Welcome to the Sotheby’s Metaverse. Please read these Terms of Service (these “TOS”) carefully, as they constitute a legally binding agreement between you (“you”, “your”, or “Buyer”) and Sotheby’s, Inc. (“Sotheby’s”, “we”, “us” or “our”). If you are an agent acting on behalf of a principal, “you” and “your” refer to both principal and agent.
These TOS apply to and govern your use of (a) the website located at metaverse.sothebys.com and all relevant sub-pages associated with the foregoing URL (the “Site”) and (b) any other applications (e.g., mobile apps, web applications, etc.), add-ons, tools, services and offerings provided by us that make reference to these TOS (collectively, the “Metaverse Platform”). These TOS apply whether you are accessing the Metaverse Platform via a personal computer, a wireless or mobile device or any other technology or devices now known or hereafter developed or discovered (each, a “Device”).
BY USING OR ACCESSING THE METAVERSE PLATFORM IN ANY MANNER, YOU AFFIRM, REPRESENT AND WARRANT (A) THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS SET FORTH IN THESE TOS (INCLUDING ANY ADDITIONAL TERMS, POLICIES AND AGREEMENTS SPECIFIED AND/OR REFERENCED BELOW OR OTHERWISE INCORPORATED INTO THESE TOS), (B) THAT YOU HAVE THE RIGHT, AUTHORITY AND CAPACITY TO ENTER INTO THESE TOS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT) AND MEET ALL OF THE ELIGIBILITY AND OTHER REQUIREMENTS AND (C) THAT YOUR ACCESS AND USE OF THE METAVERSE PLATFORM IS PERMITTED BY, AND SHALL NOT VIOLATE, ANY APPLICABLE LAWS, INCLUDING THOSE IN YOUR JURISDICTION. IF YOU DO NOT AGREE WITH ALL OF THE TERMS IN THESE TOS, YOU ARE PROHIBITED FROM VISITING, ACCESSING, USING, OR TRANSACTING ON METAVERSE PLATFORM.
Our Privacy Policy (https://metaverse.sothebys.com/privacy-policy), our Acceptable Use Policy (https://metaverse.sothebys.com/acceptable-use-policy), and our DMCA and Take-Down Policy (https://metaverse.sothebys.com/take-down-policy) are hereby incorporated by reference into these TOS and expressly acknowledged and agreed to by you.
1. Modifications.
We reserve the right to revise these TOS, at any time and from time to time, for any reason in our sole discretion by posting an updated TOS without advance notice to you. We may, at our discretion, post or display notices of material changes on the Site and/or e-mail you and/or notify you upon login about these changes. Notwithstanding the preceding sentence, once we post them on the Site, these changes become effective immediately and, if you use or access the Metaverse Platform after they become effective, it will signify your agreement to be bound by the changes. It is your responsibility to periodically check for changes to these TOS by clicking the applicable link on the Site and consulting the “Last Updated” date at the bottom of this page, including before bidding, purchasing or otherwise transacting in connection with the Metaverse Platform.
2. Privacy Policy.
We respect your privacy. Our Privacy Policy sets out how we use, process and disclose your personal information. We encourage you to read the Privacy Policy, and to use it to help make informed decisions. You acknowledge you are responsible for keeping your personal information accurate and up to date.
3. Introduction to the Metaverse Platform.
The Metaverse Platform includes a digital art marketplace and an online auction house whereupon you can bid on non-fungible tokens, established on the blockchain using smart contracts (each, an “NFT”) and/or other items (or more than one item grouped as one) of property offered for sale which may, in some cases, be, include, or be accompanied by, an experience (collectively, the “Property”). Property that is made available for sale via the Metaverse Platform will be displayed and described on a listing page (“Listing Page”) containing information about the Property and any additional terms specifically relating to the sale of that Property (“Listing Terms”). In relation to any NFT included in Property that is offered for sale on the Metaverse Platform, the metadata, content, digital asset and/or physical item, if any, to which such NFT relates is referred to as the “Referenced Content.” In a transaction for the purchase of Property where you are or become the buyer of record, you are considered a “Buyer” under these TOS, responsible for the payment of the purchase price in accordance with the Listing Terms (the “Purchase Price”), while the seller of the Property featured on the Listing Page will be considered the “Seller.”
