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Digital Collectible Terms

 

Updated: November, 2022

These Digital Collectible Terms (“Terms”) set forth the terms and conditions applicable to Digital Collectibles (as defined below) made available by Nike, Inc. (“Nike”) by any means, whether through one or more websites, mobile applications or other platforms (“Platform”) operated by or on behalf of Nike or by “airdrop” or other delivery mechanism.  By acquiring, accepting, using or transferring any non-fungible blockchain-based digital token (“NFT”) made available by Nike, or by using any related Digital Collectible or Related Content (as defined below) for any purpose, you agree to be bound by these Terms.

1.         Digital Collectibles.  Each NFT made available by Nike is associated with certain digital works of authorship or other content, whether or not copyrighted or copyrightable, and regardless of the format in which any of the foregoing is made available (“Related Content”).  Related Content is separate from the associated NFT and is not sold or otherwise transferred to you, but is instead licensed to you as set forth in these Terms.  A “Digital Collectible” consists of the applicable NFT and the license rights granted pursuant to these Terms with respect to the Related Content.  All licenses under these Terms are granted to the person with direct control over the NFT  associated with the applicable Digital Collectible (the “Holder”) and are, therefore, granted to you only for so long as you are the Holder of that NFT.

2.         General License.  Subject to your compliance with these Terms, Nike grants you a limited, personal, non-exclusive, non-sublicensable, worldwide license under any copyright owned by Nike in any Related Content to display and perform the Related Content for non-commercial, personal use.

3.         Licenses Applicable Only to Specific Digital Collectibles.

            3.1       Third Party Rights Owners.  If the description of the applicable Digital Collectible that is embedded in the metadata for the applicable NFT (“Embedded Description”) expressly states that all or any portion of the Related Content for that Digital Collectible is owned and directly licensed to you by a person or entity other than Nike (a “Third Party Rights Owner”) then such Third Party Rights Owner, not Nike, grants you a limited, personal, non-exclusive, non-sublicensable, worldwide license under any copyright owned by the Third Party Rights Owner in the applicable Related Content to display and perform the Related Content for non-commercial, personal use.  Nike or any applicable Third Party Rights Owner may be referred to herein as a “Rights Owner”.

            3.2       Modifiable Digital Collectibles.  If the Embedded Description expressly states that the Related Content for that Digital Collectible is modifiable (any such Digital Collectible, a “Modifiable Digital Collectible”), then in addition to any other license rights hereunder the Rights Owner grants you a limited, personal, non-exclusive, non-sublicensable, worldwide license under any copyright owned by the Rights Owner in the Related Content to copy and modify the Related Content associated with the Modifiable Digital Collectible (as modified, “Modified Content”) and to display and perform the Modified Content for non-commercial, personal use.  For avoidance of doubt, except as expressly set forth in this Section 3.2 with respect solely to Related Consent associated with a Modifiable Digital Collectible, no right to copy or modify any Digital Collectible is granted pursuant to these Terms.

            3.3       Commercial Use License Eligibility.  If the Embedded Description expressly states that commercial use rights may be obtained for that the particular Digital Collectible, you are eligible to obtain a license to use the Related Content associated with that Digital Collectible for limited commercial use pursuant to the then-current terms made available by Nike (the “Commercial Use License”).  In order to obtain the Commercial Use License you must create an account with Nike through the Platform and agree to the relevant terms and conditions for the account and the Commercial Use License.  For avoidance of doubt, no Commercial Use License is granted pursuant to these Terms.

