Terms - Kaikai Kiki Marketplace

Terms

Last updated: November 20, 2023

Kaikai Kiki Marketplace Terms of Service

Please read these Terms of Service carefully. You may not use the Site (as defined below, along with other capitalized terms) unless you agree to these Terms of Service. These Terms of Service also include the following terms and policies, each of which is incorporated by this reference (collectively, the “Agreement”):

Privacy Policy;
Collector Terms; and
any other posted and referenced guidelines, rules, policies, terms, or conditions applicable to services that may be available at the Site.

This Agreement is between you and Kaikai Kiki concerning your use of our Site.

The Site may provide functionality that allows users to mint and buy NFTs from us. The Site may also provide gallery functionality that allows users to search, browse, view, and display NFTs, or marketplace functionality that allows users to connect with others to place bids on, buy, offer for sale, sell, or transfer NFTs.

1. Certain Definitions.

“Artwork” means a digital artwork corresponding to an NFT.
“Digital Item” means an NFT together with any license rights in the corresponding Artwork.
“Kaikai Kiki,” “we,” “us” or “our” means Kaikai Kiki New York, LLC and its affiliates and its and their employees, officers, directors, shareholders, agents, representatives, licensors (including artists), suppliers and service providers.
“Mint” means to create an NFT by calling the “mint” or equivalent function on a smart contract deployed to a blockchain. To make these Terms easier to read, we do not capitalize “mint.”
“NFT” means a non-fungible token minted on a distributed digital ledger or blockchain.
“Site” means the website located at marketplace.kaikaikiki.com (including any successor sites and any other website, mobile app, marketplace or software that we operate or make available for the minting, display, or sale of Digital Items) and any content, products or services that we make available there.
“Site NFT” means an NFT minted through the Site from a smart contract deployed from a blockchain account controlled by or on behalf of Kaikai Kiki.

2. Acceptance of Terms.

Kaikai Kiki makes the Site available subject to this Agreement. Kaikai Kiki may update or make changes to this Agreement from time to time in its sole discretion, which changes it may provide to you by any reasonable means, including by posting the revised version of this Agreement on the Site. You can determine when this Agreement (and other terms and policies posted on the Site) was last revised by referring to the “Last Updated” legend at the top of this Agreement.

3. Site Changes.

Certain features of the Site are available at no charge, while others may require payment. Kaikai Kiki may, at any time and from time to time, temporarily or permanently, in whole or in part: modify or discontinue the Site, with or without notice; charge fees in connection with the use of the Site; modify or waive any fees charged in connection with the Site; or offer opportunities to some or all users of the Site. You agree that we won't be responsible or liable to you or any third party for any modification, suspension or discontinuance of the Site or any content, feature or product offered through the Site, in each case in whole or in part. Your continued use of the Site after such changes will indicate your acceptance of such changes.

4. Registration; Usernames and Passwords.

You may need to provide your email address, register, create an account, or connect your blockchain wallet, e.g., MetaMask (your “Wallet”) to use all or part of the Site. We have no custody or control over the contents of any blockchain account associated with your Wallet and no ability to retrieve or transfer such contents. We may associate your Site account with the blockchain account you use when you connect your Wallet to the Site, and we may display content associated with NFTs held in that account. You represent, warrant and covenant to us that all information you submit to the Site is complete and accurate and that you control each Wallet you use to connect to the Site and any associated blockchain accounts. We may reject, or require you to change, any username, password or other information that you provide to us in registering or updating your account. Your username and password are for your personal use only and should be kept confidential. You are responsible for maintaining the security of your username and password. You are also responsible for any use or misuse of your username, password, Site account, or Wallet, and you must promptly notify Kaikai Kiki of any unauthorized use of your username, password, Site account, or Wallet. You shall not permit others to use your username, password, Site account, or Wallet. Wallets like MetaMask are provided by unaffiliated third parties, and your use of such Wallets is governed by terms provided by the applicable third party (in the case of MetaMask, its Terms of Use). NFTs that you mint through the Site will be associated with the applicable blockchain account that you designate in your connected Wallet. We accept no responsibility for, or liability to you in connection with, your use of any Wallet and make no representations or warranties regarding how the Site will operate with any specific Wallet. PLEASE TAKE THE UTMOST CARE TO PROTECT AND PRESERVE YOUR WALLET'S CREDENTIALS AND YOUR BLOCKCHAIN ACCOUNT'S PRIVATE KEY—NEITHER YOU NOR WE WILL BE ABLE TO RECOVER SITE NFTS IF YOU LOSE ACCESS TO YOUR WALLET OR YOUR BLOCKCHAIN ACCOUNT'S PRIVATE KEY.

