The following supplemental Terms of Services for NFTs (these “NFT Terms”) set forth below govern transactions for Cappasity NFTs (as defined below) through the Cappasity Platform or OpenSea and other NFT marketplaces that are compatible with the Cappasity NFT format (collectively, “Third-Party Marketplaces”). These NFT Terms supplement the Cappasity Terms of Services available: https://3d.cappasity.com/policies/tos (the “Master Terms”). Capitalized terms not herein defined have the meanings ascribed to them in the Master Terms. These NFT Terms, the Master Terms together with the Cappasity privacy policy shall represent a binding agreement between you and Cappasity with respect to any use or purchase of the Cappasity NFTs on cappasity.com, 3dshot.io domain and/or through the 3DShot mobile applications.
Cappasity Platform users may create certain non-fungible tokens (NFTs) represented in the form of non-fungible token (“Token”) which can be used and displayed on Cappasity Platform and Third-Party Marketplaces (such NFT, a “Cappasity NFT” or collectively, “Cappasity NFTs”). The Cappasity NFTs are linked to certain creative works, including but not limited to visual artworks, audio artworks, audiovisual artworks or other creative works uploaded to the Cappasity Platform (collectively, “Creative”).
The Creative may be standalone or may consist of a series of alternative versions or components of an image, 3D/360 model, Cappasity 3D View, links to the external sites and/or audio file that are intended to be used as a component part of a complete, standalone Creative Work (each such image(s), 3D/360 model(s), Cappasity 3D View(s), and/or audio file, a “Layer”). Cappasity NFTs listed for sale on Third-Party Marketplaces will not display additional Layers, if the creator of such NFT creates such additional Layers on the Cappasity platform. Owner of Cappasity NFT should redeem them on the Cappasity platform to access the additional Layers.
The purchase and sale of Cappasity NFTs on Third-Party Marketplaces are subject to the terms and conditions of those marketplaces, which may include the collection of service fees and/or commissions. For more information, please refer to the terms applicable to such Third-Party Marketplaces , which Cappasity does not control.
Certain blockchain platforms require certain transaction fees, including, gas fee, minting fee, etc. (collectively, "Minting Fees") to be paid for every transaction that occurs on such networks. This may include all transactions of Cappasity NFTs. Minting Fees are consumed by the blockchain platform in processing your transaction and are not refundable.
You will be solely responsible to pay any and all sales, use, value-added and other taxes, duties, and assessments (except taxes on our net income) now or hereafter claimed or imposed by any governmental authority associated with your use of the Cappasity Platform, and/or payable as the result of your purchase, ownership, sale, transfer, use and/or exploitation of any Cappasity NFT, Creative, and/or Platform content.
Except as otherwise set forth in these NFT Terms, all intellectual property underlying the Cappasity NFTs (including the Creative) is owned and controlled by its creator (“Creator”). Cappasity does not claim any ownership interest in the Cappasity NFTs or the Creative.
You are solely responsible for ensuring that any Creative and Cappasity NFTs you submit to Cappasity Platform comply with any applicable laws and third party rights, including but not limited to any intellectual property rights, privacy rights and publicity rights. You agree that any information included in your Cappasity NFTs may be used in accordance with our Privacy Policy. Cappasity always has the right, in its sole discretion, to accept or reject any.
By using the Cappasity Platform, you in your capacity as the Creator grant Cappasity and its affiliates a worldwide, non-exclusive, royalty-free, perpetual, irrevocable, sub-licensable (through multiple tiers), transferable right and license to use, reproduce, publicly display, distribute and adapt the publicly shared Cappasity NFTs for the purposes of developing, distributing, providing, improving, and promoting the Cappasity Platform, our activities, and your publicly shared Cappasity NFTs or Creative.
Cappasity hereby grants (a) to each Creator and each subsequent owner of a Token a limited, nonexclusive, fully paid-up, worldwide license to display, use and copy the Cappasity NFTs solely for personal, non-commercial use on such holder’s personal electronic devices (e.g,, TVs, computer monitors, cell phones, laptops or other personal monitors) through the Cappasity Platform; (b) as part of a Third-Party Marketplace that permits the purchase and sale of your Cappasity NFTs, provided that such Third-Party Marketplace verifies each Cappasity NFT’s owner’s rights; or (c) as part of a third party website or application that permits the activation, inclusion, involvement, or participation of your Cappasity NFT, provided that such website/application verifies each Cappasity NFT’s owner’s rights, and provided that the Creative is no longer visible once the owner of the Cappasity NFT leaves such website/application, in each of the foregoing cases subject to these NFT Terms.
You may not restrict, and hereby consent to, our use of the Creative in connection with the Cappasity Platform and the promotion, marketing, and advertising of our own or any affiliate’s business; and you may not use the Creative in any manner as prohibited by the “Restrictions” set forth in Section 2 below.