            3.4       Platform Eligible Digital Collectibles.  If the Embedded Description expressly states that the particular Digital Collectible has other, specified use on the Platform or one or more specified or unspecified third party platforms or services (any such Digital Collectible, a “Platform Eligible Digital Collectible”) then, subject to the functionality being enabled and properly operating on the applicable platform or service (each, an “Enabled Platform”) and your successful completion of any registration or verification requirements on the Enabled Platform, the Platform Eligible Digital Collectible may be used for specific purposes, or to enable specific features or functions, on the Enabled Platform (“Platform Features”).  For example, if a Platform Eligible Digital Collectible is described as “wearable”, the Platform Feature may permit you to modify or supplement the appearance of an avatar or character on an Enabled Platform.  To the extent necessary to enable the applicable Platform Feature, the Rights Owner for the applicable Related Content will have granted the operator of the Enabled Platform the right to use the Related Content and create derivative works of the Related Content to make the Platform Features available to the Holder of the applicable NFT.  In addition to any other license rights hereunder, the Rights Owner grants you a limited, personal, non-exclusive, non-sublicensable, worldwide license under any copyright owned by the Rights Owner in the Related Content to make the Related Content (or applicable portion thereof) available to an Enabled Platform and to use the Related Content (or applicable portion thereof) on an Enabled Platform for personal, non-commercial use in the manner authorized by the Rights Owner.  The use described in the Embedded Description may be a short-hand descriptor and the terminology used to describe the use may have a unique meaning as applied to virtual, online environments that differs from the otherwise commonly understood meaning.  None of Nike or any Rights Owner will have any responsibility or liability for the function or operation of any Enabled Platform.  Without limiting anything else in these Terms (including the disclaimer in Section 16, below), Nike and the Rights Owners hereby expressly disclaim any and all  representations or warranties related to any use or inability to use any Platform Eligible Digital Collectible for any purpose, or related to any Enabled Platform, including any warranties of merchantability or fitness for a particular purpose or that any Enabled Platform will operate, be free of errors or defects, or meet your expectations.  The Platform Features are only available to Holders and may be terminated in the event of any transfer by you of the applicable NFT or other termination of your license rights hereunder.

4.         No Other Licenses.  Section 2 and, if and as applicable, Section 3 set forth all of your license rights hereunder with respect to any Related Content.  There are no other license rights, whether express or implied, with respect to any of the Related Content, Modified Content or any derivative works thereof, and no license rights are granted under any patent, trademark, trade secret or other intellectual property or proprietary right other than any copyright owned or controlled by the applicable Rights Owner.  This is true even if exercise of any license rights granted herein would be prevented, frustrated or impaired without such a license.  Without limiting the foregoing, the licenses granted herein do not grant you the right to, and you will not, and you will not authorize, permit or assist any third party to:

            (a)        exercise any of the license rights granted herein in any way that results in direct or indirect, compensation, financial benefit or commercial gain of any kind to you or any third party, whether currently realized or to be provided in the future and regardless of the nature thereof (whether monetary, conveyance of assets, in-kind products or services or other item or service of value);

            (b)        copy any Related Content (other than temporary copies stored in short term memory on your device for purposes of displaying or performing the Related Content on your device), store any Related Content on any device or computer owned or controlled by you, or modify or create any derivative works of any Related Content except solely as expressly permitted pursuant to the license grant in Section 3.2 with respect to Related Content associated with Modifiable Digital Collectibles;

            (c)        grant any sublicense of any license rights herein;

            (d)       delete, remove or obscure any trademark notice, copyright notice or other intellectual property notice in any Related Content;

            (e)        exercise any license rights herein to create, endorse, support, promote or condone any content, material or speech that is defamatory, obscene, pornographic, indecent, abusive, offensive, harassing, violent, hateful, racist, discriminatory, inflammatory or otherwise objectionable or inappropriate as determined by Nike at its discretion;

            (f)        reverse engineer, decompile or attempt to discover the source code for any NFT or Related Content except to the extent that applicable law permits you to do so notwithstanding this prohibition; or

            (g)        use any Related Content in any manner not expressly authorized herein or exercise any license rights herein in any manner that violates applicable law.

5.         Proprietary Rights.   The Rights Owners retain all right, title and interest in the Related Content and all copyright or other intellectual property rights in any Related Content.  Except for the license rights expressly granted in Sections 2 or 3, above, you do not have and will not have any right, title or interest in or to any Related Content.  Without limiting the foregoing, the Related Content may include trade names, brands, logos, trademarks, names, likenesses, images or other personal characteristics of persons or characters (“Embedded IP”). Your use of such Embedded IP is limited to use in connection with the exercise of your license rights under these Terms and subject to all limitations set forth herein and any other restrictions that Nike may inform you of in the future.  You may not use any such Embedded IP in connection with any business, product or service, or in any manner that may imply endorsement of any business, message, product or service, or that is likely to cause confusion or dilute, blur or tarnish such Embedded IP. All use of such Embedded IP, including any goodwill generated by such use, will inure to the benefit of Nike and its Affiliates. An “Affiliate” of Nike is any entity that controls, is controlled by or is under common control with Nike whether now or in the future, and where “control” means ownership of 50% or more of the shares or other ownership interest if an entity or the ability to direct the management or policies of an entity.