5. Site NFTs.

Pricing & Payment. We will provide pricing and payment terms for Site NFTs available for minting on the Site at or near the point of sale. All sales are final, and your payment obligations are binding as soon as you authorize any purchase with your Wallet, credit card, or other form of payment. Except as required by law, we do not and will not provide refunds. We accept payment for Site NFTs available for minting on the Site in cryptocurrency only.
Not an Investment in a Business. You represent, warrant and covenant to us that your purchase of Site NFTs is and will remain solely for your personal use and enjoyment. You understand that buying a Site NFT is akin to buying a physical artwork, and is not an investment in us or any other business, and you represent, warrant and covenant to us that you have no expectation of profit based on any of our activities or those of any other business. You shall not promote or market any Site NFT as an investment in us or any other business, or otherwise state or suggest that potential buyers of Site NFTs may expect to profit from their purchase or sale of Site NFTs.
Site NFTs Acquired from Others. You agree to be bound by the Collector Terms with respect to any Site NFTs you may acquire from third parties. You also agree that, if the third party from whom you purchased the Site NFT fails to pay any amounts due to us in connection with the transfer to you, we may refuse to provide you with access to the Site until all such amounts have been paid.

6. Marketplace Terms.

Because public blockchains are decentralized and beyond our control, blockchain users may buy, sell, and transfer NFTs without using our Site. But as a convenience to our users, our Site may provide marketplace functionality, which allows users to interact with each other and NFTs available on public blockchains. Despite providing this functionality, we do not own, custody, or control any NFTs, smart contracts deployed by third parties, or blockchains, and we do not execute or effectuate purchases, transfers, or sales of NFTs, all of which are enabled by blockchain technology. We are not a Wallet provider, exchange, broker, dealer, financial institution, payments processor, money services business, or creditor.
We may charge or receive certain fees as described on the Site. Aside from the mint price of Site NFTs and the royalty we collect on sales of Site NFTs as described in the Collector Terms, we do not set, collect, or determine other fees and costs that may be associated with buying or selling an NFT, including gas. These fees and costs are paid directly to the seller, payment processor, blockchain validator, or other third party, as applicable. Because we do not collect these fees and costs, we cannot refund them. Sellers are solely responsible for determining and establishing the price of an NFT, inclusive of any applicable tax.

7. Rules of Conduct.

While using the Site, you will comply with all applicable laws and regulations and your contractual obligations to third parties. In addition, we expect users of the Site to respect the rights and dignity of others. Your use of the Site is conditioned on your compliance with the following rules of conduct, and your failure to comply with such rules may result in suspension or termination of your access to the Site. You will not:

Post, transmit, or otherwise make available, through or in connection with the Site:
- Any material that could give rise to criminal or civil liability; or
- Any virus, worm, Trojan horse, Easter egg, time bomb, malware, spyware, or other computer code, file, or program that is harmful or invasive or that may or is intended to damage, circumvent, or hijack the operation of, or to monitor the use of, any hardware, software or equipment (collectively, “Viruses”);
Use the Site for any fraudulent or unlawful purpose;
Use the Site to defame, abuse, harass, stalk, threaten or otherwise violate the legal rights of others, including others' privacy rights or rights of publicity, or harvest or collect personally identifiable information about other users of the Site (e.g., by “scraping”);
Impersonate any person or entity, including any of our representatives; falsely state or otherwise misrepresent your affiliation with any person or entity in connection with the Site; or express or imply that we endorse any statement you make;
Use or attempt to use another user's Wallet or account without authorization both from that user and from us;
Create user accounts, connect Wallets to the Site, make purchases, or interact with the Site, in each case by automated means, scripts, or bots;
Interfere with or disrupt the operation of the Site or the servers or networks used to make the Site available; or violate any requirements, procedures, policies or regulations of such networks;
Attempt to circumvent any content-filtering techniques or attempt to access any feature or area of the Site that you aren't authorized to access;
Deploy or use any application that interacts with the Site without Kaikai Kiki's authorization;
Access the Site from a different blockchain account if we've blocked any of your other blockchain accounts from accessing the Site, without our prior written consent;
Restrict or inhibit any other person from using the Site (including by hacking or defacing any portion of the Site);
Reproduce, duplicate, copy, sell, resell or otherwise use the Site for any purpose not expressly authorized in this Agreement, including by exploiting for any commercial purpose any portion of, use of, or access to the Site;
Resell a username, adopt a username that is likely to confuse others, or otherwise engage in username squatting;
Modify, adapt, translate, reverse engineer (except as expressly permitted by applicable law), decompile or disassemble any portion of the Site, or otherwise access or use the Site for purposes of creating a product or service that competes with any of our products or services;
Remove any copyright, trademark, patent or other proprietary rights notice from the Site or from materials originating from the Site;
Frame or mirror any part of the Site;
Systematically download and store Site content;
Use any bot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or in any way gather Site content or reproduce or circumvent the navigational structure or presentation of the Site. Notwithstanding the foregoing, Kaikai Kiki grants the operators of public search engines permission to use so-called “spiders” to copy materials from the site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials. Kaikai Kiki may revoke these exceptions either generally or in specific cases;
Attempt to increase or otherwise manipulate the price of an NFT or a Digital Item, for example, by bidding on NFTs or Digital Items that you own, buying or selling NFTs or Digital Items that you own (e.g., from one Wallet to another Wallet that you control), or making offers with no bona fide intent to purchase;
Engage in activity that artificially increases view counts, likes or other metrics;
Distribute spam, including unsolicited NFTs or Digital Items;
Use the Site or data collected from it for advertising, promotional, or marketing purposes;
Infringe or violate copyright, trademark or any other rights of others;
Use the Site in a manner that promotes suicide or self-harm, incites hate or violence against others, or reveals someone else's personal information;
Use the Site to buy, sell, or transfer illegally obtained items;
Use the Site to conduct any financial activity subject to registration or licensing, including to create, offer for sale, sell, or buy securities, commodities, or options; or
Use the Site to engage in any financial activity that requires registration or licensing.

You represent and warrant to us that neither you nor your financial institutions, nor any party that owns or controls you or your financial institutions, are: (a) subject to sanctions or designated on any list of prohibited or restricted parties, including lists maintained by the U.S. Government, the European Union or its member states, the U.N. Security Council, or any other applicable government authority; or (b) located in any country to which the United States has embargoed goods or against which the United States has applied sanctions.

8. Privacy.

For information about how we collect, use, share and process your information, please see our Privacy Policy.

9. Technological Requirements.

You are responsible for obtaining and maintaining all telecommunications, broadband, computer hardware, equipment, software and services needed to access and use the Site, and paying all related charges. Some features of the Site may be facilitated through third-party APIs. We have no control over and bear no responsibility for third-party APIs, and the Site may be impacted by third-party API issues, including outages of or changes to third-party APIs.

10. Feedback.

Unless we expressly agree otherwise in writing, if you provide us with any ideas, proposals, suggestions or materials, whether through the Site, through our official social media channels, by email or otherwise, and whether related to the Site or otherwise (collectively, “Feedback”), you acknowledge and agree that: (a) your provision of any Feedback is gratuitous, unsolicited and without restriction and doesn't place us under any fiduciary or other obligation; (b) any Feedback isn't confidential, and we have no confidentiality obligations with respect to such Feedback; and (c) to the extent permitted under applicable law, any Feedback will become Kaikai Kiki's sole property. Without limiting the foregoing, you grant to Kaikai Kiki a worldwide, royalty-free, fully paid-up, exclusive, perpetual, irrevocable, transferable and fully sublicensable (through multiple tiers) license, without additional consideration to you or any third party, to reproduce, distribute, perform and display (publicly or otherwise), adapt, modify and otherwise use and exploit such Feedback, in any format or media now known or hereafter developed, and you represent and warrant that you have all necessary rights to grant this license. Kaikai Kiki may use Feedback for any purpose whatsoever without attribution or compensation to you or any other person. You are and remain responsible for the content of any Feedback.

