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.SWOOSH TERMS OF SERVICE

Last Updated: May 2024

These Terms of Service (“Terms”) apply to your access to and use of the .SWOOSH website located at https://www.swoosh.nike/ (or any successor links) and all associated web pages, websites, and social media pages (the “Site”), any associated mobile applications (each an “App”), any products made available through the Site or any App (“Products”), and any online services made available through the Site or any App, (including the Site and the App and purchase of Products, together the “.SWOOSH Services”) in each case to the extent provided by or on behalf of Nike Virtual Studios, Inc. or its affiliates (“Nike”, “we”, “our” or “us”).  

Please note that if you are a resident of the European Union (EU) or United Kingdom (UK), the additional terms in Appendix 1 (“EU/UK-Specific Terms”) will apply to you.

The terms of sale (including the limited warranty set forth therein) referenced in Section 6(e) will apply with respect to any Products that you acquire.  If you do not agree to these Terms, do not use any .SWOOSH Services.

We may indicate that different or additional terms, conditions, guidelines, policies, or rules apply in relation to some of the .SWOOSH Services (“Supplemental Terms”).  Any Supplemental Terms become part of your agreement with us if you use the applicable .SWOOSH Services, and if there is a conflict between these Terms and the Supplemental Terms, the Supplemental Terms will control for that conflict.

We may make changes to these Terms.  The “Last Updated” date above indicates when these Terms were last changed.  If we make future changes, we may provide you with notice of such changes, such as by sending an email, providing a notice through the .SWOOSH Services, or updating the date at the top of these Terms.  The amended Terms will be effective immediately, and your continued use of the .SWOOSH Services will confirm your acceptance of the amended Terms. If you do not agree to the amended Terms, you must immediately stop using any .SWOOSH Services.

1.     Your Information

You may provide certain information to Nike in connection with your access or use of our .SWOOSH Services, or we may otherwise collect certain information about you when you access or use our .SWOOSH Services.  You agree to receive emails, SMS or text messages, and other types of communication from Nike via the .SWOOSH Services using the email address or other contact information you provide in connection with the .SWOOSH Services.  You guarantee that any information that you provide to Nike in connection with the .SWOOSH Services is accurate.

For information about how we collect, use, share and otherwise process information about you, please see our {{agreement:NvsPrivacyPolicy:.SWOOSH Privacy Policy}}.

2.     Eligibility and Use Restrictions

(a)    Nike Account.  In order to access or use the .SWOOSH Services: (i) you must have, or create an account on the nike.com website (each, a “Nike Account”), (ii) you must be in compliance with all terms and conditions applicable to your Nike Account, and (iii) your account must not have been terminated or be currently suspended.

(b)   Jurisdiction.  You may only use the .SWOOSH Services in jurisdictions authorized by Nike.  Use of .SWOOSH Services is currently authorized only in the United States of America, United Kingdom, France, Germany, Spain, Italy, Poland, Luxembourg, Belgium, Czech Republic, Austria, Slovenia, Hungary, Ireland, Denmark, Portugal, Finland, Greece, Netherlands and Sweden (collectively, the “Authorized Territories”).  Specific Products may be subject to additional limitations on jurisdiction in which they may be purchased or delivered. 

(c)    Sanctioned Countries or Persons.  In order to access or use the .SWOOSH Services you must not: (i) be located in, or a resident of, a country that is subject to a United States government embargo, or that has been designated by the United States government as a “terrorist supporting” country (“Embargoed Jurisdiction”), or (ii) be subject to any sanctions administered by an agency of the U.S. government or the United Nations, or listed on any United States government list of prohibited or restricted parties.

(d)   Third Party Services; Age Restrictions.  Certain .Swoosh Services will require you to have, or create, an account with one or more third party service providers, which may require you to be at least 18 years of age.  As described further below, without an external wallet or the ability to make payments by credit card, you will not be able to purchase or receive Digital Collectibles.

(e)   Use and Sharing.  You may only use the .SWOOSH Services for personal, family or household purposes and expressly excluding any commercial use.  You may not share, rent, lease or otherwise permit any third party to use, or use on behalf of any third party, any .SWOOSH Services or your .SWOOSH Account (as defined below).

(f)     No Business Customers. The Site, App and .Swoosh Services are intended solely for: (i) Nike to sell Products direct to end consumers. Therefore, it is strictly prohibited to purchase Products for resale. Purchase for resale means the purchase of Products by someone who resells, or intends to resell, the Products to others (consumers, businesses or any third party). If Nike has reasonable grounds to believe that you are involved in purchase for resale, Nike reserves the right to take any action against you, including, without limitation, to restrict sales to you, cancel your orders, and/or suspend or close your .SWOOSH Account (as defined below).

You guarantee that you satisfy all eligibility requirements.  We may, in our sole discretion, refuse to grant you access to the .SWOOSH Services and/or suspend or terminate your access to the .SWOOSH Services if you do not satisfy any eligibility requirements.

3.     Registration

(a)    Account.  In order to access or use the .SWOOSH Services, you must register for an account (your “.SWOOSH Account”) using your existing Nike Account.  You agree to provide accurate information to register for, maintain, or enable functionality or as otherwise requested in connection with the creation of your .SWOOSH Account and any access or use of the .SWOOSH Services.  You must promptly update this information if it changes.  We reserve the right to reject, require that you change, or reclaim usernames, including on behalf of businesses or individuals that hold legal claim, including trademark rights, in those usernames.

(b)   Security.  You are solely responsible for maintaining the security of your .SWOOSH Account and control over any usernames, passwords, or any other codes that you use to access your .SWOOSH Account or any .SWOOSH Services.  You are responsible for monitoring your .SWOOSH Account and the use of your account credentials (including unauthorized activities).  Inform Nike immediately if you discover or suspect someone has obtained your credentials or accessed your .SWOOSH Account without your permission.  You are responsible for anything that happens on or through your .SWOOSH Account – with or without your permission.  TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, NIKE IS NOT RESPONSIBLE FOR ANY LOSS OR ACTIVITY THAT RESULTS FROM THE UNAUTHORIZED USE OF YOUR .SWOOSH ACCOUNT.

(c)    External Accounts.  In order to receive or purchase any Digital Collectible, including your .SWOOSH ID (as described below), you will be required to link your .SWOOSH Account to a supported external digital wallet account (“External Wallet”) provided by an approved third party provider (“External Wallet Provider”).  You may only link one External Wallet to your .SWOOSH Account at a time, unless otherwise specified by Nike.  External Wallet Providers who are authorized to provide External Wallets will be identified during the registration process. 

Nike is not affiliated with the External Wallet Providers.  Your use of each External Wallet Provider’s products and services is subject to its applicable terms of service (such terms, the “Provider Terms”).  While Nike may be a third party beneficiary of certain of the Provider Terms, Nike is not a party to the Provider Terms, is not responsible for any products or services provided by any External Provider and will have no liability or responsibility in connection with the Provider Terms, the External Wallets or any other products or services of the External Wallet Provider.  You are responsible for complying with any applicable Provider Terms, and you should review any applicable Provider Terms before linking your External Wallet.  We will not be liable to you for any loss that results from your use of an External Wallet Provider’s products or services, including any External Wallets.

(d)   .SWOOSH ID.  As part of the .SWOOSH Services, subject to all eligibility and other requirements, you may: (i) assemble or otherwise create an image, design or other work of authorship that may incorporate various Nike proprietary logos, trademarks or other content (the “ID Design”),  and (ii) create a username or “handle” that will be associated with your .SWOOSH Account (“Username”).  .SWOOSH Services will use the ID Design and Username to create your .SWOOSH ID Digital Collectible (.SWOOSH ID). Upon successful creation of you .SWOOSH Account and creation of your .SWOOSH ID, Nike will transfer your .SWOOSH ID to your External Wallet.

As between you and Nike, the ID Design is owned by Nike.  You hereby assign to Nike all right, title and interest you may have in or to the ID Design and all intellectual property rights in or to the ID Design.  With respect to the Username, you acknowledge and agree that you have no ownership or proprietary rights in any Username (whether or not in use by another user), and that any Username may be changed, modified, removed, reused or repurposed by Nike at its discretion.  While neither the ID Design or Username are “User Content” for purposes of Section 4(b) below, the ID Design and Username are subject to, and must comply with, Section 4(c), below.

