IMPORTANT! YOUR USE OF THE PLATFORM OR PURCHASE OF ANY NFTS OR ELITIUM NFT TOKENS IS SUBJECT TO LEGALLY BINDING TERMS OF SERVICE. CAREFULLY READ ALL OF THE APPLICABLE TERMS OF SERVICE AS SET OUT BELOW. IF YOU ACCEPT THESE TERMS OF SERVICE, CLICK THE “I ACCEPT” BUTTON ON THE BOX BELOW. THAT ACTION IS THE EQUIVALENT OF YOUR SIGNATURE AND INDICATES YOUR ACCEPTANCE OF THE TERMS OF SERVICE AND THAT YOU INTEND TO BE LEGALLY BOUND BY THEM. THAT ACTION SHALL ALSO BE THE EQUIVALENT OF PROVIDING US WITH ALL NECESSARY CONSENTS AS OUTLINED IN THESE TERMS OF SERVICE. IF THERE IS AN ERROR IN THE TERMS AND CONDITIONS OR IF YOU DO NOT AGREE WITH THEM, PLEASE CLICK ON THE “BACK” BUTTON OF YOUR BROWSER TO LEAVE.
ELITIUM
TERMS OF USE
Last Updated: June 2, 2021
ELITIUM is a decentralized application and marketplace operating on the Ethereum blockchain. The ELITIUM marketplace facilitates the creation, sale and purchase of unique, non-fungible assets between users on the Ethereum blockchain through smart contracts and payment facilitators.
The ELITIUM team strongly suggests to all current and potential users to familiarize themselves with blockchain technology in general, and the Ethereum blockchain in particular. Please visit the website of the Ethereum Foundation to learn more (https://ethereum.org/).
Please read these Terms of Use (“Terms”, “Terms of Use”, or “Agreement”) very carefully. This Agreement is between you (the “User(s)”, “Creator(s)”, “Collector(s),” “Owner(s)”, “you” or “your” and collectively with others using the Website - “Users”) and ELITIUM Ltd., a company that owns and operates the ELITIUM platform and organized under the laws of Gibraltar (“ELITIUM”, the “Company”, “we”, “our” or “us” and together with you, the “Parties”). These Terms govern your use of the website and application located at https://nft.ELITIUM/ (the “Website” or the “Application”), and all related tools, mobile applications, web applications, decentralized applications, smart contracts and APIs located at any of the Company’s websites, including without limitation, successor website(s) or application(s) thereto (collectively the “Platform”).
THESE TERMS SET FORTH THE LEGALLY BINDING TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE WEBSITE OR PLATFORM. BY ACCESSING OR USING THE WEBSITE, SERVICES, OR SMART CONTRACTS YOU ARE ACCEPTING THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT), AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT). IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THESE TERMS, YOU ARE PROHIBITED FROM ACCESSING, USING, OR TRANSACTING ON THE WEBSITE OR PLATFORM. YOU FURTHER REPRESENT AND WARRANT THAT YOU ARE OTHERWISE LEGALLY PERMITTED TO USE THE SERVICES IN YOUR JURISDICTION AND THAT THE COMPANY IS NOT LIABLE FOR YOUR COMPLIANCE WITH SUCH APPLICABLE LAWS.
ELITIUM IS A PLATFORM FACILITATING THE TRANSFER OF NFTS CONNECTED TO, ASSOCIATED WITH, IN RELATION TO, OR WHICH REPRESENTS AN EXPRESSION OF
DIGITAL AND PHYSICAL ART, AND POTENTIALLY OTHER ASSETS, BETWEEN USERS. WE ARE NOT A BROKER, FINANCIAL INSTITUTION, OR CREDITOR. THE SERVICES ARE AN ADMINISTRATIVE PLATFORM ONLY. ELITIUM FACILITATES TRANSACTIONS BETWEEN THE BUYER AND SELLER BUT IS NOT A PARTY TO ANY AGREEMENT BETWEEN THE BUYER AND SELLER OF DIGITAL ART OR BETWEEN ANY USERS.
We reserve the right to change or modify this Agreement at any time and in our sole discretion. If we make any material changes to this Agreement, we will provide notice of such change providing notice through the Website and updating the "Last Updated" date at the beginning of this Agreement. By continuing to access or use the Website, you confirm your acceptance of the revised Agreement and all of the terms incorporated therein by reference. We encourage you to review the Agreement frequently to ensure that you understand the terms and conditions that apply when you access or use the Website. If you do not agree to the revised Agreement, you may not access or use the Website.
The Platform is not intended to provide legal, tax, investment or insurance advice. Nothing on the Platform should be construed as an offer to sell, a solicitation of an offer to buy, or a recommendation for any financial instrument by us or any third party. Certain investment planning tools, case studies, demonstrations, sample scenarios, hypotheticals or similar information which may be available on the Website may provide general investment education based on your input. You are solely responsible for determining whether any investment, investment strategy or related transaction is appropriate for you based on your investment objectives, financial circumstances and risk tolerance. You should consult your legal, investment or tax professional regarding your specific situation. We do not make any representations regarding the benefits or results that you or any third party shall receive from the Website or any services offered or referenced therein.
Our collection and use of personal information in connection with your access to and use of the ELITIUM Platform is described in our Privacy Policy. You must read, agree to, and accept all of the terms and conditions contained in this Agreement to be a User of our Website located at https://nft.ELITIUM.io/, or any part of the rest of the Website or the Platform.
This Agreement includes and hereby incorporates by reference the following important agreements, as they may be in effect and modified from time to time: our Privacy Policy (the “Privacy Policy”), our ELITIUM NFT License that shall govern all NFT Purchases (the “ELITIUM NFT License”), and our ELITIUM
Creator Agreement (the “Creator Agreement”). These agreements are collectively, with this Agreement, called the “Terms of Service”.
1. DEFINED TERMS
The following terms are used throughout these Terms and have the specific meaning provided below:
“Account” means any account on the ELITIUM Platform;
Bid” is an offer to purchase an NFT on the ELITIUM Platform in Crypto or in any monetary amount. Any registered user on ELITIUM may place a bid on any NFT on the Platform. Collectors may also withdraw bids that have previously been placed when permitted. From time to time, placing or withdrawing
bids requires performing a transaction on the Ethereum blockchain. By using the Platform to bid on an NFT, the Collector agrees and acknowledges that a bid constitutes a legally binding offer exclusively between the NFT owner and the bidding Collector. In placing a bid, the Collector must send the bid amount to the smart contract or as otherwise specified. The seller of the NFT, which may be the original creator or another Collector, will be notified on the Platform of the bid and may accept or reject it. If the seller rejects the bid, the bid amount is transferred back to the User who placed the bid. In the case that
the seller of the NFT chooses to accept the bid, the bid amount will be transferred to the seller’s Crypto address or the specified bank account less any applicable fees (see below).
Buy it Now” is a listed price in Crypto or a dollar amount that the owner of an NFT can choose to set for an NFT. When a Collector chooses to buy an NFT at the Buy it Now price, the Collector must send the listed amount in Crypto or dollar amount, and they will receive the NFT from the Creator.
“Collector ” refers to the individual or entity that has visited the Website and/or Application and who specifically requested the Services over the Platform, for the purpose of purchasing an NFT.
Creator” refers to (i) any user or artist who has been whitelisted to tokenize NFTs on the ELITIUM Platform; (ii) any user or artist who holds all ownership interest in the NFT and all copyrights over an NFT, including the record of creation of the NFT; or (iii) any user who holds the license to resell any NFT in their possession in accordance with the terms of said license.