11. Our Content.

Our trade names, trademarks, service marks, trade dress and other indicia of origin include TAKASHI MURAKAMI, KAIKAI KIKI, MURAKAMI.FLOWERS, and any associated logos (collectively, “Our Trademarks”). All trademarks and service marks on the Site other than Our Trademarks are the property of their respective owners. You may not use Our Trademarks, whether registered or unregistered, on or in connection with any product or service in any manner that is likely to cause confusion. The information and materials made available through the Site are and shall remain the property of us and our licensors (including artists) and suppliers, and are protected by copyright, trademark, patent, or other proprietary rights and laws (such information and materials, including Our Trademarks, collectively “Our Content”). Subject to and conditioned on your compliance with this Agreement, and solely for so long as we permit you to access and use the Site, you may view one copy of any of Our Content on any single computer or device solely for your personal, non-commercial use, provided that you keep intact all copyright and other proprietary notices. Except as we expressly authorize in advance in writing, you shall not reproduce, modify, rent, lease, loan, sell, distribute, or create derivative works based upon (whether in whole or in part), all or any part of the Site or any materials made available through the Site (including Artworks). Nothing contained on the Site grants or should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of Our Content without our express prior written consent.

12. Claims of Copyright Infringement.

If you believe that any materials on the Site infringe your copyright, you may request that such materials be removed. This request must bear a signature (or electronic equivalent) of the copyright holder or an agent and must include the following: (a) identification of the copyrighted work that you believe to be infringed, including a description of the work and, where possible, a copy or the location of an authorized version of the work; (b) identification of the material that you believe to be infringing, including a description of the material, and its location on the Site; (c) your name, address, telephone number and email address; (d) a statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent or the law; (e) a statement that the information in your claim is accurate; and (f) a statement that under penalty of perjury, you declare that you are the lawful copyright owner or are authorized to act on the owner's behalf. You can contact our agent for copyright issues relating to the Site at Kaikai Kiki Copyright Agent, Silberman Zaretsky PC, 145 East 57 Street, New York, NY 10022, USA, or dzaretsky@jsilberman.com. To protect the rights of copyright owners, we reserve the right to suspend your account or other user privileges, delete, or disable content alleged to be infringing, or terminate the account or other user privileges of a repeat infringer.

13. Artwork Storage.

We may store Artworks associated with Site NFTs using our own servers, third-party platforms, such as the Interplanetary File System (“IPFS”), or directly on a blockchain. WE CAN'T AND DON'T GUARANTEE THAT ANY ARTWORK WILL REMAIN AVAILABLE ON IPFS OR ANY OTHER PLATFORM, AND WE WILL HAVE NO RESPONSIBILITY OR LIABILITY, NOR WILL COLLECTORS OR PURCHASERS HAVE ANY REMEDY, IF ANY ARTWORKS BECOME UNAVAILABLE. We recommend that you download the associated Artwork (provided that you have the right to do so) in case it becomes unavailable on the Site or through the applicable third-party platform. We also recommend that you use an IPFS pinning service to keep a copy of the Artworks corresponding to your NFTs to ensure their continued hosting on the IPFS servers.

14. Third-Party Payment Providers.

We may use third-party service providers to pay you or to enable you to pay us (such services, “Payment Services”). By submitting your account information for use in connection with Payment Services, you agree that: (a) Kaikai Kiki may store your information, and process your information with any such Payment Services; and (b) we aren't responsible or liable for any failures of any such Payment Services to protect such information adequately. The processing of payments will be subject to the terms, conditions and privacy policies of such Payment Services, in addition to this Agreement. You acknowledge that Kaikai Kiki may change Payment Services and move your information to other third-party service providers from time to time. There may be fees associated with certain Payment Services, and you agree that you (and not we) will be responsible and liable for all such fees, including fees imposed on your transactions. You acknowledge and agree that we aren't, and won't be, responsible or liable for any Payment Service's services, site, or acts or omissions.

15. Blockchain Forks.

Because virtually all public blockchains are licensed under open source licenses, it is possible that the blockchain may fork, merge, or duplicate the original blockchain on which an NFT was originally minted. In such case, any rights granted under this Agreement to NFT holders will extend only to those holders according to the mainnet version of the blockchain that is generally recognized in the blockchain industry as the legitimate successor of the original blockchain, as we determine in our sole discretion.

