Terms & Conditions
Last revised: June 6, 2019
1.1. Welcome to https://www.niio.com (the “Website”), a website operated by and on behalf of Niio Inc. (“Niio” and/or “We”), which provide the services hereunder under the brand name “Niio”.
1.2. Niio offers the services described under the “Services” section below on or through the Website and/or a mobile application platform (collectively the “Platform”), which serves as a digital distribution platform, a marketplace and a social media platform which enables, inter alia: uploading, viewing, collecting, streaming, syndicating, buying, selling, sharing, lending (whether for consideration or not), managing, preserving, distributing and advanced playback of various types of digital art, in various form, format and media types, including video and code based files (the “Digital Art”) and other related Content (“Other Content”), on various devices, including but not limited to, LCD screens, computer monitors, projectors and mobile devices which support the Niio software (each a “Registered Device”).
In these Terms, the term “Content” shall refer to all of the images, text, information, data, audio, video, graphics, media files, code, software and other materials included on or otherwise made available through or as part of the Services or the Platform and include both Digital Art and Other Content.
1.3. The Platform is generally divided into a private section and a public section. The private section, among other services, offers Registered Users a suite of professional tools for managing, distributing and displaying digital media art. The public section offers all visitors, among other things, general information about the Website and Niio, the ability to view Content, including certain publicly available Digital Art, a search engine to search for Content on the Platform, the ability to view and post comments on the Platform, and a process by which visitors can register as users, which will allow them to access certain private areas of the Platform, depending on the Subscription Plan of their choice, as well as to perform certain other activities which are exclusive to Registered Users, such as the ability to upload and transfer Content.
1.4. All Content and services made available through the Platform that were not made available as of the “last revised” date above, shall automatically be deemed to be part of the Services when first made available through the Platform.
1.5. By using the Platform you agree with these Terms or any changes hereto.
1.6. You are deemed to accept these terms and conditions (the “Terms”) by any of the following: (a) selecting “I Agree” to these Terms; (b) completing the registration process; (c) using the Platform in any way, such as viewing, or uploading any Content or making use of the services made available on the Platform by Niio and/or any third parties in any other way; or (d) browsing the Platform; and thereby enter into a legal and binding agreement with Niio.
1.7. In these Terms all references to “you”, “your” or the “user” shall refer to the party entering into these Terms with Niio.
1.9. We may modify these Terms from time to time. When we do, we will provide notice to you by publishing the most current version and revising the date at the top of this page and any modifications shall be effective immediately upon such publication. By continuing to use the Platform after any changes come into effect, you are deemed to agree to the revised Terms.
2.1. You may not use the Platform if you do not agree to these Terms.
2.2. Further you may not use the Platform if: (i) you are prohibited by local laws and regulations from using the Platform; or (ii) you are not fully able and competent to enter into a binding contract with Niio.
2.3. Our Platform is available to anyone who is at least 18 years old. By using the Platform, you represent and warrant that you are at least eighteen (18) years old and that you have the right, authority, and capacity to enter into these Terms and to abide by all the terms and conditions of these Terms.
3.1. All users (whether Registered or not) are afforded a limited right to browse certain areas of the Platform and to view certain Digital Art items on display.
3.2. Registered Users (as defined below) may have access to additional services on the Platform, depending on the nature of their Subscription Plan. Such additional services may include but shall not be limited to the following:
3.2.1. independently upload a private Digital Art collection, to manage all Artworks and Editions thereof; including to edit the meta-data and any other information attached thereto;
3.2.2. view and display Digital Art on the Platform and/or via a curated art channel, in any of the formats available on the Platform: (i) Catalog; or (ii) Artcast (each a “Curated Channel”);
3.2.3. create and/or share a Curated Channel on the Platform, and, to the extent relevant, to perform certain types of Art Transfers, through such Curated Channels;
3.2.4. transfer (by way of private share, purchase, sale, loan, consignment or preview) Digital Art or a limited edition thereof (an “Edition”) between Registered Users or to send an invite to a non-registered user, with a link for such non-registered user to sign up as a Registered User, thereby obtaining access to the relevant Digital Art received;
3.2.5. sell and collect Digital Art;
3.2.6. borrow and lend Digital Art;
3.2.7. participate in or initiate events or calls for submission (“Events”);
3.2.8. interact with other Registered Users and with Niio through public and private communications on the Platform;
3.3. The availability of the Services may vary based on (i) the type of Registered User; and (ii) the Registered User’s relevant Subscription Plan (as defined below).
3.4. You acknowledge that the above list of services is in no way a closed list and Niio reserves the right to add features and facilities to, or remove them from the Services, as Niio evolves and changes over time.
4.1. To obtain broader access to a fuller spectrum of the Services offered through the Platform, you are required to become a registered user of the Platform (a “Registered User”) and subscribe to one of our Subscription Plans (as defined below).
4.2. In order to become a Registered User, you must provide a valid email address (which will be used as a unique identifier for your account), your name and a password. Depending on your desired user profile type (artist, collector, curator, organization, art fan) we may require additional details, such as profession, role and title within the relevant organization, address, phone number etc. When available, you may also use an approved third party, such as Facebook or Google, to register through its registration page and you will be obligated in respect to and of its registration process. If you are an entity, the person whose email address is associated with the account shall have the authority to bind such organization to these Terms. Niio reserves the right to require additional details in order to properly set up your Registered User account.
4.3. You are solely responsible for maintaining the confidentiality of your password and account, and agree not to transfer your email address or password, lend or otherwise transfer your use of or access to the Platform, to any third party.
4.4. You are solely responsible for any and all activities that occur under your Registered User account. You may change your password, or any other account information, at any time by following the instructions available on your account page.
4.5. In order to protect the security of your Niio account, we recommend that you log out of your account after using the Platform through each Registered Device.
4.6. You agree to immediately notify us of any unauthorized use of your account or any other breach of security related to your account or the Platform.
4.7. When you use the Services and/or the Platform, you agree to: (i) provide certain current, complete, and accurate information about yourself when prompted to do so by the Platform, and (ii) maintain and update this information as required to keep it current, complete and accurate. If any information provided by you during your original registration is inaccurate, then Niio reserves the right to terminate your Registered User account immediately and to limit your access to the Services and the Platform.
4.8. We are not liable for any loss or damage arising from your failure to comply with any of the foregoing obligations.
- Subscription Plans
5.1. We offer all Registered Users a default and free-of-charge access to some of the Services (the “Default Plan”). The availability of additional Services to a Registered User will depend on the subscription plan chosen by such (the “Subscription Plan”).
5.2. The Services, their availability on the Website and the Registered Devices and the price of each Subscription Plan shall be detailed in the designated page of the Website or in any other document signed by the parties within the framework of their engagement.
5.3. A Registered User may change their Subscription Plan, through the Platform, in accordance with these Terms.
5.4. Certain aspects of the Service may carry a fee or service charge. If you elect to use paid aspects of the Services, you consent to the pricing and payment terms as they appear on the Platform, which may be updated from time to time.