Collectible” means the association on Ethereum of an NFT with a Uniform Resource Identifier (“URI”) identifying an appropriately configured JSON file conforming to the ERC-721 Metadata JSON Schema, or a similar JSON schema, as applicable (such JSON file, the “Collectible ID”).
The Collectible ID of a Collectible specifies the properties of the Collectible, including the name and description of the Collectible (the “Collectible Descriptors”), a URI identifying any image file associated with the Collectible (the “Collectible Image”) and potentially other “metadata” associated with the Collectible (the Collectible Descriptors, Collectible Image and such other metadata, collectively, the “Collectible Metadata”). The Collectible Metadata for Collectibles created through the ELITIUM Platform are typically stored on IPFS. The Collectible Metadata for Collectibles created outside the ELITIUM Platform may be stored in other ways, depending on how such Collectibles were created.
There can be no guarantee or assurance of the uniqueness, originality or quality of any Collectible or Collectible Metadata. In the absence of an express legal agreement between the creator of a Collectible and purchasers of the Collectible, there cannot be any guarantee or assurance that the purchase or holding of the Collectible confers any license to or ownership of the Collectible Metadata or other intellectual property associated with the Collectible or any other right or entitlement, notwithstanding that User may rightfully own or possess the NFT associated with the Collectible.
"Content" means any and all images, text, information, data, audio, video, graphics, computer code, software, and other material provided on or through our Services, including when we send you email. Content includes both ELITIUM Content and User Content.
“Crypto” or “Cryptocurrency” refer to encrypted or digital tokens or cryptocurrencies with a certain value that are based on blockchain and cryptography technologies and are issued and managed in a decentralized form, which include Ethereum, Bitcoin, and so on.
Crypto Address” means the unique public key cryptocurrency identifier that points to a Crypto-compatible wallet to which Crypto may be sent or stored.
Crypto Wallet” is a product offered by ELITIUM which may allow you to send and receive NFTs, amongst other potential features.
Ethereum” means the Ethereum mainnet and the consensus blockchain for such mainnet (networkID:1, chainID:1) as recognized by the official Go Ethereum Collector, or, if applicable, the network and blockchain generally recognized as the legitimate successor thereto.
Fees” refers to the amounts deducted from the successful sale of an NFT. The fee structure shall be structured as follows: (i) if the NFT is being sold for the first time and the Creator is the holder of the ownership interest in the NFT by holding its record of creation or otherwise, the sale shall be considered a “Primary Sale”; or (ii) if the NFT is being sold for the second time or any other subsequent transaction by a Creator that may or may not hold any ownership interest but is licensed to resell, the sale shall be considered a “Secondary Sale”.
Primary Sales
Platform Fee: ELITIUM collects fees on the final sale amount. Additionally, ELITIUM will deduct transaction fees from the proceeds of sale to cover the cost of payment processing. The amount of fees charged by ELITIUM shall be determined at the sole discretion of ELITIUM.
Secondary Sales
Platform Fee: ELITIUM collects fees on the final sale amount. Additionally, ELITIUM will deduct transaction fees from the proceeds of sale to cover the cost of payment processing. The amount of fees charged by ELITIUM shall be determined at the sole discretion of ELITIUM. ELITIUM may charge different fees depending on whether the wallet of the purchaser in an NFT Purchase agreement is custodied by ELITIUM or held by a third party (or the purchaser).
Creator Royalty: In Secondary Sales, ELITIUM distributes a portion of the final sale amount to the Creator who first sold the NFT in a Primary Sale, and their collaborator(s), if any, and whenever applicable pursuant to a Smart Contract. The portion of the final sale amount to be distributed to the Creator shall be determined at the sole discretion of ELITIUM.
ELITIUM reserves the right to change the platform fees at a future date. ELITIUM will provide 30 days’ notice of any change of platform fees through email communication with Registrants (defined below) and in these Terms.
"including" means "including but not limited to" unless we specifically indicate otherwise.
“Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, province, country, territory or other jurisdiction.
“Member” means any Collector, User, or Creator, on our Platform.
NFT(s)” or “Token(s)” means Ethereum-based tokens complying with the ERC-721 standard, or other similar “non-fungible” token standard, including ELITIUM NFT Tokens. NFTs are intended to be “non-fungible” tokens representing a unique Collectible, being non-fungible with other NFTs (i.e., they have different Collectible Metadata).
“NFT Purchase” means an agreement by and between a Creator and a Collector for the purchase of an NFT following a Bid or a Buy it Now on the Platform in accordance with the Terms of Service, including the ELITIUM NFT License.
“Payments Data Controller” means any third-party payment service providers that are responsible for your personal information relating to the Payments Services which enables Collectors to purchase NFTs and pay any Fees over the Platform.
“Payments Services” means the services provided to Collectors to deliver, hold, and/or receive payment for a NFT Purchase, and to pay Fees to the Company in order to complete financial transactions over our Platform via the application-programming interface provided by the Payments Data Controller or any other service providers that ELITIUM may have from time to time in order to complete Crypto transactions over our Platform.
"ELITIUM Content" means any and all Content that we provide on or through our Services, including Content licensed from a third party, but excluding User Content.
ELITIUM NFT Token” means an NFT Tokenized through the ELITIUM platform through a Smart Contract deployed to the Ethereum blockchain.
“Services” means any services contemplated by the present Terms of Service, which shall include but shall not be limited to (i) a software facilitating the Minting or Tokenizing of NFTs, and (ii) a technology platform facilitating the sale and purchase of NFTs between Members.
Smart Contract” is a term used to describe computer code that automatically executes when interacted with and is stored on the Ethereum blockchain. The code itself is replicated across multiple nodes of the blockchain and, therefore, benefits from the security, permanence and immutability that the blockchain offers. That replication also means that as each new block is added to the blockchain, the code may be executed. If the parties have indicated, by initiating a transaction, that certain parameters have been met, the code will execute the step triggered by those parameters. If no such transaction has been initiated, the code will not take any steps. Most smart contracts are written in one of the programming languages directly suited for such computer programs, such as Solidity. Smart contracts stored on a blockchain platform are immutable. Once deployed to the Ethereum blockchain the code contained in the Smart Contract cannot be changed by any user or node of the blockchain, including the original deployer. The ELITIUM Platform facilitates the creation of transactions to interact with smart contracts on the Ethereum blockchain.
All transactions on the ELITIUM Marketplace (the “Marketplace”), including transfers, offers, sales, or purchases of ELITIUM NFT Tokens are initiated at the sole discretion of the Users. To initiate a transaction on the ELITIUM Platform, a User must voluntarily invoke one or more Smart Contract operations from an Ethereum Wallet. The Smart Contracts are configured to facilitate the execution of a voluntary User offer, an acceptance of an offer, or other confirmation to purchase, sell, publish, or transfer an ELITIUM NFT Token. The User agrees to be bound by the
outcome of any Smart Contract operation by invoking, calling, requesting, or otherwise engaging with the Smart Contract, whether or not the Smart Contract behaves as the User expects.
Tokenize” or “Mint” or “Publish” refers to the act of creating an NFT on the ELITIUM Platform.
"User" means any person or entity that accesses or uses our Services in any way, whether or not they register for an ELITIUM account, including you.
"User Content " means any and all Content that a User submits, posts, publishes or otherwise provides on or through our Services.