16. Links.

The Site may provide links to other websites and online resources. Because we have no control over such sites and resources, you acknowledge and agree that we aren't responsible for the availability of such external sites or resources, and we neither endorse nor are responsible or liable for any content, advertising, products or other materials on or available through such sites or resources. Other sites and services may provide links to the Site with or without our authorization. We don't endorse such sites or services, and aren't and will not be responsible or liable for any links from those sites or services to the Site, any content, advertising, products or other materials available on or through such other sites or services, or any loss or damages incurred in connection therewith.

YOU AGREE THAT YOUR USE OF THIRD-PARTY SITES, SERVICES, AND RESOURCES, INCLUDING YOUR USE OF ANY CONTENT, INFORMATION, DATA, ADVERTISING, PRODUCTS, OR OTHER MATERIALS ON OR AVAILABLE THROUGH SUCH SITES, SERVICES, AND RESOURCES, IS AT YOUR OWN RISK AND IS SUBJECT TO THE TERMS AND CONDITIONS APPLICABLE TO SUCH SITES, SERVICES AND RESOURCES.

Kaikai Kiki has the right, at any time and in its sole discretion, to block links to the Site or any content on the Site through technological or other means without prior notice.

17. Communications.

Kaikai Kiki may communicate and transact with you electronically. Kaikai Kiki may provide you with notices by posting them to the Site, by email, or by postal mail, in our discretion. Kaikai Kiki may also provide notices of changes to this Agreement or other matters by displaying such notices on the Site or by providing links to such notices on the Site. You agree that a printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. We won't be responsible for failures to fulfill any obligations due to causes beyond our control.

18. Local Laws.

While we have designed the Site so that it may be used from virtually anywhere you can access the Internet, we can't guarantee that the Site is appropriate for use everywhere. It is your (and not our) obligation to ensure that your use of the Site complies with applicable local laws.

19. Termination.

This Agreement is effective until terminated. Kaikai Kiki may, in its sole discretion, terminate this Agreement or restrict, suspend, or terminate your access to or use of the Site, in each case, in whole or in part and at any time and for any reason, including if it believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. Upon any such termination or suspension, your right to use the Site will immediately cease. You agree that any termination of this Agreement or restriction, suspension, or termination of your access to or use of the Site may be effected without prior notice, and that Kaikai Kiki may immediately deactivate or delete your password and username, and any or all related information and files associated with it, or bar any further access to such information or files. You agree that we won't be responsible or liable to you or any third party for any termination of this Agreement or restriction, suspension, or termination of your access to the Site or to any such information or files, that we won't be required to make such information or files available to you after any such termination or suspension, and that you will not be entitled to a refund of any amounts that you have already paid to us. You acknowledge that we are under no obligation to disclose to you the details of our decision to restrict, suspend, or terminate your access to the Site. The termination or expiration of this Agreement shall not affect the accrued rights and obligations of the parties or those representations, warranties, or other obligations that by their nature survive expiration or termination, including Sections 10 (Feedback), 11 (Our Content), 15 (Blockchain Forks), 17 (Communications) and 19 (Termination) through 25 (Miscellaneous).