5.5. Your Subscription Plan will automatically renew itself at the end of its term, and you will continue to be charged periodically until amended by you or until terminated by either Party in accordance with these Terms.
5.6. We may add new Services for additional fees and charges, or amend fees and charges for existing Services or change the Content of each Subscription Plan, at any time at our sole discretion.
5.7. You may cancel your Subscription Plan at any time by providing us with at least 30 days advance written notice, by emailing us at the address below; however, there is no refund for cancellation.
- Use of Niio Platform
6.1. Niio hereby grants you, and you hereby accept a personal, non-transferable, non-exclusive license to use the Platform in order to utilize the Services, as they are provided to you by Niio, in the manner permitted by these Terms.
6.2. When you use the Platform and the Services with the intention to share, distribute or monetize your Digital Art (through selling, privately sharing, lending (whether for consideration or not), creating or showcasing in a Curated Channel such as Artcast or Catalog), you do so as an art creator or proprietor, including if you have acquired such proprietary rights by entering into a contract with any of the former (a “Supplier”). In order to better understand how these Terms apply to your activities on the Platform as a Supplier please refer, inter alia, to sections 8 (Supplier Terms & Conditions), 9 (Supplier Consideration), 11 (Digital Art Lending), 17 (User Content).
6.3. When you use the Platform and the Services to browse, purchase, borrow, subscribe to a Curated Channel of type artcast or Catalog or to receive Digital Art in any other form through the Platform, you do so as a collector, curator, organization or art fan (an “Art Consumer”). Depending on your desired user profile (artist, collector, curator, organization, art fan), your available options on the Platform may vary slightly. In order to better understand how these Terms apply to your activities on the Platform as an Art Consumer please refer, inter alia, to sections 11 (Digital Art Lending), 15 (Subscription to Artcasts) and 17 (User Content).
6.4. When you use the Platform to sponsor or organize art competitions and/or calls for submission and/or events of any kind you are using the Platform and the Services as an event organizer (“Event Organizer”), and if you are participating in such Events, you do so as a “Participant”. In order to better understand how these Terms apply to your activities on the Platform as an Event Organizer please refer, inter alia, to section 13 (Events, Participants and Event Organizers).
6.5. You acknowledge that any Digital Art transactions consummated between you and another Registered User on the Platform form a binding agreement directly between you and such Registered User regarding the use of such Digital Art.
6.6. Suppliers may upload, manage, Transfer, define commercial rules and Store (each, as defined below) their Digital Art in their portfolio, on the Platform (“Portfolio“). Suppliers may decide whether they want their Portfolio, or parts thereof, to be viewed by the public.
6.7. Art Consumers may upload, manage, Transfer (as defined below) and store their Digital Art in their vault, on the Platform (“Vault“). Art Consumers may decide whether they want their Vault, or parts thereof, to be viewed by the public.
6.8. When you upload any Content to the Platform which may be viewed by other Registered Users (either shared publicly or through a private transfer via the Platform) you represent and warrant the following:
(a) You may not submit Content that may, for any reason: (i) contain content that we or our community deem to be unlawful, harmful, abusive, defamatory, infringing, invasive of personal privacy or publicity rights or that some people may consider offensive or inappropriate; (ii) promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; (iii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; (iv) violates, breaches or is contrary to any law, rule, regulation, court order or is otherwise illegal or unlawful in Niio’s reasonable opinion; (v) contain any virus, Trojan horse, spyware, adware, malware, bot, time bomb, worm, or other harmful or malicious component, which will or which may overburden, impair or disrupt the Platform or servers or networks forming part of, or connected to, the Platform, or which does or might restrict or inhibit any other Registered Users’ use and enjoyment of the Platform; or, (vi) any unsolicited or unauthorized advertising, promotional messages, spam or any other form of solicitation.
(b) You will not provide inaccurate, misleading or false information to Niio or to any other Registered User. If information provided to Niio or another Registered User subsequently becomes inaccurate, misleading or false, you will promptly notify Niio of such change.
(c) You shall use your best discretion to provide the most accurate metadata, terms and rights attached to the Digital Art uploaded by you and to rate such Digital Art in accordance with the rating levels available on the upload forms. You acknowledge that Niio may, at its full discretion, and for any reason, reject any Digital Art from being presented on the Platform, or amend its rating.
6.9. As the Supplier we ask that you:
i. clearly indicate the amount of total and available Editions for your Digital Art in your Portfolio, at any given time (“Edition Number”) and Niio will create multiple Editions of the Digital Art, clearly marked and differentiated as such, in accordance with the Edition Number indicated by you.
ii. clearly indicate the existence of any artist proofs in relation to the uploaded Digital Art, and if not, whether you would like Niio to create a limited number of unnumbered artist proofs (“Artist Proofs”).
6.10. Niio may offer certain Suppliers the option to create a limited amount of unnumbered exhibition copies (“Exhibition Copies”).
6.11. Such Artist Proofs and Exhibition Copies will not affect the number of editions available for sale on the Platform, however, they may be temporarily loaned to third parties as such or displayed as part of an exhibition or a catalog or an Artcast. Exhibition Copies will not be offered for sale, however, Artist Proofs may be sold, if so elected by the Supplier.
6.12. Niio has the right to embed an invisible or visible digital watermark or to use other methods of coding on Digital Art, inter alia, in order to keep the Digital Art linked to its uploader, creator, metadata and Certificate of Authenticity, and to track potential infringements of our Supplier’s rights.
In these Terms, “Certificate of Authenticity” shall refer to a document containing the identifying number of the sale (if applicable), the name of the Digital Art, the name of the creator of the Digital Art, the Edition number (if applicable) and the Supplier.
6.13. If you want to remove a Digital Art from the Platform you must log into your Vault or your Portfolio, as the case may be, click on the Digital Art image you want to delete and then click ‘Delete’, and follow the instructions. Please note that once a Digital Art has been removed from the Platform, it may no longer be backed-up on Niio’s servers and therefore we encourage you to ensure you have downloaded or backed up the relevant Digital Art, before deletion.
6.14. If you remove a piece of Digital Art from the Platform, the license rights granted by you to Niio in relation to such removed Digital Art will terminate as of the removal date, excluding those rights that are required to complete Transactions made on the Platform or by Niio’s partners via third party websites, prior to or as of the effective date of termination. In addition, you acknowledge and agree that the rights granted by you to Niio with respect to the use of Digital Art in order to promote Niio, the Platform and the Services, will remain in full force and effect for as long as necessary for Niio to fulfil any of its then current obligations requiring such use.