Your .SWOOSH ID is subject to these Terms as well as the applicable Digital Collectible Terms (as defined below) agreed to by you at the time of registration.  Your .SWOOSH ID is a Solebound Digital Collectible (as defined in the applicable Digital Collectible Terms) comprised of: (a) a nonfungible, blockchain-based digital token (“NFT”) that, as long as it is retained in the External Wallet linked to your .SWOOSH Account, is used as part of your digital identity for your .SWOOSH Account, and (b) a license to use the ID Design, Username and other Related Content (as defined below) for the .SWOOSH ID pursuant to the Digital Collectible Terms for the .SWOOSH ID as long as the associated NFT is retained in an External Wallet linked to your .SWOOSH Account.

4.     User Content

(a)    Generally.  The .SWOOSH Services may allow you and other users to create, post, store, and share content, including reviews, messages, text, photos, images, videos, software, and other materials (collectively, “User Content”).  When you post or otherwise share User Content on or through our .SWOOSH Services, you understand that your User Content and any associated information (such as your username or profile photo) may be visible to others.  If you choose to make any of your information publicly available through the .SWOOSH Services, you do so at your own risk.

(b)   Ownership; License.  Except for the license you grant below, as between you and Nike, you retain all rights in and to your User Content, excluding any portion of the .SWOOSH Services included in your User Content.  You grant Nike and our end users a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully paid, and sublicensable (through multiple tiers) license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly or otherwise perform and display, and exploit your User Content and any name, Username or likeness provided in connection with your User Content in all media formats and channels now known or later developed, without compensation to you or any third party.   You hereby irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding User Content that you may have under any applicable law or under any legal theory.

(c)    Prohibitions.  You may not create, post, store, or share any User Content for which you do not have all the rights necessary to grant us the license described above, and you guarantee that your User Content, and our use of such User Content as permitted by these Terms, will not violate any rights of any person or entity, including any third-party rights, or cause injury to any person or entity.  You may not create, post, store, or share any User Content that:

              i.            Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, hateful, threatening, invasive of privacy or publicity rights, abusive, inflammatory, or fraudulent;

             ii.            Would constitute, encourage, or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability, or violate any local, state, national, or international law;

           iii.            May infringe any patent, trademark, trade secret, copyright, or other intellectual or proprietary right of any party;

           iv.            Contains or depicts any statements, remarks, or claims that do not reflect your honest views and experiences;

             v.            Impersonates, or misrepresents your affiliation with, any person or entity;

           vi.            Contains any unsolicited promotions, political campaigning, advertising, or solicitations;

         vii.            Contains any private or personal information of a third party without such third party’s consent;

       viii.            Contains any viruses, corrupted data or other harmful, disruptive, or destructive files or content; or

           ix.            In our sole judgment, is objectionable, restricts or inhibits any other person from using or enjoying our .SWOOSH Services, or may expose Nike or others to any harm or liability of any type.

(d)   Enforcement.  Enforcement of this Section 4 is solely at Nike’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances.  This Section 4 does not create any private right of action on the part of any third party or any reasonable expectation that the .SWOOSH Services will not contain any content that is prohibited by these Terms or that objectionable material will be promptly removed after it has been posted.

(e)   Removal.  We do not undertake to review all User Content, and we expressly disclaim any duty or obligation to undertake any monitoring or review of any User Content. Although we have no obligation to screen, edit, or monitor User Content, we may:

              i.            delete or remove User Content or refuse to post any User Content at any time and for any reason with or without notice, including without limitation for any violations of applicable law or these Terms;

             ii.            terminate or suspend your access to all or part of the .SWOOSH Services if your User Content is reasonably likely, in our sole determination, to violate applicable law or these Terms;

           iii.            take any action with respect to your User Content that is necessary or appropriate, in Nike’s sole discretion, to ensure compliance with applicable law and these Terms or to protect any third-party rights, including third-party intellectual property and privacy rights (e.g., providing information to copyright owners in furtherance of Digital Millennium Copyright Act takedown requests); and

           iv.            cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the .SWOOSH Services.

If you become aware of any User Content that breaches these Terms, please contact us via our Get Help page, providing your details (including your name and email address), along with details of: (i) the date and time it was posted; (ii) where it is on the .SWOOSH Site; (iii) the username/.SWOOSH ID of the person who posted it; (iv) reasons why the User Content should be deleted, along with evidence for this; (v) copies of any communication with the person who posted it (if any); and (vi) a statement confirming your belief that the information you have provided is true and accurate.

5.     Prohibited Conduct

You may not use the .SWOOSH Services unless you are eligible in accordance with Section 2.  You may not use the .SWOOSH Services other than for their intended purpose.  Further, you will not, in connection with the .SWOOSH Services:

(a)    Violate any applicable law, contract, intellectual property right, or other third-party right or commit a tort;

(b)   Engage in any harassing, threatening, intimidating, predatory, or stalking conduct;

(c)    Use or attempt to use another user’s .SWOOSH Account or information;

(d)   Impersonate or post on behalf of any person or entity or otherwise misrepresent your affiliation with a person or entity;

(e)   Sell or resell any .SWOOSH Services, or purchase Products for resale or for commercial purposes;

(f)     Copy, reproduce, distribute, publicly perform, or publicly display all or portions of the .SWOOSH Services, except as expressly permitted by us or our licensors;

(g)    Modify the .SWOOSH Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our .SWOOSH Services;

(h)   Use the .SWOOSH Services in any manner that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying the .SWOOSH Services or that could damage, disable, overburden, or impair the functioning of any .SWOOSH Services in any manner;

(i)      Except to the extent permitted by applicable law notwithstanding this prohibition, reverse engineer any aspect of the .SWOOSH Services;

(j)     Do anything that might discover source code, or bypass or circumvent measures employed to prevent or limit access to any part of the .SWOOSH Services;

(k)    Use any data mining, robots, automated technology or similar data gathering or extraction methods designed to scrape or extract data from the .SWOOSH Services without our prior written consent;

(l)      Do anything that may expose Nike or its users to any type of harm, including anything that may disrupt, damage, disable, tamper with, overburden or limit the functionality of the .SWOOSH Services;

(m) Post content that contains software viruses, programs or other computer code, or circumvent or modify any Site software or security technology;

(n)   Develop or use any applications that interact with the .SWOOSH Services without our prior written consent;

(o)   Link to any online portion of the .SWOOSH Services in a manner that damages or exploits, in our sole discretion, our reputation or suggests any form or association, approval, or endorsement by Nike; or

(p)   Use the .SWOOSH Services for any illegal or unauthorized purpose, or engage in, encourage, or promote any activity that violates these Terms.

Enforcement of this Section 5 is solely at Nike’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances.

Data checks When you send us your order, we may run data checks on it before it is fulfilled. These checks may include verifying your address, checking for fraudulent or other unauthorized transactions.  We also run automated checks on all purchases to filter out unusual or suspect transactions, or transactions which can be identified as susceptible to fraud. Suspected fraud on the .SWOOSH Services will be investigated and if necessary prosecuted. For information about how we collect, use, share and otherwise process information about you, please see our {{agreement:NvsPrivacyPolicy:.SWOOSH Privacy Policy}}.

6.     Products; Digital Collectibles

(a)    Digital Collectibles.  Products available for purchase from Nike through the .SWOOSH Services include, but are not limited to, “Digital Collectibles”, which are digital assets comprised of an NFT and a license to certain content or media associated with the NFT (“Related Content”).  The license applicable to the Related Content and other terms governing the Digital Collectible will be set forth in the terms applicable to the Digital Collectible that are agreed to at the time of acquisition and/or included in (whether by URL link or otherwise) the metadata for the applicable Digital Collectible (“{{agreement:NvsDigCollectible:Digital Collectible Terms}}”).

(b)   Product Descriptions.  We attempt to ensure that the listings, descriptions, and images of Products, as well as references and links to Products and coupons or discounts for Products (“Product Descriptions”) made available for purchase through the .SWOOSH Services are complete, accurate, and current, but despite our efforts, the Product Descriptions may occasionally be inaccurate, incomplete, or out of date.  We make no representations as to the completeness, accuracy, reliability, validity, or timeliness of such Product Descriptions (including any features, specifications, and prices contained therein).  Such Product Descriptions and the availability of any Product (including the validity of any coupon or discount) are subject to change at any time without notice.  Certain weights, measures, and similar descriptions are approximate and are for convenience only.  We make reasonable efforts to accurately display the attributes of Products, including the applicable colors; however, the actual colors you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors.