20. Disclaimer; Risks.

YOUR USE OF THE SITE IS AT YOUR SOLE RISK. WE PROVIDE THE SITE TO YOU “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. YOU AGREE THAT YOU MUST EVALUATE, AND THAT YOU BEAR ALL RISKS ASSOCIATED WITH, THE USE OF THE SITE AND ANY PRODUCTS OR SERVICES MADE AVAILABLE THROUGH OR IN CONNECTION WITH THE SITE, INCLUDING ANY RELIANCE ON THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY MATERIALS AVAILABLE THROUGH THE SITE. WE DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SITE TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE IN TRADE. WE CAN'T AND DON'T GUARANTY THAT ANY CONTENT OF, OR PRODUCTS OR SERVICES MADE AVAILABLE THROUGH OR IN CONNECTION WITH, THE SITE WILL BE FREE FROM VIRUSES OR OTHER CODE THAT MAY HAVE CONTAMINATING OR DESTRUCTIVE ELEMENTS. IT IS YOUR RESPONSIBILITY TO IMPLEMENT APPROPRIATE SECURITY SAFEGUARDS (INCLUDING ANTI-VIRUS AND OTHER SECURITY CHECKS) TO SATISFY YOUR PARTICULAR REQUIREMENTS AS TO THE SAFETY AND RELIABILITY OF YOUR USE OF THE SITE. OUR SERVICES RELY ON EMERGING TECHNOLOGIES, INCLUDING BLOCKCHAIN, CRYPTOCURRENCY AND SMART CONTRACTS. SOME FEATURES ON THE SITE ARE SUBJECT TO INCREASED RISK THROUGH YOUR USE OR MISUSE OF TECHNOLOGIES SUCH AS PUBLIC-PRIVATE KEY CRYPTOGRAPHY. BY USING SUCH FEATURES, YOU ACKNOWLEDGE AND ACCEPT THESE HEIGHTENED RISKS. NFTS EXIST ONLY BY VIRTUE OF SMART CONTRACTS AND LEDGER ENTRIES MAINTAINED BY AN ASSOCIATED BLOCKCHAIN. ALL NFT SALES AND TRANSFERS OCCUR ON THE ASSOCIATED BLOCKCHAIN. WE HAVE NO CONTROL OVER THE TRANSFER OF ANY NFTS OR ASSOCIATED CONTENT. WE ARE NOT RESPONSIBLE OR LIABLE FOR ANY LOSSES OR INJURY DUE TO VULNERABILITY OR ANY KIND OF FAILURE, ABNORMAL BEHAVIOR OF SOFTWARE, BLOCKCHAINS OR ANY OTHER FEATURES OF THE NFTS.

In addition, we are not responsible or liable for, and you assume all responsibility, liability and risks associated with:

Any gain or loss in value of any Digital Items, NFTs, or cryptocurrency;
Fees related to use of the Site, including for actions you take on the blockchain, regardless of whether a successful transaction occurs, and you acknowledge that such fees are final and irreversible;
Acts or omissions of third parties, including Consensys Software Inc. (MetaMask's licensor) or Interplanetary Networks, Inc.;
Problems caused by third-party software (including smart contracts), hardware, technology, platforms or services, including the Ethereum Blockchain, MetaMask, or the Interplanetary File System;
Artists or others minting on another platform another NFT associated with the same Artwork corresponding to another NFT, including a Site NFT;
The transfer, loss, or inability to demonstrate ownership or control of, any NFT or Digital Item;
Loss of any content linked to or associated with any NFT;
Any agreement between you and any other Site user; or
Taxes that may apply to your transactions.

While we try to maintain the integrity and security of the Site and the servers from which the Site is operated, we don't guarantee that the Site will be or remain secure, complete or correct, or that access to the Site will be uninterrupted. The Site may include inaccuracies, errors and materials that violate or conflict with this Agreement. Additionally, third parties may make unauthorized alterations to the Site. If you become aware of any unauthorized third-party alteration to the Site, please contact us at marketplace@kaikaikiki.com with a description of the materials at issue and the URL or location on the Site where such materials appear.

Moreover, the Internet, blockchains, or portions thereof may be subject to security breaches and other potentially harmful events. We are not responsible for any damage to any computer, software, hardware, equipment, content, data or other material resulting from any such security breach or harmful event, or from any Virus, bug, line failure, defect, delay in operation or transmission, deletion, error, fraud, interruption, omission, tampering, or unauthorized intervention, or any other technical or other malfunction.

With respect to Site NFTs, you acknowledge and agree that you: (a) have received sufficient information to make an informed decision to buy the Site NFT, and (b) have carefully considered the code of the Site NFTs' smart contract and understand and accept its functions and risks. In addition, you assume all risks associated with NFTs and other cryptographic tokens, including risks of (i) losing access to the token as a result of losing seed phrases, usernames, passwords, private keys or other account credentials, problems with Wallets, or user, custodial or purchaser error, (ii) incorrectly constructed transactions or mistyped addresses, (iii) hacking and security weaknesses, including phishing, brute-force, birthday, denial-of-service, 51% and other attacks, (iv) unexpected surges in activity or other operational or technical difficulties, and (v) legal or regulatory action, taxation, personal information disclosure, and other foreseeable and unforeseeable risks.

