DECLARATION by SECURITIES AND EXCHANGE COMMISSION re [8] MOTION for Leave to File Excess Pages filed by SECURITIES AND EXCHANGE COMMISSION. (Attachments: # (1) Exhibit A--23.1, # (2) Exhibit A-23.2)(Scarlato, Matthew)
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Case 1:23-cv-01599-ABJ Document 14-1 Filed 06/06/23 Page 22 of 24
Acceptance of NFT Terms; Modification of NFT Terms
1.
Welcome to the Binance NFT Marketplace owned and operated by Hash Muse Pte Ltd, whose
address
at 531A Upper Cross Street, #04-95 Hong Lim Complex, Singapore (“Company”, “we”,
is
“us”, or “our”). These Terms and Conditions (“NFT Terms”) constitute
legally binding agreement
a
between Company and each registered or unregistered end user (each,
“User”, “you” or “your”)
a
of the Binance NFT Marketplace located at nft.binance.com or such other URL as may be
designated by Company from time to time, as well as any mobile apps or other related services or
applications thereto (collectively, the “NFT Marketplace”). The NFT Marketplace
of the “Binance Services” as defined
here. Company
considered part
is
the Binance Terms of Use (“Binance Terms”) set forth
in
“Binance Operator” under the Binance Terms. The Binance Terms are
is a
incorporated by reference into these NFT Terms, and also govern your use and access of the NFT
Marketplace. In the event of
conflict between these terms of these NFT Terms and the Binance
a
Terms, the NFT Terms will supersede and control. Please carefully review these NFT Terms and
the Binance Terms. By accessing and using the NFT Marketplace (including by purchasing or
bidding on any items herein), you are deemed to have read, accepted, executed and agreed to be
bound by these NFT Terms (including the Binance Terms as incorporated by reference herein). We
may change or amend the NFT Marketplace or these NFT Terms at any time at our sole and
absolute discretion. Any changes to these NFT Terms will be
effect as of the “LAST REVISED”
in
date referred to at the top of this page. You acknowledge and agree that the form and nature of
the NFT Marketplace, and any part of
may change from time to time without prior notice to you,
it,
and that we may add new or remove existing features and change any part of the NFT
Marketplace. IF ANY PROVISION OF THESE NFT TERMS OR THE BINANCE TERMS OR ANY
FUTURE CHANGES ARE UNACCEPTABLE TO YOU, DO NOT USE OR CONTINUE TO USE THE NFT
MARKETPLACE. YOUR CONTINUED USE OF THE NFT MARKETPLACE FOLLOWING THE POSTING
OF ANY NOTICE OF ANY CHANGE TO THESE TERMS OF SERVICE SHALL CONSTITUTE YOUR
ACCEPTANCE AND AGREEMENT TO SUCH CHANGE. ARBITRATION NOTICE: THE BINANCE
TERMS CONTAIN AN ARBITRATION CLAUSE. EXCEPT FOR CERTAIN TYPES OF DISPUTES
MENTIONED IN THAT ARBITRATION CLAUSE, YOU AND COMPANY AGREE THAT DISPUTES
BETWEEN US WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION, AND YOU AND
COMPANY WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE
ARBITRATION.
Overview of the NFT Marketplace
2.
The NFT Marketplace provides you with the opportunity to create (or as we call
mint), sell,
it,
purchase, bid on, collect, trade, showcase and otherwise transact digital blockchain collectibles,
which may be represented as
non-fungible token (“NFT”) linked with certain digital media and
a
art (“NFT Media”). We facilitate transactions between buyer and seller of an NFT, but we are not
a
party to any agreement between buyer and seller of an NFT on the NFT Marketplace. We collect
revenue on the NFT Marketplace via transaction fees and other applicable fees which we display
when you interact with the NFT Marketplace. For the avoidance of doubt, NFTs transacted on the
NFT Marketplace are considered “Digital Assets” as defined
the Binance Terms. Company
in
reserves the right to be the final decision maker on any disputes arising from purchases via the
NFT Marketplace, including
connection with any auctions or other purchase methods. For NFT
in
Sellers: By minting, providing, or selling an NFT through the NFT Marketplace, you hereby
represent and warrant that you own
legal right, title and interest
all
intellectual property
in all
rights to the NFT Media linked or associated with such NFT, or you are legally authorized by the
intellectual property owner to mint, provide or sell the NFT on the NFT Marketplace. Except for
NFTs minted on the NFT Marketplace,
order to
in
any NFT for sale on the NFT Marketplace, you
list
must first deposit the NFT for sale for custody with Company until such time as the NFT
sold or
is
you decide to remove the NFT from the NFT Marketplace. For clarity, Company has no obligation
or liability to you for keeping, storing, or helping you recover any NFT Media associated with your
NFTs. For NFT Buyers: When you purchase an NFT, you own the NFT that
NFT Media, but you do not own any intellectual property rights
is
associated with certain
such NFT Media except for the
in
license grants expressly set forth herein. In certain cases, we may help to evaluate or provide you
with information about
seller of an NFT. However, such information
a
provided for informational
is
purposes only. You bear full responsibility for verifying the authenticity, legitimacy, identity of any
NFT you purchase on the NFT Marketplace. We make no guarantees or promises about the
identity, legitimacy, or authenticity of any NFT on the NFT Marketplace.