- Art Transfer
7.1. Once you have uploaded/received Digital Art to your Portfolio or Vault, you will have the option to ’Transfer Artwork‘ to other Registered Users or to send an invite to a non-registered user, with a link for such non-registered user to sign up as a Registered User, thereby obtaining access to the relevant Digital Art received Please note that in order to complete a Digital Art Transfer, it must be accepted by the recipient. Following acceptance by the recipient, such Digital Art may be stored in the recipient’s Vault or Portfolio and may be played in high quality on any of the recipient’s Registered Devices, until such time as, if possible, the action is revoked either by the Platform or the sending party. Depending on your Subscription Plan, and the specific rights and permissions attached to the relevant Digital Arts, this function may enable any of the following actions:
(a) Private Share – this action, which is revocable at any time through the ‘Manage Artwork’ button, allows you to privately share your Digital Art with other Registered Users.
(b) Lend – this action, which allows a transfer of certain rights for a limited period of time, whether for consideration or not, of a specific Digital Art or Edition, may or may not be revocable, depending on its specific terms.
(c) Transfer Ownership – this action, which is irrevocable, allows you to transfer ownership of a specific Edition, whether for consideration or otherwise.
(d) Send Private Purchase Link – this action allows you to send another Registered User a private viewing page with an invitation to purchase an Edition, under the terms you define. You can set a unique price for each Edition you sell. Please note that once the Edition is sold to the recipient, you will not be able to revoke this action.
(e) Consign Artwork – this action, which may or may not be revocable depending on your profile type and permissions attached thereto, allows access to your Digital Art from the recipient’s account, grants the recipient with the rights to sell your Editions of your Digital Art on your behalf, transfer, share, manage and also the right to edit some of the Digital Art metadata. You will still be able to continue editing your Digital Art metadata and to sell it.
(f) Send Preview – this action, which does not require the recipient to be a Registered User, to be logged in or to ‘accept’ the transfer, allows limited access to a preview of the relevant artwork, through a web link, and is revocable at any time through the ’Manage Artwork‘ button. Please note that although the recipient may preview the transferred artwork via the preview link, such Digital Art cannot be stored in the recipients Vault and may not be viewed on via a Registered Device.
With respect to each of the Transactions please also refer to the specific sections below detailing the legal implications of such action on the initiating party and the receiving party.
7.2. Upon sending an Art Transfer, Niio generates a unique link to a private web page from where the recipient can preview a watermarked version of the Digital Art and choose to accept it. If the recipient is not yet a Registered User, they will receive an invitation link which, after clicked, will send them to a registration page where they will be required to register in order to view and use the Digital Art.
7.3. Other than with respect to Digital Art transferred using the ‘Consign Artwork‘ action, once your Art Transfer is accepted by the Registered User, Your Digital Art copy is added to that Registered User’s Vault and can be downloaded and viewed in very high quality, with no watermark, using the User’s private Niio art player on a Registered Device, in accordance with the specific terms of the Art Transfer. Subject to the permissions attached thereto, the recipient cannot transfer your Digital Art from the User’s Vault to another user. The recipient can however include the received Digital Art, subject to the permissions attached thereto, in a Curated Channel.
When transferring Digital Art using ‘Consign Artwork‘ action, upon acceptance by the recipient, a copy of the Digital Art is only placed with the recipient’s Portfolio and not that User’s Vault, and is subject to the permissions attached thereto
7.4. Using the ‘Manage’ feature button you can track all of your Digital Art Transfers and (i) to revoke an Art Transfer if available with respect to the relevant Digital Art and (ii) to delete the unique shared link to the specific Digital Art Transfer.
- Supplier Terms and Conditions
8.1. When registering as a Supplier, you may upload Digital Art, with respect to which you have certain commercial usage rights, for the purpose of exercising such rights in any manner available to you on the Platform, pursuant to your relevant Subscription Plan and the rights held by you in such Digital Art.
8.2. When uploading each Digital Art, the Supplier is required to indicate the commercial rules attached therewith: (a) sale; (b) loan; or (c) preview and display through the Platform, either in your Vault, your portfolio, in a Catalog or in an Artcast; (each a “Transaction”), the applicable terms, prices and other details required by the Platform.
8.3. You acknowledge and agree that you are solely responsible for all Digital Art that you make available through the Platform and Services. Accordingly, you represent and warrant that: (i) as to Digital Art that you make available through the Platform and Services, you are either the sole and exclusive owner of all such Digital Art or you have all rights, licenses, consents and releases that are necessary to grant to Niio and any other Registered Users the rights in such Digital Art as contemplated hereunder; and (ii) neither the Digital Art that you make available through the Platform and Services nor Niio’s use nor the exercise of financial rights as contemplated hereunder will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
For the avoidance of doubt, Niio shall bear no responsibility to verify the nature of the license or the rights held by the Supplier and Supplier acknowledges that Niio and any Art Consumer who may purchase or Borrow Digital Art from such Supplier, are relying on Supplier’s representation herein in Transacting with Supplier.
8.4. The Supplier acknowledges that by allowing the inclusion of Digital Art in a Curated Channel, the creator or curator of such Curated Channel is effectively granted, inter alia, the right to (i) use any uploaded version thereof; and (ii) display such Digital Art in varying quality including via a Niio Player on a Registered Device; and (iii) transfer and share the Curated Channel containing the Digital Art; and (iv) allow certain actions according to the permissions you hold with regard to such Digital Art, including, for example, adding such Digital Art to the user’s wishlist on the Platform.
- Supplier Consideration
9.1. The Supplier shall be entitled to receive the Supplier’s fee of the Transaction, based on the Supplier’s Subscription Plan or as agreed-upon between the parties, or as illustrated in the Supplier’s Guide, available here.
9.2. Niio may be entitled to a fee for each Transaction completed as specified in the relevant Subscription Plan or the fee list published on the Website. You undertake not to complete any Transaction outside of the Platform and not to circumvent Niio’s right for a fee in any other way.
9.3. The Supplier acknowledges that Niio has the right of set-off and it may deduct its fees from any consideration due to the Supplier.
9.4. Please note that Niio shall notify you of your rights to additional consideration in the event that your Digital Art is included in additional paid services, such as monetized Artcasts.
9.5. You acknowledge that Niio has the right (i) to promote and market Digital Art through the use of sales or discounts. The sale or discount amount will apply to the listing price of such Digital Art; and (ii) to include your Digital Art in an Artcast and inform you of any related additional consideration you may be entitled to. You always retain the right to remove a listing of Digital Art from the Platform or limit its permitted use, including limiting the ability for Niio to offer any discount.
- Digital Art Sale
10.1. When performing a Sale (by way of ‘Transfer Ownership’ or ‘Private Purchase’ or if the receiving party unilaterally selected the Digital Art for sale by browsing a Catalog or an Artcast or while perusing the ‘Discover’ area), the ownership of the Digital Art or any Edition thereof, and any rights attached thereto, as may be determined by the parties in accordance with the specific terms of each Transaction (indicated in the preferences of each Digital Art uploaded to the Platform), are transferred from the Supplier to the Art Consumer.
Nothing in these Terms shall derogate from the artist’s (including as the Supplier) copyrights and the moral rights in the Digital Art (i.e. the artist retains the right to be identified as the author of the Digital Art).