21. Release.

To the fullest extent permitted by law, you irrevocably and unconditionally release, acquit and discharge us and our successors and assigns from any and all past, present and future claims, demands, damages, fees, costs, rights and causes of action, known or unknown, suspected or unsuspected, disclosed or undisclosed, existing or contingent, direct or derivative, that have existed or may have existed, or that do exist, arising out of or related to: (a) acts or omissions of third parties, including disputes between users, or (b) other matters for which you have agreed that we are not responsible or liable. In particular, you knowingly and voluntarily waive all rights and benefits that you may have as a result of Section 1542 of the California Civil Code, which states: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”

22. Indemnity.

You shall indemnify and hold us harmless, and at our election defend us, from and against all third-party claims, demands, losses, liabilities, damages, costs, and expenses (including attorney's fees) (collectively, “Claims”) arising from or related to: (a) your access or use of, or activities in connection with, the Site (including NFTs, Artwork, Digital Items, and payments); (b) your violation of this Agreement, any other policies posted on the Site, any applicable law or regulation or any agreement with any third party; or (c) any disputes between you and another user or any third party. You are solely responsible for your interactions with any other users in connection with the Site, including disputes, and we will have no liability or responsibility with respect thereto. We will control the defense and settlement of all such Claims, and you shall reasonably cooperate in such defense.

23. LIMITATION OF LIABILITY.

WE WON'T BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, INCLUDING DAMAGES FOR LOSS OF PROFITS, USE, DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF INFORMATION YOU HAVE PROVIDED IN CONNECTION WITH YOUR USE OF THE SITE, OR UNAUTHORIZED INTERCEPTION OF ANY SUCH INFORMATION BY THIRD PARTIES, EVEN IF ADVISED IN ADVANCE OF SUCH DAMAGES OR LOSSES. IN PARTICULAR, WE WON'T BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE SITE OR FROM ANY CONTENT POSTED ON THE SITE BY ANY OF US OR ANY THIRD PARTY. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SITE IS TO STOP USING THE SITE. OUR MAXIMUM AGGREGATE LIABILITY FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WILL NOT EXCEED THE GREATER OF (A) $100 OR (B) THE AMOUNT RECEIVED BY KAIKAI KIKI FOR ITS SERVICE TO YOU DIRECTLY RELATING TO THE ITEMS THAT ARE THE SUBJECT OF THE CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

IT IS POSSIBLE THAT APPLICABLE LAW MAY NOT ALLOW FOR LIMITATIONS ON CERTAIN IMPLIED WARRANTIES OR EXCLUSIONS OR LIMITATIONS OF CERTAIN DAMAGES; SOLELY TO THE EXTENT THAT SUCH LAW APPLIES TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.

24. Disputes.

Governing Law. This Agreement is governed by and shall be construed in accordance with the laws of the State of New York, USA without regard to any conflicts of law principles that would result in the application of the law of another jurisdiction.
Arbitration. Any dispute, controversy or claim arising out of or relating to this Agreement whether under contract, tort, statute or any other legal theory, or the breach, termination or invalidity of this Agreement, shall be finally settled by binding arbitration (“Arbitration”) administered by the American Arbitration Association and conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in force before one or more arbitrators appointed in accordance with such rules. The place of arbitration shall be New York County, New York. The Arbitration proceedings shall be confidential and in English. The award rendered by the arbitrator(s) shall be final and binding on all parties. Judgment on the award may be entered in any court of competent jurisdiction. Any Arbitration brought in connection with this Agreement will be conducted solely on an individual basis. Neither you nor we will seek to have any dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity. No Arbitration or other proceeding will be combined with another without the prior written consent of all parties to all affected proceedings. To the extent allowed under applicable law, you and we also agree not to participate in claims brought in a private attorney general or representative capacity, or any consolidated claims involving another person's account if we are a party to the proceeding. You are giving up your right to participate as a class representative or class member on any class claim you may have against us, including any right to class arbitration or any consolidation of individual arbitrations.
Time Limit on Claims. Any arbitration must be noticed within one year after the applicable claim accrued. Otherwise, the claim will be permanently barred, which means that the aggrieved party (whether you or us) will not have the right to assert the claim.