It is acknowledged and agreed that no Cappasity NFTs or Creative are intended to be classified as a security and no transaction in any Cappasity NFTs or Creative is intended to constitute a securities transaction under the U.S. federal securities law, U.S. state laws, or by foreign authorities.
Any users of Cappasity Platform (“Users”) that effect transactions on the Cappasity Platform agree that Cappasity is not acting as a securities broker or dealer with respect to any transactions in the Cappasity NFTs or Creative accessed through the Cappasity Platform.
Users agree that Cappasity is not facilitating clearing or settlement of securities through the Cappasity Platform.
Users acknowledge that Cappasity is not registered or licensed with The U.S. Securities and Exchange Commission (“SEC”) or foreign authorities as a broker-dealer, national securities exchange, or ATS (or foreign equivalents), and we do not seek to register or rely on an exemption from such registration or license to facilitate the offer and sale of Cappasity NFTs or Creative on Cappasity Platform. We only permit transfers of Cappasity NFTs or Creative of those Cappasity NFTs or Creative which are not securities. In the event that Cappasity determines there is a reasonable basis upon which to conclude that a Cappasity NFT or Creative is a security or transactions in a Cappasity NFT or Creative constitute securities transactions, such Cappasity NFTs or Creative will be removed from the Site.
The following restrictions apply to any purchase, sale, ownership, access, burning and/or other use of any Cappasity NFT, Creative, Cappasity smart contract, and/or any software or script related or referred to by any Cappasity smart contract. Specifically, you agree that your actions shall strictly comply with “Your Responsibilities” set forth in Section 4 of the Master Terms.
In addition, by accessing the Cappasity Platform and/or purchasing, selling, burning or otherwise using an Cappasity NFT, you confirm that you and your Relevant Parties are in compliance with the “Anti-Corruption, Export and Sanctions Compliance” set forth in Section 19 of the Master Terms.
We may provide you with access to third-party tools, content, products or services over which we neither monitor nor have any control nor input. You acknowledge and agree that we provide access to such third-party content “as is” and “as available” without any warranties, representations, or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of such third-party content.
Any use by you of third-party content offered through the Cappasity Platform or otherwise made available in connection with Cappasity NFT is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).
Third-party links on the Cappasity Platform, or otherwise made available in connection with Cappasity NFT, may direct you to third-party websites that are not affiliated with us, including, without limitation, OpenSea marketplace. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third-parties available through or at such third-party links.
We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites, networks, and/or platforms. Please review carefully the third party’s policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third party.
Occasionally there may be information on the Cappasity Platform and on Third-party Marketplaces that contains typographical errors, inaccuracies, or omissions that may relate to Cappasity NFT descriptions, pricing, promotions, offers, and availability. We reserve the right to correct any errors, inaccuracies, or omissions, and to change or update information if any information on the Cappasity Platform or on any third party marketplace is inaccurate at any time without prior notice (including after you have submitted your order).
DISCLAIMERS
THE CAPPASITY PLATFORM AS WELL AS THE CAPPASITY NFTS AND THE CREATIVE ASSOCIATED THEREWITH, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. FOR CLARITY, WE MAKE NO GUARANTEES OF ANY KIND IN CONNECTION WITH THE CAPPASITY PLATFORM, THE CAPPASITY NFTS, AND/OR THE CREATIVE. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE CAPPASITY PLATFORM AND/OR THE ARTWORK MAY CONTAIN AUDIO-VISUAL EFFECTS, STROBE LIGHTS OR OTHER MATERIALS THAT MAY AFFECT YOUR PHYSICAL SENSES AND/OR PHYSICAL CONDITION. WE ARE NOT RESPONSIBLE WHETHER THE CAPPASITY PLATFORM, INCLUDING ANY CREATIVE THEREIN, ARE ACCURATE, COMPLETE, OR CURRENT.
WE DO NOT WARRANT THAT THE CAPPASITY NFTS WILL INCREASE IN VALUE OR THAT YOU WILL ALWAYS BE ABLE TO USE THE CAPPASITY NFTS OR THE CREATIVE.
YOU AGREE THAT FROM TIME TO TIME WE MAY CEASE PROVIDING THE CAPPASITY NFTS AND THE CREATIVE AND/OR ALLOWING THEM TO BE USED ON THE CAPPASITY PLATFORM AT ANY TIME, EITHER WITH OR WITHOUT NOTICE TO YOU, AND WITH OR WITHOUT CAUSE OR A REASON.