(c)    Terms of Sale.  By purchasing any Product through the .SWOOSH Services you agree to the applicable terms of sale in accordance with the following (the applicable terms of sale referred to herein as the “Terms of Sale”):

              i.            for any Digital Collectible acquired through the .SWOOSH Services, the terms of sale are set forth in Sections 7 and 9, below,

             ii.            for any tangible or physical Pre-Order Product, the {{agreement:NvsTermsOfSale:.Swoosh Pre-Order Terms of Sale}} apply.

           iii.            for any other tangible or physical Product, unless other terms are indicated, the Nike {{agreement:termsOfSale:Terms of Sale}} apply.

7.     Terms of Sale for Digital Collectibles.

(a)    Eligibility.  To purchase any Digital Collectible, you must be at least 18 years of age, you must currently satisfy all eligibility criteria for establishing a .SWOOSH account.  You must also have a current and valid payment method that is accepted by our payment processor and have a valid billing address within the Authorized Territories.  To receive delivery of any Digital Collectible you must have a current and valid External Wallet.

(b)   Restrictions.  We may place a limit on the quantities that may be purchased per order, per account, per payment card, per person, or per household.  We reserve the right, without prior notice, to refuse service to any customer or reject any order at any time and refund any money you have paid for such order.

(c)    Price.  Prices shown on the .SWOOSH Services exclude all taxes, delivery or payment processing charges or other fees (“Taxes and Fees”).  Taxes and Fees will be added to the amount of your purchase and itemized on the checkout page.  You will have an opportunity to review Taxes and Fees before you confirm your purchase.  All prices on the .SWOOSH Services are subject to change at any time without notice.  We do not collect taxes on merchandise shipped to a jurisdiction in which we do not have substantial nexus, in which case you will be liable to the appropriate taxing authority for any sales taxes relating to your purchase through the .SWOOSH Services.

(d)   Payment.  Unless otherwise specified on the .SWOOSH Services, all payment must be made in U.S. dollars.  To complete any transaction (collectively, a “Transaction(s)”), you will be asked to supply certain relevant information, such as your payment card number and its expiration date, your billing address, and your shipping information.  You represent and warrant that you have the right to use any payment card that you submit in connection with a Transaction.  We may receive updated information from your issuing bank about any payment method you have stored with us.  You authorize us to charge your payment method, including any updated payment method information we receive, for any charges you are responsible for under these Terms.  Verification of information may be required prior to the acknowledgment or completion of any Transaction.  You will pay all charges incurred by you or on your behalf through the .SWOOSH Services, at the prices in effect when such charges are incurred, including all taxes and shipping and handling charges applicable to your Transactions.  In the event legal action is necessary to collect on balances due, you will reimburse us and our vendors or agents for all expenses incurred to recover sums due, including attorneys’ fees and other legal expenses.

(e)   Order Confirmation; Acceptance.  You will have the opportunity to review your order, including payment method and other details of your order, prior to placing the order. Our acceptance of your Pre-Order takes place when your order and full payment are received; at which point we will send you an email to confirm your order and receipt of your payment (“Order Confirmation”).  

(f)     Delivery.  Digital Collectibles will be deemed to have been delivered upon initiation of the transfer of the associated NFT to the External Wallet address designated by you. Transfer of any NFT may be subject to delays and complications that are outside the control of Nike.  We are not liable for any delays in such transfers.

(g)    No Transfer of Intellectual Property Rights.  Transfer to you of the NFT associated with the Digital Collectible conveys ownership of the NFT and conveys the license rights to the Related Content as set forth in the Digital Collectible Terms.  When you acquire a Digital Collectible and the NFT is transferred to you, you do not acquire ownership of the Related Content or any other intellectual property.  Ownership of the Related Content and any intellectual property rights in or to the Related Content or Digital Collectible are, as between you and Nike, retained by Nike.

(h)   Order Delays; Cancellation.  We reserve the right to not accept, refuse, or cancel any order prior to delivery, for example, in any of the following situations:

-          We have reasonable grounds to believe that your order (single or cumulative orders) was purchased for the purpose of resale, or fraudulent reasons;

-          You are a reseller or we have reasonable grounds to believe you are a reseller.

Furthermore, if there are errors on the .SWOOSH Services or made in connection with your order or inaccuracies in any Product Description, or pricing information or Product availability, we reserve the right to correct the error and charge you the correct price or cancel your order.

We will contact you if any portion of your order is canceled or if additional information is required to accept your order.

Occasionally, the manufacture or distribution of a certain Product may be delayed.  In such event, we reserve the right to delay your order and we will make reasonable efforts to notify you of the delay and keep you informed of the revised delivery schedule.

We are not liable for any damage or costs in relation any non-acceptance, refusal, cancellation, correction or delay of you order other than repayment of any amount received from you in relation to the order we did not accept, refused or cancelled or any amount overcharged in case of an incorrect order.

(i)      No Refunds or Exchanges.  All sales of Digital Collectibles are final.  There will be no refunds or exchanges.

(j)     Reservation of Rights.  Nike reserves the right, including without prior notice, to limit the available quantity of or discontinue making available any Digital Collectible; to impose conditions on the honoring of any coupon, discount, or similar promotion; to bar any user from making any Transaction; to alter the payment option for any Digital Collectible; and to refuse to provide any user with any Digital Collectible.

(k)    Limited Warranty.  Nike warrants to the Covered Purchaser(as defined below) that the Covered Digital Collectible (as defined below) will function on the .SWOOSH Services substantially in accordance with the specifications for the applicable Covered Digital Collectible, under normal operating conditions, during the Warranty Period (as defined below) (the foregoing warranty, the “Limited Warranty”).  We will honor any Warranty Claims (as defined below) submitted in accordance with this Section 7(k); provided, that, we may deny your Warranty Claim with respect to a particular Digital Collectible if you are not a Covered Purchaser (as defined below), if the Digital Collectible is not a Covered Digital Collectible (as defined below), if the Issue (as defined below)occurs or becomes apparent following expiration of the Warranty Period (as defined below), if Warranty Claim submitted following the expiration of the Warranty Period (as defined below), or if a Limited Warranty Exclusion (as defined below) applies.

              i.            Covered Digital Collectible.  This Limited Warranty extends only to Digital Collectibles purchased on or through the .SWOOSH Services (each, a “Covered Digital Collectible”).

             ii.            Covered Purchasers.  This Limited Warranty extends only to a purchaser of a Covered Digital Collectible which has direct control over the NFT associated with such Covered Digital Collectible (any of the foregoing, a “Covered Purchaser”).  A purchaser who no longer holds the NFT associated with the applicable Covered Digital Collectible, is not entitled to make a Warranty Claim (as defined below), nor to request a remedy. This Limited Warranty does not apply with respect to any person other than a Covered Purchaser.

           iii.            Warranty Period.  This Limited Warranty starts on the date of transfer of the associated NFT for a Covered Digital Collectible by Nike, to the original purchaser of the Covered Digital Collectible and lasts for one (1) year (the “Warranty Period”).  Any Covered Digital Collectible repaired or replaced under this Limited Warranty will be covered by the terms of this Limited Warranty solely for the remaining Warranty Period.  

           iv.            Exclusions.  This Limited Warranty will not apply: (1) to any failure to function in accordance with the applicable specifications (“Issue”), if the Issue is caused by any act of God, natural disaster, lightening, flooding, tornado, earthquake, fire, power grid or network outage, war, riot or other civil unrest, pandemic, or other event beyond the reasonable control of Nike; (2) to any Issue which occurs or becomes apparent following expiration of the Warranty Period; (3) with respect to any Warranty Claim submitted following the expiration of the Warranty Period; (4) if the Issue is caused by any third party network, service, platform or technology, including without limitation any Third Party Materials (as defined below) and any network, service, platform or technology provided by any External Providers; (5) if the Issue is caused by improper installation or operation of the Covered Digital Collectible or any technology needed to operate the Covered Digital Collectible; (6) to any Covered Digital Collectible purchased or used outside of the Authorized Territories; (7) if the Issue is caused by a failure by the Covered Purchaser to implement any correction, modification, enhancement, improvement, or other update made available to the Covered Purchaser by Nike; (6) to use of the Covered Digital Collectible with platforms or services not provided or otherwise authorized in writing by Nike; (8) to any Additional Benefit; (9) to any benefit, attribute, feature, function or Additional Benefit of a Product that has been used or consumed by a prior holder; (10) to Products other than the Covered Digital Collectibles.  Each of the foregoing exclusions is a “Limited Warranty Exclusion.