25. Miscellaneous.

Legal Age or Parental Consent. You represent and affirm that: (a) you're of legal age to enter into this Agreement; or (b) you're the parent or legal guardian of a minor who is accessing and using the Site, and that you've consented to such access and use and agree to this Agreement. You may not access or use the Site if you're a minor and have not obtained your parent's or legal guardian's consent to access and use the Site. If you are a parent or legal guardian who has permitted a user under the age of legal majority to access or use the Site, you are fully responsible for the acts or omissions of such user in relation to the Site. Minors may not mint, purchase or sell NFTs. If you are under 18 years old, you may not access or use the Site.
Filtering. Parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available on web sites such as GetNetWise and OnGuard Online. We don't endorse any of the products or services listed at such sites.
Using Site on Behalf of Another Entity. If you access or use the Site on behalf of another person or entity, (a) all references to “you” throughout this Agreement will include that person or entity, (b) you represent and warrant that you are authorized to enter into this Agreement on that person's or entity's behalf, and (c) if you or that person or entity violates this Agreement, both you and that person or entity shall be jointly and severally responsible for such violation, including for any obligation to indemnify us.
Third-party Beneficiaries. Except as otherwise expressly provided in this Agreement, this Agreement doesn't create any third-party beneficiary rights in any individual or entity that isn't a party to this Agreement.
Severability. If the application of any provision of this Agreement to any particular facts or circumstances shall for any reason be held to be invalid, illegal or unenforceable by a court, arbitration panel or other tribunal of competent jurisdiction, then (i) the validity, legality and enforceability of such provision as applied to any other particular facts or circumstances, and the other provisions of this Agreement, shall not in any way be affected or impaired thereby; and (ii) such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties.
Relationship of Parties. This Agreement doesn't, and won't be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and us.
Assignment. You may not assign, transfer or sublicense any or all of your rights or obligations under this Agreement without our express prior written consent. We may assign, transfer or sublicense any or all of their rights or obligations under this Agreement without restriction. Any attempt to assign this Agreement except as permitted under this section will be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party's successors and permitted assigns.
No Waiver. No waiver by any party of any breach or default of this Agreement will be deemed to be a waiver of any preceding or subsequent breach or default.
Headings & Interpretation. 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. “Including” means “including without limitation.”
Injunctive Relief. You agree that a breach of this Agreement will cause us irreparable injury for which monetary damages would not be an adequate remedy and we will be entitled to equitable relief in addition to any remedies we may have at law without the requirement of posting a bond, other security, or proof of damages.
Contact Us. If you have any questions regarding the Site or the meaning or application of this Agreement, please direct such questions to marketplace@kaikaikiki.com. Please note that email communications won't necessarily be secure; accordingly, you should not include credit card information or other sensitive information in your email correspondence with us.
Notice for California Residents. Under California Civil Code Section 1789.3, California users are entitled to the following notice: If you have a complaint regarding the Site, please contact us by emailing marketplace@kaikaikiki.com, writing us at 141 Flushing Ave, Building 77, Suite 1107, Brooklyn, NY 11205 or calling us at 718-706-2213. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
Export Laws. You shall not export or re-export, directly or indirectly, the Site or any portion thereof to any country for which any relevant jurisdiction requires any export license or other approval at the time of export without first obtaining such license or approval. The Site may not be exported or re-exported (i) into any U.S.-embargoed country or any country that has been designated by the U.S. Government as a “terrorist supporting” country, or (ii) to anyone listed on any U.S. Government list of prohibited or restricted parties, including the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List. You are responsible for and hereby agree to comply at your sole expense with all applicable export laws and regulations
Entire Agreement. This Agreement, including the Privacy Policy and Collector Terms, and all other policies posted on or referenced on the Site, constitute the entire agreement between you and us relating to the subject matter hereof and supersede any and all prior or contemporaneous written or oral agreements or understandings between you and us relating to such subject matter.

This Site and its contents ©2023 Kaikai Kiki Co., Ltd. All Artworks ©2023 Takashi Murakami or such other artists as indicated on the Site. All rights reserved by Kaikai Kiki Co., Ltd., Takashi Murakami and each artist.