LIMITATIONS OF OUR LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WE BE LIABLE TO YOU FOR ANY LOSS, DAMAGE, OR INJURY OF ANY KIND INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE LOSSES OR DAMAGES, OR DAMAGES FOR SYSTEM FAILURE OR MALFUNCTION OR LOSS OF PROFITS, DATA, USE, BUSINESS OR GOOD-WILL, ARISING OUT OF OR IN CONNECTION WITH (A) THE CAPPASITY PLATFORM, (B) THESE NFT TERMS; (C) THE CAPPASITY NFTS, AND/OR CREATIVE; AND/OR (D) YOUR MISUSE OF THE CAPPASITY PLATFORM OR ANY CREATIVE AVAILABLE ON OR THROUGH THE CAPPASITY PLATFORM. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER THE ASSERTED LIABILITY OR DAMAGES ARE BASED ON CONTRACT, INDEMNIFICATION, TORT, STRICT LIABILITY, STATUTE, OR ANY OTHER LEGAL OR EQUITABLE THEORY. IN NO EVENT WILL OUR CUMULATIVE LIABILITY TO YOU OR ANY OTHER USER, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, EXCEED THE HIGHER OF US$1.00 OR THE TOTAL AMOUNTS RECEIVED BY US IN CONNECTION WITH YOUR PURCHASE AND USE OF THE SPECIFIC CAPPASITY NFT RELATED TO THE CLAIM OR DAMAGE.
IN ADDITION TO THE FOREGOING, WE SHALL NOT BE LIABLE FOR ANY DAMAGES CAUSED IN WHOLE OR IN PART BY (W) THE MALFUNCTION, UNEXPECTED FUNCTION OR UNINTENDED FUNCTION OF ANY COMPUTER OR CRYPTOCURRENCY NETWORK, INCLUDING WITHOUT LIMITATION LOSSES ASSOCIATED WITH NETWORK FORKS, REPLAY ATTACKS, DOUBLE-SPEND ATTACKS, SYBIL ATTACKS, 51% ATTACKS, GOVERNANCE DISPUTES, MINING DIFFICULTY, CHANGES IN CRYPTOGRAPHY OR CONSENSUS RULES, HACKING OR CYBERSECURITY BREACHES; (X) THE CHANGE IN VALUE OF ANY CRYPTOCURRENCY; (Y) ANY CHANGE IN LAW, REGULATION OR POLICY, OR (Z) FORCE MAJEURE. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THESE TERMS HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
UNDER NO CIRCUMSTANCES SHALL WE BE REQUIRED TO DELIVER TO YOU ANY VIRTUAL CURRENCY AS DAMAGES, MAKE SPECIFIC PERFORMANCE OR ANY OTHER REMEDY. IF YOU WOULD BASE YOUR CALCULATIONS OF DAMAGES IN ANY WAY ON THE VALUE OF VIRTUAL CURRENCY, YOU AND WE AGREE THAT THE CALCULATION SHALL BE BASED ON THE LOWEST VALUE OF THE VIRTUAL CURRENCY DURING THE PERIOD BETWEEN THE ACCRUAL OF THE CLAIM AND THE AWARD OF DAMAGES.
INDEMNIFICATION
You agree to indemnify, defend, and hold harmless Cappasity, our parent, affiliate, and subsidiary entities, and each of our and their respective partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your (i) your breach or alleged breach of these NFT Terms; (ii) your misuse of the Cappasity Platform, Cappasity NFT, and/or the Creative associated therewith, as well as any smart contract and/or script related thereto; (iii) your violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities; (iv) your violation of the rights of any third party, including any intellectual property right, publicity, confidentiality, property, or privacy right; (vi) your use of a third-party product, service, and/or website; or (v) any misrepresentation made by you. We reserve the right to assume, at your expense, the exclusive defense and control of any matter subject to indemnification by you. You agree to cooperate with our defense of any claim. You will not in any event settle any claim without our prior written consent.
TERMINATION
These NFT Terms are effective unless and until terminated by either you or us. You may terminate these NFT Terms when you cease using the Cappasity Platform or owning Cappasity NFT. We may cease offering or supporting the activation of Cappasity NFTS at any time.
If in our sole judgment you fail, or we suspect that you have failed, to comply with any term or provision of these NFT Terms, including failing to adhere to the Restrictions listed herein, we reserve the right to terminate these NFT Terms, deny you access to the Cappasity Platform, and/or revoke your license to use or otherwise exploit the Creative in connection with Cappasity NFT, in addition to any other rights and remedies that may be available to us, whether in equity or at law, all of which we expressly reserve.
The provisions of these NFT Terms, which by their nature should survive termination of your use of the Cappasity Platform and/or ownership of Cappasity NFT (or any part thereof) shall continue in full force and effect subsequent to and notwithstanding any termination of these NFT Terms by us or you. Termination will not limit any of our other rights or remedies at law or in equity.
ENTIRE AGREEMENT
These NFT Terms, the Master Terms and any policies or operating rules posted by us on the Cappasity Platform or in respect to the Cappasity Platform, Cappasity NFTS, as well as any smart contracts and/or scripts related thereto, constitutes the entire agreement and understanding between you and us and govern your use of the Cappasity Platform, the Cappasity NFTS, as well as any smart contracts and/or scripts related thereto, superseding any prior or contemporaneous agreements, communications, and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of these NFT Terms).
Any failure by us to exercise or enforce any right or provision of these NFT Terms shall not constitute a waiver of such right or provision.
Last Modified: April 12, 2022
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