Whitelist” if a mechanism exists by which Creators can create Creator Accounts and Tokenize NFTs, then “Whitelist” refers to the list of Crypto addresses of Creators that have been allowed to Tokenize NFTs on the ELITIUM Platform, which ELITIUM may, at its sole discretion, choose to create. ELITIUM may require Creators to apply to be whitelisted in order to publish their creations as NFTs and to Tokenize same on the ELITIUM Platform.
SCOPE OF PLATFORM SERVICES 2.1 Purpose of ELITIUM Services
ELITIUM is a platform for Creators and Collectors to create, sell, purchase, list for auction, make offers, and bid (each a “Transaction”) on NFTs connected to, associated with, in relation to, or which represents an expression of digital and physical art, and other assets or items which may be available for purchase from time to time. We provide an online marketplace that enables Creators to sell and auction their NFTs on our Platform. Our Platform provides or may provide features to allow Creators to Tokenize their creation into an NFT, sell or auction their NFTs, or acquire any Services as established by the present Terms of Service.
Subject to the Terms of Service, ELITIUM provides the Services to Members including hosting and maintaining the Website, and facilitating the formation of NFT Purchases. When a Collector enters an NFT Purchase, the Collector uses the Platform to acquire Services and pay any amounts owed under the NFT Purchase or under any Services.
The Services also allow you to sell and purchase NFTs via auction (“Auction”). Detailed rules regarding the Auction process may, from time to time, be published on our Website and shall form an integral part of these Terms of Service. You may only participate in the Auction by linking your digital wallets on supported bridge extensions or any other bank account to your Account, as required.
The Platform may include general information regarding Cryptocurrencies or NFTs and recent events regarding the same. You acknowledge that Cryptocurrencies or NFTs are very volatile, and that the information provided regarding Cryptocurrencies or NFTs on the Platform should never be solely used when determining to invest, purchase, sell, or otherwise use any Cryptocurrencies or NFTs. You must do your own research. ELITIUM is not an investment or an advisory firm nor is it a broker-dealer and may not perform services performed by any broker-dealer or advisor in a jurisdiction within which such activity requires registration or licensing, or otherwise act or perform any restricted activities pursuant to applicable law.
2.2 Relationship with ELITIUM
If Users decide to enter into a NFT Purchase, that agreement is directly between the Users and ELITIUM is not a party to that NFT Purchases.
You acknowledge, agree, and understand that ELITIUM is not a party to any NFT Purchase agreement between Creators and Collectors. Without limitation, Collectors are solely responsible for: (a) ensuring the accuracy and legality of any User Content and NFTs; (b) determining the authenticity of an NFT; or (C) paying for NFT Purchases or Services.
You further acknowledge, agree, and understand that you are solely responsible for assessing whether to enter into a NFT Purchase with a Creator and for verifying any information about said Creator and their NFT from time to time. ELITIUM does not make any representations about or guarantee the quality, authenticity, or originality of any NFT that is created or sold by Creators on the Platform; and does not vet or otherwise perform background checks on Creators or Users. You acknowledge, agree, and understand that ELITIUM does not, in any way, supervise, direct, control, or evaluate the creation of Creators or their NFTs. ELITIUM makes no representations about and does not guarantee, and you agree not to hold ELITIUM responsible for the quality, authenticity, or originality of any NFT; the ability of Collectors to pay for Services in relation to an NFT Purchase; or the ability or willingness of a Collector or Creator to actually complete a transaction.
While we may help facilitate the resolution of disputes, ELITIUM has no control over and does not guarantee (i) the quality, reliability, accuracy, or effectiveness of any Services or (ii) the quality, authenticity, or originality of any NFT. ELITIUM does not endorse any Creator or NFTs. Any potential references to a Creator or a User being "verified" (or similar language) may only indicate that the Creator or User has completed a relevant verification or identification process and nothing else. Any such description is not an endorsement, certification or guarantee by ELITIUM about any NFT’s authenticity or quality. You should always exercise due diligence and care when deciding to enter into an NFT Purchase.
2.3 Accessing the Platform
In order to access the Platform, you must first be using a web browser such as Google Chrome, Mozilla Firefox or Brave.
3. ELITIUM ACCOUNTS
3.1 Registration
All Users must apply for an ELITIUM Account at https://nft.ELITIUM.io/registration before using the Services, entering into any NFT Purchase, or Tokenizing. When you register an ELITIUM Account, you must provide your real name, email address and password, and accept these Terms, the Privacy Policy, and other ELITIUM Platform Rules. ELITIUM may refuse, in its discretion, to open an ELITIUM Account for you. You agree to provide complete and accurate information when opening an ELITIUM Account, and agree to timely update any information you provide to ELITIUM to maintain the integrity and accuracy of the information.
3.2 Account Types
There may be, from time to time, two different Account types: Creator and Collector. Once you register for one Account type, you will not be able to add the other Account type under the same email address. For example, if you already have a Creator Account, you cannot add a Collector Account as a separate account type in settings without re-registering. The Creator would have to create a new Account with a different email address to be a Collector on the Platform. You agree not to have or register for more than one Account with the same email address without express written permission from us. We reserve the right to revoke the privileges of the Account or access to or use of the Platform or Services, and those of any and all linked Accounts without warning if, in our sole discretion, false or misleading information has been provided in creating, marketing, or maintaining your profile or Account.
i. Collector Accounts
An individual may register for an Account or add an Account type to use the Platform and Services as a Collector (a “Collector Account”). Only one Collector may be associated with a Collector Account.
ii. Creator Accounts
If such an option is made available by ELITIUM, you may register for an Account to use the Platform and Services as a Creator (a “Creator Account”). All Creator Accounts may be subject to strict eligibility and qualification requirements as set out in this Agreement. ELITIUM reserves the right to periodically or permanently remove your account from our Platform for any reason in our sole and unfettered discretion.
3.3. Eligibility
ELITIUM offers the Platform and Services as a means for Creators and Collectors to transparently and conveniently obtain Services and enter into NFT Purchases. When required, creating an Account to use our Platform is subject to the following eligibility restrictions.
By registering to use an ELITIUM Account, you represent and warrant that (i) as an individual, you are at least 18 years old or are of legal age to form a binding contract under applicable laws; (ii) as an individual, you have full legal capacity and sufficient authorizations to enter into these Terms of Service; (iii) you have not been previously suspended or removed from using the Services; and (iv) you do not currently have an ELITIUM Account.
3.4. User Identity Verification
Your registration of an account with ELITIUM will be deemed your agreement to provide required personal information for identity verification, if requested by ELITIUM. Such information may be used to verify your identity, identify traces of money laundering, terrorist financing, fraud and other financial crimes through ELITIUM, or for other lawful purposes stated by ELITIUM. We may, at our sole discretion and in accordance with applicable laws and regulations, collect, use and share such information in accordance with our Privacy Policy. In addition to providing such information, you agree to allow us to keep a record of that information during the period for which your account is active and up to five (5) years after your account is closed, in compliance with global industry standards on data storage. You also authorize us to conduct necessary investigations directly or through a third party to verify your identity or protect you and/or us from financial crimes, such as fraud. The information we may require to verify your identity may include, but is not limited to, your name, email address, contact information, phone number, username,
government-issued ID, date of birth, and other information collected during account registration. When providing the required information, you confirm it is true and accurate.
