Toki Universe Terms (the “Agreement” or the “Terms”)
TO BE ELIGIBLE TO PARTICIPATE IN THE TOKI UNIVERSE (“TOKI UNIVERSE”) NFT MINT (THE “MINT”) YOU MUST SATISFY THE ELIGIBILITY REQUIREMENTS SET FORTH BELOW. BY PARTICIPATING IN THIS MINTING, YOU (“PARTICIPANT”) AGREE TO THESE NFT TERMS, WHICH ARE A CONTRACT, SO READ THEM CAREFULLY BEFORE PARTICIPATING. WITHOUT LIMITATION, THIS CONTRACT PROVIDES FOR INDEMNIFICATION OF TOKI UNIVERSE BY YOU, A CLASS ACTION AND JURY TRIAL WAIVER, A REQUIREMENT THAT MOST DISPUTES BE SETTLED BY MANDATORY BINDING ARBITRATION, AND A LIMITATION OF YOUR RIGHTS AND REMEDIES. IF YOU DO NOT AGREE TO THESE TERMS, PLEASE DO NOT PARTICIPATE IN THE MINT.
To be eligible to participate in the Mint, the Participant must (a) be 18 years old or older, or the age of majority in his/her jurisdiction, whichever is greater, and (b) have a digital wallet capable of supporting an ERC721 token (“Wallet”) (certain Wallets, such as those offered by Metamask, are available for free), and (c) not reside in an OFAC-sanctioned country or appear on the U.S. Department of the Treasury’s Specially Designated Nationals List (SDN List). Employees and spouses of employees of Toki Universe, and any other company or individual involved with the design, production, execution, or distribution of the Toki Universe NFTs and the Mint, are not eligible to participate in the Mint.
The Toki Universe NFTs
The subjects of the Mint are certain non-fungible tokens (“NFT(s)”) created by or on behalf of Toki Universe known as “Toki Universe NFT(s)”.
Participant understands and acknowledges that the Toki Universe NFTs are minted “on demand” directly into Wallets and that accordingly no Toki Universe NFTs are available for inspection prior to their delivery and are provided “as is.”
The Toki Universe NFTs are not images. They are units of data on the Ethereum blockchain. The image files associated with the Toki Universe NFTs are not the subjects of the Mint, nor are any rights thereto acquired through the purchase of a Toki Universe NFT.
During the Mint Period (defined below), eligible Participants may access the Mint website at www.tokiuniverse.com/mint (Mint Site”) and may make a transaction on and pay for Toki Universe NFT(s).
Transaction will be accepted until the Mint Period ends, as set forth herein. The Mint shall begin at 6:00 AM EST on September 9th, 2022, and end at 6:00 PM EST on September 15th, 2022 (the “Mint Period”). Toki Universe shall be the official timekeeper for the Mint. The Mint Period, including closing time, is approximate, and Toki Universe reserves the right to close the Mint earlier or later than the scheduled time, as determined at Toki Universe’s sole discretion. Further, Toki Universe reserves the right to limit, change, cancel, or relist the Mint, without prior notice, even after transactions have been submitted, as determined in Toki Universe’s sole discretion.
All minting shall be in Ether. Participant acknowledges that the price of Ether, like other cryptocurrencies, can be volatile. A transfer of Ether in the full price amount to Toki Universe is required for the Participant to submit an eligible mint.
The participant is responsible for all Ethereum blockchain network “gas” fees associated with participation in the Mint, including fees for submitting transaction and, where applicable, fees for minting and receiving Toki Universe NFT(s) and receiving refunds.
Toki Universe shall reimburse the amount of “gas” incurred by any unsuccessful user in connection with a Failed Transactions; provided, that Toki Universe reserves the right not to reimburse gas for Failed Transactions that Toki Universe determines, in its sole judgment, appear to have been placed in bad faith (including without limitation “spam” bids and bids placed by bots).
Use of Toki Universe NFTs and Secondary Sales
An “Approved Marketplace” is any NFT marketplace that permits the transfer of Toki Universe NFTs in a manner that fully enables the smart contract (“Smart Contract”) contained within such Toki Universe NFTs (such transfer on an Approved Marketplace, a “Secondary Sale”).
If Participant obtains Toki Universe NFT(s), Participant may (a) hold, (b) transfer via Secondary Sale, or (c) Redeem (once Toki Universe has made Redemption available) said Toki Universe NFT(s).
Any Secondary Sale or other transfer will be subject to these Terms and any applicable additional terms, including without limitation the Smart Contract, terms Toki Universe may provide in connection with Toki Universe 2, and the Approved Marketplace’s terms. For clarity, the recipient of any Toki Universe NFT in a Secondary Sale or other transfer (“Transferee”) will be subject to these Terms as if Transferee were Participant.
If at any time Participant disposes of or transfers a Toki Universe NFT for any reason, Participant’s right to Redeem that Toki Universe NFT and Participant’s license to Toki Universe NFT IP (as defined and further described below) with respect to that Toki Universe NFT will immediately transfer to Transferee, if the transfer was a Secondary Sale, or otherwise immediately expire, without the requirement of notice or any further action and Participant will have no further rights in or to the Toki Universe NFT or the Toki Universe NFT IP.
