1.2 We provide a marketplace for Users looking to sell Digital Assets (Sellers) and parties looking to purchase Digital Assets (Buyers). Digital Assets refers to unique non-fungible tokens (NFTs), implemented on the Ethereum blockchain using smart contracts.
1.3 The NFT marketplace is available at http://market.x.immutable.com and via other channels or addresses (NFT Marketplace). The NFT Marketplace uses software provided by Immutable X Pty Limited ABN 36 644 717 840 (API Provider).
1.4 In these Terms, the User means (as applicable) (1) the person or entity registered with us as either a Buyer or Seller; or (2) the individual browsing the NFT Marketplace.
1.5 If you are a User using the NFT Marketplace on behalf of an employer or a business entity, you, in your individual capacity, represent and warrant that you are authorised to act on behalf of your employer or the business entity and to bind the entity and the entity's Personnel to these Terms.
2. Acceptance and NFT Marketplace Summary
2.1 By using the NFT Marketplace, Users will be deemed to have accepted these Terms.
2.2 The NFT Marketplace allows Buyers and Sellers to find each other, and advertise, buy and sell NFTs online.
2.3 We provide the NFT Marketplace to Users (including hosting and maintaining the NFT Marketplace) to:
(a) assist Buyers and Sellers to form contracts for the purchase of NFTs; and
(b) process payments between Buyers and Sellers, (together the Marketplace Services).
2.4 You understand and agree that we only make the NFT Marketplace and the Marketplace Services available. We are not party to any agreement entered into between Users and we have no control over the conduct of Buyers, Sellers or any other User of the NFT Marketplace, including in relation to the sale of illegally obtained NFTs.
2.5 In order to register for use of the NFT Marketplace Buyers and Sellers will need to generate a link key. This link key will allow Buyers and Sellers to integrate a Metamask wallet (Wallet) with the NFT Marketplace which is necessary to buy and sell NFTs.
2.6 After applying a link key, and integrating Wallet, Buyers and Sellers will be able to use the NFT Marketplace (Registration).
2.7 Users may view and browse the NFT Marketplace without Registration, but will need to register to purchase a NFT from the NFT Marketplace.
2.8 If User loses access to their Immutable X link key or forget the details to the linked Wallet, they will lose access to the NFTs connected to their Wallet. We cannot assist with resetting such details.
2.9 We do not accept liability for any loss suffered by a User in connection with the User losing a link key or a private key. Users should always ensure their Wallet passwords and seed phrases are secure and not shared with any other party.
2.10 A Seller wanting to sell a NFT must register on the NFT Marketplace and then deposit NFTs from their Wallet into their inventory or purchase a NFT on the NFT Marketplace. The Seller can then list the NFT for sale (Listing).
2.11 When a Seller is creating a Listing, they can choose a price for the NFT (NFT Price). We do not make any representations as to the value of the NFTs listed and have no control over the prices set by the Sellers.
2.12 In consideration for providing access to the NFT Marketplace and providing the Marketplace Services, we may add a service fee (as set out on the NFT Marketplace for Listings) on top of the NFT Price (Service Fee). Part of the Service Fee may include a Protocol Fee and a fee payable to the creator of the NFT (Royalty Fee). Part of the Protocol Fee will be automatically contributed to the $IMX Rewards Pool by the protocol. A Seller may also be liable to pay fees to us if they minted their NFT using our service. We may waive our Service Fee or offer fee free trading from time to time as notified through the NFT Marketplace.
2.13 The total price of the NFT Price, plus the Service Fee and any other applicable charges and taxes, including any Royalty Fee, is the price that a Buyer will see on the NFT Marketplace and must pay to acquire an NFT from a Listing (Purchase Price).
2.14 The Listing will automatically populate the details of the NFT based on the NFTs unique ID.
2.15 Sellers will not be able to withdraw a NFT from their inventory if it is in a live Listing. Sellers may only remove the Listing (if the NFT the subject of the Listing has not been sold) and then withdraw the relevant NFT from their inventory.
2.16 Once the NFT has been sold (as set out below), the Immutable Protocol will transfer the ownership of the NFT to the Buyer and the Seller will no longer be able to withdraw it from their inventory.