10.2. When making a Sale on the Platform, unless otherwise approved by the Supplier, the Art Consumer may not and hereby agree that you will not, directly or indirectly, authorize, permit or be involved in (a) printing or creating any other physical representation of the relevant Digital Art; (b) projecting a Digital Art so that it is viewable other than directly on the screen of any Permitted Device, except in the context of personal, domestic use of the Digital Art; (c) distributing or transmitting Digital Art, or making it available (including through the internet), to anyone else except as part of a legitimate transaction on the Platform; or (d) commercially exploiting Digital Art.
10.3. When a Sale occurs between a Supplier and an Art Consumer, Niio will perform the following: (i) facilitate the transfer of the relevant Digital Art or an Edition thereof, as applicable, from the Supplier’s Portfolio or Vault to the Art Consumer’s Vault; (ii) grant the Art Consumer access to the relevant Digital Art or an Edition thereof in accordance with the terms of the Transaction; (iii) if applicable, place a Certificate of Authenticity in the Art Consumer’s Vault ; (iv) grant the rights, and enable the exercise thereof on any Registered Device and on the Platform, to the Art Consumer, as determined between the parties, all in accordance with the transaction instructions chosen on the Platform.
10.4. The Supplier and Art Consumer acknowledge and agree to be bound by the relevant Terms herein upon execution of any Transaction.
10.5. If you, the Supplier, used ‘Transfer Ownership’ or ‘Private Purchase’ and the recipient accepted it, you cannot revoke the act, but you can use the ‘Manage’ feature to track and communicate with the Edition owners.
10.6. Once a Art Consumer has purchased any Digital Art or any Edition thereof, for so long as the Art Consumer continues to own such Digital Art or such Edition thereof, the Art Consumer will be entitled to (i) access and use the Digital Art or the Edition; and (ii) display the Edition’s Certificate of Authenticity or any other relevant documentation accompanying such Digital Art, on any device owned or controlled by the purchaser that is capable of doing so (the “Usage Rights”). The method of using the Digital Art will vary according to the nature of the Digital Art in question, and will be as specified by Niio (or, if not so specified, will be reasonably obvious at the time of purchase). For the avoidance of doubt, the permitted use and display of the Digital Art will be as determined by the Supplier in the specific conditions of the sale.
- Digital Art Lending
11.1. If such option is available, the Registered User may offer to lend (the “Lender”) whether for consideration or not, certain rights in the Digital Art to another Registered User (the “Borrower”) subject to the terms and conditions detailed in this section.
11.2. When a Transaction is initiated by the Lender, Niio will perform the following: (i) facilitate the transfer of the relevant Digital Art, and if applicable, the Certificate of Authenticity or any other relevant documentation accompanying such Digital Art, from the Lender’s Portfolio or Vault to the Borrower’s Vault; (ii) grant the rights, and enable the exercise thereof on any Registered Device and on the Platform, to the Borrower, as determined between the parties, all in accordance with the transaction specifications chosen on the Platform.
11.3. Unless specified otherwise, the Usage Rights of the Borrower shall not include the right to sell, transfer or otherwise dispose of the Digital Art.
- Digital Art Consignment
12.1. If such option is available, a Supplier may consign to another Supplier their right to sell their Digital Art on the Platform (“Consignment“) subject to the terms and conditions detailed in this section.
12.2. When a Consignment is initiated by a Supplier (the “Consignor“) to the receiving Supplier (the “Consignee“), Niio will perform the following: (i) facilitate the transfer of the relevant Digital Art, from the Consignor’s Portfolio or Vault to the Consignee’s Portfolio; (ii) allow the Consignee to sell, transfer, loan, consign, or perform any other action with the consigned Digital Art on the Platform authorized by the Consignor and perform all actions required for such purpose on the Platform, as determined between the parties, all in accordance with the transaction instructions chosen on the Platform.
The placement of the consigned Digital Art in the Consignee’s Portfolio, will not remove such from the Consignor’s Portfolio and the Digital Art will be shared by both the Consignor and the Consignee.
12.3. If and when the sale is concluded by the Consignee, Niio will perform the following: (i) facilitate the transfer of the relevant Digital Art or an Edition thereof, as applicable, from the Consignor’s Portfolio or Vault to the Art Consumer’s Vault and remove the Digital Art or the relevant Edition thereof from the Consignee’s Portfolio; (ii) grant the Art Consumer access to the relevant Digital Art or an Edition thereof in accordance with the terms of the Transaction; (iii) if applicable, place a Certificate of Authenticity or any other relevant documentation accompanying such Digital Art, in the Art Consumer’s Vault ; (iv) grant the rights, and enable the exercise thereof on any Registered Device and on the Platform, to the Art Consumer, as determined between the parties, all in accordance with the transaction instructions chosen on the Platform.
- Events, Participants and Event Organizers
13.1. Niio enables you to initiate and host Events and calls for submission and invite people to participate using the Platform, or to participate in any of the foregoing.
13.2. If you wish to initiate or participate in an Event and you are not already a Registered User you will have to become one, in accordance with section 4 above.
13.3. Event Organizers may establish participation criteria for their own Events and may charge fees for memberships or events – such fees are independent of the Platform and shall be in addition to any Subscription Fees or otherwise incurred hereunder.
13.4. Using our Platform to participate in Events, whether you are an Event Organizer or a Participant, involves meeting real people and doing real things in the real world, which can sometimes lead to unexpected situations. We can’t control what happens in the real world, and we are not responsible for it. You should use common sense and good judgment when interacting with others. Accordingly, you agree not to hold us responsible for anything that happens related to interaction with third parties, with other Registered Users or in connection with any Event.
13.5. Events may be governed by terms and conditions which are separate and apply in addition to these Terms. Such separate terms may grant the Event Organizer Usage Rights, on much broader terms than granted to Niio herein, of the Digital Art selected by you to participate in an Event (“Participating Digital Art”) or may impose certain fees on Event participants. The decision to charge fees and the amount of those fees is at the discretion of the Event Organizer. Users hereby acknowledge that by signing up for an Event on the Platform and by agreeing to be bound by the terms and conditions of such specific Event, users may be agreeing to subject themselves and their Participating Digital Art to terms and conditions which may be different than these Terms and Niio shall have no liability in relation thereto.
13.6. If you pay a fee to an Event Organizer via the Platform, you authorize the Event Organizer (and the Event Organizer’s applicable payment service provider) to charge the designated payment method for the total amount of the fees, including any applicable taxes and other charges. Certain types of fees charged by Event Organizers may be billed on a recurring basis. If billed on a recurring basis, you authorize the Event Organizer to charge the applicable fee to the designated payment method.
13.7. You should use common sense in deciding whether to make a payment to any Event Organizer. We cannot ensure that Event Organizers will use payments as they promise or as you expect. You should check the refund policy of the Event before making any payments to an Event Organizer.
13.8. If you are an Event Organizer, you hereby acknowledge and agree that you are solely responsible for all Events you organize and for any Digital Art that you make available through the Platform and Services.