Toki Universe NFT License
In the event that Toki Universe delivers to Participant one or more Toki Universe NFT(s) in connection with a Winning Bid or a Redemption, subject to Participant’s complete and ongoing compliance with this Agreement and any other applicable terms, solely for Participant’s own personal, non-commercial use, Toki Universe grants Participant a limited, worldwide, non-exclusive, non-transferable (except in connection with a Secondary Sale), non-sublicensable, revocable license to publicly or privately display (including on social media platforms and digital galleries) any intellectual property (or related intellectual property rights) included in the applicable Toki Universe NFT(s) (such intellectual property, including any name, image, likeness, art, design, and drawings, in any form or media, including, without limitation, video or photographs, that may be included in such Toki Universe NFT, “Toki Universe NFT IP”), solely for noncommercial use as part of a: (a) marketplace that permits the purchase and sale of Toki Universe’ NFTs, provided that the marketplace cryptographically verifies Participant’s right to display the Toki Universe NFT IP to ensure that only the actual owner of such Toki Universe NFT can display such Toki Universe NFT IP; or (b) third party website or application that permits the inclusion, involvement, or participation of the Toki Universe NFT, provided that the website/application cryptographically verifies each Toki Universe NFT owner’s rights to display the Toki Universe NFT IP to ensure that only the actual owner of such Toki Universe NFT can display the Toki Universe NFT IP, and provided that the Toki Universe NFT IP is no longer visible once the owner of the Toki Universe NFT leaves the website/application.
Participant agrees that as between Toki Universe and Participant, all rights, titles, and interests in and to the Toki Universe NFT IP belong exclusively to Toki Universe, and no rights are granted other than the foregoing license.
Except and solely to the extent that such a restriction is impermissible under applicable law, a Toki Universe NFT holder shall not:
- Modify a Toki Universe NFT or its contents in any way, or combine a Toki Universe NFT or its contents with, or embed the Toki Universe NFT or its contents into, any digital or other content or media except with respect to an NFT issued by Toki Universe;
- Use a Toki Universe NFT or its contents in any manner which infringes upon the intellectual property rights of any person or entity;
- Use a Toki Universe NFT in connection with or to promote any illegal activity, hate speech, violence, inappropriate or obscene content, or in any other manner which could tarnish or harm the reputation of Toki Universe, its agents, representatives, and employees;
- Use the Toki Universe NFT IP except as incorporated in its Toki Universe NFTs;
- Trademark, copyright, or seek to trademark, copyright, or otherwise acquire additional intellectual property rights in or to the Toki Universe NFT IP;
- Attempt to mint, tokenize, or create an additional cryptographic token representing the Toki Universe NFT IP on any platform;
- Falsify, misrepresent, or conceal the authorship of the Toki Universe NFT IP or a Toki Universe NFT;
- Commit any of the foregoing actions with respect to the Toki Universe NFT IP; or
- Encourage or permit any third party to do any of the foregoing.
Assumption of Certain Risks
NFTs are intangible digital assets and exist only by virtue of the ownership record maintained in the blockchain network. Due to the rapidly evolving nature of the digital asset market, it is not possible to know all of the risks involved in digital assets, and new risks may emerge at any time. The following are some, but not all, of the risks associated with the Mint:
- Cryptocurrency and the blockchain. Universe does not control the public blockchain. By participating in the Mint, the Participant acknowledges that it is aware of and accepts all risks associated with a cryptographic system, including without limitation the blockchain, decentralized ledgers, smart contracts, digital wallets, and non-fungible tokens. Toki Universe is not responsible for the operation of the blockchain, or for any losses due to the blockchain or the use of a digital currency, including without limitation, (i) internet connectivity, (ii) hardware malfunctions, (iii) software bugs, viruses or exposure to malicious software, (iv) digital wallet security breaches, (v) system failures or outages; or (vi) lost or stolen “private keys.”
- Pricing digital assets. understands that the price of digital assets is highly volatile and may be impacted by, among other things, fluctuations in the price of other digital assets. Digital assets also suffer from valuation and liquidity challenges.
- Evolving regulatory landscape. regulatory landscape governing blockchain technologies, cryptocurrencies, and NFTs is evolving. Changes in the legislative or regulatory environment may impact Toki Universe’s ability to offer certain products or services. In addition, there are risks associated with the dependence on third-party decentralized trading platforms, applications or other intermediaries (e.g., exchanges), counterparties, or custodians to hold or convert digital assets that may be subject to little or no regulation, or that may operate in violation of regulations, including regulations related to sanctions compliance and anti-money laundering.
- Tax Obligations. Participants are solely responsible for determining what, if any, tax obligations might arise from his/her transactions. Except as required by law, Toki Universe is not responsible for determining any Participant’s tax reporting or compliance obligations, or other tax obligations, including without limitation payment obligations.
