Last updated: 31 March 2023
These terms and conditions constitute a legally binding agreement (the “Agreement”) between you (also referred to herein as “you”, “your” or “User”) and Mighty Jaxx International Pte Ltd or its Affilate, as the case may be (“Mighty Jaxx”, “we” or “us”), governing your purchase or redemption of any NFTs offered by Mighty Jaxx and/or its Affiliates (an “Offering”), save for our XPass NFTs. For the terms and conditions relating to our XPass NFTs, please refer to our [XPass Terms and Conditions]. BY PARTICIPATING IN THIS OFFERING, YOU AGREE TO BE BOUND BY THESE TERMS AND ALL OF THE TERMS INCORPORATED HEREIN, TOGETHER WITH ALL OF APPLICABALE FAQS, TERMS OF SERVICE AND PRIVACY POLICY PUBLISHED ON THE RELEVANT PLATFORMS, INCLUDING BUT NOT LIMITED TO THE MIGHTY JAXX WEBSITE (https://mightyjaxx.com) AND THE MIGHTY JAXX MOBILE APP (the “Mighty Jaxx Terms of Service”). If you do not agree to the terms of this Agreement or the Mighty Jaxx Terms of Service, you may not participate in the Offering.
- Definitions.
“Affiliates” means any company, entity or other party which controls, is controlled by, or under common control with such person.
"Artwork" means any art, animation, graphics, images, designs, and drawings that may be associated with an NFT issued in the Offering, and in which you acquire Licensed Rights.
"Equivalent" means the value, in US Dollars, of the market value of the relevant amount of cryptocurrency on the day of the transaction.
“Intellectual Property Rights” means all intellectual property rights, whether registered or not, including pending applications for registration of such rights and the right to apply for registration or extension of such rights, including the Artwork, patents, petty patents, utility models, design patents, designs, copyright (including moral rights and neighbouring rights), database rights, rights in integrated circuits and other sui generis rights, trade marks, trading names, company names, service marks, logos, the get-up of products and packaging, internet domain names, social media user names, rights in know-how and any rights of the same or similar effect or nature as any of the foregoing anywhere in the world.
"NFT" means any blockchain-tracked, non-fungible token issued by Mighty Jaxx or its Affiliates in conjunction with the Offering.
“Licensed Rights” means your rights to the NFT(s) of which you are the current rightful licensee, and which you acquired from a legitimate source, where proof of such purchase is recorded on the relevant blockchain.
"Third Party IP" means any third-party Intellectual Property Rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, trademarks, know-how or any other intellectual property rights recognized in any country or jurisdiction in the world.
- Ownership.
When you purchase or redeem an NFT, you acknowledge and agree that Mighty Jaxx or its Affiliates (or, as applicable, its licensors) owns all legal right, title and interest in and to the Artwork and any Intellectual Property Rights associated with the NFT. The rights that you have in and to NFT and the Artwork are limited to those expressly stated in Section 3 of this Agreement. Mighty Jaxx, its Affiliates and its licensors reserve all rights and ownership in and to the Artwork and any Intellectual Property Rights comprised in the NFT not expressly granted to you in Section 3 of this Agreement. All purchases or redemption of NFTs, as well as associated charges (including gas and platform fees), are non-refundable. This no-refund policy shall apply at all times regardless of your decision to terminate usage of the NFT, any disruption to the operations of any components of the NFT, or for any other reason whatsoever.
- Rights to Artwork.
(a) Your Licensed Rights
You acknowledge and agree that the Artwork associated with the NFTs are made available solely for entertainment purposes. Without limiting the foregoing and subject to your continued compliance with this Agreement (and the Mighty Jaxx Terms of Service), Mighty Jaxx (and/or its Affiliates and licensors, as the case may be) grants you a worldwide, non-exclusive, non-transferable (except as specifically provided below in section 3(b), royalty-free license to display the Artwork for your NFTs, solely for your own personal, non-commercial use.
(b) Permissible Transfers of Your NFT.
You have the limited right to transfer the NFT, provided that (i) the transferee accepts all of the terms of this Agreement and all of the terms of the Mighty Jaxx Terms of Service; (ii) Mighty Jaxx is entitled to collect three percent (3%) of the gross amounts paid by such party for the NFT and such payment shall be paid on the same terms and at the same time as you are paid; (iii) You have not prior to the transfer breached this Agreement or the Mighty Jaxx Terms of Service; and (iv) prior to the transfer your license to the Artwork has not been terminated. You acknowledge and agree that the foregoing amounts payable to Mighty Jaxx under Section 3(b)(ii) hereof do not include, and are not intended to cover, any additional fees imposed or required by the platform through which you are transferring the NFT.