13.9. If you are an Event Organizer, you understand and agree that Niio may remove any Event, delete any Digital Art, messages, photos, video, profiles or text and any other Content (collectively, “Communicated Content“) that in the sole judgement of Niio violates these Terms or which might be offensive, illegal or that might violate the rights, harm or threaten the safety of Niio and/or its users.
13.10. As an Event Organizer you are solely responsible for the Events you run and the Communicated Content that you publish or display on the Platform, or transmit to other users or use in connection with any Event, whether on the Platform or on any other online media platform.
13.11. We understand that art is subjective, and we encourage free-thinking and artistic expression, however, in certain cases, we reserve the right to remove any Communicated Content and Events that are illegal or offensive from the Platform. Niio may investigate and take appropriate legal action in its sole discretion against any Event Organizer who violates this provision, including without limitation, removing the offending communication from the Platform, deleting any Participant’s submissions, deleting any Event and terminating the Subscription Plan of such violators. It includes Communicated Content which:
(a) is patently offensive to the online community, such as Content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
(b) harasses or advocates harassment of another person;
(c) involves the transmission of “junk mail”, “chain letters”, or unsolicited mass mailing or “spamming”;
(d) promotes information that you know is false, misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libellous;
(e) promotes an illegal or unauthorised copy of another person’s copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated music or links to pirated music files;
(f) contains restricted or password-only access pages, or hidden pages or images (those not linked to or from another accessible page);
(g) displays pornographic or sexually explicit material of any kind;
(h) provides instructional information about illegal activities such as making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses;
(i) solicits passwords or personal identifying information for commercial or unlawful purposes from other users; and
(j) engages in commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, and pyramid schemes.
The fact that Niio allowed an Event to be created or made public shall not be construed as Niio’s endorsement or approval of the Event or its compliance with the above.
13.12. We do not guarantee the accuracy, completeness, or usefulness of any information on the platform and we are not responsible for the accuracy or reliability of any opinion, advice, statement or event made or run by parties other than us. Under no circumstances will we be responsible for any loss or damage resulting from anyone’s reliance on information or other Communicated Content posted on the platform, or transmitted to users.
- Creating Curated Channels
14.1. If such option is available, Registered Users may create their own Curated Channels, in any of the formats available on the Platform: (i) Artcasts or (ii) Catalogs. Effectively, such Artcasts or Catalogs may be used to make the Registered User’s Digital Art publicly available on the Platform, including displaying such Digital Art publicly through Registered Devices.
14.2. It is important that prior to creating such Curated Channels, you ensure that you possess the full rights required to publicly display any such Digital Art.
- Subscription to Curated Channels
15.1. If such option is available, the Registered User may subscribe to the Curated Channels available on the Platform.
15.2. The availability and/or price of any Curated Channel will be presented on the relevant page on the Platform, unless addressed separately in such User’s Subscription Plan.
15.3. When subscribing to a Curated Channel, the Registered User’s Usage Rights include viewing the Digital Art and a limited display of the Digital Art in such Curated Channel in the best quality available on the User’s Registered Devices or through their account on the Website.
15.4. The Registered User acknowledges that the Content of the Curated Channel is determined by the curator of such and may, inter alia (i) vary from time to time; (ii) include Digital Art or only excerpts thereof; and (iii) display Digital Art in various qualities.
- Billing and Payment
16.1. Niio and/or its third party service providers will be responsible for collecting and billing from Art Consumer and for processing payment of any Transaction via the Platform.
16.2. At this time, we only accept payment through PayPal and Stripe, both are well-known, trusted, and secure ways to make payments over the Internet. You warrant that although PayPal and Stripe are extremely secure, we are not responsible for protecting the personal information you share with them. You are encouraged to read the related PayPal and Stripe policies carefully. We reserve the right to change our method of payment at any time.
- User Content
17.2. DIGITAL ART CONTENT.
You own the Digital Art that you post. However, we do require that you to provide us a non-exclusive, royalty-free, worldwide, perpetual, sub-licensable (through multiple tiers) license to use the Digital Art in order for us to operate, improve, promote, develop, distribute and protect Niio and our Platform for the benefit of you and others all in accordance with these Terms.
You control the private or public settings of your Digital Art when you upload it to the Platform, as mentioned in sections 6.6 and 6.7 above . In order to keep your Digital Art private, you need to (i) keep it in your Vault marked as ‘hidden’, or place it in your Portfolio and specifically mark it as ‘hidden’ and ‘work in progress’; and (ii) not make any third party interactions with respect to the Digital Art over the Platform including Art Transfer, Event participation or the placing the Digital Art in a Curated Channel.
17.3. OTHER CONTENT.
With respect to all other User Content that is not Digital Art and is not addressed in section 17.2 above, you grant us a non-exclusive, royalty-free, worldwide, perpetual, irrevocable, sub-licensable (through multiple tiers) right and license to use, reproduce, distribute, publish, adapt, modify, translate, edit, manage, create derivative works from, publicly perform, publicly display, transmit and broadcast copies of the User Content in any form, medium or technology now known or later developed.
17.4. Furthermore, as part of the rights expressly granted to Niio when submitting Content to the Platform and unless otherwise determined by you in the preferences for each Digital Art, Niio may, at its sole discretion, do any of the following:
(a) create multiple versions of the Digital Art, including modified resolution copies, for various technical and commercial uses in order to preview, display, Transfer, Syndicate, market, Sell or Lend the Digital Art, as required;
(b) create watermarked and/or protected copies;
(c) provide excerpts or shorter versions of the original Digital Art for the purpose of previewing, displaying and Syndicating the Digital Art;
(d) create multiple versions of the Digital Art for the purpose of backup and preservation, including, when necessary, adapting the files to new file formats and new display standards;
(e) Sub-licensing to third-parties certain rights in order to enable such third parties to communicate your Digital Art to the public, including but not limited to through third-party streaming services and/or through a designated application programming interface (API) (“Syndication”);
(f) use, reproduce, distribute, publish, adapt, modify, translate, edit, manage, create derivative works from, publicly perform, publicly display (including in public or for commercial purposes), transmit, exhibit and broadcast copies of the User Content in any form, medium or technology now known or later developed.
17.6. You represent and warrant that you own or otherwise control all of the rights to your User Content, and that the use of your User Content does not violate these Terms and will not violate any rights of or cause injury to any person or entity.
17.7. We reserve the right, but do not have an obligation, to monitor or review any User Content or activity on the Platform, to investigate alleged or suspected violations of these Terms or to otherwise administer and operate the Services, at any time and in our sole discretion, and we may disclose any User Content or activity if we believe that disclosure is reasonably necessary to comply with any law, regulation, legal process or government request. We also reserve the right to remove or refuse to publish any User Content, in whole or in part, if we believe that such User Content may violate these Terms, the law or any third party rights, or for any other reason or no reason, without notice or liability, at any time and in our sole discretion. You agree that we will not be liable for any use of your User Content by us in accordance with these Terms.