License to Your Content
3.
In connection with your use of the NFT Marketplace, you may be able to post, upload, or submit
content to be made available through the NFT Marketplace, including NFT Media that
NFTs you wish to sell on the NFT Marketplace as
your NFTs (“Your Content”). You retain
all
tied to
is
seller, and any other content associated with
a
rights to Your Content you post, upload, submit, or
otherwise made available through the NFT Marketplace, except for rights expressly granted
herein. In order to operate the NFT Marketplace, we must obtain from you certain license rights
Your Content so that actions we take
in
operating the NFT Marketplace are not considered legal
in
violations. Accordingly, by using the NFT Marketplace and uploading Your Content or otherwise
made Your Content available, you grant us
a
license to access, use, host, cache, store, copy,
reproduce, transmit, display, publish, distribute, adapt and modify (for technical purposes, e.g.,
making sure content
Content
any and
in
viewable on smartphones as well as computers and other devices) Your
is
media or distribution methods (now know or later developed) but solely as
all
required to be able to operate and provide services of the NFT Marketplace. You agree that this
license includes the right for us to provide, promote, and improve the NFT Marketplace and to
make Your Content available to other companies, organizations or individuals for the distribution,
promotion or publication of Your Content on other media and services. You agree that these rights
and licenses are royalty free, transferable, sub-licensable, worldwide and irrevocable (for so long
as Your Content
stored with us), and include
is
and pass these rights along
right for us to make Your Content available
a
to,
others with whom we have contractual relationships related to the
to,
provision of the NFT Marketplace, and solely for purpose of providing the NFT Marketplace, and to
otherwise permit access to disclose Your Content to third parties
if
we determine such access
is
necessary to comply with our legal obligations. As part of the foregoing license grant you agree
that the other Users of the NFT Marketplace shall have the right to comment on and/or tag Your
Content and/or to use, publish, display, modify or include
a
copy of Your Content as part of their
own use of the NFT Marketplace; except that the foregoing shall not apply to any of Your Content
that you post privately for non-public display on the NFT Marketplace. By posting or submitting
Your Content to the NFT Marketplace, you represent and warrant that you have, or have obtained,
rights, licenses, consents, permissions, power and/or authority necessary to grant the rights
all
granted herein for Your Content. You agree that Your Content will not contain material subject to
copyright or other proprietary rights, unless you have the necessary permission or are otherwise
legally entitled to post the material and to grant us the license described above.
through the NFT Marketplace, you grant to the buyer of the NFT
you sell an NFT
If
worldwide, non-exclusive, non-
a
transferable, royalty-free license to use, copy, and display the NFT Media for such purchased NFT,
solely for the following purposes: (a) for the buyer’s own personal use; (b) as part of
a
marketplace that permits the purchase and sale of such NFTs, provided that the marketplace
cryptographically verifies each NFT’s owner’s rights to display the NFT Media for their NFTs to
ensure that only the actual owner can display the NFT Media; or (c) as part of
third party website
a
or application that permits the inclusion, involvement, or participation of your NFT, provided that
the website/application cryptographically verifies each NFT’s owner’s rights to display the NFT
Media for their NFTs to ensure that only the actual owner can display the NFT Media, and provided
that the NFT Media
no longer visible once the owner of the NFTs leaves the website/application
is
(the “NFT Purchase License”).
you are
If
a
buyer of NFTs, then you acknowledge and agree that
the NFT Purchase License set forth above only lasts as long as you are the valid owner and holder
of the NFT associated with the licensed NFT Media.