- Restrictions.
You agree that you may not, nor permit any third party to do or attempt to do any of the following without express prior written consent from Mighty Jaxx in each case: (i) modify the NFT, the Artwork, or any other Intellectual Property Rights comprised in the NFT, in any way, including, without limitation, the shapes, designs, drawings, attributes, or color schemes; (ii) use the NFT, any Intellectual Property Rights comprised in the NFT, or the Artwork to advertise, market, or sell any product or service; (iii) use the NFT, any Intellectual Property Rights comprised in the NFT, or the Artwork in connection with images, videos, or other forms of media that depict hatred, intolerance, violence, cruelty, or anything else that could reasonably be found to constitute hate speech or otherwise infringe upon the rights of others, drugs (including, without limitation, both prescription and non-prescription) or other supplements, death, pornography or other “adult only” or sexually explicit activities, massage parlors, prostitution or any dating or escort activities, weapons or ammunition, denigration or discrimination against individuals based on race, national origin, gender, religion, disability, ethnicity, sexual orientation, gender identity or age, medical conditions and/or political campaigns or causes; (iv) use the NFT, any Intellectual Property Rights comprised in the NFT, or the Artwork in movies, videos, or any other forms of media, except solely for your own personal, non-commercial use; (v) sell, distribute for commercial gain (including, without limitation, giving away in the hopes of eventual commercial gain), or otherwise commercialize merchandise that includes, contains, or consists of the NFT, any Intellectual Property Rights comprised in the NFT, or the Artwork,; (vi) attempt to trademark, copyright, or otherwise acquire additional Intellectual Property Rights in or to the NFT, any Intellectual Property Rights comprised in the NFT, or the Artwork; or (vii) otherwise utilize the Artwork or any Intellectual Property Comprised in the NFTs for your or any third party’s commercial benefit.
To the extent that the NFT or Artwork associated with your NFT contains Third Party IP you understand and agree as follows: (i) that you will not have the right to use such Third Party IP in any way except as incorporated in the Artwork, and subject to the license and restrictions contained herein; (ii) that, depending on the nature of the license granted from the owner of the Third Party IP, Mighty Jaxx or its Affiliates may need to pass through additional terms and/or restrictions on your ability to use the Artwork; and (iii) to the extent that Mighty Jaxx informs you of such additional restrictions in writing (email is permissible), you will be responsible for complying with all such restrictions from the date of such notice, and that failure to do so will be deemed a breach of this Agreement.
The restrictions in this Section 4 will survive the expiration or termination of this Agreement.
- Termination of the License.
The Licensed Rights granted to you hereunder shall automatically terminate and all rights shall return to Mighty Jaxx if: (i) at any time you sell, trade, donate, give away, transfer, or otherwise dispose of your NFT in any manner except as specially provided in Section 3 of this Agreement; (ii) at any point, your Mighty Jaxx user account is terminated; (iii) you breach any of the terms of this Agreement or the Mighty Jaxx Terms of Service; (iv) you have a trustee, receiver or similar party appointed for your property, become insolvent, acknowledge your insolvency in any manner, make an assignment for the benefit of your creditors, or file a petition of bankruptcy; (v) you engage in any illegal or unlawful business practice related to the NFT; or (vii) you disparage any of Mighty Jaxx or its Affiliates or any parties related to any of them.
- DISCLAIMER OF WARRANTIES & LIMITATION OF LIABILITY.
ALL NFTS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, MIGHTY JAXX AND ITS AFFILIATES DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL MIGHTY JAXX OR ITS AFFILIATES BE LIABLE TO YOU FOR ANY PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER AND/OR DEVICE OR TECHNOLOGY FAILURE OR MALFUNCTION, OR FOR ANY FORM OF DIRECT OR INDIRECT DAMAGES, AND/OR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES BASED ON ANY CAUSES OF ACTION WHATSOEVER RELATED TO ANY NFT, THE OFFERING, OR ANY TECHNOLOGY AND/OR PARTIES RELATED TO THE NFT OR THE OFFERING, INCLUDING BUT NOT LIMITED TO BLOCKCHAIN, METAMASK WALLET AND/OR ANY OTHER THIRD-PARTY PLATFORM OR NETWORKS. YOU AGREE THAT THIS LIMITATION OF LIABILITY APPLIES WHETHER SUCH ALLEGATIONS ARE FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR FALL UNDER ANY OTHER CAUSE OF ACTION, REGARDLESS OF THE BASIS UPON WHICH LIABILITY IS CLAIMED AND EVEN IF A DISCLAIMING PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND IN ANY EVENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MIGHTY JAXX’S TOTAL AGGREGATE LIABILITY SHALL NOT EXCEED THE TOTAL SUM PAID DIRECTLY BY YOU TO MIGHTY JAXX OR ITS AFFILIATE FOR THE APPLICABLE NFT. YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET AND AGREE THAT WE HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY BREACH OF SECURITY UNLESS IT IS DUE TO OUR GROSS NEGLIGENCE. IF APPLICABLE LAW DOES NOT ALLOW ALL OR ANY PART OF THE ABOVE LIMITATION OF LIABILITY TO APPLY TO YOU, THE LIMITATIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
- Assumption Of Risk.