17.8. In the event that we suspend or terminate your account or these Terms for any reason, you acknowledge and agree that you shall not receive any refund or exchange for any Digital Art, nor any credits you have saved, nor any license or subscription fee for any portion of the Services, nor any content or data associated with your account, or anything else.
- Niio Content and Ownership
18.1. All Content is protected individually and as a compilation and/or collective work by the laws of the State of Israel and international copyright laws, trademark laws and/or other proprietary rights and laws.
18.2. As between you and Niio, Niio owns and retains, solely and exclusively, all rights, title and interest in and to the Platform, Services, and all Content that we create or make available to you through the Services, any feedback or comments provided by you, and the look and feel, design and organization of the Services, including but not limited to any and all copyrights, trademark rights, trade secret rights, patent rights, moral rights, database rights and other intellectual property rights therein. The trademarks, service marks, logos and trade names displayed on or in connection with the Services are the registered and unregistered trademarks and service marks of Niio or third parties. Your use of the Services does not grant you any ownership over any Content, and except for the limited license and permission to access and use the Services that we grant you under these Terms, your use of the Services does not grant you any license or permission under any copyright, trademark or other intellectual property rights of Niio or any third party, whether by implication, estoppel or otherwise. We reserve all rights not expressly granted to you by these Terms.
18.3. You may view Content on the Platform for your own personal, internal use in connection with your use of the Services, in accordance with the normal functionality and restrictions of the Services. We may also provide interactive features that enable you to post or share certain Content in a way that will be accessible to others, in which case you may use such features to post or share such Content, but only in accordance with the normal functionality and restrictions of such features; and such features do not imply any further permission to use any Content in any other manner.
18.4. Except as expressly permitted in these Terms, or on the Platform, you agree not to reproduce, distribute, adapt, modify, translate, create derivative works from, publish or otherwise use any Content for any purpose without the express prior written permission of Niio or the applicable rights holder. Any commercial exploitation of any images or other Content without express prior written permission from Niio or the applicable rights holder is strictly prohibited.
18.5. Without derogating from the above, if you are a teacher or a public library, you may also display Content within the Services to your students or audience members in a live indoor lecture, presentation or seminar conducted by you, provided all such use of Content is strictly educational and non-commercial (excluding for the purposes of enterprise application integration) and you do not reproduce, distribute or publish any Content in any way that is not specifically permitted by the features of the Services that we provide.
18.6. Please note that Content displayed on the Platform covers a wide range of art and the subject matter is generally uncensored, and may include nudity or other visual or written material that some people may consider inappropriate for children and minors or offensive to minors and sensitive people. If you allow your child or any other minor to use your computer or other Registered Device it is solely your responsibility to prevent them from accessing any Content that you think is or may be inappropriate for them.
18.7. Please further note that while Niio provides you with the option to apply certain explicit content filters to your account and to your Registered Devices, restricting certain media from appearing on your Registered Device, however, such content filters work under the assumption that all Users properly tag and rate their Digital Art. Niio makes no representation that by applying any content filters, you will not be exposed to content you find harmful, inappropriate or offensive.
18.8. The “Niio” name and logo are a protected trademark owned by Niio and registered in both the EU and the US and are Niio’s intellectual property. All other trademarks appearing on the Platform are trademarks of their respective owners. Our partners may also have additional proprietary rights in the content which they make available through the Services and the Platform. The trade names, trademarks and service marks owned by us, whether registered or unregistered, may not be used in connection with any product or service that is not ours, in any manner that is likely to cause confusion. Nothing contained on the Platform should be construed as granting, by implication, estoppels or otherwise, any license or right to use any of our trade names, trademarks or service marks without our express prior written consent.
18.9. We are not responsible for Content that members post or the communications that members send using our Platform. We generally don’t review Content before it’s posted. If you see Content that violates these Terms, we’d appreciate your immediate report of such inappropriate Content to us.
- User Conduct
19.1. You hereby acknowledge that as a Registered User, your conduct and the Digital Art you submit shall be respectful at all times and you undertake not to: (i) harass any other Registered User any third party and/or any of Niio’s agents, directors, officers, shareholders and employees, (ii) harm or exploit minors, (iii) collect information about other Registered Users in a way that is inappropriate or in violation of the law (iv) constitute or contribute to a crime or tort.
19.2. You warrant and undertake that you shall not, nor encourage others or permit others to:
(a) access or attempt to access the Platform and/or data and/or materials by any means other than the interface provided by Niio, or use the Platform in any manner that could damage, disable, overburden, or impair any Niio server or the networks connected to any Niio server;
(b) attempt to violate, circumvent or breach any data security, authentication procedures, accounts, passwords, servers, networks measures, all which are employed by Niio or by any third party and/or use restrictions put into place by Niio to prevent certain uses of the Platform;
(c) violate any laws related to the access to or use of the Platform and/or violate any requirements, procedures, policies, or regulations of networks connected to the Platform and/or or engage in any activity prohibited by these Terms;
(d) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(e) access the Platform while not logged onto the account and/or log into, or attempt to log into, a server or account which you are not authorized to access;
(f) attempt to scan or test the vulnerability of Niio’s servers, system or network and/or interfere with the Website and/or Platform and/or the Services, by any means including, without limitation, hacking Niio’s servers or systems, submitting a virus, overloading, mail-bombing or crashing;
(g) use any automated methods or tools to crawl, robot, scrape, spider or otherwise monitor or extract data from any part of the Platform without our express prior written permission (provided that we may use robot exclusion headers within the Platform and you agree to comply with any such headers);
(h) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any of the source code or underlying ideas or algorithms of any part of the Platform, except to the limited extent that applicable laws specifically prohibit such restrictions;
(i) post or send any unauthorized or unsolicited advertising, promotional materials, marketing email or spam;
(j) forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use the Services or any Content to send altered, deceptive or false source-identifying information;
(k) disrupt, interfere with, or inhibit any other user from using and enjoying the Platform or other affiliated or linked sites, platforms, or content;
(l) reproduce, sell, trade, resell or exploit for any commercial purpose, the Platform, access to the Platform, the Digital Art, its metadata and any User Content;
(m) defraud, defame, or otherwise violate the legal rights (such as rights of privacy and publicity) of others;
(n) mirror or frame any part of the Platform on any other website;
(o) use any meta-tags or other hidden text or metadata containing any Niio trademark, URL or product name without our express prior written permission;
(p) use any Niio trademark, URL, product name or logo in any way that incorrectly suggests our affiliation with or endorsement of any person, entity, product or service; or use any other trademarks, service marks, trade dress, designs or logos that are confusingly similar to any Niio trademark, product name or logo or to the look and feel of the Services;
(q) remove, alter or tamper with any copyright, trademark or other proprietary notices or any digital watermarks or other technical measures used to indicate the source and/or ownership of any images or other Content;
(r) assist or encourage any third party to do any of the above activities prohibited in this section or to otherwise violate any Niio Terms or policy;
(s) engage in any other conduct which, in Niio’s sole discretion, is considered inappropriate, unauthorized or objectionable.
