Terms of Service
Last Updated: 3/31/22
IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND BITSKI THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 22 “DISPUTE RESOLUTION” BELOW FOR DETAILS REGARDING ARBITRATION (INCLUDING THE PROCEDURE TO OPT OUT OF ARBITRATION). HOWEVER, IF YOU ARE A RESIDENT OF A JURISDICTION WHERE APPLICABLE LAW PROHIBITS ARBITRATION OF DISPUTES, THE AGREEMENT TO ARBITRATE IN SECTION 22 WILL NOT APPLY TO YOU BUT THE PROVISIONS OF SECTION 21 (GOVERNING LAW) WILL APPLY INSTEAD.
Our Site and Services. Our Site allows users to interact in various roles, including as purchasers of non-fungible cryptographic tokens (“NFTs”)(“Purchasers”), and Creators (as defined below in Section 10), and Developers (as defined below), with each other through various decentralized applications and blockchains. Depending on a user’s role, our Site allows users to (i) utilize a digital wallet that provides access to digital assets (e.g., NFTs) on a blockchain and integrate with decentralized applications provided by third party developers (“Third Party Apps”); (ii) create and deploy NFTs; and (iii) support the sale and distribution of such NFTs on the decentralized blockchains (e.g., Ethereum) on which transactions involving the NFTs are recorded (the “Interface”). To make these Terms easier to read, the Site, the App, the Interface and any content, text, graphics, software, information or other materials made available by us through our Site or Interface (other than User Content, as defined below) are collectively called the “Services.”
If you use the Services as a developer of a website or application, you are a “Developer” and agree to the following additional terms set forth at https://developer.bitski.com/terms, as may be updated by Bitski from time to time.
Agreement to Terms. By using our Services, you agree to be bound by these Terms. If you don’t agree to be bound by these Terms, do not use the Services. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and that you have all necessary rights to use the Services. In that case, “you” and “your” will refer to that company or other legal entity.
Changes to Terms or Services. We may update the Terms at any time, in our sole discretion. If we do so, we’ll let you know either by posting the updated Terms on the Site, on the App, or through other communications. It’s important that you review the Terms whenever we update them or you use the Services. If you continue to use the Services after we have posted updated Terms, you are agreeing to be bound by the updated Terms. If you don’t agree to be bound by the updated Terms, then you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
Who May Use the Services?
- Eligibility. You may use the Services only if you are lawfully capable of forming a binding contract with Bitski and are not barred from using the Services under applicable law.
- Registration and Your Information. While some aspects of the Services are provided to all users, if you wish to purchase and/or sell NFTs through the Services or use certain other aspects of the Services, you will need to register for an account (“Account”).
- Accuracy of Account Information. It’s important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information to keep it accurate, complete and up-to-date. If you don’t, we might have to suspend or terminate your Account. You agree that you won’t disclose your Account password to anyone and you’ll notify us immediately of any suspected or actual unauthorized use of your Account. You’re responsible for all activities that occur under your Account, whether or not you know about them.
- Compliance. The Services are only available to users in certain jurisdictions who can use the Services as permitted under applicable law. By using or accessing the Services, you represent to us that you are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties or excluded or denied persons, including but not limited to the lists maintained by the United Nations Security Council, the European Union or its Member States, or any other government authority. We do not onboard corporate accounts of entities or personal accounts or agent account located in, established in, or a resident of Belarus, Burundi, Crimea and Sevastopol, Cuba, Democratic Republic of Congo, Iran, Iraq, Libya, North Korea, Somalia, Sudan, Syria, Venezuela, Zimbabwe or any other country to which the United States, the United Kingdom or the European Union embargoes goods or imposes similar sanctions. We may suspend or terminate your access immediately in our discretion should you breach the terms of this Section 5(d). By using or accessing the Services, you agree to indemnify and hold Bitski and its officers, directors, employees and agents, harmless from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses (each, a “Claim”), including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with your violation of this Section 5(d). You must: (i) promptly notify Bitski in writing of the claim; (ii) grant Bitski sole control of the defense and settlement of the Claim; and (iii) provide Bitski with all assistance, information and authority reasonably required for the defense and settlement of the Claim. Bitski will not be bound by any settlement or compromise that You enter into without Bitski’s express prior consent. You agree not to access the Services using any technology for the purposes of circumventing these Terms. In order to protect the integrity of the Services, we reserve the right, at any time, in our sole discretion, to block access to the Services from certain IP addresses and unique device identifiers. We may require different levels of identification verification in order for you to access different levels of Services functionality or the Services generally.