2.17 Each Seller agrees:
(a) that they are legally entitled to, and capable of, selling the NFTs described in any Listing and have the right to offer up the Intellectual Property associated with any NFT placed in a Listing;
(b) that we may at any time and for any reason remove a Listing from our NFT Marketplace; and
(c) not to engage in any illegal activity, including the sale of stolen or counterfeit assets or wash trading.
2.18 Once a Buyer has registered, they may purchase NFTs from Sellers as set out in Listings on the NFT Marketplace. Any purchase made through the NFT Marketplace is an offer by the Buyer to purchase a particular NFT from the Seller for the Purchase Price, at the time the Buyer makes the purchase.
2.19 It is the Buyer's responsibility to check the purchase details, including the selected NFT and Purchase Price, before making a purchase through the NFT Marketplace. The Buyer assumes all risk in any risk in the Intellectual Property associated with an NFT purchased through the NFT Marketplace and should satisfy themselves prior to purchase that the NFT offered for sale is genuine and carries the necessary Intellectual Property rights connected with any design or mark associated with the NFT.
2.20 When the Buyer selects a NFT to purchase and pays the Purchase Price on the NFT Marketplace, the offer is deemed accepted by the Seller and results in a separate binding agreement between the Buyer and Seller for the supply of the NFT in accordance with these Terms. Once the payment by the Buyer has been validated, the NFT will appear in the Buyer's inventory within 30 minutes, but may be delayed due to factors beyond our control, including Force Majeure Events and delays caused by Third Party Inputs.
2.21 Title to NFTs will remain with the Seller until the Buyer has paid the Purchase Price in full in accordance with the Terms. From the time the order is placed until title in the NFT passes, the Buyer must not do anything which seeks to create an encumbrance, lien, charge, or other interest over the NFT.
2.22 Risk in the NFT will pass to the Buyer as soon as it appears in their inventory. Once risk in the NFT passes, the Buyer will be solely responsible for it.
3.1 We may contact Users via the NFT Marketplace using in-app notifications, or via off-NFT Marketplace communication channels, such as text message or email.
4.1 We make available the NFT Marketplace and process payment for orders on behalf of Sellers as the agent of the Seller.
Applicable to Buyers only
4.2 Buyers agree to pay the Purchase Price at the time of purchase of an NFT.
4.3 Buyers must pay the Purchase Price using the Ether currency. Buyers must ensure that their linked Wallet has sufficient funds to pay the Purchase Price.
4.4 Buyers must not pay, or attempt to pay, the Purchase Price by fraudulent or unlawful means. In the absence of fraud or mistake, all payments made are final.
Applicable to Sellers only
4.5 Upon receipt of the Purchase Price from the Buyer, Sellers agree that we may deduct the Service Fee and arrange for the remainder (the Net Sales Proceeds) to be deposited in the Seller’s Wallet. All such deposits are to be made in the Ether currency. This deposit will normally appear in a Seller’s Wallet 2 hours after the Buyer places an order but may be delayed due to factors beyond our control, including Force Majeure Events and delays caused by Third Party Inputs.
4.6 Sellers appoint us as a limited payment collection agent solely for the purpose of accepting the Purchase Price from the relevant Buyer. Sellers agree that we will not be required to pay any amount until we have received the Purchase Price in full from the relevant Buyer.
4.7 Each Seller agrees that we will deduct our Service Fee and any other applicable fees as notified to a Seller from time to time from the Purchase Price we receive as set out in clause 4.5 above and that we may grant refunds to Buyers in accordance with these Terms.
4.8 Each Seller agrees that when we receive full payment of the Purchase Price from a Buyer, this will constitute payment to the Seller for the NFT and the Buyer's payment obligation to the Seller will be deemed completed at that time and the Seller will have no further claims against the Buyer with respect to that payment.
4.9 lf we determine a Buyer should be refunded the Purchase Price in accordance with clause 5 (Refunds), we have the right to refuse to pay the Net Sales Proceeds to the Seller. The Seller acknowledges that we may set off any amounts the Seller owes to us from time to time against any amounts we owe to the Seller.
4.10 Users agree that we may refuse to process any payment if we believe that a transaction is fraudulent, invalid, suspicious, or breaches applicable law or these Terms.
