Our Services enable users to convert their social media posts uploaded to our website (the “Content”) into non-fungible tokens (NFTs) for sale (the “NFT Content”).
This is done by facilitating:
(a) the promotion of the user’s Content to NFT marketplaces and other platforms to attract purchasers for NFT Content; and
(b) the creation of NFT Content once a purchaser submits a purchase order to buy such NFT Content on an applicable platform.
For certainty, our Services provide an administrative function in facilitating the creation and sale of NFT Content. Our Services do not store or transfer any NFT Content. Any purchase and sale of NFT Content takes place through a third-party platform (i.e., Rarible)
The NFT Content that we facilitate can be described in two (2) parts:
(i) the unique, non-fungible token that is stored on the supporting blockchain (the “Token”); and
(ii) the Content attached to the Token, which is stored on a centralized server.
While we collect a fee from sales of NFT Content that we facilitate, we are not a party to any agreement for purchase and sale between a buyer and seller of NFT Content on any platform.3. Use of Services
Users. By using the Services, you represent and warrant that you
(i) are of the age of majority under applicable laws; or
(ii) have parental or legal guardian consent to use the Services.
(b) Provision of Information. By using the Services, you further represent and warrant that:
(i) no information, Content and other material that you provide to us in connection with your use of the Services or otherwise (collectively, the “Information”) will infringe, or constitute an infringement or misappropriation of, any Intellectual Property Rights of any person, and you will hold all necessary right, title and interest in and to such Information for the purposes of providing it to us for use with the Services;
“Intellectual Property Rights” means (A) copyrights and copyrightable works, whether registered or unregistered; (B) trademarks, service marks, trade dress, logos, registered designs, trade and business names (including Internet domain names, corporate names and e- mail address names), whether registered or unregistered; (C) patents, patent applications, patent disclosures and inventions (whether patentable or not); (D) trade secrets, processes, methods, data privacy rights, know-how and rights in designs; and (E) all other forms of intellectual property or any other proprietary rights in every jurisdiction worldwide;
(ii) you are solely responsible for the accuracy, quality and integrity of the Information that you provide us;
(iii) you are not: (A) a resident of an embargoed or sanctioned country or territory designated by Canada, the United States, the United Nations or the European Union; or (B) a prohibited end user under any applicable export control laws or regulations
(iv) you will comply with all applicable laws in your provision of Information to us and in your use of the Services, including without limitation, all applicable export control laws and regulations within the jurisdiction where you are resident; and
(c) Responsible Use. In connection with the access and use of the Services, Users will not, directly or indirectly:
(i) use any Content which the user does not have rights to use (“Unauthorized Content”);
(ii) infringe any proprietary or Intellectual Property Rights of any person, including Intellectual Property Rights that we have in our Services and that other users have in their Content;
(iii) sell, assign, distribute, provide access to, transmit, exploit, copy, publish, republish, reverse- engineer, reproduce, repackage, retransmit, resell, recompile, decompile, disassemble, or otherwise disseminate, any medium or in any manner whatsoever (A) any part of the Services, (B) any Unauthorized Content, or (C) any derivative works from same;
(iv) use another person’s social media account in order to sign up for the Services, or otherwise attempt to materially mislead or defraud another person;
(v) use any robot, spider or other automatic device, software program or manual process to create an account;
(vi) attempt to gain unauthorized access to the Services or computer systems or networks connected to the Services through hacking, password or data mining, or any other means to circumvent security procedure;
(vii) use the Services in any manner that could damage, disable, overburden or impair the Services;
(viii) interfere with or disrupt the Services or servers or networks connected to the Services;
(ix) attempt to reverse engineer or jeopardize the correct functioning of the Services, or otherwise attempt to derive the source code of the software that enables or underlies any part of the Services;
(x) fail to comply with any applicable laws or regulations;
(xi) take any action that would damage, harm, or diminish our Services, reputation, goodwill, or public image, including without limitation by uploading Content that is illegal or offensive;
(xiii) breach the terms and policies of Facebook, Instagram, Rarible, MetaMask, Torus, and any other third-party software or extension that may be accessed and used by a user in connection with the Services.