Our Relationship. While Bitski offers a marketplace for NFTs, it does not buy, sell or take custody or possession of any NFTs, nor does it act as an agent or custodian for any user of the Services. You acknowledge that Bitski does not take control or custody of any NFT or cryptocurrency at any time. If you elect to sell, purchase, or trade any NFTs, any financial transactions that you engage in will be conducted solely through the blockchain network governing such NFT and you will be required to make or receive payments exclusively through the cryptocurrency wallet or payment method you have connected to your Account and be bound by these Terms. We will have no insight into or control over these payments or transactions, nor do we have the ability to reverse any transactions. Accordingly, we will have no liability to you or to any third party for any claims or damages that may arise as a result of any transactions that you engage in via the Services. There may be royalties associated with the secondary sale of any NFT. You acknowledge and agree that the payment of any such royalty shall, in certain circumstances, be programmed to be self-executing via a blockchain network’s nonfungible token standard directly to your specified wallet address and Bitski does not have any control or ability to direct such funds or the obligation to collect such fees.
Use of the Services. Subject to your compliance with these Terms, Bitski grants to you a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Services for purposes of using the Service. While the Services may be used in connection with payments and similar transactions (“Transactions”), we do not initiate or process Transactions. We do not bear any responsibility for any Transaction you engage in while making use of our Services. You bear the risk of all such Transactions.
- Rights and Terms for Apps.
- App License. If you comply with these Terms, Bitski grants to you a limited non-exclusive, non-transferable license, with no right to sublicense, to download and install the App on your personal computers, mobile handsets, tablets, wearable devices, and/or other devices and to run the App solely to use the Services in accordance with these Terms. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App (unless applicable law permits, despite this limitation); or (iv) make the functionality of the App available to multiple users through any means.
- Additional Information: Apple App Store. This Section 7(a)(2) applies to any App that you acquire from the Apple App Store or use on an iOS device. Apple has no obligation to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the App purchase price to you (if applicable) and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. Apple is not responsible for addressing any claims by you or any third party relating to the App or your possession and use of it, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that your possession and use of the App infringe that third party’s intellectual property rights. Apple and its subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof. You must also comply with any applicable third-party terms of service when using the App.
Terms Applicable to Purchasers. If you are using the Services to purchase NFTs, you are a “Purchaser” and agree to the following additional terms:
- Purchase Terms. Any NFT that Purchaser purchases is governed entirely by the smart contract and the blockchain network governing such NFT. NFTs may be subject to additional terms directly between Purchaser and the seller of the NFT, namely: (i) in any associated smart contract or (ii) as may be mutually agreed (e.g., with respect to any benefits associated with a given NFT) ((i) and (ii), collectively, “Purchase Terms”). Bitski is not a party to any Purchase Terms, which are solely between Purchaser and the Creator. Purchaser and the Creator are entirely responsible for communicating, promulgating, agreeing to, and enforcing Purchase Terms.
- No Refunds. All purchases made through the Services are final. No refunds, exchanges, or returns will be provided to Purchaser.
- Fees. Purchaser agrees to pay all Gas Fees associated with Purchaser’s purchase of an NFT. “Gas Fees” mean the fees that fund the network of computers that run the decentralized blockchain network, meaning that a user will need to pay Gas Fees for each transaction that occurs via the blockchain network.