             v.            Remedies.  If at any time during the Warranty Period the Covered Digital Collectible fails to conform to the Limited Warranty and is not otherwise subject to a Limited Warranty Exclusion, as determined solely by Nike, Nike will, at Nike’s discretion, use commercially reasonable efforts to resolve the Issue.  The foregoing sets forth Nike’s entire liability and your sole and exclusive remedy for any breach of warranty under Section 7 or any other defect or deficiency in the Digital Collectible. 

           vi.            Submitting a Warranty Claim.  If a Covered Digital Collectible fails to conform to the Limited Warranty during the Warranty Period and is not otherwise subject to a Limited Warranty Exclusion, please submit a claim within the Warranty Period by contacting us via our Get Help page (a “Warranty Claim”).  In connection with your Warranty Claim, you may be asked to provide, among other information: (i) your name, company name, address, email address, and telephone number; (ii) a copy of your receipt, bill of sale, or other comparable proof of purchase for the defective Covered Digital Collectible; and (iii) a written description of the problem. 

         vii.            Review of Warranty Claim.  Following receipt of your Warranty Claim submitted with required information in accordance with the procedure set forth above, Nike will review the Warranty Claim and determine whether any additional information is necessary.  After you have submitted any additional information requested by Nike, Nike will review your Warranty Claim.  Nike reserves the right to determine whether or not the Covered Digital Collectible is defective and whether or not the Limited Warranty applies in Nike’s sole discretion.  Nike will provide notice to you of Nike’s decision to try to resolve the Issuer or issue you a replacement product.

       viii.            Disclaimers.  This Limited Warranty provides you with certain legal rights, but you may have additional legal rights which vary by jurisdiction.  The disclaimer of warranties set forth in Section 19, below, applies to any Digital Collectibles and is part of the terms of sale for the Digital Collectibles.  We limit the duration and remedies of all implied warranties with respect to the Covered Digital Collectibles not disclaimed pursuant to these Terms, including without limitation the warranties of merchantability and fitness for a particular purpose, to the duration of this Limited Warranty.  Our responsibility for defective Covered Digital Collectibles is limited to repair or replacement as described in this Section 7.

8.     Other Terms Applicable to Digital Collectibles

(a)    Representations; Warranties; Guaranties.  When you purchase or otherwise acquire any Digital Collectible through the .SWOOSH Services, you represent, warrant, guaranty and agree to the following:

              i.            you are acquiring the Digital Collectible solely for consumptive use in connection with the .SWOOSH Services or for your own personal collection, use, and enjoyment, and not for distribution;

             ii.            you are not acquiring the Digital Collectible as an investment and you have no expectation of economic benefit or profit as a holder of the Digital Collectible;

           iii.            you are acquiring the Digital Collectible for your own use and not with a present intention or view to sell the Digital Collectible to anyone else;

           iv.            you will not acquire any equity or other ownership or legal interest in Nike or any other entity by virtue of owning any Digital Collectible;

             v.            you will not promote or portray any Digital Collectible as an investment or an opportunity to obtain an economic benefit or profit (including, without limitation, on the .SWOOSH Marketplace);

           vi.            you have an adequate understanding of the functionality and characteristics of the Digital Collectible;

         vii.            your acquisition and use of the Digital Collectible complies with applicable laws and regulations in your jurisdiction, including, without limitation, legal capacity, regulatory restrictions and governmental consents;

       viii.            you will not use the Digital Collectible for any illegal purpose or for any kind of wagering, betting or gambling; and

           ix.            you will comply with applicable tax obligations arising from your acquisition of the Digital Collectible.

(b)   Storage of Digital Collectibles.  We do not offer a hosted digital wallet on the .SWOOSH Services or otherwise hold, or take custody of, Digital Collectibles for you or any other user. You will be required to link an External Wallet before you will be able to purchase or receive any Digital Collectibles through the .SWOOSH Services.  You will be responsible for safekeeping the password associated with your External Wallet and for compliance with the Provider Terms applicable to your External Wallet.  Do not expect Nike to be able to recover Digital Collectibles for you in the event that you lose access to your External Wallet or under any other circumstances.

(c)    Limitations on Transfer of Digital Collectibles.  Transfer of a Digital Collectible is effected by transfer of the associated NFT.  Notwithstanding anything in the Digital Collectible Terms, Digital Collectibles may not be transferable by you for a period of time after being transferred to your External Wallet.  For particular types of Digital Collectibles (for example and without limitation your .SWOOSH ID and other Solebound Digital Collectibles) transfer of the associated NFT (i) to a third party, (ii) to a wallet that cannot be confirmed by Nike as a wallet that is controlled by you, or (iii) from a wallet Nike has specified in which the NFT is to be held, may result in termination of all license rights hereunder with respect to the Related Content for the applicable Digital Collectible, Nike changing the Related Content so that it no longer displays the original Related Content or any Related Content, or other steps as determined by Nike in accordance with and pursuant to the applicable Digital Collectible Terms.

(d)   Blockchain Protocol; Wallet Compatibility.  The Digital Collectibles are currently available only on the Polygon Blockchain.  In the event that you transfer a Digital Collectible to a digital wallet that is not compatible with the Polygon Blockchain, your Digital Collectible may be lost, destroyed or otherwise become unavailable to you.

(e)   Assumption of Risk.  You assume all risks associated with any Digital Collectibles acquired by you through the .SWOOSH Services, including without limitation the risks described in this Section 9(e). 

Like physical collectibles, the price of Digital Collectibles may be subject to fluctuation based upon broader industry trends and sentiment.  Legislative and regulatory changes or actions at the state, federal, or international level may adversely affect the use, transfer, exchange, and value of Digital Collectibles.  Unlike cryptocurrencies and other fungible digital assets, Digital Collectibles and the associated NFTs are not used to make payments.  Digital Collectibles and the associated NFTs are not mutually interchangeable and cannot be divided into smaller parts.  These design features limit the usefulness of Digital Collectibles or associated NFTs as a form of payment or substitute for currency.  Instead, Digital Collectibles are enjoyed as a collectible digital asset.

Although many users have no interest in parting with their Digital Collectibles, should you ultimately decide in the future to trade or sell your Digital Collectible, you understand that your Digital Collectible is unique, and the value of your Digital Collectible is solely dependent on another person’s interest in your unique Digital Collectible and what that person would be willing to trade for it or spend to purchase it.  You understand that the value of your unique Digital Collectible is driven by many factors outside of your control and outside of our control, such as a buyer’s own connection and affinity with your unique Digital Collectible, the general interest in the Related Content (which can increase or decrease over time), general interest in collectibles (both physical and digital) overall, and many other factors.  Given the above factors, you understand there is no guarantee that, should you ultimately want to sell or trade your unique Digital Collectible, you will be able to find a buyer for it or a person to trade with for your Digital Collectible, and if you are able to find a buyer or person to trade with, there is no guarantee that value of what you receive or the price you receive will be higher or lower at any time as compared to what you perceive as your value or what you spent or traded for to obtain your Digital Collectible.

Any future value of a Digital Collectible is not something that we or any third party can control or will attempt to control or influence.  We are not responsible for sustained losses due to vulnerability or any kind of failure, abnormal behavior of software (e.g., wallet, smart contract), the applicable blockchain or other third party service or infrastructure, including External Wallets and External Wallet Providers, or any other features of Digital Collectibles.  We are not responsible for sustained losses due to late reports by developers or representatives (or no report at all) of any issues with the applicable blockchain supporting Digital Collectibles including forks, technical node issues or any other issues having fund losses as a result.

(f)     Additional Benefits.  Products, content, Promotions (as defined below) or services made available on the .SWOOSH Services (or through other means) may be an “Additional Benefit” (as that term is defined in the {{agreement:NvsDigCollectible:Digital Collectible Terms}}).  Per the applicable definition, none of Nike or any third party has any obligation to provide any Additional Benefit with respect to any Digital Collectible.  As such, none of Nike or any third party will have any responsibility or liability to provide, or for failing to provide, any Additional Benefit to any Digital Collectible holder.

Any digital works of authorship or other content made available through the .SWOOSH Services to a holder of a Digital Collectible that is intended as an Additional Benefit will be identified as such on the .SWOOSH Services or at the time of download.  Any such content will be licensed to you for as long as you are the holder of the applicable Digital Collectible pursuant to the terms of any license presented at the time of download or, if no such terms are presented, pursuant to the applicable {{agreement:NvsDigCollectible:Digital Collectible Terms}} as Related Content for that particular Digital Collectible.  Any other digital works of authorship and other content made available through the .SWOOSH Services is part of the Services and no license rights are granted to you with respect to any such content.