4. Metaverse Accounts.
4.1. Account Registration. In order to participate in certain aspects of the Metaverse Platform, including bidding, any purchase or similar transaction, you must register for an account with us (your “Account”), create a unique username and password combination (“User Credentials”), and provide certain additional information, as prompted by our user registration process. All registration and account information you submit must be truthful and accurate, and you agree to maintain, keep current and promptly update the accuracy of such information as necessary. You may only have one Account, and we may require you to provide additional information and/or documentation, including as may be required under any laws, rules, regulations, code, or any requirements of a government entity (collectively, “Law”). If you do not provide complete and accurate information and/or documents in response to such a request, we may suspend, terminate, lock or otherwise restrict your Account or refuse to permit you access to or use of the Metaverse Platform.
4.2. Account Security. You are solely responsible for and agree to maintain at all times adequate security and control of all of your Account and User Credentials (including all details, passwords, numbers and codes that you use to access the Metaverse Platform) and any access to, or use of, the Metaverse Platform by you or any person or entity using your Account. You agree to immediately notify us at sothebyslegal@sothebys.com of any unauthorized use of your User Credentials or Account, or any other relevant theft, loss, or breach of security. Sotheby’s shall not be responsible for any unauthorized access to your Account or any loss or damage arising therefrom.
4.3. Account Suspension/Termination. We reserve the right to deny access, use, and registration privileges to anyone (and to lock, suspend, restrict or terminate an existing Account) at our sole and absolute discretion, including if we believe there is a question about the identity of the person trying to access any Account or element of the Metaverse Platform or if we suspect that the Account has or will be used for any fraudulent, illegal, or other unauthorized purposes. In the event that your Account is terminated, suspended or restricted by us for any reason, you agree that you will not create another Account following the termination, suspension, or restriction of access to your Account (unless expressly directed by us to do so).
5. Ownership of Metaverse Platform.
You acknowledge and agree that, as between you and Sotheby’s, Sotheby’s exclusively owns all legal right, title and interest in and to Metaverse Platform and all materials and content contained therein, including any and all graphics, images, text, files, designs, systems, methods, information, computer code, software, scripts, services, marks and branding, including all intellectual property and proprietary rights (whether registered or unregistered in any jurisdiction) related to any of the foregoing (collectively, the “Platform Content”). All rights in and to the Metaverse Platform and Platform Content not expressly granted to you under these TOS are expressly reserved.
6. Third Party Sites.
The Metaverse Platform may include hyperlinks to other websites, products, services, content, promotions or resources (collectively, “Third Party Sites”), which are provided solely as a convenience to you. You acknowledge and agree that we have no control over, and are not responsible for, any Third Party Sites, and that we do not endorse any advertising, products, services or other materials on or made available from any Third Party Sites. Furthermore, you acknowledge and agree that we are not liable, directly or indirectly, for any loss or damage, caused or alleged to be caused, or which may be incurred, as a result of the availability or unavailability of any Third Party Site, including as a result of any use of, or reliance placed by you upon, any Third Party Site or any advertising, promotions, resources, services, content, products or other materials on, or made available from, any Third Party Site (or the completeness or accuracy thereof). If you access any such Third Party Sites, you do so solely at your own risk, and you hereby expressly waive and release Sotheby’s, its affiliates, and their respective officers, employees, directors, shareholders, parents, subsidiaries, agents, suppliers, and licensors from all liability arising from your use of any such Third Party Site.
7. Acceptable Use Policy.
You agree to use the Metaverse Platform only for purposes that are legal, proper, and in accordance with these TOS, including with the Acceptable Use Policy.
8. User Content.
8.1. Rights and Licenses. The Metaverse Platform may provide you with the opportunity to submit, post, display, transmit or otherwise make available certain content, including messages, files, data, software, sound, videos, photos, graphics and other items, on or through the Metaverse Platform (all of the foregoing, inclusive of all metadata relating thereto, but expressly excluding any Referenced Content, “User Content”). By submitting, transmitting, posting, displaying or otherwise making available any User Content, you grant us a worldwide, non-exclusive, sublicensable, royalty-free and paid up license to exploit such User Content for our lawful business purposes, including to provide, promote, and improve the Metaverse Platform (including to facilitate the transactions between Buyers and Sellers as described herein), without obligation. You represent and warrant that you have, or have obtained, all rights, licenses, consents, permissions, power and/or authority necessary to grant the rights granted herein for any User Content.