6.         Ownership of Modified Content.     For any Modifiable Digital Collectible, you will own the copyright in any newly created works of authorship created by you as part of any Modified Content, subject to the Rights Owner’s ownership of the underlying Related Content and any copyright or other intellectual property right therein.  To the extent that the Modified Content continues to incorporate or include any Related Content or is otherwise a derivative work of any Related Content, you will not use the Modified Content other than as expressly authorized in these Terms.  Other than your copyright as described in the preceding sentence, you will not have, and you will not assert or seek to register or obtain, any trademark or other intellectual or proprietary right in any Related Content or Modified Content. 

7.         Covenant.  You understand that Nike, Third Party Rights Owners and their respective Affiliates will continue to further modify and develop on any Related Content and may create works of authorship similar or identical to Modified Works created by you.  On behalf of yourself and your heirs, successors and assigns, you irrevocably and perpetually covenant and agree not to file or assert before any court or other government tribunal or authority, any claim, counterclaim, demand, action, suit or other proceeding alleging or asserting direct or indirect infringement or misappropriation of any copyright or other intellectual property right that you may have in any Modified Work against (a) any of Nike, any Third Party Rights Owner, any Affiliate of Nike or any Third Party Rights Owner or any of their respective shareholders, directors, officers, employees, contractors, representatives, agents, licensees, distributors, resellers, or business partners, (b) any customers of any of the foregoing, or (c) any successor or assign of any of the foregoing.

8.         Certain Other Terms.

            8.1       Forgeable Digital Collectibles.  If the description of the applicable Digital Collectible on the Platform expressly states that the particular Digital Collectible is “forgeable” (any such Digital Collectible, a “Forgeable Digital Collectible”) then a physical item may be made available to the Holder of the NFT for the Digital Collectible at a time determined at Nike’s sole discretion and subject to the Holder’s agreement to Nike’s then current forging terms and satisfaction of any eligibility requirements and conditions set forth in the Forging Terms as well as any other conditions for claiming or obtaining the physical item as communicated by Nike from time to time. 

            8.2       Prohibitions on Fractionalization.   You will not (a) create, sell or attempt to create or sell, fractionalized interests in the NFT or the Digital Collectible, (b) separate, unlink or decouple the Related Content from the NFT with which it is associated to form the Digital Collectible, or (c) use any Related Content or Modified Content to create, sell or attempt to create or sell any new cryptographic token.

            8.3       Exchanging NFTs.  If, in connection with the use or administration of any Digital Collectible, the verification of license or other rights with respect to any Related Content or any Additional Benefit, or other purpose, Nike request that you transfer the NFT associated with a Digital Collectible to Nike or a third party designated by Nike in exchange for a substitute NFT and you make such transfer, then such substitute NFT will thereafter be deemed to be and treated as the NFT associated with the Digital Collectible for all purposes under these Terms.  If multiple NFTs are issued as substitutes, then each such NFT will be treated as the NFT associated with the Digital Collectible under these Terms for the specific purpose that each such NFT has been issued.

9.         Transfers.  To the extent that you are not prohibited from doing so by any other terms or conditions applicable to a particular NFT or Digital Collectible, you may transfer the NFT to a third party, provided that the following conditions are met:

(a)        such transfer is conducted through a marketplace or other platform that cryptographically verifies that you are the actual owner of the applicable NFT;

(b)        such transfer must comply with (i) any applicable terms of the marketplace or other platform on which such sale or other transfer takes place and (ii) any applicable laws, regulations, regulatory guidance, and rules; and

(c)        prior to such sale or other transfer, you must (i) provide written notice to the would-be transferee that such transferee’s exercise of the license rights included as part of the Digital Collectible will be conditional upon such transferee agreeing to be bound by these Terms, and (ii) ensure that such transferee is provided with an opportunity to review these Terms.