9.        Services Available Only to Specific Digital Collectible Owners

Certain .SWOOSH Services may be made available exclusively to the owner of a particular Digital Collectible or a combination of particular Digital Collectibles.  You may be required to demonstrate ownership of the associated NFT for the applicable Digital Collectible (and not be in breach of these Terms or the {{agreement:NvsDigCollectible:Digital Collectible Terms}}) in order to access these .SWOOSH Services.  Without limiting any other right to terminate or suspend .SWOOSH Services under these Terms, we may terminate your access or use of these .SWOOSH Services in the event that you transfer the applicable Digital Collectible or associated NFT to someone else.  

10.      Promotions

Any sweepstakes, contests, raffles, surveys, games, or similar promotions (collectively, “Promotions”) made available on or through the .SWOOSH Services may be governed by rules that are separate from these Terms.  If you participate in any Promotions, please review the applicable rules as well as our {{agreement:NvsPrivacyPolicy:.SWOOSH Privacy Policy}}.  If the rules for a Promotion conflict with these Terms, the Promotion rules will govern.

11.     Fees

In addition to any amounts payable to Nike for purchase of Products or otherwise under the applicable Terms of Sale, you agree to pay Nike the amounts set forth on the fee schedule applicable to the .SWOOSH Services as well as any applicable taxes.  Any taxes payable with respect to the purchase of any Products or .SWOOSH Services will be reflected on the checkout page at the time of payment.  Nike may modify its fees from time to time by publishing an updated fee schedule on the .SWOOSH Services and such updated fee schedule will apply to any Transactions or other activities occurring after the updated fee schedule is published. 

12.    Ownership; Limited License

The .SWOOSH Services, including the text, graphics, images, photographs, videos, illustrations, and other content contained therein as well as the Related Content for all Digital Collectibles, and all intellectual property rights therein and thereto, are owned by Nike or our licensors and are protected under both United States and foreign laws.  Except as explicitly stated in these Terms, all rights in and to the .SWOOSH Services and the Related Content for all Digital Collectibles, including all intellectual property rights therein and thereto, are reserved by us or our licensors.  Subject to your compliance with these Terms (including Sections 4 and 5), you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our .SWOOSH Services for your own personal, noncommercial use.  Any use of the .SWOOSH Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein and violate our or our licensor’s intellectual property rights.

13.    Trademarks

NIKE, the Swoosh design, and our other logos, product or service names, slogans, and the look and feel of the .SWOOSH Services are trademarks of Nike and may not be copied, imitated or used, in whole or in part, without our prior written permission.  All other trademarks, registered trademarks, product names, and company names or logos mentioned on or in connection with the .SWOOSH Services are the property of their respective owners.  Reference to any products, .SWOOSH Services, processes, or other information by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation by us.

14.    Feedback

You may voluntarily post, submit, or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials, or other information about Nike or the .SWOOSH Services (collectively, “Feedback”).  You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including to develop, copy, publish, or improve the Feedback or .SWOOSH Services, or to improve or develop new products or services in Nike’s sole discretion.  Nike will exclusively own all improvements to, or new, Nike products, .SWOOSH Services or other products or services based on any Feedback.  You understand that Nike may treat Feedback as nonconfidential.

15.   Repeat Infringer Policy; Copyright Complaints

(a)    Our Policy.  In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, the accounts of users who repeatedly infringe the intellectual property rights of others (our “Copyright Policy”).

(b)   Reporting Claims of Copyright Infringement.  If you believe that any content on the .SWOOSH Services infringes any copyright that you own or control, you may notify Nike’s designated agentat:

Designated Agent:      Legal Department (Copyright)

Address:                      One Bowerman Dr.,

                                    Beaverton, OR 97005

Telephone Number:    503-671-6453

Email Address:            copyright.legal@nike.com

If you are submitting a notice under the DMCA (your notification, a “DMCA Notice”), please see Section 512(c)(3) of the DMCA for the requirements of a proper notification.  If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your notice may not be effective.  If you knowingly materially misrepresent that any activity or material on the .SWOOSH Services is infringing, you may be liable to Nike for certain costs and damages.

(c)    Our Response to DMCA Notices.  Upon receipt of a DMCA Notice meeting the requirements of Section 512(c)(3) of the DMCA, we may (i) remove or disable access to the allegedly infringing content (the “Allegedly Infringing Content”), (ii) take reasonable steps to notify the user who provided the Allegedly Infringing Content (the “Allegedly Infringing User”) that access to the Allegedly Infringing Content has been disabled or the Allegedly Infringing Content has been removed, (iii) notify the party who provided the DMCA Notice with respect to the Allegedly Infringing Content (the “Original Complaining User”) of any counter notifications that we receive in accordance with Section 16(d) from the Allegedly Infringing User, and (iv) replace or restore the Allegedly Infringing Content in accordance with Section 16(e).  In accordance with our Copyright Policy, if we determine that the Allegedly Infringing User has provided Allegedly Infringing Content numerous times on or through the .SWOOSH Services, we may also terminate the account of such user or terminate the ability of such user to add content to the .SWOOSH Services.

(d)   Counter Notices.  If you believe that your content was removed or disabled in accordance with this Section 16 by mistake or misidentification, you may send a counter notice to our designated agent as specified above (your counter notice, a “DMCA Counter Notice”).  Please see Section 512(g)(3) of the DMCA for the requirements of a proper counter notification.  If you knowingly materially misrepresent that any content on the .SWOOSH Services was removed or disabled by mistake or misidentification, you may be liable to Nike for certain costs and damages.

(e)   Our Response to DMCA Counter Notices.  When Nike receives a DMCA Counter Notice meeting the requirements of Section 512(g)(3) of the DMCA with respect to any Allegedly Infringing Content, Nike may send a copy of the DMCA Counter Notice to the Original Complaining User informing that user that we will replace or restore the Allegedly Infringing Content.  Unless our designated agent described in Section 16(b) receives notice that the Original Complaining User files an action seeking a court order against the Allegedly Infringing User within fourteen (14) business days of receiving the copy of the Allegedly Infringing User’s DMCA Counter Notice, we may restore the removed or disabled content.

16.    Third-Party Services

The .SWOOSH Services rely on or interoperate with third-party products and services, including, without limitation, External Wallets, data storage services, blockchains, communications technologies, IoT platforms, third-party app stores, and internet and mobile operators (collectively, “Third-Party Materials”).  These Third-Party Materials are beyond our control, but their operation may impact, or be impacted by, the use and reliability of the .SWOOSH Services.  You acknowledge that (a) the use and availability of the .SWOOSH Services is dependent on third-party product vendors and service providers and (b) these Third-Party Materials may not operate reliably 100% of the time, which may impact the way that the .SWOOSH Services operate.

We may further provide information about or links to third-party products, services, activities, or events, or we may allow third parties to make their content and information available on or through the .SWOOSH Services (collectively, “Third-Party Content”).  We provide Third-Party Content as a service to those interested in such content.  Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party.

We have no obligation to monitor Third-Party Materials or Third-Party Content, and we may block or disable access to any Third-Party Materials or Third-Party Content (in whole or part) through the .SWOOSH Services at any time.  Your access to and use of such Third-Party Content or Third-Party Materials may be subject to additional terms, conditions, and policies applicable to such Third-Party Content (including terms of service or privacy policies of the providers of such Third-Party Materials).  You are responsible for obtaining and maintaining any computer hardware, equipment, network services and connectivity, telecommunications services, and other products and services necessary to access and use the .SWOOSH Services.

17.      Indemnification

To the fullest extent permitted by applicable law, you will indemnify, defend, and hold harmless Nike (including its affiliates) and each of our respective officers, directors, agents, partners, and employees (individually and collectively, the “Nike Parties”) from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising out of or related to (a) your access to or use of the .SWOOSH Services; (b) your User Content or Feedback; (c) your violation of these Terms; (d) your violation, misappropriation, or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with the .SWOOSH Services.  You will promptly notify Nike of any third-party Claims, cooperate with Nike in defending such Claims, and pay all fees, costs, and expenses associated with defending such Claims (including attorneys’ fees).  The Nike Parties will have control of the defense or settlement, at Nike’s sole option, of any third-party Claims.  This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Nike or the other Nike Parties.