19.3. Without limitation to any other rights or remedies of Niio under these Terms, Niio reserves the right to investigate any situation that appears to involve any of the above, and may report such matters to, and cooperate with, appropriate law enforcement authorities in prosecuting any users who have participated in any such violations.
19.4. In addition, you agree to comply will all applicable laws, regulations, and ordinances as a condition of use of the Services and/or Platform.
19.5. In order to permit us to protect the quality of our products and Services, you hereby consent to our employees and representatives being able to access your account and records for any reason, in our sole discretion. We also reserve the right, but do not assume the responsibility, to monitor or review your conduct while using the Niio Service and the Platform. Your use of the Services and the Platform is subject to all applicable local, state, national and international laws and regulations. Further, you acknowledge that you are responsible for obtaining or providing all access lines, telephone and computer equipment (including modem), or other devices, necessary to access the Platform, and paying all charges related thereto.
19.6. You agree to comply with the above conditions, and acknowledge and agree that Niio has the right, in its sole discretion, to terminate your account or take such other action as we see fit if you breach any of the above conditions or any of the other terms of these Terms. This may include taking court action and/or reporting offending users to the relevant authorities.
- Third Parties: Links to Third Party Sites and Intellectual Property
The Platform may provide, or third parties may provide, links to other internet websites, downloads or resources and further may contain third parties’ intellectual property. Because we have no control over such sites, intellectual property and resources, you acknowledge and agree that we are not responsible for the availability or the correctness of such external sites and the intellectual property or resources, and do not endorse and are not responsible or liable for any content, advertising, products, services, intellectual property or other materials (collectively, “Third Party Materials”) on or available from such sites or resources. You understand that you may be exposed to Third Party Materials that may be offensive, indecent or objectionable. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such Third Party Materials available on or through any such site or resource.
- Mobile Use
21.1. We may make available software to access the Platform or display Digital Art via a mobile device and/or mobile applications (“Mobile Software”). The Mobile Software may be available on the Apple iTunes or App Store or the GooglePlay Store or as part of our website or as part of any third party services. To use the Mobile Software you must have a mobile device that is compatible with the Mobile Software. We do not warrant that the Mobile Software will be compatible with your mobile device. You agree to use the Mobile Software solely in accordance with these Terms, or any other specific terms which we may make available in relation to such Mobile Software.
21.2. You understand that when you choose to install our Mobile Player Software, you may activate a launcher, which can be manually deactivated through the relevant options on your device.
21.3. With respect to the Mobile Software and/or any content relating to the Mobile Software, you may not: (i) modify, disassemble, decompile, copy, move or reverse engineer the Mobile Software or any content therein; (ii) sell, rent, lease, loan, resell, sublicense, syndicate, distribute or otherwise transfer the Mobile Software or content therein to any third party; (iii) make any copies of the Mobile Software or any content therein; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Software or content therein, features that prevent or restrict use or copying of any content accessible through the Mobile Software, or features that enforce limitations on use of the Mobile Software; or (v) delete the copyright and other proprietary rights notices on the Mobile Software or content therein.
21.4. You acknowledge that we may from time to time issue upgraded versions of the Mobile Software, and may automatically electronically upgrade the version of the Mobile Software that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of these Terms will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Software is covered by the applicable open source or third-party license or EULA, if any, authorizing use of such code.
21.5. The foregoing license grant is not a sale of the Mobile Software or any copy thereof, and we or our third party licensors or suppliers retain all right, title, and interest in the Mobile Software and any copy thereof.
21.6. For the avoidance of doubt, the rights and licenses with respect to any Digital Art stored or displayed on a mobile device using the Mobile Software are as detailed in these Terms.
- Copyright and Copyright Notices
23.1. We respect the intellectual property of others, and we ask our users to do the same. We may, in appropriate circumstances, and at our discretion, terminate the accounts of Registered Users and/or delete content which infringes the intellectual property rights of others. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide us with the following information:
(a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
(b) a description of the copyrighted work that you claim has been infringed;
(c) a description of where the material that you claim is infringing is located on the Platform;
(d) your full name, address, telephone number, and valid email address;
(e) a statement by you, made under penalty of perjury, that in sending your notice you are acting in good faith and that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf and that the disputed use is in fact not authorized by the copyright owner, your agent, or the law.
24.1. Niio undertakes that it will use its reasonable best efforts to attempt to provide the Services and access to the Platform 24 hours a day, 7 days a week. However, there will be occasions when access to the Platform will be interrupted for maintenance, upgrades and repairs, that you acknowledge is a necessary function conducted by Niio, or as a result of failure of telecommunications links and equipment that are beyond Niio’s control. Niio shall bear neither responsibility nor liability for any loss of revenue that may result from such downtime.
24.2. Niio may modify or discontinue, temporarily or permanently the services and / or the Platform, or any portion thereof. In such case, Niio will notify you in advance and provide you an opportunity to access your Digital Art prior to discontinuation.
24.4. Niio may limit the Platform’s availability, in whole or in part, to any person, geographic area or jurisdiction we choose, at any time and in our sole discretion.
- Disclaimer of Warranties
25.1. While we try to keep the Services up and running and functioning properly, you agree that your use of the Services is at your own risk. The Services and all Content are provided to you on an “as is” and “as available” basis without any warranties of any kind, express or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement, any warranties arising out of course of dealing or usage of trade, any warranties as to accuracy, completeness, timeliness or reliability, and any warranties that the Services or any Content will meet your requirements or be error-free, available, uninterrupted, secure or free of viruses or other harmful components, all of which we expressly disclaim to the fullest extent permitted by applicable law. If the use of the Services results in the need for servicing or replacing equipment or data, we will not be responsible for those costs or losses. Except as otherwise provided in a separate written Terms between you and Niio, no advice or information that you obtain from us or any other person or entity, whether orally, in writing, on the Platform or elsewhere, will create any warranty by Niio not expressly stated in these Terms. Some jurisdictions do not allow the exclusion of implied warranties, so some of the exclusions in this section may not apply to you.
25.2. Please note that despite the rules and guidelines in these Terms, it is possible that others might access or use the Platform in ways that are deceptive, fraudulent, defamatory, harmful, unlawful, offensive or otherwise objectionable. We make no representations or warranties whatsoever with regard to the conduct of any users or other third parties on or in connection with the Platform, whether online or offline, whether in connection with any Transaction, User Content or otherwise. We also make no representations or warranties whatsoever, express or implied, with regard to any property offered or sold by any third party on or in connection with the Services, its quality, merchantability, fitness for a particular purpose, legal title or otherwise. All users are solely responsible for their own communications, dealings and interactions with other users or any other third parties on or in connection with the Platform.
25.3. We do not represent that the materials on the Platform are appropriate for use in all locations. Persons who have access to the Platform do so on their own initiative, and are responsible for compliance with local laws, of and to the extent applicable.