(e) Operability .You acknowledge and agree that we do not provide and are not responsible for ensuring the operability of your hardware, software, or any other equipment or technological needs required to use the Services. You acknowledge and agree that we are not responsible for any charges related thereto including, without limitation, all data charges that you incur through use of the Services. Furthermore, we cannot guarantee that the Services will be available all of the time, at any given time, or that we will continue to offer all or any of our Services for any particular length of time. Although we strive to provide the most reliable Services possible, interruptions and delays in accessing the Services are unavoidable and we disclaim any liability for damages resulting from such problems.4. Accounts
(a) Account Creation. Use of the Services will require registration of an account for the Services (an “Account”). You will safeguard any user authentication credentials in your possession or under your control. You are responsible for all activities that occur under your Account, including 3 without limitation any unauthorized access. You will notify us immediately if you believe an unauthorized third party may be using your Account.
(b) Account Changes. We may at any time in our sole discretion, without cost, charge, or liability, suspend or terminate your Account. If your Account is terminated and you no longer have use of Services, you may lose access to all Content, NFT Content and other information used in connection therewith, and we will have no liability for any such loss of same. We may retain some or all Information as permitted or otherwise required by applicable law.5. Payment
(a) General. There are no up-front fees to use the Services. The Company collects a percentage of the proceeds from all initial and future sales of any NFT Content.
(b) Changes in Fees. The Company reserves the right, in its sole discretion and at any time, to change the applicable fees in connection with all initial and future sales of NFT Content.
(c) Taxes. Users are responsible for evaluating the tax consequences arising from any transactions made through the Services, and the Company disclaims any and all liability for same.6. Proprietary Rights
(b) Content and NFT Content. As between you and the Company, you own all of your Content and any NFT Content created from your Content. By uploading Content to our website, you grant to the Company a non-exclusive, royalty-free, transferable, sub-licensable, worldwide right and license to use, host, copy, distribute, market, promote, publicly share and display, modify and create derivative works of your Content (including, without limitation, by minting NFT Content through third party platforms) (the “Content License”).
For certainty, and without limiting the foregoing, the Content License enables us to:
(i) share, market and promote your Content with third parties; and
(ii) enable such parties to convert the Content into NFT Content.
(c) Transfer of NFT Content on Third-Party Platform. In transactions involving the purchase and sale of NFT Content, purchasers typically acquire ownership of the Token and a non-exclusive license to use and display the Content in their cryptocurrency wallet for personal purposes. Ownership of rights in the Content itself is typically not transferred to the purchaser. Each purchaser and seller of NFT Content must do their own research into what rights are being acquired in any transaction relating to NFT Content. For certainty, the Company disclaims any liability with respect to the purchase and sale of NFT Content, including without limitation, with respect to the terms and conditions associated with any such purchase and sale.7. Copyright Policy
cocoNFT respects the intellectual property rights of others. If you believe that your Intellectual Property Rights have been infringed, please notify our Designated Agent and we will investigate. To submit a copyright infringement notification, please submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing the below-specified Designated Agent with the following information in writing:
(a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed
(b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site or application are covered by a single notification, a representative list of such works at that site or application;
(c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to allow us to locate the material;
(d) information reasonably sufficient to allow us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
(e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(f) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You acknowledge that if you fail to comply with all of the requirements of the preceding paragraph, your DMCA notice may not be valid.
Our Designated Agent to Receive Notification of Claimed Copyright Infringement can be reached as follows: firstname.lastname@example.org. Feedback
Any suggestions or comments for improving or modifying the Services that are included in your communications with us (the “Feedback”) will be deemed to be non-confidential and non-proprietary to you, and you agree that, subject to applicable law:
(a) we are therefore not subject to any confidentiality obligations with respect to the Feedback;
(b) the Feedback is not confidential or proprietary information of any third party and you have all of the necessary rights to disclose the Feedback to us;
(c) we may freely use, reproduce, publicize the Feedback; and
(d) you are not, nor is any other party, entitled to receive any compensation or reimbursement of any kind from us in relation to the Feedback9. Disclaimers
THE SERVICES, INCLUDING ANY NFT CONTENT CREATED IN CONNECTION THEREWITH, ARE PROVIDED TO YOU AT YOUR SOLE RISK AND LIABILITY ON AN “AS IS”, “AS AVAILABLE” BASIS. WE, OUR AFFILIATES, SUBSIDIARIES, DIRECTORS, OFFICERS, EMPLOYEES, ADVISORS AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED, STATUTORY, BY USAGE OF TRADE, COURSE OF DEALING, OR OTHERWISE WITH RESPECT TO THE SERVICES AND NFT CONTENT. TO THE FULLEST EXTENT PERMITTED BY LAW, ALL WARRANTIES OF ANY TYPE, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WITH RESPECT TO WARRANTIES OF MERCHANTABILITY, NON- INFRINGEMENT, SATISFACTORY QUALITY, AVAILABILITY, UPTIME, VIRUS-FREE OPERATION, ERROR-FREE OPERATION, OR FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY DISCLAIMED.