8.2. Compliance. We shall have the right, but not the obligation, to monitor the User Content and any other content submitted to or posted through the Metaverse Platform (including the Referenced Content), to determine compliance with these TOS and any operating rules established by us, as well as to satisfy any requirement under Law or government request. We shall have the right, but not the obligation, to edit, refuse to post or remove any Property or any other User Content submitted to or posted through the Metaverse Platform. You acknowledge that we reserve the right to delete, edit, block, correct, refuse to post or permanently remove from our systems any material that is believed to be unlawful, in breach of these TOS or otherwise objectionable at our sole discretion.
8.3. Content Standards. We facilitate trade among a diverse community of Buyers and Sellers, and we are committed to situating the Metaverse Platform as a marketplace for the exchange of a diverse, wide array of content (including content that some consider to be “controversial”). The terms of these TOS seek to provide that the Metaverse Platform offer the widest possible selection of Property for sale while also promoting trust and respect among our community of users, as well as adherence to Law. Any User Content that we deem to be inappropriate, disruptive or illegal is prohibited on the Metaverse Platform, and we further reserve the right to determine the appropriateness of Property (including any Listing Page in relation thereof) on the Metaverse Platform and to remove any Listing Page at any time, at our sole discretion. If you create, submit, list, or make available Property or other User Content in violation of these TOS (including the Acceptable Use Policy), we may take corrective actions, at our sole discretion, including removing the violating material, deleting your Account, withholding payments and exercising any other rights and remedies, each of the foregoing at our sole discretion. You acknowledge that, in situations where we cannot destroy or impound your Property, we nonetheless may destroy related metadata stored on our servers. If you have reason to believe that any Property or any User Content was illegally obtained or is otherwise in breach of any of these TOS, please contact us at sothebyslegal@sothebys.com with notice that identifies the material alleged to be violating (such identification to be reasonably sufficient to permit us to locate the material at issue).
8.4. Unsolicited User Feedback. You may choose to submit comments, bug reports, ideas or other feedback about the Metaverse Platform, including about how to improve the Metaverse Platform (collectively, “Feedback”). By submitting any Feedback, you agree that we are free to use such Feedback at our discretion and without additional compensation to you, and to disclose such Feedback to third parties (whether on a non-confidential basis, or otherwise). You hereby grant us a perpetual, irrevocable, non-exclusive, worldwide license under all rights necessary for us to incorporate, use and improve upon your Feedback for any purpose, without any payment to you.
9. Infringing Content.
9.1. Infringing Content, Claims and Procedures. It is Sotheby’s policy to promptly respond to any claim that User Content or Referenced Content infringes on the copyright or other intellectual property, personality, or likeness rights of any person. Upon receiving notice of a relevant claim, Sotheby’s will use reasonable efforts to investigate such notices of alleged infringement and will take appropriate action as further set forth in Sotheby’s DMCA and Take-Down Policy.
9.2. Sotheby’s Rights to Remove Infringing Content. Sotheby’s reserves the right to remove any User Content or Referenced Content that allegedly infringes upon another person’s intellectual property rights, thereby restricting access to or visibility of such User Content or Referenced Content (including to the extent contained in any or related to Property intended to be sold on the Metaverse Platform) and restricting the prospective Seller’s ability to sell, access, or view such User Content or Referenced Content on the Metaverse Platform. You acknowledge that any transaction you conduct involving the purchase and sale of Property is conducted with the knowledge and assumption of the risk that the Property (or Referenced Content relating thereto) may subsequently be removed from the Metaverse Platform as a consequence of a DMCA claim or a violation of these TOS. Sotheby’s will not, under any circumstance, be held liable to you for removing allegedly infringing works from the Metaverse Platform or otherwise fulfilling its obligations under the DMCA.
10. Liability.
10.1. Metaverse Platform Provided “As Is” and “As Available”. EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY US, THE PLATFORM CONTENT, METAVERSE PLATFORM, AND THE PROPERTY, NFTs, REFERENCED CONTENT AND OTHER CONTENT CONTAINED OR LISTED THEREIN ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.