25.4. We are not responsible for Digital Art or User Content. We only provide the technical means, and a venue, for Registered Users’ Digital Art to be uploaded, shared and accessed.
25.5. While we reserve the right to do so, we do not pre-screen Digital Art. Even though Registered Users are prohibited from doing so, some may provide information, or otherwise behave, in a way that is unreliable, illegal, or in breach of a Registered User’s obligations under these Terms. Therefore, you should exercise no lesser degree of caution in using the Services than you would when conducting similar activity offline.
- Indemnification and Limitation of Liability
26.1. To the fullest extent permitted by applicable law, you agree to indemnify and hold harmless Niio, its subsidiaries or affiliates and any officers, owners, directors, shareholders, consultants, agents and employees of the foregoing, in connection with any losses, damages, costs, expenses, obligations, liabilities, payments (including settlement payments), fines and monetary penalties, and indirect, incidental, exemplary, punitive, special or consequential demands or damages (actual and consequential) of every kind and nature, known or unknown, suspected and unsuspected, including reasonable attorneys’ fees, or any damages for loss of profits, revenue, data, use, goodwill or other intangible losses, arising out of or in any way connected with any of the following: (i) your connection and/or use or inability to use the Services and/or Platform; (ii) any dealings between you and anyone else advertising or promoting via the Platform; (iii) your violation of these Terms or any other right whatsoever, including any intellectual property thereof; (iv) any claim or dispute between you and any other Registered User or users; (v) anything offered and/or sold by any third party on or in connection with the Services; (vi) any unauthorized third party access to or use of the Services; (vii) any Registered User, any account and/or any User Content; (viii) any conduct of any third party using the Services and/or the Platform; (ix) any content, goods or service included on or otherwise made available to you through the Services and/or Platform; (x) the deletion of, or any failure to store or deliver, any Digital Art and/or any other type of Content. You expressly waive any benefit or protection, whether statutory or otherwise, that would otherwise limit the coverage hereunder.
26.2. In no event will the total liability of Niio and our officers, owners, directors, shareholders, consultants, agents and employees for any claim related to the Services exceed the greater of 100 GPB or the total amount paid by you to Niio in relation to the Services, if any, during the three (3) months before the act or omission giving rise to the claim.
26.3. The limitations in this section apply to all claims, whether based on warranty, contract, tort (including negligence), strict liability or any other legal theory, whether or not we have been advised of the possibility of such damages, even if a remedy set forth in these Terms is found to have failed its essential purpose. Some jurisdictions do not allow the exclusion of consequential or incidental damages, so some of the exclusions in this section may not apply to you.
26.4. Niio specifically disclaims any liability with regard to any actions resulting from Registered User’s use of or participation in, or arising from, the Platform and the Content. Any content downloaded in relation to the Services, made available or otherwise obtained through the use of the Platform, is accessed at your own discretion and risk, and you will be solely responsible for any damage to your computer system or loss of data that results from the download.
26.5. Niio assumes no liability for any computer virus or similar code that is downloaded to a Registered User’s computer from the Platform.
26.6. Niio will not be liable for any loss that you may incur as a result of someone else using your password or account or account information in connection with the Platform, either with or without your knowledge.
- Termination and Modification of the Services
27.1. You agree that we, in our sole discretion, may terminate your password, account (or any part thereof) or use of the Services and the Platform, for any reason, including, without limitation, if we believe that you have violated or acted inconsistently with the letter or spirit of these Terms. We may also terminate your account upon receiving reliable information involving your violation of any law, and will cooperate with law enforcement agencies on such matters. We may also, in our sole discretion and at any time, discontinue providing the Services, or any part thereof, with or without notice. You agree that any termination of your access to the Platform under any provision of these Terms may be effected without prior notice, and acknowledge and agree that we may immediately deactivate or delete your account and all related information and files in your account, and/or bar any further access to such files or the Services. Further, you agree that we shall not be liable to you or any third party for any termination of your access to the Platform.
27.2. We reserve the right, at any time and from time to time, temporarily or permanently, in whole or in part, to: (a) modify or discontinue the Services, including, but not limited to (i) restricting the time the Services are available, (ii) restricting the amount of use of the Services permitted, and (iii) restricting or terminating any Registered User’s right to use the Services, with or without notice; (b) charge fees in connection with the use of the Services; (c) modify and/or waive any fees charged in connection with the Services; and/or (d) offer opportunities to some or all Registered Users of the Services. You agree that neither we nor any of our affiliates, shall be liable to you or to any third party for any modification, suspension or discontinuance of the Services, in whole or in part, or of any Service, content or feature offered through the Platform.
27.3. We may revoke your registration privileges and/or take any other appropriate measures to enforce these guidelines if violations are brought to our attention. Further, we may, in our sole discretion, suspend or terminate your account or participation in any feature of the Services and the Platform for any reason.
28.1. All notices to be given by Niio will be sent by email, to the email address provided by you to Niio during the registration process. You agree to monitor your email messages and/or the Platform frequently to ensure awareness of any notice sent.
28.2. Any notice to Niio will be given by contacting Niio by emailing us at: [email protected]
28.4. Notices shall be deemed given 24 hours after an email is sent. Alternatively, legal notices may be given to the registered address provided by you during the registration process. In such case, notice shall be deemed received three days after the date of mailing.
- Miscellaneous Terms
29.1. These Terms do not, and shall not be construed to create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and Niio.
29.2. Taxes. (i) All prices displayed on the Platform are inclusive V.A.T., where applicable; (ii) Niio shall withhold any tax amounts if so required by law; (iii) The Registered Users are responsible for ascertaining their individual tax status and to pay any taxes associated with the Transactions, if applicable.
29.3. Governing Law. These Terms shall be governed by, construed and interpreted in accordance with the laws of the State of Israel, without giving effect to any principles of conflicts of law.
29.4. Jurisdiction. You agree that any action at law or in equity arising out of or relating to these Terms shall be filed only in courts located in Tel-Aviv and you hereby consent and irrevocably submit to the exclusive jurisdiction of such courts for the purposes of litigating any such action and you waive any jurisdictional, venue or inconvenient forum objections to such courts.
29.5. Claims. You agree that any claim or cause of action arising out of your use of the Services and/or the Platform or these Terms must be filed within three (3) months after such claim or cause of action arose or it shall be deemed waived and forever be barred, notwithstanding any status of limitations or other law to the contrary. Within this period, any failure by Niio to enforce or exercise any provisions of these Terms or related right shall not constitute a waiver of that right or provision. If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions.
29.6. Assignment. Niio may assign these Terms, in whole or in part, at any time with or without notice to you. You may not assign, transfer or sublicense these Terms or any or all of your rights or obligations under these Terms without Niio’s express prior written consent. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default.
29.7. Headings. Any heading, caption or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof.
29.8. Entire Agreement. This is the entire Terms between you and Niio relating to the subject matter herein and may not be modified by you. These Terms will inure to the benefit of Niio’s successors, assigns and licensees.
29.9. Without limitation, you agree that a printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.