As noted above, the NFTs are made available solely for entertainment purposes. You agree that you assume the following risks: (A) To the extent there is a price or market for a blockchain asset such as the NFT, such markets and 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, including your NFT, and there is no guarantee that your NFT will have or retain any value; (B) the commercial or market value on an NFT that you purchase or redeem may materially diminish in value as a result of a variety of things such as negative publicity in connection with the Mighty Jaxx brand; (C) there are risks associated with using Internet-native assets (e.g., non-fungible tokens, cryptocurrencies, etc.) including, but not limited to, the risk of hardware, software and Internet connections and/or failures, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to information stored within your digital “wallet” or elsewhere, and neither Mighty Jaxx nor its Affiliates will be responsible for any of these, however caused; (D) Mighty Jaxx and its Affiliates do not make any promises or guarantees about the availability of the NFT or the Artwork on the Internet or at any specific location and/or for any specific period of time; (E) upgrades to the relevant blockchain platform, a hard fork or other change in the relevant blockchain platform, a failure or cessation of the relevant blockchain platform, or a change in how transactions are confirmed on the relevant blockchain platform may have unintended, adverse effects on all blockchains using such technologies, including without limitation the NFTs; (F) Mighty Jaxx and its Affiliates do not make any promises or guarantees related to the relevant blockchain platform, any third-party wallet, Mighty Jaxx’s own networks, blockchain or any other third parties related to this Offering, purchase or redemption, and each of their applications and/or services, including but not limited to the continued availability of either and/or the protection and/or storage of any data you provide to those parties; (G) the risk of losing access to the NFT due to loss of private key(s), custodial error or user error; (H) the risk of mining attacks; (I) the risk of hacking, security weaknesses, fraud, counterfeiting, cyber attacks and other technological difficulties; (J) the risk of changes to the regulatory regime governing blockchain technologies, cryptocurrencies, and tokens and new regulations, unfavorable regulatory intervention in one or more jurisdictions or policies any of which may materially adversely affect the use and value of the NFT; (K) the risks related to taxation; (L) that NFTs are not legal tender and are not backed by any government; and (M) Mighty Jaxx and its Affiliates are not responsible for any transaction between you and a third party (e.g., your transfer of an NFT from or to a third party on the so-called “secondary market”), and neither Mighty Jaxx nor its Affiliates shall have any liability in connection with any such transaction. In addition to assuming all of the above risks, you acknowledge that you have obtained sufficient information to make an informed decision to purchase or redeem the NFT and that you understand and agree that you are solely responsible for determining the nature, potential value, suitability and appropriateness of these risks for yourself. Mighty Jaxx and its Affiliates cannot and do not represent or warrant that any NFT, or its supporting systems or technology, is reliable, current or error-free, meets your requirements, or that defects in the NFT, or its supporting systems or technology, will be corrected. Mighty Jaxx and its Affiliates cannot and do not represent or warrant that the NFT or the delivery mechanism for it are free of viruses or other harmful components. You accept and acknowledge that Mighty Jaxx and its Affiliates will not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience related to any Offering, purchase or redemption.
- Eligibility.
(a) Participation in the Offering is open only to individuals who have the right and authority to enter into this Agreement, are fully able and competent to satisfy the terms, conditions, and obligations herein and who are using currency that such party is the lawful holder thereof. It is not available to Users who have had their User privileges temporarily or permanently deactivated. You may not allow other persons to use your User credentials, and you agree that you are the sole authorized user.
(b) By becoming a User, you represent and warrant that you are at least 18 years old, or the age of majority in your country or territory, whichever is older.
- Taxes.
You are responsible for all applicable tax including any VAT, sales or compensating use tax or equivalent tax wherever such taxes may arise. Neither Mighty Jaxx nor its Affiliates shall be responsible for determining the taxes that may apply to your transaction(s).