AFTER REGISTRATION, YOU MUST ENSURE THAT THE INFORMATION IS TRUE, COMPLETE, AND TIMELY UPDATED WHEN CHANGED. IF THERE ARE ANY GROUNDS FOR BELIEVING THAT ANY OF THE INFORMATION YOU PROVIDED IS INCORRECT, FALSE, OUTDATED OR INCOMPLETE, ELITIUM RESERVES THE RIGHT TO SEND YOU A NOTICE TO DEMAND CORRECTION, DIRECTLY DELETE THE RELEVANT INFORMATION, AND, AS THE CASE MAY BE, TERMINATE ALL OR PART OF THE SERVICES WE PROVIDE FOR YOU. IF WE ARE UNABLE TO REACH YOU WITH THE CONTACT INFORMATION YOU PROVIDED, YOU SHALL BE FULLY LIABLE FOR ANY LOSS OR EXPENSE CAUSED TO ELITIUM DURING YOUR USE OF THE SERVICES. YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU HAVE THE OBLIGATION TO UPDATE ALL THE INFORMATION IF THERE IS ANY CHANGE. BY REGISTERING AN ACCOUNT, YOU HEREBY AUTHORIZE ELITIUM TO CONDUCT INVESTIGATIONS THAT ELITIUM CONSIDERS NECESSARY, EITHER DIRECTLY OR THROUGH A THIRD PARTY, TO VERIFY YOUR IDENTITY AND PROTECT YOU AND OTHER USERS AND/OR ELITIUM FROM FRAUD OR OTHER FINANCIAL CRIMES, AND TO TAKE NECESSARY ACTIONS BASED ON THE RESULTS OF SUCH INVESTIGATIONS. YOU ALSO ACKNOWLEDGE AND AGREE THAT YOUR PERSONAL INFORMATION MAY BE DISCLOSED TO CREDIT BUREAUS AND AGENCIES FOR FRAUD PREVENTION OR FINANCIAL CRIME PREVENTION, WHICH MAY RESPOND TO OUR INVESTIGATIONS IN FULL.
3.5 Account Usage Requirements
Any Account can only be used by the account registrant (“Registrant”). ELITIUM reserves the right to suspend, freeze or cancel the use of any Accounts by persons other than the Registrant. If you suspect or become aware of any unauthorized use of your username and password, you should notify ELITIUM immediately. ELITIUM assumes no liability for any loss or damage arising from the use of any Account by you or any third party with or without your authorization.
3.6 Account Security
ELITIUM has been committed to maintaining the security of User entrusted funds or NFTs, and has implemented industry standard protection for its Services. However, the actions of individual Users may pose risks. You shall agree to treat your access credentials (such as username and password) to the Account or to your Crypto Wallet as confidential information, and not disclose such information to any third party. You also agree to be solely responsible for taking the necessary security measures to protect your Account and personal information.
You shall be solely responsible for keeping safe your Account and password, and be responsible for all the transactions under your Account. ELITIUM assumes no liability for any loss or consequences caused by authorized or unauthorized use of your account credentials, including but not limited to information disclosure, information release, consent or submission of various rules and agreements by clicking on the website, online agreement renewal, etc.
By creating an Account, you hereby agree that:
you will notify ELITIUM immediately if you are aware of any unauthorized use of your Account and password or any other violation of security rules;
you will strictly abide by all mechanisms or procedures of ELITIUM regarding security, authentication, trading, charging, and withdrawal; and
you will take appropriate steps to logout from ELITIUM at the end of each visit.
3.7 Personal Data
Your personal data will be properly protected and kept confidential, but ELITIUM has the right to collect, process, use or disclose your personal data in accordance with the Terms of Service (including the Privacy Policy) or applicable laws. Depending on the products or services concerned, your personal data may be disclosed to the following third parties:
your transaction counterparty;
ELITIUM companies and the shareholders, partners, investors, directors, supervisors, senior managers and employees of such entities;
our joint ventures, alliance partners and business partners;
our agents, contractors, suppliers, third-party service providers and professional advisers, including the parties who have been contracted to provide us with administrative, financial, research, operations, IT and other services, in such areas as telecommunications, information technology, payroll, information processing, training, market research, storage and archival;
credit bureaus, or any debt collection agencies or dispute resolution centers in the event of violation or dispute;
business partners, investors, trustees or assignees (actual or expected) that promote business asset transactions (which can be broadened to include any merger, acquisition or asset sale) of ELITIUM companies;
professional consultants such as auditors and lawyers;
relevant government regulatory agencies or law enforcement agencies to comply with laws or regulations formulated by government authorities;
assignees of our rights and obligations;
banks, credit card companies and their respective service providers;
persons with your consent as determined by you or the applicable contract.
RELATIONSHIPS ON THE ELITIUM PLATFORM
4.1 ELITIUM Creators
ELITIUM may provide the means for Creators invited or approved by ELITIUM to be able to use the Platform to create an Account pursuant to Article 3 of these Terms of Service to publish ELITIUM NFT Tokens on the Ethereum blockchain or to sell or auction their NFTs on the Platform. Creations published on the Ethereum blockchain and/or sold on the ELITIUM Marketplace may include, but are not limited to: visual works, audiovisual works, animations, audio, photographs, 3D works, GIFS, other creative digital works, and other items that may be listed on the Marketplace, at ELITIUM’s sole discretion.
If ELITIUM provides or has provided the means for a Creator Account to be created on its Platform:
Creators seeking an invitation to create and list works for sale on the ELITIUM platform must submit a request for approval, where ELITIUM may, from time to time, verify their identity pursuant to these Terms of Service or request a two-factor authentication process. ELITIUM has unilateral discretion in granting approval to Users to use the Platform and makes no guarantees or promises that any Creators will be approved.
Creators that are approved by ELITIUM may be added to a “whitelist” and granted permission to publish ELITIUM NFT Tokens on the Ethereum blockchain using one or more of our Smart Contracts. To create an ELITIUM NFT Token, ELITIUM may request that approved Creators upload an original creation, provide a title and description for the artwork, information about the creation, and agree to these Terms of Service, after which they may perform a transaction with an ELITIUM Smart Contract that may create an NFT on the ELITIUM Platform. Upon creation of an NFT, the Creator shall have sole ownership interest, including all copyrights, of said NFT and shall hold the record of creation.
Failure to abide by these Terms of Service may result in revoking the Creator’s permissions to the
Platform. ELITIUM has the unilateral authority and discretion to remove, suspend, or revoke
Creators’ access and/or Account from the Platforms. Upon suspension, Creators will no longer have the ability to create new NFTs, however they will still be able to accept bids on previously created NFTs they still own.
4.2 Services on the Platform
When a Collector decides to transact with a Creator to obtain an NFT, a contractual relationship is created directly between the Collector and Creator. The NFT Purchase is created when a Collector successfully bids and/or purchases an NFT on the Platform. The NFT Purchase shall be governed by the ELITIUM NFT License, which shall govern the rights and obligations of the Collector and Creator in the NFT.
You acknowledge, agree, and understand that ELITIUM is not a party to any NFT Purchase.
The Collector shall provide all necessary information as prompted on the Platform, which shall constitute part of the User Content.
4.3 Third Party Beneficiaries
It is the intent of the Company and Members who are party to this Agreement that Members who have entered into NFT Purchases and who disclose or receive confidential information to or from another Member are third-party beneficiaries of this Agreement with respect to this Section.
4.4 Disputes
Where applicable, for disputes arising between Collectors and Creators, Collectors agree to abide by the dispute process contained in these Terms, if any, and to attempt to informally resolve any dispute first. If the dispute process does not resolve your dispute, you may pursue your dispute independently, but you acknowledge and agree that ELITIUM will not and is not obligated to provide any dispute assistance beyond what is provided in these Terms.