- Chargebacks and Payment Holdback. We reserve the right to offset future payments to Purchaser, including any royalty payments associated with Purchaser’s purchased NFT, (“Payment Holdbacks”) in certain cases including without limitation: (i) where Purchaser’s Account is subject to chargebacks resulting in additional costs or fees from the Payment Processor; (ii) where the Payment Processor withholds a percentage of a payment as a reserve, for example, as a result of actual or suspected fraudulent activity or breach or alleged breach of these Terms; or (iii) in certain cases where we decide, in our sole discretion, that it is prudent or necessary to reverse a transaction. We further reserve the right to implement Payment Holdbacks to Purchaser if payments are deemed suspicious or fraudulent, at our sole discretion. We will notify Purchaser that Purchaser are subject to a Payment Holdback and we may require that Purchaser provide supporting documentation or information related to the relevant payment(s) and corresponding Purchase(s). If Purchaser do not provide such supporting evidence within the requested timeframe, we reserve the right to refund the payment and transfer any available funds from Purchaser’s wallet to its identified bank account or otherwise take any action we feel is reasonably necessary to comply with our compliance standards, including those imposed by any relevant financial institution, our Payment Processor, or the credit card network rules, as well as any applicable law. Purchaser grants Bitski a security interest in Purchaser’s Account and associated digital asset wallet, and all payments (including future payments) Purchaser receives for using the Services. We reserve the right, in our sole discretion, to freeze or cause Purchaser’s Account to be disabled and recover funds from Purchaser’s Account and associated digital asset wallet to pay for any fees including chargebacks or refunds due under these Terms, and Purchaser agrees that Purchaser will cooperate and provide us with all necessary access to recover such funds.
- Failure to Process Payments or Chargebacks. Purchaser is solely responsible for the information Purchaser provides in connection with payments processed via the Services. We will not be liable for failure to complete any payment from or to Purchaser’s Account if Purchaser provides inaccurate or incomplete information regarding the payment or refund. Subject to applicable law, we reserve the right to send any delinquent, past due, or any other Bitski Account that is in default to collections agencies to recover such past due amount.
- Indemnity. Purchaser will indemnify and hold harmless Bitski and its officers, directors, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses (each, a “Claim”), including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with Purchaser’s breach of Purchaser’s obligations set forth in Section 8(a) and 8(b). Purchaser must: (i) promptly notify Bitski in writing of the claim; (ii) grant Bitski sole control of the defense and settlement of the Claim; and (iii) provide Bitski with all assistance, information and authority reasonably required for the defense and settlement of the Claim. Bitski will not be bound by any settlement or compromise that Purchaser enters into without Bitski’s express prior consent
Terms Applicable to Creators. If you are using the Services to create, deploy or sell NFTs, you are a “Creator” and agree to the following additional terms:
- Payments, Revenue Share and Fees.
Monthly Subscriptions. We reserve the right to charge a monthly subscription fee based on Creator’ usage of the Services (a “Subscription”). If Creator purchases a Subscription, Creator will be charged the monthly Subscription fee, plus any applicable taxes, and other charges (“Subscription Fee”), at the beginning of Creator’s Subscription and each month thereafter, at the then-current Subscription Fee. BY PURCHASING A SUBSCRIPTION, CREATOR AUTHORIZES BITSKI TO INITIATE RECURRING NON-REFUNDABLE (UNLESS EXPRESSLY DESCRIBED OTHERWISE) PAYMENTS AS SET FORTH BELOW. If Creator purchases a Subscription, we (or our third-party payment processor) will automatically charge Creator each month on the anniversary of the commencement of Creator’s Subscription, using the Payment Information (as defined below) Creator have provided until Creator cancels its Subscription. No less than thirty (30) days and no more than sixty (60) days before Creator’s Subscription term ends, or otherwise in accordance with applicable law, Bitski will send Creator a reminder with the then-current Subscription Fee. By agreeing to these Terms and electing to purchase a Subscription, Creator acknowledges that Creator’s Subscription has recurring payment features and Creator accepts responsibility for all recurring payment obligations prior to cancellation of Creator’s Subscription by Creator or Bitski. Creator’s Subscription continues until cancelled by Creator or we terminate Creator’s access to or use of the Services or Subscription in accordance with these Terms.