If
you sell or transfer the NFT to another
person, this NFT Purchase License will transfer to such other owner or holder of the NFT, and you
will no longer have the benefits of such NFT Purchase License. Unless otherwise specified by
seller of an NFT
in
writing, your purchase of an NFT does not give you the right to publicly display,
perform, distribute, sell or otherwise reproduce the NFT or
commercial purpose.
related NFT Media for any
its
you sell an NFT, you agree that you will not have any claims against
If
Company for any breach of these NFT Terms by
use of the related NFT Media
a
purchaser, including
they make commercial
if
breach of these NFT Terms. We have the right to remove or refuse
in
to post any of Your Content, including NFTs, (a) for any or no reason
in
our sole discretion; and (b)
take any action with respect to Your Content that we deem necessary or appropriate
discretion, including
if
our sole
in
we believe that Your Content violates these NFT Terms, infringes any
intellectual property right of any person or entity, threatens the personal safety of Users of the
NFT Marketplace or the public, or could create liability for Company or other Users.
4.
Specific Terms for the Premium Platform and Creators
As part of the NFT Marketplace, Company offers
premium platform (the “Premium Platform”)
a
which only allows creators that are invited or otherwise approved by Company (“Invited
Creators”) to mint and sell NFTs (the “Creator’s NFTs”) associated with their original NFT Media
(the “Creator’s NFT Media”). Company may enter into an addendum with any Invited Creator (a
“Creator Addendum”) setting forth terms for using the Premium Platform as an Invited Creator.
there
conflict between
is a
a
If
Creator Addendum and these NFT Terms, the provisions of the
Creator Addendum shall take precedence for such Invited Creator. Invited Creator hereby grants
to Company
perpetual, irrevocable and exclusive right and license to use, reproduce, display the
a
Creator’s NFT Media
in
connection with the promotion of the Creator’s NFT Media, the Creator’s
NFTs and the NFT Marketplace. For clarity, unless otherwise specified
in a
Creator Addendum, the
exclusive license granted above means that Invited Creator cannot itself, or grant to any other
party any right
to,
use, reproduce, display the Creator’s NFT Media
in
connection with non-fungible
tokens or any other blockchain collectibles, platforms or services. In order for Company to
exercise
rights to the Creator’s NFT Media, Invited Creator will provide Company with high-
its
resolution images and other embodiments of such NFT Media as reasonably requested by
Company. Company shall have the sole control over the promotion and marketing of the Creator’s
NFTs, including the sole discretion to select certain Creator’s NFTs or Invited Creators to
participate
events hosted by Company. As reasonably requested by Company, Invited Creator
in
will support Company
in
the promotion or marketing of the Creator’s NFTs through participation
the marketing activities as agreed upon by the parties
in a
Creator Addendum. In connection with
the promotion of the Creator’s NFTs, Invited Creator hereby grants Company
a
right to use the
name, image, photo, biography, signature and likeness of the Invited Creator solely
in
connection
with the marketing and promotion of the Creator’s NFTs. Invited Creator will not engage
promotion or marketing of Company, the NFT Marketplace, or any Creator’s NFTs
is
misleading or deceptive or not
in
in a
any
in
manner that
compliance with applicable law. Invited Creator must disclose
in
any material connection between Invited Creator and Company
and conspicuous manner, including
in
any such promotion
in
in a
clear
close proximity to any such marketing statements. Invited
Creator will not promote or market the Creator’s NFTs
in a
manner intended to give buyers the
impression that such NFTs are investment products or that they can expect capital appreciation or
derive profits from purchase of such NFTs, or indicate that such NFTs may be characterized as
securities or any other form of regulated investment product
any applicable jurisdiction.
in
If
requested by Company, Invited Creator will reasonably cooperate with Company to validate the
authenticity of the Creator’s NFTs and the Creator’s NFT Media. Invited Creator acknowledges and
agrees that Company will charge
platform fee which
a
10% (or other percentage as provided
is
in a
Creator Addendum) of the purchase price for any sale of the Creator’s NFTs on the Premium
Platform. For the avoidance of doubt, any use of or interaction with the Premium Platform by any
User (including an Invited Creator)
Terms not
5.
governed by terms
is
direct contradictory with terms
in
in
in
this Section
this Section
4
and the rest of these NFT
4.