The Mint may not be used for any unauthorized use or any illegal or unlawful purpose. Any unauthorized use or violation of this Agreement shall immediately and automatically terminate Participant’s right to participate in the Mint and may subject it to legal liability. Toki Universe reserves the right to take appropriate legal action for any illegal or unauthorized conduct.
Participant agrees to defend, indemnify and hold Toki Universe harmless from and against any and all claims, damages, costs, and expenses, including attorneys' fees, due to Participant’s activities in connection with the Mint, and/or the breach of any representation, warranty, or other provision of the Agreement.
Limitation of Liability
Toki Universe is not responsible for: (a) any incorrect or inaccurate information, whether caused by Participant, or programming associated with or used in the Mint; (b) technical failures of any kind, including but not limited to malfunctions, interruptions, or disconnections in phone lines or network hardware or software; (c) unauthorized human intervention in any part of Mint; (d) technical or human error, which may occur in the administration of the Mint or the processing of bids; or (e) bids or notifications that are lost, late, incomplete, illegible, unintelligible, damaged or otherwise not received by the intended recipient, in whole or in part, due to computer, human or technical error of any kind, including but not limited to, by reason of unauthorized human intervention, spam filters, privacy settings, inactive email accounts or a Participant’s failure to monitor its email account. If for any reason a Participant’s transaction is confirmed to have been erroneously deleted, lost, or otherwise destroyed or corrupted, Participant’s sole remedy is to submit another transaction, if the Mint is still ongoing. If, for any reason, the Mint cannot be executed as planned, including, but not limited to, any governmental order or mandate, force majeure, social media mandate, printing, administrative or other error of any kind, transmission failure, infection by computer virus, bugs, tampering, unauthorized intervention, fraud, technical failures, epidemic, pandemic, or any other causes beyond the control Toki Universe that corrupt or affect the security, administration, fairness, integrity or proper conduct of the Mint, or if the Mint is compromised or becomes technically corrupted in any way, electronically or otherwise, or if Toki Universe otherwise wishes to discontinue the Mint for any reason, Toki Universe reserves the right, in its sole discretion, to cancel, modify or terminate the Mint immediately and without notice.
In no event will Toki Universe be liable to Participant 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 Participant has been advised of the possibility of such loss or damage. In no event will Toki Universe be liable for any inability to access the Toki Universe NFT IP 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 Toki Universe NFT IP is stored; (b) the Approved Marketplace; or (c) any other NFT platform.
DISCLAIMER OF WARRANTIES
PARTICIPANTS’ ENGAGEMENT IN THE MINT IS AT ITS OWN RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, THE PARTICIPANT IS RESPONSIBLE FOR COMPLYING WITH THIS AGREEMENT AND ALL APPLICABLE LAWS WITH RESPECT TO THE MINT AND THE RECEIPT OF ANY TOKI UNIVERSE NFT. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL INFORMATION AND CONTENT MADE AVAILABLE ON OR ACCESSED THROUGH THE MINT, IS MADE AVAILABLE “AS IS” WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND. FURTHER, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, TOKI UNIVERSE DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OF THE MINT SITE(S), THE CONTENTS WITHIN AND THE PRODUCTS OR SERVICES LISTED OR PURCHASED THROUGH THE MINT. TOKI UNIVERSE DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE MINT SITE(S) OR ANY MATERIALS OR CONTENT CONTAINED THEREIN WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE MINT SITE(S) OR THE SERVER THAT MAKES IT AVAILABLE IS FREE OF VIRUSES OR HARMFUL COMPONENTS. TO THE FULLEST EXTENT PERMITTED BY LAW, TOKI UNIVERSE SHALL NOT BE LIABLE FOR THE USE OF THE SITES, INCLUDING, WITHOUT LIMITATION, THE CONTENT AND ANY ERRORS CONTAINED THEREIN. THIS DISCLAIMER CONSTITUTES AN ESSENTIAL PART OF THESE TERMS.
If any part of these warranty disclaimers or limitations of liability is found to be invalid or unenforceable for any reason or if Toki Universe is otherwise found to be liable in any manner, then its aggregate liability for all claims under such circumstances shall not exceed the lesser of (a) the amount paid by Participant in the Mint that is the subject of the claim at issue during the prior 12 months, or (b) $10. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for damages. Accordingly, some of the above indemnities, limitations, and disclaimers may not apply. To the extent Toki Universe may not, as a matter of applicable law, disclaim any warranty or limit its liability, the scope and duration of such warranty and the extent of our liability will be the minimum permitted under such law.
Toki Universe may assign its rights and obligations under this Agreement, including in connection with a merger, acquisition, sale of assets or equity, or by operation of law. This Agreement (including, without limitation, the license granted hereunder) is personal to Participant and shall not be assigned or transferred, except to a new owner of the Toki Universe NFT as described above. Any other attempt to assign, sub-license, or transfer rights under this Agreement shall be null and void.
If any term or provision of these Terms is found under the law to be invalid or unenforceable, then such specific term or provision shall be of no force and effect and shall be severed and the remainder of these Terms shall continue in full force and effect.
If you have any questions, please DM us on Twitter at @tokiuniverse.