Where applicable, if a Creator or Collector intends to obtain an order from any arbitrator or any court that might directly involve the legal rights or obligations of the Company, that party will (a) give the Company at least ten (10) business days’ prior notice of the hearing; (b) include in any application for such order a provision that, as a precondition to obligations affecting the Company, the Company be paid in full for any amounts to which we would otherwise be entitled; and (c) include in any application for such order a provision that, as a precondition to obligations affecting the Company, the Company be paid for the reasonable value of the services to be rendered pursuant to such order.
PLATFORM AND SERVICE FEES & PAYMENT TERMS 5.1 Payment Agreements
The Payment Services are intended for business use, and you agree to use the Payment Services for the purposes of obtaining or providing Services or entering into an NFT Purchase over our Platform. ELITIUM will use and release funds for Fees only in accordance with this Agreement. Collectors hereby authorize and instruct ELITIUM to act as agent in connection with the payment, processing, and routing
of funds or Crypto, when applicable, upon completion of an NFT Purchase. ELITIUM is not a bank or escrow agent. We utilize the Payments Data Controller to process, route and deliver funds under applicable laws and regulations for the purposes of providing Payment Services between Creators and Collectors for Services provided on our Platform.
5.2 Fees for NFT Purchases
ELITIUM collects the Fees for the use of the Platform in accordance with these Terms of Service. When a Collector pays a Creator for an NFT Purchase, we will deduct the Fees from the NFT Purchase proceeds of sale and remit the remainder of the amount paid to the Creator. The Creator and Collector hereby irrevocably authorize and instruct ELITIUM to deduct the Fees for any NFT Purchases and pay ELITIUM on the Creator’s behalf.
5.3 Collector Payments and Authorizations
The Collector is obligated to immediately make payment for any NFT Purchase or Services from the bank account or credit card on file through the Payments Data Controller or their connected wallet.
We will automatically disburse available funds or Crypto to Creators upon processing of payment for the Services or NFT Purchase.
Notwithstanding any other provision of the Terms of Service, and except as prohibited by applicable law, if we believe, in our sole discretion, that you have violated the conditions and restrictions of the Platform or the Terms of Service, including by committing or attempting to commit fraud or other illicit acts on or through the Platform, we may refuse to process or may hold the proceeds of sale of the NFT Purchase and take such other actions with respect to you as we deem appropriate in our sole discretion and in accordance with applicable law. Without limiting the foregoing, the Company, in its sole discretion and to the extent permitted by applicable law, may also refuse to process or may hold the proceeds of sale of the NFT Purchase or any other amounts and offset amounts owed to us if: (a) we require additional information, such as Creator’s tax information, proof of registration, or address; (b) we have reason to believe the proceeds of sale of the NFT Purchase may be subject to dispute or chargeback; (c) we suspect fraud; (d) we believe there are reasonable grounds for insecurity with respect to the performance of obligations under this Agreement or other Terms of Service; or (e) we deem it necessary in connection with any investigation or required by applicable law. If, after investigation, we determine that the hold on the proceeds of sale of the NFT Purchase is no longer necessary, we will release such hold as soon as practicable.
In addition, notwithstanding any other provision of the Terms of Service and to the extent permitted by applicable law, we reserve the right to seek reimbursement from you, and you will reimburse us, if we: (i) suspect fraud or criminal activity associated with your payment, withdrawal, or NFT Purchase; or (ii) discover erroneous or duplicate transactions.
5.5 No Return of Funds
Subject to anything to the contrary in the Terms of Service, all Users acknowledge all sales are final and are non-refundable.
5.6 Gas Charges
Some Services involve the use of the Ethereum Blockchain, which may require that you pay a fee, commonly known as “Ethereum Gas Charges”, for the computational resources required to perform a transaction on the Ethereum Blockchain. You acknowledge and agree that ELITIUM has no control over:
any Ethereum Blockchain transactions; (b) the calculation or method of payment of any Ethereum Gas Charges; or (c) any actual payments of Ethereum Gas Charges. Accordingly, you must ensure that you have a sufficient balance of Crypto stored at your Crypto Address to complete any transaction on the Ethereum Blockchain before initiating such Ethereum Blockchain transaction.
5.7 Shipping Fees
Any physical pieces purchased through the NFT marketplace can be shipped to the customer by creating a Shipping Request on the Portfolio page after successful purchase. Fees for the shipping of physical artworks are not included in the purchase price and are to be paid by the customer separately to the given logistics company. The fees may vary depending on the type and size of the artwork and the desired destination and will be communicated after the shipping request.
TERMS SPECIFIC TO CREATORS 6.1 Profile and Listing Placement
The placement and ranking of an NFT in search results on the Platform may vary and depend on a variety of factors, such as Collectors’ search parameters and preferences, price, and so on.
6.2 Legal Relationship
When a Collector wishes to purchase an NFT by placing a Bid or using the Buy it Now, the Creator is entering into a legally binding agreement with the Collector and is required to transfer all necessary licenses and rights in the NFT to the Collector, in accordance with the terms and conditions of the ELITIUM NFT License.
6.3 Creator Agreement
Notwithstanding anything in these Terms of Service, the Creator may be required to enter into a Creator Agreement with ELITIUM that shall further govern the Creator’s relationship with ELITIUM.
7. WARRANTY, LIABILITY AND RELEASE
7.1 Warranty Disclaimer
EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN WRITING BY ELITIUM, THE WEBSITE, PLATFORM, CONTENT CONTAINED IN THE MARKETPLACE, AND NFTS LISTED THEREIN ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. ELITIUM (AND ITS SUPPLIERS) MAKE NO WARRANTY THAT THE PLATFORM: A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, COMPLETE, LEGAL, OR SAFE. ELITIUM DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE WEBSITE, PLATFORM OR CONTENT CONTAINED THEREIN. ELITIUM DOES NOT REPRESENT OR WARRANT THAT CONTENT ON THE PLATFORM IS ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. WE WILL NOT BE LIABLE FOR ANY LOSS OF ANY KIND FROM ANY ACTION TAKEN IN RELIANCE ON MATERIAL OR INFORMATION CONTAINED ON THE PLATFORM. WHILE ELITIUM ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF THE PLATFORM SAFE, ELITIUM CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM, CONTENT, AND ANY NFTS LISTED ON OUR PLATFORM ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE CANNOT GUARANTEE THE SECURITY OF ANY DATA THAT YOU DISCLOSE ONLINE. YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET AND WILL NOT HOLD US RESPONSIBLE FOR ANY BREACH OF SECURITY UNLESS IT IS DUE TO OUR GROSS NEGLIGENCE.
WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSS AND TAKE NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO YOU FOR ANY USE OF NFTS INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM:
USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED ADDRESSES; (B) SERVER FAILURE OR DATA LOSS; (C) CORRUPTED WALLET FILES; (D) UNAUTHORIZED ACCESS TO APPLICATIONS; (E) ANY
UNAUTHORIZED THIRD PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK AGAINST THE WEBSITE OR NFTS.
NFTS ARE INTANGIBLE DIGITAL ASSETS. THEY EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE ETHEREUM NETWORK. ANY TRANSFER OF TITLE THAT MIGHT OCCUR IN ANY UNIQUE DIGITAL ASSET OCCURS ON THE DECENTRALIZED LEDGER WITHIN THE ETHEREUM PLATFORM. WE DO NOT GUARANTEE THAT ELITIUM OR OUR AFFILIATES CAN EFFECT THE TRANSFER OF TITLE OR RIGHT IN ANY NFTS.