18.    Disclaimers

Your use of the .SWOOSH Services and any content or materials provided therein or therewith (including the Third-Party Content and Third-Party Materials) is at your sole risk.  Except as otherwise provided in a writing by us and to the fullest extent permitted under applicable law, the .SWOOSH Services, and any content or materials provided therein or therewith (including the Third-Party Content and Third-Party Materials) are provided “as is” and “as available” without warranties of any kind, either express or implied.  Nike disclaims all warranties with respect to the foregoing, as well as all warranties not set forth in the Limited Warranty for Covered Digital Products or applicable terms of sale for other Products, including implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement.  In addition, Nike does not represent or warrant that the .SWOOSH Services or any content provided therein or therewith (including the Third-Party Content and Third-Party Materials) are accurate, complete, reliable, current, or error-free or that access to the .SWOOSH Services or any content provided therein or therewith (including the Third-Party Content and Third-Party Materials) will be uninterrupted.  While Nike attempts to make your use of the .SWOOSH Services and any content provided therein or therewith (including the Third-Party Content and Third-Party Materials) safe, we cannot and do not represent or warrant that the .SWOOSH Services or any content provided therein or therewith (including the Third-Party Content and Third-Party Materials) or our servers are free of viruses or other harmful components or content or materials.  You assume the entire risk as to the quality and performance of the .SWOOSH Services and any content provided therein or therewith (including the Third-Party Content and Third-Party Materials).  All disclaimers of any kind (including in this section and elsewhere in these Terms) are made for the benefit of Nike, Nike Parties, and Nike’s respective shareholders, agents, representatives, licensors, suppliers, and service providers, as well as their respective successors and assigns.

19.     Limitation of Liability

(a)   To the fullest extent permitted by applicable law, Nike and the other Nike Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, strict liability, warranty, or otherwise—for any indirect, consequential, exemplary, incidental, punitive, special or similar damages or lost profits, even if Nike or the other Nike Parties have been advised of the possibility of such damages.

(b)   The total liability of Nike and the other Nike Parties for any claim arising out of or relating to these Terms, the .SWOOSH Services or any Products, regardless of the form of the action, is limited to the greater of $100 or the amount paid by you to use the affected .SWOOSH Services or for the affected Product, as applicable.

(c)    The limitations set forth in this Section 20 will not limit or exclude liability for the gross negligence, fraud, or intentional misconduct of Nike or the other Nike Parties or for any other matters in which liability cannot be excluded or limited under applicable law.  Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.

20.     Release

To the fullest extent permitted by applicable law, you release Nike and the other Nike Parties from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties.  If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which provides: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”

21.   Governing Law

Any Claims will be governed by and construed and enforced in accordance with the laws of the State of New York, except to the extent preempted by U.S. Federal Law, without regard to conflict of law rules or principles (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any other jurisdiction.  The state and federal courts located in the boroughs of Brooklyn (Kings County) or Manhattan (New York County) in the state of New York, will have exclusive jurisdiction.  You and Nike waive any objection to venue in any such courts.  If your local law requires that consumer contracts be interpreted subject to local law and enforced in the courts of that jurisdiction, this section may not apply to you only to the extent that local law conflicts with this section.

One Year to Assert Claims.  To the extent permitted by law, any Claim by you or Nike relating in any way to these Terms, the .SWOOSH Services or any Products, or any aspect of the relationship between you and Nike as relates to these Terms, the .SWOOSH Services or any Products, must be filed within one (1) year after such Claim arises; otherwise, the Claim is permanently barred, which means that you and Nike will not have the right to assert the Claim.

22.    Modifying and Terminating The .SWOOSH Services

We reserve the right to modify the .SWOOSH Services or to suspend or terminate providing all or part of the .SWOOSH Services at any time; charge, modify, or waive any fees required to use the .SWOOSH Services; or offer opportunities to some or all end users of the .SWOOSH Services.  We may provide you with notice in advance of the suspension or discontinuation of all or part of the .SWOOSH Services, such as by sending an email or providing a notice through the .SWOOSH Services.  All modifications and additions to the .SWOOSH Services will be governed by the Terms or Supplemental Terms, unless otherwise expressly stated by Nike in writing.  You also have the right to stop using the .SWOOSH Services at any time.  We are not responsible for any loss or harm related to your inability to access or use our .SWOOSH Services.

23.    Severability

If any portion of these Terms is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (a) the unenforceable or unlawful provision will be severed from these Terms; (b) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of these Terms; and (c) the unenforceable or unlawful provision may be revised to the extent required to render the Terms enforceable or valid, and the rights and responsibilities of the parties will be interpreted and enforced accordingly, so as to preserve the Terms and the intent of the Terms to the fullest possible extent.

24.    Export Control

You are responsible for compliance with United States export controls and for any export controls in the country where you live, as well as for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports.

25.   Miscellaneous

(a)    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.

(b)   These Terms reflect the entire agreement between the parties relating to the subject matter hereof and supersede all prior agreements, representations, statements, and understandings of the parties.  

(c)    The section titles in these Terms are for convenience only and have no legal or contractual effect.  Use of the word “including” will be interpreted to mean “including without limitation.”  Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity.  

(d)   Communications and transactions between us may be conducted electronically.

(e)   These Terms do not, and may not be construed to, create any partnership, joint venture or agency between you and Nike.

(f)     Nike may assign or transfer its rights and obligations under these Terms.  You may not assign or transfer any rights or obligations under these Terms (including for avoidance of doubt any Terms of Sale) without prior written consent of Nike.  Any purported assignment or transfer by you in violation of this provision will be null and void.

(g)    An “Event Outside Our Control” means any act or event beyond our reasonable control, including without limitation strikes, lock-outs or other industrial action by third parties, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic, or other natural disaster, or failure of public or private telecommunications networks.

If an Event Outside Our Control takes place that affects the performance of our obligations under these Terms:

                    i.            We will contact you as soon as reasonably possible to notify you; and

                   ii.            Our obligations under these Terms will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control.

(h)   If you have a question or complaint regarding the .SWOOSH Services, please contact us via our Get Help page.  Please note that email communications will not necessarily be secure; accordingly, you should not include payment card information or other sensitive information in any email correspondence with us.  Further, under California Civil Code Section 1789.3, California consumers are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer .SWOOSH Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite N-112, Sacramento, California 95834, or by telephone at 1 (800) 952-5210.

 

Appendix 1 - EU/UK-Specific Terms

If you are based in the EU or UK, these EU/UK-Specific Terms apply.  

For any questions related to these Terms, please contact us via the contact us section on our Get Help page.

Section 4(b): Ownership; License:  Section 4(b) is supplemented with the following additional terms:

If in any proceeding to enforce the perpetual license grant set forth in Section 4(b) an applicable court or other governmental authority in the EU or UK refuses to enforce the perpetual license term notwithstanding the provisions of the Terms, then the Terms shall be applied by such court or other governmental authority for the maximum duration permitted under applicable law.  If in any proceeding to enforce the waiver of moral rights set forth in Section 4(b), an applicable court or other governmental authority in the EU or UK refuses to enforce the waiver of moral rights notwithstanding the provisions of the Terms, then the Terms shall be applied by such court or other governmental authority so as to ensure that Nike is permitted to exercise the license rights granted by you without limitation to the maximum extent permitted by applicable law.

Section 4(e): Removal; the last paragraph of Section 4(e) is replaced with the following provision:

If you become aware of any User Content that breaches these Terms, please contact us via our Get Help page, providing your details (including your name and email address), along with details of: (i) the date and time it was posted; (ii) where it is on the .SWOOSH Site; (iii) the username/.SWOOSH ID of the person who posted it; (iv) reasons why the User Content should be deleted, along with evidence for this; (v) copies of any communication with the person who posted it (if any); and (vi) a statement confirming your belief that the information you have provided is true and accurate.

Section 6(d): Product Descriptions:  Section 6(d) is replaced with the following provision:

(d)               Product Descriptions.  We attempt to ensure that the listings, descriptions, and images of Products, as well as references and links to Products and coupons or discounts for Products (“Product Descriptions”) made available for purchase through the .SWOOSH Services are complete, accurate, and current, but despite our efforts, the Product Descriptions may occasionally be inaccurate, incomplete, or out of date.  Such Product Descriptions and the availability of any Product (including the validity of any coupon or discount) are subject to change at any time without notice.  Certain weights, measures, and similar descriptions are approximate and are for convenience only.  We make reasonable efforts to accurately display the attributes of Products, including the applicable colors; however, the actual colors you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors.

Section 7: Terms of Sale for Digital Collectibles:  Sections 7(i), 7(k) preamble and subs (ii), (iii), (iv), (v), (vi), (vii) and (viii) are replaced with the following provisions:

(i) No Refunds or Exchanges.  All sales of Digital Collectibles are final. There will be no refunds or exchanges, unless required by applicable mandatory law.