WITHOUT LIMITING ANYTHING HEREIN, THE COMPANY:
(A) HAS NO RESPONSIBILITY FOR THE NFT CONTENT CREATED IN CONNECTION WITH THE SERVICES, INCLUDING ANY NFT CONTENT THAT IS SUBSEQUENTLY SOLD IN ANY MANNER THROUGH ANY MARKETPLACE, PLATFORM OR OTHERWISE; AND
(B) CANNOT AND DOES NOT GUARANTEE OR WARRANT THE LEGALITY, AUTHENTICITY, ORIGINALITY, UNIQUENESS, VALUE OR MARKETABILITY OF THE NFT CONTENT THAT IS CREATED OR SOLD IN CONNECTION WITH THE SERVICES, OR THE AUTHENTICITY AND LEGITIMACY OF PURCHASE ORDERS FOR NFT CONTENT ON ANY MARKETPLACE, PLATFORM OR OTHERWISE; AND
THE COMPANY HEREBY DISCLAIMS ANY AND ALL LIABILITY RELATING TO ALL OF THE FOREGOING.
THE COMPANY WILL NOT BE LIABLE FOR ANY LOSS OF ANY KIND FROM ANY ACTION TAKEN OR NOT TAKEN IN RELIANCE ON MATERIAL OR INFORMATION PROVIDED IN CONNECTION WITH THE SERVICES.
(b) Third-Party Materials.
NOTWITHSTANDING ANYTHING HEREIN, THE COMPANY DOES NOT REPRESENT, WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY THIRD-PARTY PLATFORMS, PRODUCTS OR SERVICES (COLLECTIVELY, “THIRD-PARTY MATERIALS”), INCLUDING WITHOUT LIMITATION:
(I) THE SUPPORTING BLOCKCHAIN WITHIN WHICH TOKENS ARE STORED AND TRANSFERRED;
(II) ANY THIRD-PARTY MATERIALS ADVERTISED OR OFFERED THROUGH ANY APPLICATION THAT CAN BE REACHED FROM A LINK THROUGH THE SERVICES;
(III) ANY THIRD-PARTY MATERIALS THAT ARE USED IN CONNECTION WITH THE SERVICES (E.G., THIRD PARTY MATERIALS USED TO CREATE A CRYPTOCURRENCY WALLET, TO CREATE NFT CONTENT, AND TO MARKET AND SELL NFT CONTENT); AND
(IV) ANY THIRD-PARTY MATERIALS THAT ARE FEATURED IN ANY PROMOTION OR OTHER ADVERTISING TOGETHER WITH THE SERVICES.
FOR CERTAINTY, ALL THIRD-PARTY MATERIALS ARE ACCESSED AND USED BY USERS AT THEIR SOLE RISK AND LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES DEPEND ON THE PROPER FUNCTION AND AVAILABILITY OF CERTAIN THIRD-PARTY MATERIALS SUCH AS INSTAGRAM, CRYPTO WALLET EXTENSIONS AND BLOCKCHAIN TECHNOLOGY, WHICH THE COMPANY DOES NOT CONTROL AND FOR WHICH THE COMPANY WILL NOT BE LIABLE.