ELITIUM is not responsible for sustained casualties due to vulnerability or any kind of failure, abnormal behavior of software (e.g., wallet, Smart Contract), blockchains or any other features of the NFTs. ELITIUM is not responsible for casualties due to late report by developers or representatives (or no report at all) of any issues with the blockchain supporting NFTs including forks, technical node issues or any other issues having fund losses as a result.
Nothing in these Terms of Service shall exclude or limit liability of either party for fraud, death or bodily injury caused by negligence, or any other activity that cannot be limited or excluded by legitimate means.
7.2 Limitation of Liability
ELITIUM is not liable, and you agree to hold ELITIUM and all persons, parties, organizations or institutions employed by, associated or affiliated with, or utilized by ELITIUM, fully harmless for any claims, demands, suits, losses, or damages, costs, fees or expenses, including attorney’s fees, or other detriment, by any person and/or party, including, but not limited to third parties claiming an interest in the Transaction(s), funds, in connection with the Transaction(s) activities, or in any way relating thereto or arising out of the performance by or on behalf of ELITIUM, for any damages or losses arising out of or in connection with the Terms of Service, including, but not limited to:
your use of or your inability to use our Platform or Services;
delays or disruptions in our Platform or Services;
viruses or other malicious software obtained by accessing, or linking to, our Platform or Services;
glitches, bugs, errors, or inaccuracies of any kind in our Platform or Services;
damage to your hardware or software from the use of the Platform or Services;
the content, actions, or inactions of third parties’ use of the Platform or Services;
a suspension or other action taken with respect to your Account;
your reliance on the quality, accuracy, or reliability of profiles, ratings, reviews, recommendations, and feedback (including their content, order, and display), or metrics found on, used on, or made available through the Platform; and
your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
ADDITIONALLY, IN NO EVENT WILL ELITIUM, OUR AFFILIATES, OUR LICENSORS, OR OUR THIRD-PARTY SERVICE PROVIDERS, AS APPLICABLE, BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR INDIRECT COSTS OR DAMAGES, INCLUDING, BUT NOT LIMITED TO, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS, OR LOSS OF DATA, PRODUCTION, PROFIT, OR BUSINESS OPPORTUNITIES RELATED TO THE SERVICES OR NFT PURCHASE. THE LIABILITY OF ELITIUM, OUR AFFILIATES, OUR LICENSORS, AND OUR THIRD -PARTY SERVICE PROVIDERS TO ANY MEMBER FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE OTHER TERMS OF SERVICE WILL NOT EXCEED ANY FEES RETAINED BY ELITIUM WITH RESPECT TO NFT PURCHASES ON WHICH MEMBER WAS INVOLVED AS COLLECTOR OR CREATOR DURING THE SIX-MONTH PERIOD PRECEDING THE DATE OF THE CLAIM.
THESE LIMITATIONS WILL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TERMS OF SERVICE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE. SOME JURISDICTIONS MAY NOT ALLOW FOR ALL OF THE FOREGOING EXCLUSIONS AND LIMITATIONS, SO TO THAT EXTENT, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
7.3 Release
In addition to the recognition that ELITIUM is not a party to any NFT Purchase between Members, you hereby release the Company, our affiliates, and our respective officers, directors, agents, subsidiaries, partners, joint ventures, employees and service providers from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute you have with another Member, whether it be at law or in equity that exist as of the time you enter into this Agreement.
WHERE APPLICABLE AND PERMISSIBLE BY LAW, TO THE MAXIMUM EXTENT APPLICABLE BY LAW, YOU HEREBY WAIVE THE PROTECTIONS OF ANY LEGISLATION IN ANY APPLICABLE JURISDICTION WHICH SAYS THE FOLLOWING, OR SOMETHING MATERIALLY SIMILAR TO THE FOLLOWING: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
You will indemnify, defend, and hold harmless ELITIUM, our affiliates, and our respective directors, officers, employees, representatives, partners, and agents (each an “Indemnified Party”) for all Indemnified Claims (defined below) and Indemnified Liabilities (defined below) relating to or arising out of: (a) the use of the Platform and the Services by you or your agents, including any payment obligations or default incurred through use of the Services; (b) any NFT Purchase entered into by you or your agents;
failure to comply with the Terms of Service by you or your agents; (d) failure to comply with applicable law by you or your agents; (e) negligence, willful misconduct, or fraud by you or your agents; and (f) defamation, libel, violation of privacy rights, unfair competition, or infringement of Intellectual Property Rights or allegations thereof to the extent caused by you or your agents. For purposes of this Section, your agents include any person who has apparent authority to access or use your Account demonstrated by using your username and password.
Indemnified Claim” means any and all claims, damages, liabilities, costs, losses, and expenses (including attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by you or a third party or other Member against an Indemnified Party.
“Indemnified Liability” means any and all claims, damages, liabilities, costs, losses, and expenses (including attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by an Indemnified Party against you or a third party or other Member.
7.5 Assumption of Risk
You accept and acknowledge each of the following:
The prices of blockchain assets are extremely volatile. Fluctuations in the price of other digital assets could materially and adversely affect the value of your ELITIUM NFT Tokens or NFTs, which may also be subject to significant price volatility. We cannot guarantee that any purchasers of ELITIUM NFT Tokens or NFTs will not lose money. You also acknowledge that the cost of transacting on such technologies is variable and may increase at any time causing impact to any activities taking place on the Ethereum blockchain. You acknowledge these risks and represent that ELITIUM cannot be held liable for such fluctuations or increased costs.
You are solely responsible for determining what, if any, taxes apply to any NFT Purchase, ELITIUM NFT Tokens, or NFTs. ELITIUM is not responsible for determining the taxes that apply to a NFT Purchase, ELITIUM NFT Tokens, or NFTs.
There are risks associated with using an internet-based currency, such as Cryptocurrency, including, but not limited to, the risk of hardware, software and internet connections, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to information stored within your Crypto Wallet. You accept and acknowledge that ELITIUM will not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience when using the Ethereum network, however caused.
A lack of use or public interest in the creation and development of distributed ecosystems could negatively impact the development of the ELITIUM ecosystem.
The ELITIUM Platform, Cryptocurrency, or NFTs could be impacted by one or more regulatory inquiries or regulatory action, which could impede or limit the ability of ELITIUM to continue to develop, or which could impede or limit your ability to access or use the Platform or Ethereum blockchain, including to your digital assets or other funds, and new regulations or policies may materially adversely affect the development of the ELITIUM ecosystem, and therefore the potential utility or value of ELITIUM.
ACCESS TO OUR WEBSITE AND PLATFORM
You may have access to and use of the Platform, or certain areas or features of the Platform, subject to certain conditions or requirements, such as completing a verification process, meeting specific quality or eligibility criteria, or any other requirements as set out by these Terms of Service.
8.1 Ownership
This Platform is owned and operated by ELITIUM Ltd. All right, title and interest in and to the materials provided on our Platform, including but not limited to information, documents, logos, graphics, sounds and images (the "Materials") are owned either by ELITIUM or by our respective third -party authors, developers or vendors ("Third Party Providers"). Except as otherwise expressly provided by ELITIUM, none of the Materials may be copied, reproduced, republished, downloaded, uploaded, posted, displayed, transmitted or distributed in any way and nothing on this Platform shall be construed to confer any license under any of our Intellectual Property Rights, whether by estoppel, implication or otherwise. We do not sell, license, lease or otherwise provide any of the Materials other than those specifically identified as being provided by ELITIUM. Any rights not expressly granted herein are reserved by the Company.
8.2 Limited Platform License
ELITIUM hereby grants you a limited license to access the Platform and Services. This license is subject to and conditioned on compliance with the Platform Terms of Use and, to the extent applicable, the rest of the Terms of Service.