4.11 This clause 4 will survive the termination or expiry of these Terms.
5.1 Buyers are not entitled to return NFTs or receive a refund for change of mind or other circumstances.
5.2 Certain legislation, including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations, may confer Users with rights, warranties, guarantees and remedies relating to the provision of the NFT Marketplace by us to Users which cannot be excluded, restricted or modified (Statutory Rights).
5.3 If the ACL applies to a User as a consumer, nothing in these Terms excludes that User’s Statutory Rights as a consumer under the ACL. Users agree that our Liability for the NFT Marketplace provided to an entity defined as a consumer under the ACL is governed solely by the ACL and these Terms.
5.4 Subject to your Statutory Rights, we exclude all express and implied warranties, and all material, work and services (including the NFT Marketplace) are provided to Users without warranties of any kind, either express or implied, whether in statute, at law or on any other basis.
5.5 As a Buyer, the goods and services provided by a Seller may also confer on a Buyers certain rights under the ACL.
5.6 This clause 5 will survive the termination or expiry of these Terms.
6. Intellectual Property and Content
6.1 We may allow Users to, on or through our NFT Marketplace:
(a) post Listings featuring NFTs (User Content); and
(b) access and view User Content and the content and information we make available on the NFT Marketplace (Our Content),
(together, the Content).
6.2 Unless otherwise indicated, we own or licence all rights, title and interest (including Intellectual Property Rights) in our NFT Marketplace, Marketplace Services and all of the Content. The use of our NFT Marketplace and your use of and access to any of the Content does not grant or transfer Users any rights, title or interest in relation to our NFT Marketplace or Our Content.
6.3 Users must not, without the prior written consent of ourselves or the owner of the Content (as applicable) or except as expressly permitted by these Terms:
(a) copy or use, in whole or in part, any Content;
(b) reproduce, reverse engineer, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any Content designated as paid, exclusive or non-shareable content to any third party; or
(c) breach any Intellectual Property Rights connected with our NFT Marketplace or Marketplace Services, including by altering or modifying any of the Content, causing any of the Content to be framed or embedded in another website, or creating derivative works from the Content.
6.4 Subject to a User’s compliance with these Terms, we grant Users a personal, non-exclusive, royalty-free, revocable, worldwide, non-transferable licence to use our NFT Marketplace and Marketplace Services, and access and view any Content for personal use, and any other purpose contemplated by these Terms, in accordance with these Terms. All other uses are prohibited without our prior written consent.
6.5 Users grant us a non-exclusive, perpetual, irrevocable, worldwide, royalty free, sub-licensable and transferable right and licence to use, view, distribute, communicate, copy, store, modify and exploit in any manner the User Content to provide the NFT Marketplace and Marketplace Services and promote the NFT Marketplace and Marketplace Services in any media, marketing or promotional material.
6.6 Users agree that they are solely responsible for all User Content that they make available on or through our NFT Marketplace and Marketplace Services.
6.7 Users represent and warrant that:
(a) they are either the sole and exclusive owner of all User Content or that they have all rights, licences, consents and releases that are necessary to grant to us the rights in such User Content as contemplated by these Terms; and
(b) neither the User Content, nor the posting, uploading, publication, sending or receiving of the User Content or our use of the User Content on, through or by means of our NFT Marketplace or Marketplace Services will infringe, misappropriate or violate a third party's Intellectual Property Rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
6.8 Despite anything to the contrary, to the maximum extent permitted by law, Users agree to indemnify us and hold us harmless in respect of any Liability that we may suffer, incur or otherwise become liable for, arising from or in connection with the User Content Users make available on or through the NFT Marketplace, including as a result of an Intellectual Property Breach.
6.9 The Content is not comprehensive and is for general information purposes only. It does not take into account any User’s specific needs, objectives or circumstances, and is not advice. While we use reasonable attempts to ensure the accuracy and completeness of the Content, to the extent permitted by law, we make no representation or warranty regarding the Content. The Content is subject to change without notice. We do not undertake to keep our NFT Marketplace up-to-date and we are not liable if any Content is inaccurate or out-of-date.