THE COMPANY IS NOT LIABLE UNDER CONTRACT LAW, TORT LAW, OR OTHERWISE FOR ANY DAMAGES OF ANY KIND ARISING FROM YOUR USE OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, THE COMPANY WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHER DAMAGES (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF DATA OR ANY OTHER PECUNIARY LOSS ARISING OUT OF THE USE OR INABILITY TO USE, THE SERVICES). THESE LIMITATIONS WILL APPLY EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
NOTWITHSTANDING, THE COMPANY’S MAXIMUM LIABILITY TO THE USER IS LIMITED TO THE TOTAL AMOUNTS ACTUALLY RECEIVED BY THE COMPANY FROM PROCEEDS OF SALES FROM SUCH USER’S NFT CONTENT IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING ANY CLAIM. TO THE EXTENT ANY JURISDICTION DOES NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE COMPANY’S LIABILITY IN SUCH JURISDICTION WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.11. Indemnification
WE MAY, IN OUR SOLE DISCRETION IN ANY INSTANCE, FOR ANY REASON, CHANGE, SUSPEND OR DISCONTINUE, TEMPORARILY OR PERMANENTLY, THE SERVICES (OR ANY FEATURES OR PARTS THEREOF) AT ANY TIME AND WITHOUT LIABILITY THEREFOR. FOR CERTAINTY, IN THE EVENT THAT THE SERVICES ARE DISCONTINUED FOR ANY REASON, ANY AND ALL CONTENT AND NFT CONTENT MAY BE DESTROYED, AND THE COMPANY WILL NOT BE LIABLE FOR ANY LOST CONTENT AND NFT CONTENT WHATSOEVER.13. Risk Factors
Without limiting anything herein, you acknowledge and agree that your access and use of the Services is not without risk, and you solely assume all such risks associated therewith, whether known or unknown, including but not limited to, risks arising from:
(a) reliance on relatively novel blockchain technologies, including exposure to uncertain regulatory environment relating to (i) the tax treatment of NFT transactions and (ii) securities laws implications of NFT transactions;
(b) the volatility of blockchain assets and material fluctuations in price;
(c) the Company’s inability to control the supporting blockchain on which Tokens are stored and transferred;
(d) loss (due to any cause of the link between the Token stored on the blockchain and the Content stored on the centralized server, resulting in the NFT Content no longer being retrievable and/or a complete loss of value of the NFT Content (whether as a result of an issue on the blockchain, an issue on the centralized server, the hosting website being changed or taken offline, or otherwise); and
(e) unauthorized actions by malicious actors, including the purchase and sale of fraudulent or counterfeit NFT Content.
THIS IS NOT AN EXHAUSTIVE LIST OF RISK FACTORS ASSOCIATED WITH THE SERVICES. WITHOUT LIMITING ANYTHING HEREIN, THE COMPANY WILL NOT BE LIABLE FOR ANY LOSS OF ANY KIND ARISING FROM (I) ANY ACTION TAKEN OR NOT TAKEN BY ANY PERSON IN RELIANCE ON MATERIAL OR INFORMATION PROVIDED IN CONNECTION WITH THE SERVICES, OR (II) ANY THEFT, LOSS OR INACCESSIBILITY OF ANY CONTENT OR NFT CONTENT FOR ANY REASON WHATSOEVER.14. Reliance
You acknowledge and agree that the Company is making the Services available to you in reliance upon the limitations and exclusions of liability, indemnities, disclaimers and assumptions of risk set forth herein and that the same form an essential basis of the contract between you and us. You agree that the limitations and exclusions of liability, indemnities, disclaimers and assumptions of risk set forth herein will survive, and continue to apply in the case of a fundamental breach or breaches of, the failure of essential purpose of contract, the failure of any exclusive remedy or the termination of this Agreement.15. General
(f) Severability. If any provision or provisions of this Agreement will be held to be invalid, illegal or unenforceable for any reason whatsoever by a court of competent jurisdiction:
(i) the validity, legality and enforceability of the remaining provisions of this Agreement (including, without limitation, each portion of any section, paragraph or sentence of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) will not in any way be affected or impaired thereby and will remain enforceable to the fullest extent permitted by law;
(ii) such provision(s) will be deemed reformed to the extent necessary to conform to applicable law and to give the maximum effect to the intent of the parties hereto; and
(iii) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any section, paragraph or sentence of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) will be construed so as to give effect to the intent manifested thereby.