Copyright Policy
Company may, but
is
not obligated
to,
monitor the NFTs, NFT Media and Your Content uploaded to
the NFT Marketplace for any infringement of
Company cannot undertake to review
all
a
third party’s intellectual property rights. However,
such content before
posted on the Service, and
it is
cannot ensure prompt removal of objectionable content after
has been posted. Accordingly,
it
Company assume no liability for any action regarding transmissions, communications, or content
provided by any user or third party.
you believe that any text, graphics, photos, audio, videos or
If
other materials or works uploaded, downloaded or appearing on the Services have been copied
a
way that constitutes copyright infringement, you may submit
department, by providing the following information
work that
in
a
notification to our legal
writing: identification of the copyrighted
claimed to be infringed; identification of the allegedly infringing material that
is
requested to be removed, including
a
in
description of where
it is
is
located on the NFT Marketplace;
information for our copyright agent to contact you, such as an address, telephone number and email address;
use
is
a
statement that you have
a
good faith belief that the identified, allegedly infringing
not authorized by the copyright owners,
information above
is
its
agent or the law;
a
statement that the
accurate, and under penalty of perjury, that you are the copyright owner or
the authorized person to act on behalf of the copyright owner; and the physical or electronic
signature of
a
right that
allegedly infringed. Notices of copyright infringement claims should be sent by mail to:
is
person authorized to act on behalf of the owner of the copyright or of an exclusive
Hash Muse Pte Ltd, Attn: Legal Department, 531A Upper Cross Street, #04-95 Hong Lim Complex,
Singapore; or by e-mail to Copyright.NFT@Binance.com.
It is
our policy,
in
appropriate
circumstances and at our discretion, to disable or terminate the accounts of Users who repeatedly
infringe copyrights or intellectual property rights of others. Any User of the NFT Marketplace who
has uploaded or posted materials identified as infringing as described above may supply
counter-notification. When we receive
material
a
in
question,
in
a
a
counter-notification, we may reinstate the posts or
our sole discretion. To
file a
counter-notification with us, you must provide
written communication (by fax or regular mail or by email) that sets forth: your name, address,
telephone number, e-mail address and physical or electronic signature; identification of the
material that has been removed or to which access has been disabled and the location at which
the material appeared before
was removed or access to
it
penalty of perjury that you have
it
was disabled; and
a
statement under
good faith belief that the material was removed or disabled as
a
a
result of mistake or misidentification of the material to be removed or disabled. Please note that
you will be liable for damages
if
you materially misrepresent that content or an activity
is
not
infringing the copyrights of others.
6.
Verification and Payment
When you make purchases through the NFT Marketplace, including, without limitation, any
purchase for NFTs, you must provide and maintain valid payment information
your Binance Account (as defined
in
in
connection with
the Binance Terms) with us. You represent and warrant that
you are authorized to use the payment method you use via the NFT Marketplace to make any
purchase. You authorize us to charge your payment method for the total amount of your purchase
price. Your order may be suspended or cancelled for any reason, including
cannot be verified,
are set forth
in
is
invalid or
is
the payment method
otherwise not acceptable. Other payments terms for purchases
the relevant sections of the Binance Terms. We have no liability to you or to any
third party for any claims or damages that may arise as
that you engage
if
in
a
result of any payments or transactions
via the NFT Marketplace, or any other payment or transactions that you
conduct via the NFT Marketplace. We do not provide refunds for any purchases that you might
make on or through the NFT Marketplace – whether for NFTs or anything else. You will be solely
responsible to pay any and
all
sales, use, value-added and other taxes, duties, and assessments
(except taxes on our net income) now or hereafter claimed or imposed by any governmental
authority associated with your use of the NFT Marketplace or NFTs, except for income taxes levied
on us as
7.
a
result of such purchases of NFTs.
Assumption of Risks
Any purchase or sale you make, accept or facilitate outside of the NFT Marketplace of an NFT will
be entirely at your risk. You acknowledge that you have obtained sufficient information to make an
informed decision to purchase an NFT, including carefully reviewing the code of the smart contract
and the NFT and fully understand and accept the functions of the same. We do not control or
endorse purchases or sales of NFTs outside of the NFT Marketplace. We expressly deny and
disclaim any liability to you and deny any obligation to indemnify you or hold you harmless for any
losses you may incur by transacting, or facilitating transactions,
in
NFTs outside of the NFT
Marketplace. Certain parts of the NFT Marketplace may display, include or make available content,
data, information, applications or materials from third parties (“Third Party Materials”). By using
the NFT Marketplace, you acknowledge and agree that Company
is
not responsible for examining
or evaluating the content, accuracy, completeness, availability, timeliness, validity, copyright
compliance, legality, decency, quality or any other aspect of such Third Party Materials. We do not
warrant or endorse and do not assume and will not have any liability or responsibility to you or any
other person for any third-party services, Third Party Materials, or for any other materials,
products, or services of third parties.
8.
Contact
General questions or comments about the NFT Marketplace or these NFT Terms should be sent
either by mail to Hash Muse Pte Ltd, 531A Upper Cross Street, #04-95 Hong Lim Complex,
Singapore, or by contacting the customer support team at
https://www.binance.com/en/support/requests/new.
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