(k) Preamble: Limited Warranty.  Nike warrants to the Covered Purchaser (as defined below) that the Covered Digital Collectible (as defined below) will function on the .SWOOSH Services substantially in accordance with the specifications for the applicable Covered Digital Collectible, under normal operating conditions, during the Warranty Period (as defined below) (the foregoing warranty, the “Limited Warranty”).  We will honor any Warranty Claims (as defined below) submitted in accordance with this Section 7(k); provided, that, we may deny your Warranty Claim with respect to a particular Digital Collectible if you are not a Covered Purchaser (as defined below), if the Digital Collectible is not a Covered Digital Collectible (as defined below), if the relevant Issue (as defined below) occurs or becomes apparent following expiration of the Warranty Period (as defined below), if the Warranty Claim is submitted following the expiration of the Warranty Claim Period (as defined below), or if a Limited Warranty Exclusion (as defined hereafter) applies. The “Warranty Claim Period” starts on the date of delivery of the Digital Collectible and lasts for two (2) years, or, if mandatory applicable law requires a longer limitation period, as long as required by such applicable mandatory law.

(k) (ii) Covered Purchasers.  This Limited Warranty extends only to a purchaser of a Covered Digital Collectible which has direct control over the NFT associated with such Covered Digital Collectible (any of the foregoing, a “Covered Purchaser”). A purchaser who no longer holds the NFT associated with the applicable Covered Digital Collectible, is not entitled to make a Warranty Claim (as defined below), nor to request a remedy. This Limited Warranty does not apply with respect to any person other than a Covered Purchaser.

Sub (k) (iii) Warranty Period.  The Limited Warranty starts:

(a) For NFTs: on the date of transfer of the NFT by Nike (the “Commencement Date”) to  the Covered Purchaser, and lasts for two (2) years, or, if mandatory applicable law requires a longer warranty period or, if applicable, as long as required by such applicable mandatory law.

(b) For Related Content: on the Commencement Date (as defined in sub (a) above) and lasts for the duration of the license granted to you by Nike in the applicable Digital Collectible Terms.

Hereafter the periods under (a) and (b) will be referred to as the “Warranty Period” for the relevant parts Covered Digital Collectibles.

Any Covered Digital Collectible brought into conformity under this Limited Warranty will be covered by the terms of this Limited Warranty solely for the remaining Warranty Period.

Sub (k) (iv) Exclusions. This Limited Warranty will not apply: (1) to any failure of the Covered Digital Collectible to function on the .SWOOSH Services substantially in accordance with the applicable specifications (“Issue”), if the Issue is caused by any act of God, natural disaster, lightening, flooding, tornado, earthquake, fire, power grid or network outage, war, riot or other civil unrest, pandemic, or other event beyond the reasonable control of Nike; (2) to any Issue which (i) in relation to NFTs: did not exist at the time of supply to the Covered Purchaser; or (ii) in relation to Related Content: did not occur during the Warranty Period; (3) to any Issue which did not become apparent during the Warranty Period; (4) to any Warranty Claim submitted following the expiration of the Warranty Claim Period; (5), if the Issue is caused by any third party network, service, platform or technology, including without limitation any Third Party Materials (as defined below) and any network, service, platform or technology provided by any External Providers; (6) if the Issue is caused by improper installation or operation of the Covered Digital Collectible, unless insofar the Issue is caused by our improper instructions for installation or operation, or any technology needed to operate the Covered Digital Collectible; (7) to any Covered Digital Collectible purchased or used outside of the Authorized Territories; (8) if the Issue is caused by a failure by the Covered Purchaser to implement any correction, modification, enhancement, improvement, or other update disclosed and made available to the Covered Purchaser by Nike; (8) to use of the Covered Digital Collectible with platforms or services not provided by Nike or otherwise authorized in writing by Nike; (10) to any Additional Benefit; (11) to any benefit, attribute, feature, function or Additional Benefit of a Product that has been used or consumed by a prior holder; (12) to Products other than the Covered Digital Collectibles.  Each of the foregoing exclusions is a “Limited Warranty Exclusion.

Sub (k) (v) Remedies. If at any time during the Warranty Period an Issue becomes apparent as a result whereof the Covered Digital Collectible fails to conform to the Limited Warranty and is not otherwise subject to a Limited Warranty Exclusion, during the Warranty Claim Period the Covered Purchaser may request Nike in a Warranty Claim to bring the Covered Digital Collectible into conformity with the Limited Warranty within a reasonable time period and free of costs, unless this would be impossible or would impose disproportionate costs on Nike, given all circumstances of the case. If applicable mandatory law provides the Covered Purchaser of a Covered Digital Collectible with additional remedies for any lack of conformity of the Covered Digital Collectible during the Warranty Period, during the Warranty Claim Period the Covered Purchaser may also request Nike to apply these legal remedies, provided all conditions for invoking such remedies under applicable law are met.

The foregoing sets forth solely and exclusively .SWOOSH Account Holder’s remedies for any breach of warranty under Section 7 or any other Issue, defect or deficiency in the Digital Collectible.

Sub (k) (vi) Submitting a Warranty Claim.  If at any time during the Warranty Period an Issue becomes apparent as a result whereof the Covered Digital Collectible fails to conform to the Limited Warranty and is not otherwise subject to a Limited Warranty Exclusion, please submit a claim during the Warranty Claim Period by contacting us via our Get Help page. (a “Warranty Claim”).  In connection with your Warranty Claim, you may be asked to provide, among other information: (i) your name, company name, address, email address, and telephone number; (ii) a copy of your receipt, bill of sale, or other comparable proof of purchase for the defective Covered Digital Collectible; and (iii) a written description of the problem and (iv) the remedy requested by you in accordance with Section 7 (k) sub (v). At Nike’s request you will provide your reasonable cooperation to Nike to ascertain whether the cause of the Issue lay in your digital environment. If (i) the Issue becomes apparent during the Warranty Period but after expiry of the statutory lack of conformity presumption period as provided under applicable mandatory law; or (ii) Nike demonstrates that your digital environment is not compatible with the technical requirements for the Covered Digital Collectible disclosed to you, you may also be asked to provide proof that the Covered Digital Collectible was not in conformity with the Limited Warranty (i) for NFTs: at the time of supply of the NFT; or (ii) for Related Content: during the license period of the license granted to you by Nike granted under the Digital Collectible Terms for the Related Content.

Sub (k) (vii) Review of Warranty Claim.  Following receipt of your Warranty Claim submitted with required information in accordance with the procedure set forth above, Nike will review the Warranty Claim and determine whether any additional information is necessary.  After you have submitted any additional information requested by Nike, Nike will review your Warranty Claim to determine whether or not the Covered Digital Collectible was defective at the time of supply of the NFT respectively during the applicable license period for the Related Content, whether or not the Limited Warranty applies and, if so, whether the remedy requested by you should or can be applied or Nike will apply another remedy in accordance with applicable law. Nike will provide notice to you of Nike’s decision to accept or reject the Warranty Claim, and in case it accepts your Warranty Claim, the remedy that will be applied.

Sub (k) (viii) Disclaimers.  This Limited Warranty provides you with certain legal rights, but you may have additional legal rights which vary by jurisdiction. The disclaimer of warranties set forth in Section 19, below, applies to any Digital Collectibles and is part of the terms of sale for the Digital Collectibles.  We limit the duration and remedies of all implied warranties with respect to the Covered Digital Collectibles not disclaimed pursuant to these Terms, including without limitation the warranties of merchantability and fitness for a particular purpose, to the duration of the Warranty Period and the remedies of this Limited Warranty.

Section 7: Terms of Sale for Digital Collectibles:  The following additional subsections are added to Section 7:

(l)      Your right of withdrawal.  Under applicable law in the EU/UK, consumers may have the right to withdraw from the purchase of certain goods and services (including digital services, software, and other digital content) within a specified period of time, usually fourteen (14) days.

However, the right of withdrawal is subject to certain exceptions under applicable law.  One such exception is that the right of withdrawal does not apply to contracts relating to the supply of digital content, where that digital content is not supplied on a tangible medium (as is the case with the Digital Collectibles supplied by Nike through the .SWOOSH Platform).  This exception applies where performance of the contract for the supply of digital goods has already begun and the consumer has consented to the contract beginning straight away.

As such, when you initiate a purchase of a Digital Collectible through the .SWOOSH Platform, you agree to the following terms:

                    i.            you agree that transfer of the NFT associated with the Digital Collectible represents the immediate performance of the contract; and

                   ii.            you acknowledge that you therefore lose the right of withdrawal.