We strive to keep our Platform and the Services safe, secure, and functioning properly, but we cannot guarantee the continuous operation of or access to our Services. In fact, we might even stop providing certain features without notice.
8.3 Termination of the Limited Platform License
ELITIUM may terminate any license it has granted to any Website visitor, User, or Member to access the Platform and Services by providing notice, and the termination of such license shall be effective immediately upon ELITIUM providing such notice.
8.4 Prohibited Uses
Members are not permitted to use, or encourage, promote, facilitate, instruct or induce others to use, the Platform or Services for any activities that violate any law, statute, ordinance or regulation; for any other
illegal or fraudulent purpose or any purpose that is harmful to others; or to transmit, store, display, distribute or otherwise make available content that is illegal, fraudulent or harmful to others.
The following are examples of uses that are prohibited on the Platform or when using the Services:
send, upload, distribute or disseminate any unlawful, defamatory, harassing, abusive, fraudulent, obscene, or otherwise objectionable content;
undertake any unlawful activity which would violate, or assist in violation of, any law, statute, ordinance, or regulation, sanctions program administered in any relevant country, in any involve proceeds of any unlawful activity;
distribute viruses, worms, defects, trojan horses, corrupted files, hoaxes, or any other items of a destructive or deceptive nature;
impersonate another person (via the use of an email address or otherwise);
upload, post, transmit or otherwise make available through the Platform any content that infringes the intellectual proprietary rights of any party;
operate to defraud ELITIUM, other users, or any other person or provide false, inaccurate or misleading information;
use the Platform to violate the legal rights (such as rights of privacy and publicity) of others;
engage in, promote, or encourage illegal activity (including, without limitation, terrorism, tax evasion or money laundering);
interfere with another individual’s or entity’s access to or use of the Platform; defame, abuse, extort, harass, stalk, threaten or otherwise violate or infringe the legal rights (such as, but not limited to, rights or privacy, publicity and intellectual property) of others; incite, threaten, facilitate, promote, or encourage hate, racial intolerance or violent acts against others; harvest or otherwise collect information from the Platform about others, including without limitation email addresses, without proper consent;
exploit the Platform for any unauthorized commercial purpose;
modify, adapt, translate, or reverse engineer any portion of the Platform;
remove any copyright, trademark or other proprietary rights notices contained in or on the ELITIUM Platform or any part of it;
reformat or frame any portion of the Platform;
display any content on the Platform that contains any hate-related or violent content or contains any other material, products or services that violate or encourage conduct that would violate any criminal laws, any other applicable laws, or any third party rights;
use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Platform or the content posted on the Platform, or to collect information about its users for any unauthorized purpose;
access or use the Platform for the purpose of creating a product or service that is competitive with any of our products or services;
post personal information concerning another person;
duplicate or share accounts;
sell, trade, or give Account access to another person without ELITIUM’s consent;
share or solicit contact information, such as email or phone number in a profile or service post, except as provided in the Terms of Service; and,
engage in conduct or actions that could jeopardize the integrity of or circumvent the Platform, Services or ELITIUM’s proprietary information.
8.5 Enforcement
ELITIUM reserves the right, but does not assume the obligation, to investigate any potential violation of this Section or any other potential violation of the Terms of Service, and to remove, disable access to, or modify any content on the Platform. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this Agreement or the Terms of Service.
8.6 Reporting and Collecting Violations
If you become aware of any violation of the Terms of Service, you must immediately report it to the Company. You agree to assist us with any investigation we undertake and to take any remedial steps we require in order to correct a violation of the Terms of Service.
8.7 External Websites
The Platform may include hyperlinks to other websites or resources (collectively, “External Websites”), which are provided solely as a convenience to our users. We have no control over any External Websites. You acknowledge and agree that we, our affiliates and partners are not responsible for the contents of any of External Websites, including the accuracy or availability of information provided by the External Websites, and we make no representations or warranties regarding your use of the External Websites. You acknowledge and agree that we are not responsible for the availability of any External Websites, and that we do not endorse any advertising, products or other materials on or made available from any External Websites. Furthermore, you acknowledge and agree that we are not liable for any loss or damage which may be incurred as a result of accessing External Websites, the availability or unavailability of the External Websites, or as a result of any reliance placed by you upon the completeness, accuracy or existence of any advertising, products or other materials on, or made available from, any External Websites.
9. RIGHT TO REFUSE
You acknowledge that ELITIUM reserves the right to refuse service to anyone and to cancel Member access at any time, subject to any restrictions under applicable law.
INTELLECTUAL PROPERTY 10.1 NFT Ownership
Buying an NFT and its associated creation or artwork on the ELITIUM Platform is analogous to buying an original painting or print from an artist. Subject to the ELITIUM NFT License, it does not transfer the Creator’s copyright in the NFT to the Collector. The Collector obtains a license that grants them certain rights, such as the right to display and resell the NFT to another Collector if they wish, either on or off the Platform. However, the Creator does not give up copyright, meaning the Collector cannot prevent a Creator from using the NFT for further commercial work, and the purchase of an NFT does not grant the Collector any right to use the associated digital artworks for commercial purposes, except as expressly permitted by the ELITIUM NFT License. For a better understanding of the rights conferred from the
Creator to the Collector, please read the ELITIUM NFT License for more information.
10.2 Users Agree to the Automated Collection and Disbursement of Fees by the Smart Contracts
The User agrees and understands that all fees, commissions, and royalties are transferred, processed, or initiated directly through one or more of the ELITIUM Smart Contracts on the Ethereum blockchain network. By transacting on the Platform and by using the Smart Contracts, the User hereby acknowledges, consents to, and accepts all automated fees, commissions, and royalties for the sale of NFTs on the ELITIUM Platform. The User hereby consents to and agrees to be bound by the Smart Contracts’ execution and distribution of the fees, commissions, and royalties. Users hereby waive any entitlement to royalties or fees paid to another by operation of the Smart Contracts.
10.3 Copyright Claims
The Creator and all Users irrevocably release, acquit, and discharge ELITIUM and its subsidiaries, affiliates, officers, and successors of any liability for direct or indirect copyright or trademark infringement for ELITIUM’s use of an NFT in accordance with these Terms of Service.
All parties agree that the copyright of any NFT is owned by the Creator at all times and that ELITIUM will respect the copyright and rights of the Creator and will not infringe their rights except as otherwise explicitly agreed to in this Agreement.
10.4 Creator Grants ELITIUM a License
The Creator hereby acknowledges, understands, and agrees that Minting an ELITIUM NFT Token on the Platform or placing an NFT on the Platform through an Account constitutes an express and affirmative grant to ELITIUM, its affiliates and successors of a non-exclusive, world-wide, assignable, sublicensable, perpetual, and royalty-free license to make copies of, display, perform, reproduce, and distribute the NFT on any media whether now known or later discovered for the broad purpose of operating, promoting, sharing, developing, marketing, and advertising the Platform, the Website, the Marketplace, or any other purpose related to the Platform or business, including without limitation, for the purposes enumerated herein, the express right to: (i) display on the Website, a third party platform, social media posts, blogs,
editorials, advertising, market reports, virtual galleries, museums, virtual environments, editorials, or to the public; (ii) create and distribute digital or physical derivative works based on the NFT, including without limitation, compilations, collective works, and anthologies; (iii) index the NFT in electronic databases, indexes, catalogues, Smart Contracts, or ledgers; and (iv) host, store, distribute, and reproduce one or more copies of the NFT within a distributed file keeping system, node cluster, or other database (e.g., IPFS) or cause, direct, or solicit others to do so. However, such license is subject to this Agreement and does not include any right to ownership or of copyright in the NFT and, namely, does not grant ELITIUM the right to sell, resell the NFT or use the NFT in any prohibited manner.