6.10 This clause 6 will survive the termination or expiry of these Terms.
7.1 Users represent, warrant and agree that:
(a) they will not use our NFT Marketplace, including the Content, in any way that competes with our business;
(b) there are no legal restrictions preventing Users from entering into these Terms;
(c) all information and documentation that Users provide to us in connection with these Terms is true, correct and complete;
(d) we provide the NFT Marketplace and any software operating it (including any APIs accessed to operate the NFT Marketplace) on an ‘as is’ basis and that we make no representations or warranties regarding the software including that:
(1) the software is of merchantability, satisfactory quality, fitness for a particular purpose, non-infringement or quiet enjoyment; or
(2) that the software, including any back-end infrastructure or smart contracts will be uninterrupted, secure, private, error free or free of harmful components or that any error will be fixed in the API;
(3) that any data transmitted to the Software by a User will be secure or not otherwise lost or altered;
(4) the API provider or its Personnel is not liable for any harm of damage suffered as a result of using the software including in respect of trading NFTs via the API, any loss of an NFT Asset, digital assets or tokens, and including in respect of any loss of profit, loss of revenue, loss of opportunities or loss of use, whether due to security breach or cyber attack, or electronic or technological failure, registration errors or for any other reason.;
(e) they understand that the price of NFTs are volatile, and there are risks associated with purchasing NFTs including but not limited to, the risk of purchasing counterfeit assets, mislabeled assets, assets that are vulnerable to metadata decay, assets on smart contracts with bugs, and assets that may become untransferable, and by trading on our NFT Marketplace. Users acknowledge and accept such risks;
(f) they have not relied on any representations or warranties made by us in relation to the NFT Marketplace(including as to whether the NFT Marketplace is or will be fit or suitable for your particular purposes), unless expressly stipulated in these Terms; and
(g) they will be responsible for the use of any part of the NFT Marketplace, and Users must ensure that no person uses any part of the NFT Marketplace: (1) to break any law (including participating in money laundering, terrorist financing or wash trading) or infringe any person's rights (including Intellectual Property Rights); (2) to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; (3) to develop, utilize, or disseminate any software or interact with the NFT Marketplace in any manner, that could harm, or impair it; (4) use any robot, spider, crawler, scraper, script, browser extension, offline reader or other automated means or interface not authorized by us to access the NFT Marketplace, extract data or otherwise interfere with or modify the rendering of NFT Marketplace or functionality or (5) in any way that damages, interferes with or interrupts the supply of the NFT Marketplace.
7.2 Sellers represent, warrant and agree that:
(a) they are responsible for complying with all laws, rules and regulations which apply to selling the listed NFTs;
(b) they have all rights to each NFT that are listed; and
(c) they will not sell stolen NFTs, NFTs taken without authorisation or otherwise illegally obtained NFTs on the NFT Marketplace.
8. Exclusions to liability
8.1 Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and Users waive and release us from and against, any Liability caused or contributed to by, arising from or connected with:
(a) Users or Users Personnel's acts or omissions;
(b) loss of, or damage to, any property or any injury or loss to any person;
(c) any use or application of the Marketplace Services by a person or entity other than the User, or other than as reasonably contemplated by these Terms;
(d) any aspect of the Buyer and Seller interaction including the NFTs offered by the Seller;
(e) any NFTs containing viruses or other harmful components;
(f) any works, services, goods, materials or items which do not form part of the Marketplace Services (as expressed in these Terms), or which have not been provided by us, including descriptions of any NFTs pulled from third party sources;
(g) any tax liability you incur as a resulting of buying or selling NFTs on the NFT Marketplace;
(h) their Computing Environment;
(i) any third parties or any goods and services provided by third parties, end users or suppliers, providers or other subcontractors which the provision of the NFT Marketplace may be contingent on, or impacted by;
(j) the Marketplace Services being unavailable, or any delay in us providing the Marketplace Services to Users, for whatever reason; and/or
(k) any event outside of our reasonable control (including a Force Majeure Event).
8.2 This clause 8 will survive the termination or expiry of these Terms.
9. Limitations on liability
9.1 Despite anything to the contrary, to the maximum extent permitted by law:
(a) we will not be liable for Consequential Loss;
(b) each Party's liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of that Party's Personnel), including a failure to mitigate; and
(c) our aggregate liability for any Liability arising from or in connection with these Terms will be limited to us resupplying the Marketplace Services to Users or, in our sole discretion, to us repaying Buyers or Sellers the amount of the Service Fees paid by Buyers of Sellers to us in respect of the supply of the Marketplace Services to which the Liability relates, or where there are no Service Fees paid, $100.