The right of withdrawal does not apply to any Digital Collectibles we have airdropped to you without requiring payment.  This is because we consider the performance of the contract to be immediate upon transfer of the NFT associated with the Digital Collectible.

The right of withdrawal is also not available in relation to secondary sales of digital content, so you do not have a right of withdrawal if you purchase a Digital Collectible from another user through the .SWOOSH Platform.

(m) Other Terms.

                    i.            We will not file a copy of the contract between us.

                   ii.            We are legally obliged to supply Digital Collectibles to you in a manner that conforms with the applicable terms of sale

Section 18: Indemnification: Section 18 is replaced with the following:

To the fullest extent permitted by applicable law, you will indemnify, defend, and hold harmless Nike (including its affiliates) and each of our respective officers, directors, agents, partners, and employees (individually and collectively, the “Nike Parties”) from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising out of (a) your access to or use of the .SWOOSH Services; (b) your User Content or Feedback; (c) your violation of these Terms; (d) your violation, misappropriation, or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with the .SWOOSH Services.  You will promptly notify Nike of any third-party Claims and cooperate with Nike in defending such Claims.  The Nike Parties will have control of the defense or settlement, at Nike’s sole option, of any third-party Claims.  This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Nike or the other Nike Parties.

Section 19: Disclaimers:  Section 19 is replaced with the following:

Your use of the .SWOOSH Services and any content or materials provided therein or therewith (including the Third-Party Content and Third-Party Materials) is at your sole risk.  Except as otherwise provided in a writing by us and to the fullest extent permitted under applicable law, the .SWOOSH Services, and any content or materials provided therein or therewith (including the Third-Party Content and Third-Party Materials) are provided “as is” and “as available”.  In addition, Nike does not guarantee that the .SWOOSH Services or any content provided therein or therewith (including the Third-Party Content and Third-Party Materials) are accurate, complete, reliable, current, or error-free or that access to the .SWOOSH Services or any content provided therein or therewith (including the Third-Party Content and Third-Party Materials) will be uninterrupted.  While Nike attempts to make your use of the .SWOOSH Services and any content provided therein or therewith (including the Third-Party Content and Third-Party Materials) safe, we cannot and do not guarantee that the .SWOOSH Services or any content provided therein or therewith (including the Third-Party Content and Third-Party Materials) or our servers are free of viruses or other harmful components or content or materials.

Section 20: Limitation of Liability:  Section 20 is replaced with the following:

(a)   The total liability of Nike and the other Nike Parties for any claim arising out of or relating to these Terms, the .SWOOSH Services or any Products, regardless of the form of the action, is limited to the greater of $100 or the amount paid by you to use the affected .SWOOSH Services or for the affected Product, as applicable.

(b)   The limitations set forth in this Section 20 will not limit or exclude liability for death, personal injury caused by negligence, the gross negligence, fraud, or intentional misconduct of Nike or the other Nike Parties or for any other matters in which liability cannot be excluded or limited under applicable law.

Section 21: Release: Section 21 does not apply.

Section 22: Governing Law:  Section 22 is replaced with the following provision:

You agree that the Site (including the purchase of any Product, the Terms, the App, the .SWOOSH Services and any dispute between you and Nike shall be governed in all respects by Dutch law, without regard to choice of law provisions, and not by the 1980 U.N. Convention on Contracts for the International Sale of Goods. Regardless of the above choice of law, be reminded that you will enjoy the statutory rights provided in your favour under the applicable laws in your country of residence.

Except where prohibited and without limitation to any statutory rights for consumers, you agree that all disputes, claims and legal proceedings directly or indirectly arising out of or relating to the Site (including the purchase of any Product), the Terms, the App or the .SWOOSH Services shall be resolved individually, without resort to any form of class action, and exclusively in the competent courts of Amsterdam, the Netherlands. If you reside within the EU or the United Kingdom, you may also bring a claim before the competent courts of your place of residence

Nike is committed to resolving any dispute directly with the .SWOOSH Account holder. If you have any additional questions or concerns, we invite you to contact us via our Get Help page.  In the event of a potential dispute, you may - but are not obliged to - seek resolution of that dispute with Nike, through the Online Dispute Resolution (ODR) platform, available at http://ec.europa.eu/consumers/odr/.

Two Years to Assert Claims.  Subject to any deviating limitation periods in Section 7(k), any Claim by you or Nike relating in any way to these Terms, the .SWOOSH Services or any Products, or any aspect of the relationship between you and Nike as relates to these Terms, the .SWOOSH Services or any Products, must be filed within two (2) years after such Claim arises, or, if a longer period is required by mandatory law, within such longer mandatory limitation period ; otherwise, the Claim is permanently barred, which means that you and Nike will not have the right to assert the Claim.

Section 23: Modifying and terminating the .swoosh services: Section 23 is replaced with the following provision:

We reserve the right to modify the .SWOOSH Services or to suspend or terminate providing all or part of the .SWOOSH Services at any time; charge, modify, or waive any fees required to use the .SWOOSH Services; or offer opportunities to some or all end users of the .SWOOSH Services.  We may provide you with notice in advance of the suspension or discontinuation of all or part of the .SWOOSH Services, such as by sending an email or providing a notice through the .SWOOSH Services.  All modifications and additions to the .SWOOSH Services will be governed by the Terms or Supplemental Terms, unless otherwise expressly stated by Nike in writing.  You also have the right to stop using the .SWOOSH Services at any time.  To the fullest extent permitted under applicable mandatory law, we are not responsible for any loss or harm related to your inability to access or use our .SWOOSH Services.

Section 26: Miscellaneous: Section 26(h) is hereby replaced with the following provision:

If you have a question or complaint regarding the .SWOOSH Services, please contact us via our Get Help page.  Please note that email communications will not necessarily be secure; accordingly, you should not include payment card information or other sensitive information in any email correspondence with us. 

Country specific terms

If you are located in one of the following countries, the additional terms below will apply and override any inconsistent terms set forth above.

Germany or Poland

Section 22: Governing Law:  Section 22 is replaced with the following provision:

You agree that the Site (including the purchase of any Product), the Terms, the App, the .SWOOSH Services and any dispute between you and Nike shall be governed in all respects by Dutch law, without regard to choice of law provisions, and not by the 1980 U.N. Convention on Contracts for the International Sale of Goods. Regardless of the above choice of law, be reminded that you will enjoy the statutory rights provided in your favour under the applicable laws in your country of residence.

Except where prohibited and without limitation to any statutory rights for consumers, you agree that all disputes, claims and legal proceedings directly or indirectly arising out of or relating to the Site (including the purchase of any Product), the Terms, the App or the .SWOOSH Services shall be resolved individually, without resort to any form of class action, and exclusively in the competent courts of Amsterdam, the Netherlands. If you reside within the Germany or Poland, you may also bring a claim before the competent courts of your place of residence

We are not obliged to and will not participate in proceedings before a consumer dispute resolution (ADR) body.

France

Section 22: Governing Law:  Section 22 is replaced with the following provision:

You agree that the Site (including the purchase of any Product), the Terms, the App, the .SWOOSH Services and any dispute between you and Nike shall be governed in all respects by Dutch law, without regard to choice of law provisions, and not by the 1980 U.N. Convention on Contracts for the International Sale of Goods. Regardless of the above choice of law, be reminded that you will enjoy the statutory rights provided in your favour under the applicable laws in your country of residence.

Except where prohibited and without limitation to any statutory rights for consumers, you agree that all disputes, claims and legal proceedings directly or indirectly arising out of or relating to the Site (including the purchase of any Product), the Terms, the App or the .SWOOSH Services shall be resolved individually, without resort to any form of class action, and exclusively in the competent courts of Amsterdam, the Netherlands. If you reside within France, you may also bring a claim before the competent courts of your place of residence.

Nike is committed to resolving any dispute directly with the consumer. If you have any additional questions or concerns, we invite you to contact us via our Get Help page. If you feel your complaint is not adequately addressed you can – but are not obliged to – use the Online Dispute Resolution (ODR) platform that you can access through http://ec.europa.eu/odr.  In addition, you have the right to initiate a mediation procedure by contacting the mediator(s) as follows: Association des Médiateurs Européens (197, Boulevard Saint-Germain, 75007 PARIS, téléphone: 0953010269), http://www.mediationconso-ame.com/. The mediator(s) will attempt to, independently and impartially, reach an amicable resolution of the dispute. In case of mediation, each party is free to accept or reject the solution proposed by the mediator.

 

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