10.5 Your Rights and License from ELITIUM
You are hereby granted a limited, non-exclusive, non-transferable, revocable, non-sublicensable license to access and use the Website and ELITIUM Content subject to the terms of these Terms of Service. However, such license is subject to this Agreement and does not include any right to (a) sell, resell or use commercially the Website or ELITIUM Content, (b) distribute, publicly perform or publicly display any ELITIUM Content, (c) modify or otherwise make any derivative uses of the Website or ELITIUM Content, or any portion thereof, (d) use any data mining, robots or similar data gathering or extraction methods, (e) download (other than page caching) any portion of the Website or ELITIUM Content, except as expressly permitted by us, and (f) use the Website or ELITIUM Content other than for their intended purposes.
10.6 Third Party Intellectual Property
Any information or Content expressed or made available by a third party or any other Website visitor or User is that of the respective author(s) or distributor(s) and not of the Company. ELITIUM neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, information, or statement made on the Platform by anyone other than our authorized agents acting in their official capacities.
The Platform may contain links to third-party websites. The Platform may also contain applications that allow you to access third-party websites via our Platform. Such third-party websites or applications are owned and operated by the third parties and/or their licensors. The inclusion of any link or application on the Website does not imply that we endorse the linked site or application. You use the links and third-party websites at your own risk and agree that your use of an application or third-party website accessed via the Platform is on an “as is” and “as available” basis without any warranty for any purpose.
10.7 Compliance with Intellectual Property Laws
When accessing the ELITIUM Platform or Services or obtaining Services on our Platform, you agree to obey the law and you agree to respect the intellectual property rights of others. Your use of the Platform and Services is at all times governed by and subject to laws regarding copyright, trademark and other intellectual property ownership. You agree not to upload, download, display, perform, transmit or otherwise distribute any information or content in violation of any third party's copyrights, trademarks or other intellectual property or proprietary rights. You agree to abide by laws regarding copyright ownership and use of intellectual property, and you shall be solely responsible for any violations of any relevant laws and for any infringements of third party rights caused by any content you provide or transmit or that is provided or transmitted using your Account.
ELITIUM reserves the right to immediately remove any content, article, NFT, or materials that have infringed on the rights of ELITIUM or of a third party or that violate intellectual property rights generally.
10.8 Infringement
If we find that any Member has infringed the rights of the Company or of a third party, or otherwise violated the ELITIUM Terms of Service or any intellectual property laws, we may immediately suspend and/or terminate such Member’s access to the Platform and any Services. The Company may act upon receipt of proper notification of claimed copyright infringement to remove or disable access to the allegedly infringing content. If you have evidence, know, or have a good faith belief that your rights or the rights of a third party have been violated and you want the Company to delete, edit, or disable the material of NFT in question, please provide the Company with notice via email to contact@ELITIUM.io.
If your User Content was removed and you believe that your Content or NFT that was removed (or to which access was disabled) did nor or does not violate the terms of the Terms of Service, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the material in your Content or to use your NFT, you may send a written notice containing the following information to the Company: (1) your physical or electronic signature; (2) identification of the Content or NFT that has been removed or to which access has been disabled and the location at which the Content or NFT appeared before it was removed or disabled; (3) a statement that you have a good faith belief that the Content or NFT was removed or disabled as a result of mistake or a misidentification of the Content or NFT and an explanation as to why such Content was improperly removed; (4) your name, address, telephone number, and email address; (5) a statement that you consent to the jurisdiction of Gibraltar; and, a statement that you will accept service from the person who provided notification of the alleged infringement (“Complainant”). If we receive such a notice and are satisfied that the Content was improperly removed, the Company may send a copy of the counter-notice to the Complainant informing them that the Company may replace the removed content or cease disabling it. Unless the Complainant files an action seeking a court order against you in relation to the aforementioned violation, the removed content may be replaced, or access to it restored, within a reasonable period of time after receipt of the counter-notice, at our sole discretion.
10.9 Token Lockup
Purchases of artworks include an NFT token that is individual per artwork. After the purchase, the NFT token will be locked up in the Elitium marketplace for a duration of 90 days, during which it cannot be withdrawn or used in any other way except to be held within the customers user account. After the end of the lockup period as indicated on the Portfolio page of the customers user account, the token can be withdrawn to any applicable wallet.
11. GENERAL
11.1 Governing Law
These Terms will be interpreted in accordance with the laws of Gibraltar, without regard to conflict-of-law provisions. You and we both consent to venue and personal jurisdiction in Gibraltar.
11.2 Severability
If any provision of this Agreement is held to be invalid or unenforceable, such provision will be struck and will not affect the validity and enforceability of the remaining provisions.
11.3 Non-Assignability
You may not assign, transfer or delegate this Agreement and your rights and obligations hereunder without our prior written consent. ELITIUM may, without restriction, assign, transfer or delegate this Agreement and any rights and obligations hereunder, at its sole discretion upon thirty (30) days prior notice. Your right to terminate this Agreement at any time remains unaffected.
11.4 Waiver
Our failure to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise permitted under law.
11.5 No Economic Relationship
No joint venture, partnership, employment, or agency relationship exists between you and ELITIUM as a result of this Agreement or your use of the ELITIUM Platform.
11.6 Entire Agreement
Except as they may be supplemented by additional terms and conditions, policies, guidelines or standards, the Terms of Service constitute the entire Agreement between ELITIUM and the Member pertaining to the subject matter hereof, and supersede any and all prior oral or written understandings or agreements between ELITIUM and you in relation to the access to and use of the ELITIUM Platform.
Notwithstanding the foregoing, any and all prior written agreements between ELITIUM and Creators shall be in addition to these Terms of Service.
11.7 Modification and Waiver
ELITIUM reserves the right to modify these Terms at any time in accordance with this provision. If we make any material changes to this Agreement, we will provide notice of such change through the Website and by updating the "Last Updated" date at the beginning of this Agreement. If you disagree with the revised Terms, you may terminate this Agreement with immediate effect. We will inform you about your right to terminate the Agreement in the notification email. If you do not terminate your Agreement before the date the revised Terms become effective, your continued access to or use of the Platform will be deemed to constitute acceptance of such revised Terms.
12. ACKNOWLEDGEMENT
BY USING THE ELITIUM PLATFORM OR SERVICES OR ACCESSING THE WEBSITE SITE OR APPLICATIONS, YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS OF USE AND AGREE TO BE BOUND BY THEM.
13. INQUIRIES
BY USING OR ACCESSING THE ELITIUM WEBSITE OR PLATFORM, OR USING ANY SERVICES, YOU ACKNOWLEDGE AND ACCEPT THAT SUBMITTING YOUR TELEPHONE NUMBER OR EMAIL TO US VIA THE WEBSITE OR APPLICATIONS CONSTITUTES AN INQUIRY TO ELITIUM, AND THAT WE MAY CONTACT YOU AT THE NUMBER OR EMAIL
SUBMITTED EVEN IF SUCH NUMBER APPEARS IN ANY DO NOT CALL LISTS (TAKING INTO ACCOUNT INQUIRY EXCEPTION TIME FRAMES AS APPROPRIATE).
14. OUR DETAILS
You can contact us:
using our website contact form;
by telephone, on the contact number published on our website from time to time; or
by email, using contact@ELITIUM.io.