9.2 This clause 9 will survive the termination or expiry of these Terms.
10.1 If at any time Users do not agree to these Terms, they should immediately cease using our NFT Marketplace. Before Sellers cease using the NFT Marketplace, they should remove any live Listings from the NFT Marketplace then withdraw any NFTs in their inventory. If Sellers do not remove their Listings, then Buyers may still purchase NFTs from you.
10.2 We may suspend User access to the NFT Marketplace or terminate these Terms immediately on written notice to a User, including by suspending a User’s ability to trade NFTs on the NFT Marketplace, if:
(a) at any time, we discontinue our NFT Marketplace, in whole or in part;
(b) Users (or any of their Personnel) breach any provision of these Terms or we reasonably suspect that Users (or any of their Personnel) have breached any provision of these Terms;
(c) there is any reason outside our control which has the effect of compromising our ability to provide the Marketplace Services, including a Force Majeure Event; or
(d) Users are unable to pay their debts as they fall due.
10.3 The agreement between us and Users set out in these Terms will terminate immediately upon written notice by a User, if we:
(a) are in breach of a material term of these Terms, and that breach has not been remedied within 10 business days of being notified by a User; or
(b) are unable to pay our debts as they fall due.
10.4 Upon expiry or termination of these Terms:
(a) we will cease providing the Marketplace Services and the NFT Marketplace to Users; and
(b) any live Listings of yours will automatically be removed.
10.5 Termination of these Terms will not affect any rights or liabilities that a Party has accrued under it.
10.6 This clause 10 will survive the termination or expiry of these Terms.
11. Collection Notice
11.2 We may disclose that information to third party service providers who help us deliver our NFT Marketplace (including information technology service providers, data storage, web-hosting and server providers, professional advisors, third party payment processors and our business partners) or as required by law. If you do not provide this information we may not be able to provide Users with access to our NFT Marketplace. In certain circumstances, we may disclose User’s personal information to third parties located, or who store data, outside Australia.
(a) how we store and use User’s personal information;
(b) how Users can access and seek correction of your personal information;
(c) how Users can make a privacy-related complaint; and
(d) our complaint handling process.
12.1 Assignment: Users must not assign or deal with the whole or any part of your rights or obligations under these Terms without our prior written consent.
12.2 Disputes: Neither party may commence court proceedings relating to any dispute arising from, or in connection with, this Agreement without first meeting with the other party to seek (in good faith) to resolve that dispute (unless that party is seeking urgent interlocutory relief).
12.3 Email: Users agree that we are able to send electronic mail to them and receive electronic mail from them. Users release us from any Liability they may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non -delivery of any document or information and for any damage caused to your system or any files by a transfer.
12.4 Force Majeure: We will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstance beyond our reasonable control (including but not limited to epidemics, pandemics, and Government sanctioned restrictions and orders, whether known or unknown at the time of entering into these Terms) (Force Majeure Event).
12.5 Governing law: These Terms governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
12.6 Notices: Any notice given under these Terms must be in writing addressed to us at the address at the end of these Terms or to the User at the address in their Account. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email (or, where the time of transmission is not on a business day, 9am on the next business day).
12.7 Online execution: These Terms may be executed by means of such third party online document execution service as we nominate subject to such execution being in accordance with the applicable terms and conditions of that document execution service.
12.8 Relationship of Parties: These Terms are not intended to create a partnership, joint venture, employment or agency relationship (except to the extent set out in the Payment clause as limited payment collection agent) between the Parties.
12.9 Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.
Computing Environment means your computing environment including all hardware, software, information technology and telecommunications services and Systems.
Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
Intellectual Property means any domain names, know-how, inventions, processes, trade secrets or confidential information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.
Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property.
Intellectual Property Breach means any breach by you (or any of your Personnel) of any of our Intellectual Property Rights(or any breaches of third party rights including any Intellectual Property Rights of third parties).
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a party to these Terms or otherwise.
Personnel means any employee, contractor, subcontractor, supplier, agent, partner, shareholder, ultimate beneficial owner, director or officer of a party.
Purchase Price the total price of the Seller Fee, plus the Service Fee and any other applicable charges and taxes.
Protocol Fee is the fee charged by the Immutable X Protocol’s Application Programming Interface for use of its service which may change from time to time.
System means all hardware, software, networks and other IT systems used by you from time to time, including a network.