After such transfer, your right to display and perform the Related Content and all other license rights under these Terms (including for avoidance of doubt, if applicable, any Commercial Use License) will immediately terminate (without the requirement of notice).

10.       Transfer Fee.  Upon transfer of any NFT, in consideration of the transfer of the license rights set forth in these Terms, the ongoing hosting of any Related Content and any other services related to the transfer of the NFT and administration of the associated Digital Collectible, you will pay (or caused to be paid) to Nike a fee in an amount calculated by multiplying the total amount paid by the acquiror for the NFT (without any deductions of any kind) by the percentage applicable to the NFT specified for that NFT (the “Transfer Fee”).  If the platform or service used to facilitate the transfer captures and pays the full amount of the Transfer Fee directly to Nike then you will have no obligation to pay any additional amounts.  You will pay any and all transaction fees, payment transfer fees and taxes (other than taxes on Nike’s net income) associated with the transfer and will not deduct any such amounts from the amount paid to Nike as the Transfer Fee.  All amounts owed hereunder will be paid in US Dollars or in a currency or cryptocurrency currently acceptable to Nike and will be paid in the manner designated by Nike.

11.       Digital Collectible not a Security.  THE DIGITAL COLLECTIBLE IS INTENDED FOR CONSUMER ENJOYMENT, USE AND CONSUMPTION ONLY. IT IS NOT A “SECURITY,” AS DEFINED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED, OR UNDER THE SECURITIES LAWS OF ANY U.S. STATE.

12.       Compliance with Marketing Guidelines.  You will comply with any NFT issuance or marketing policy that Nike may publish, as updated from time to time.

13.       Additional Benefits.  From time to time at their discretion, Nike or third parties may make additional content, products, services or other benefits available to the Holder of the applicable NFT (any of the foregoing, an “Additional Benefit”).  None of Nike or any third party has any obligation to inform you of, or to provide you with, any Additional Benefit, and you should therefore not expect any Additional Benefit when acquiring an NFT.  It will be your responsibility to keep yourself apprised of the availability of any Additional Benefit and to take the necessary steps to apply for or collect any Additional Benefit.  The terms and conditions applicable to any Additional Benefit will be set forth in the information or materials provided with the Additional Benefit.  Except to the extent set forth in such information or materials which shall supersede and govern over any conflicting or inconsistent provisions in these Terms, any digital works of authorship made available by Nike as an Additional Benefit will be licensed on the same terms set forth herein for, and will otherwise be treated as, Related Content.  Any physical item provided as an Additional Benefit is not part of the Related Content and, except as otherwise provided in any separate terms and conditions applicable to the Additional Benefit, you will not have any license rights under any intellectual property rights in or to any such physical item.  Unless otherwise agreed pursuant to a binding agreement between you and the provider of an Additional Benefit, any Additional Benefit may be suspended or terminated at any time for any or no reason, including without limitation upon transfer by you of the applicable NFT or termination of any license rights pursuant to Section 19 of these Terms.

14.       Third Party Infrastructure and Services.  Nike will have no responsibility or liability, and you hereby waive and release any and all claims, arising out of or in connection with (a) any blockchain or related technology, (b) any digital wallet, digital wallet technology, similar technology or related service, (c) the transfer or loss of any NFT or the inability to demonstrate ownership or control of any NFT, (d) any marketplace or other platform for buying, selling or transferring any NFT other than the Platform, (e) any Enabled Platform or any platform or service provided by any third party or any technology related thereto, (f) any Modified Content or Additional Benefit provided by any third party, or any terms or conditions applicable to any such Modified Content or Additional Benefit, (g) any computer, server, network device or other hardware or any Internet service provider or other telecommunications service or hardware, or (h) any other service, equipment, technology or network or data transfer infrastructure not owned and controlled by Nike.  

15.       Indemnification.  You will indemnify and hold harmless, and at Nike’s request defend, Nike and its Affiliates from and against any and all claims, demands, liabilities, damages, penalties, fines, taxes, costs and expenses (including without limitation reasonable attorneys’ fees and court costs) arising out of or in connection with (a) any breach of these Terms or unauthorized use of any Related Content, (b) your ownership or transfer of any NFT, or (c) exercise of any license rights hereunder by you.

