims, suits, demands, actions, losses, liabilities, damages, judgements, penalties, fines, expenses and other costs (including reasonable attorneys’ fees) arising from your breach or alleged breach of this Agreement including without limitation unauthorized use of the Creative Work. NiftyLit, as well as its affiliates and licensors, will also have the right to provide our own defense additionally or alternatively at their own expense.
13. Your rights and remedies in the event of any breach of this Agreement are strictly limited to the right, if any, to recover damages in an action at law, and you acknowledge that your remedy of money damages is adequate. You will not be entitled by reason of any such breach, and you agree not to seek any equitable relief, whether injunctive or otherwise. In no event will NiftyLit be liable to you for any special, incidental, exemplary, indirect, punitive, or consequential damages (including loss of profits) with respect to the subject matter of this Agreement, whether such liability arises from any claim based upon contract, warranty, tort (including negligence), strict liability or otherwise, and whether or not you have been advised of the possibility of such loss or damage. NiftyLit’s aggregate liability under this Agreement shall not exceed the net revenues actually received by NiftyLit in connection with any transaction in which you purchased, sold, or otherwise transferred your NiftyLit Token. The foregoing limitation of liability shall only apply to the extent permitted by applicable law. In no event shall NiftyLit be liable for any inability for you to access the Creative Work for any reason, including as a result of any downtime, failure, obsolescence, removal, termination, or other disruption relating to (a) the servers upon which the Creative Work is stored or (b) the relevant NFT platform.
14. NIFTYLIT PROVIDES THE NIFTYLIT TOKEN, AND LICENSES THE CREATIVE WORK, TO YOU ON AN “AS IS” BASIS, AND EXPRESSLY DISCLAIMS ANY WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL NIFTYLIT OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR OTHER NON-DIRECT DAMAGES OF ANY KIND, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE MAXIMUM AGGREGATE LIABILITY OF NIFTYLIT AND ITS AFFILIATES FOR ALL DAMAGES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE SHALL BE FIFTY U.S. DOLLARS ($5 USD).
15. TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THE LICENSED ASSET OR THIS LICENSE AGREEMENT MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
16. THE NIFTYLIT TOKEN IS INTENDED FOR CONSUMER ENJOYMENT, USE, AND CONSUMPTION ONLY. WE DO NOT CONSIDER IT A “SECURITY,” AS DEFINED UNDER THE SECURITIES ACT OF 1933, THE SECURITIES EXCHANGE ACT OF 1934, THE INVESTMENT COMPANY ACT OF 1940, OR THE SECURITIES LAWS OF ANY U.S. STATE.
17. The laws of the State of California (USA), excluding its choice of law provisions, will govern these Agreement and any dispute that arises between you and NiftyLit. All disputes related to these Agreement, the NiftyLit Token or the Creative Work will be brought solely in the federal or state courts located in Santa Clara County, California (USA), and you consent to personal jurisdiction and waive any objection as to inconvenient forum.
18. These Agreement do not, and shall not be construed to, create any partnership, joint venture, or agency between you and NiftyLit.
19. If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from these Agreement and will not affect the validity and enforceability of any remaining provisions.
20. This Agreement (including, without limitation, the license granted hereunder) is personal to you. You shall not assign, transfer, or otherwise dispose of these Agreement (including any of your rights or obligations under this Agreement) other than through sale of the NiftyLit Token pursuant to this Agreement. Any purported assignment, transfer, or other disposition of this Agreement by you other than by sale of the NiftyLit Token pursuant to this Agreement shall be null and void. NiftyLit has the unrestricted right to assign this Agreement and may assign, subcontract, license, or sublicense any or all of its rights and obligations hereunder.
21. This Agreement constitutes the entire agreement between you and NiftyLit with respect to the NiftyLit Token and the Creative Work and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and NiftyLit relating to the NiftyLit Token or the Creative Work.
22. All notices must be sent to NiftyLit under this Agreement should be sent via email to email@example.com. All notices to the Licensee will be sent via NiftyLit’s Discord server (https://discord.gg/VNK27Spde7) under the “announcements” channel. If Licensees wish to receive notices they agree upon purchase to check here from time to time.
23. In no event will NiftyLit be liable or responsible to you, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by any circumstances beyond NiftyLit’s reasonable control (a “Force Majeure Event”), including without limitation natural disasters, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation.
24. We may modify this Agreement by posting an updated version on our website, https://niftylit.io. The then-current version of the Agreement posted at the time of purchase shall apply to purchases (even if the NiftyLit Token is downloaded after the Agreement is updated). Updated versions of the Agreement shall not apply retroactively to prior purchases.
To contact NiftyLit, please use one of the following methods:
Mailing Address: PO BOX 1205, Alamo, CA 94507