If Creator purchases a Subscription (a “Transaction”), Creator expressly authorizes us (or our third-party payment processor) to charge Creator for such Transaction. We may ask Creator to supply additional information relevant to Creator’s Transaction, including Creator’s credit card number, the expiration date of Creator’s credit card and Creator’s email and postal addresses for billing and notification (such information, “Payment Information”). Creator represents and warrants that Creator has the legal right to use all payment method(s) represented by any such Payment Information. When Creator initiates a Transaction, Creator authorizes us to provide Creator’s Payment Information to third parties so we can complete Creator’s Transaction and to charge Creator’s payment method for the type of Transaction Creator has selected (plus any applicable taxes and other charges). Creator may need to provide additional information to verify Creator’s identity before completing Creator’s Transaction (such information is included within the definition of Payment Information). By initiating a Transaction, Creator agrees to the pricing, payment and billing policies applicable to such fees and charges, as posted or otherwise communicated to Creator. All payments for Transactions are non-refundable and non-transferable except as expressly provided in these Terms. All Subscription Fees and applicable taxes, if any, are payable in United States dollars.
Cancelling a Subscription. Creator may cancel a Transaction for a full refund within ten (10) calendar days of Creator’s initial purchase. AFTER THAT, CREATOR’S PURCHASE IS FINAL AND CREATOR WILL NOT BE ABLE TO CANCEL THE PURCHASE AND/OR RECEIVE A REFUND OF Creator’ ONE-TIME PAYMENT OR SUBSCRIPTION FEE AT ANY TIME. But if something unexpected happens in the course of completing a Transaction, we reserve the right to cancel Creator’s Transaction for any reason; if we cancel Creator’s Transaction we’ll refund any payment Creator have already remitted to us for such Transaction. Without limiting the foregoing, Creator may cancel Creator’s Subscription at any time, but please note that such cancellation will be effective at the end of the then-current Subscription period. EXCEPT AS SET FORTH ABOVE WITH RESPECT TO CREATOR’S INITIAL SUBSCRIPTION PURCHASE, CREATOR WILL NOT RECEIVE A REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN CURRENT SUBSCRIPTION PERIOD AT THE TIME OF CANCELLATION. To cancel, Creator can send an email to support@Bitski.com or by following the cancellation steps set forth on the Site. Creator will be responsible for all Subscription Fees (plus any applicable taxes and other charges) incurred for the then-current Subscription period. If Creator cancels, Creator’s right to use the Services will continue until the end of Creator’s then current Subscription period and will then terminate without further charges. If Creator initiates a smart contract to mint a Creator NFT prior to cancelling a Transaction, Creator shall be responsible for all costs associated with initiating the smart contract and such costs shall be non-refundable.
Fees and Auctions. Creator may elect to sell NFTs through the Services in a sale where the Purchaser is the highest bidder in an auction held between dates that Creator specifies (each, an “Auction”). Creator agrees to deduct all applicable fees, including credit card or other payment processing fees, hosting fees (“Transaction Costs”), and Creator authorizes Bitski to automatically charge Creator for such Transaction Costs or deduct such Transaction Costs directly from Creator’s payment method, as applicable. Creator will receive Creator Net Revenue as set forth in the chart below.
- “Initial Sale Creator Net Revenue” means (a) the gross amount of the listed price of the NFT by the Purchaser for the Initial Sale less (i) the Bitski Platform Fee; (ii) Transaction Costs (as defined in Section 8(c) above), and (iii) in the case of an Auction, the Gas Fees associated with such Auction. “Subsequent Sale Creator Net Revenue” means a percentage of the purchase price paid by a Purchaser in a Subsequent Sale (as defined below).
- “Bitski Platform Fee” means a percentage deducted off the top of the listed price of an NFT. Creator authorizes Bitski to automatically charge Creator for any of the foregoing fees/costs or deduct such fees/costs (including the Bitski Platform Fee) directly from Creator’s amounts paid by the Purchaser. The payments made to Creators also do not include any Taxes (as defined below), and Bitski shall have no responsibility for payment of such Taxes regardless of the taxing authority. Each party shall be responsible for all Taxes imposed on its income or property.
- “Initial Sale” means a transaction facilitated through the Bitski Website in which a NFT is first sold. A “Subsequent Sale” means any transaction in which a NFT is sold by one owner to another owner via a secondary market or is otherwise transferred in any manner that is not an Initial Sale.
Example: For an NFT with a listed price of $100, the payout to the Creator will be $86.22 assuming gas price of $20. In this example, Bitski will collect $120 from the Purchaser ($100 NFT + $20 gas). The payout to the Creator will be $120 less $10 Bitski Platform Fee, $3.78 Transaction Costs, and $20 Gas Fee.