16.       Disclaimer of warranties.  Nike, third party rights owners, and their respective Affiliates make Digital Collectibles, NFTs and Related Content, as well as any Additional Benefit that any of them OR ANY THIRD PARTY may provide, available “AS IS”, “WHERE IS” and expressly disclaim any and all representations or warranties of any kind, express or implied, including, without limitation, any warranties of title, non-infringement, merchantability, or fitness for a particular purpose and any warranties arising from course of performance, course of dealing or usage in trade.

17.       DISClaimer of damages.  In no event will Nike, any third party rights owner or their respective Affiliates be liable for any indirect, incidental, consequential, or other non-direct damages of any kind or for any special, punitive or similar damages.

18.       limitation of liability.  The maximum aggregate liability of Nike any third party rights owner and their respective Affiliates for all damages and causes of action, whether in contract, tort (including negligence) or otherwise, shall be $100.

19.       Termination of License Rights.  In addition to any other rights and remedies to which Nike may be entitled under contract, at law or in equity, if you breach any of your obligations under these Terms, your right to display and perform the Related Content and any and all other license rights that you may have under these Terms will immediately terminate without any requirement of notice. 

Additionally, with respect only to the Digital Collectible known as the “.SWOOSH ID” that, if applicable, would have been issued to you at the time you registered for access to services made available through the .SWOOSH website operated by Nike at [http://www.swoosh.nike], all of license rights to the Related Content for the .SWOOSH ID will automatically terminate if the NFT for the .SWOOSH ID issued to you is not held in a current supported digital wallet that is linked to your Nike account (set up and accessible on Nike.com). License rights to the Related Content for the .SWOOSH ID can be reinstated if the NFT for the .SWOOSH ID issue to you is held in a current supported digital wallet that is linked to your Nike account.

Upon termination of your license rights you will immediately cease all use of any Related Content.  Nike may disable access to Related Content, replace Related Content with a black screen or similar substitute content, disable digital wallet functionality or similar functionality for the affected Related Content, prohibit any Enabled Platform from providing Platform Features, prohibit any other platform or service from retrieving or rendering any such Related Content in connection with the services they provide and take other steps to prevent unauthorized use of any Related Content.  Nike will have no obligation or liability to you for any such actions and you will not interfere with, or seek to prevent, any such actions.

20.       Additional Terms.  These Terms supplement any additional terms and conditions in any information or materials provided with any Related Content or Additional Benefit (“Additional Terms”).  In the event of any conflict or inconsistency between these Terms and any Additional Terms, the Additional Terms will supersede and govern.  These Terms and any Additional Terms constitute the entire agreement between you and Nike or any other Rights Owner with respect to the subject matter hereof, and supersede any and all prior or contemporaneous written or oral agreements or understandings between you and Nike relating to the NFT, Related Content or Digital Collectible.

21.       Governing Law and Jurisdiction.  These Terms will be construed in accordance with the laws of the state of New York as applied to contracts made and performed entirely therein, and without regard to conflicts of laws principles to the contrary. All disputes relating to these Terms will be brought solely in the state or federal courts located in the boroughs of Brooklyn (Kings County) or Manhattan (New York County) in the state of New York and you hereby consent to the exclusive jurisdiction of such state and federal courts and waive any defense of forum non conveniens. EACH PARTY HEREBY EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BROUGHT BY OR AGAINST EITHER PARTY IN CONNECTION WITH THESE TERMS.  

22.       Miscellaneous.  These Terms do not, and may not be construed to, create any partnership, joint venture or agency between you and Nike. If any provision of these Terms is found to be unlawful, void or for any reason unenforceable, that provision will be enforced to the maximum extent permitted by law and otherwise deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions. The failure of Nike to insist upon or enforce strict performance of any of the provisions of these Terms or to exercise any rights or remedies under these Terms will not be construed as a waiver or relinquishment to any extent of Nike's right to assert or rely upon any such provisions, rights or remedies in that or any other instance; rather, the same will be and remain in full force and effect. You may not assign, transfer or otherwise dispose of these Terms (including any rights or obligations hereunder), and any purported assignment, transfer or other disposition will be null and void.

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