10.2. Disclaimers. SOTHEBY’S AND EACH OF ITS AFFILIATES, AND ALL OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS, AGENTS, REPRESENTATIVES, SHAREHOLDERS, CONSULTANTS, PARTNERS, CONTRACTORS, CONTENT PROVIDERS, SUPPLIERS, VENDORS, SERVICE PROVIDERS, SUPPLIERS, AND LICENSORS (COLLECTIVELY, THE “SOTHEBY’S ENTITIES”) DISCLAIM ALL WARRANTIES, CONDITIONS, AND REPRESENTATIONS, EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, OR ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. THE SOTHEBY’S ENTITIES MAKE NO REPRESENTATION OR WARRANTY (A) THAT THE METAVERSE PLATFORM OR ANY CONTENT OR INFORMATION DISPLAYED ON OR MADE AVAILABLE ON OR THROUGH THE METAVERSE PLATFORM, INCLUDING ANY PLATFORM CONTENT, PROPERTY (INCLUDING ANY NFTS AND REFERENCED CONTENT), LISTING PAGES, CONDITION REPORTS, OR ANY OTHER CONTENT OR INFORMATION DISPLAYED ON OR THROUGH THE METAVERSE PLATFORM: (i) WILL MEET YOUR REQUIREMENTS; (ii) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; (iii) ARE OR WILL BE FREE OF MALICIOUS CODE (AS DEFINED IN THE ACCEPTABLE USE POLICY) OR (iv) WILL BE ACCURATE, COMPLETE, RELIABLE, CURRENT, LEGAL, OR SAFE; (B) AS TO THE VALUE OR TITLE OF PROPERTY; OR (C) IN RELATION TO THE CONTENT OF ANY THIRD PARTY SITES OR SERVICES LINKED TO OR INTEGRATED WITH THE METAVERSE PLATFORM.
10.3. Liability. TO THE EXTENT PERMITTED BY LAW, NO SOTHEBY’S ENTITY WILL BE RESPONSIBLE FOR LOST PROFITS, REVENUES, OR DATA, FINANCIAL LOSSES OR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, WHETHER ARISING FROM OR RELATING TO THESE TOS, THE METAVERSE PLATFORM, THE PLATFORM CONTENT, OR THIRD PARTY SITES AND PRODUCTS, OR FOR ANY DAMAGES RELATED TO LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, OR LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.3.1. NO SOTHEBY’S ENTITY WILL BE LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND ARISING OUT OF OR RELATING TO ANY (A) USE OF, OR ANY ACTION TAKEN IN RELIANCE ON, CONTENT OR INFORMATION DISPLAYED ON OR MADE AVAILABLE ON OR THROUGH THE METAVERSE PLATFORM; (B) ERRORS, MISTAKES, OR INACCURACIES OF SUCH CONTENT OR INFORMATION; (C) PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR ACCESS TO OR USE OF THE METAVERSE PLATFORM OR YOUR CONSUMPTION OR USE OF ANY PROPERTY; (D) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS OR OF ANY PERSONAL INFORMATION OR DATA RELATING TO ANY USERS OF THE METAVERSE PLATFORM; (E) ANY INTERRUPTION OF TRANSMISSION TO OR FROM THE METAVERSE PLATFORM; (F) ANY MALICIOUS CODE (AS DEFINED IN THE ACCEPTABLE USE POLICY) WHICH MAY BE TRANSMITTED ON OR THROUGH THE SITE; (G) YOUR PARTICIPATION IN OR THE OUTCOME OF A TRANSACTION EFFECTUATED BY THE METAVERSE PLATFORM; (H) BLOCKCHAINS (INCLUDING AS RELATED TO ERRORS ON ANY SPECIFIC BLOCKCHAIN NETWORK, FORKS, SERVER FAILURE, TECHNICAL NODE ISSUES, DATA LOSS, CORRUPTED WALLET FILES, ETC.) OR THE USE OF ANY ELECTRONIC WALLET (OR ANY VULNERABILITY FAILURE, OR ABNORMAL BEHAVIOR OF ANY SOFTWARE RELATING THERETO); (I) ACTIONS OF ANY THIRD PARTIES INCLUDING ANY PLATFORM PROVIDERS; OR (J) OTHER USER’S VIOLATION OF THESE TOS.
10.3.2. WITHOUT LIMITING THE FOREGOING, THE TOTAL LIABILITY OF ALL SOTHEBY’S ENTITIES FOR ANY CLAIMS ARISING UNDER THESE TOS SHALL BE LIMITED TO THE GREATER OF (A) ONE HUNDRED U.S. DOLLARS ($100.00) OR (B) THE AMOUNT RECEIVED BY SOTHEBY’S FROM THE SALE OF THE PROPERTY THAT IS THE SUBJECT OF THE RELEVANT CLAIM.
10.3.3. Some jurisdictions do not allow the exclusion of certain warranties and limitations of liability provided in this Section. If you are in such a jurisdiction, some of the above limitations and disclaimers may not apply to you. To the extent we may not, as a matter of applicable law, disclaim any implied warranty or limit our liabilities, the scope and duration of such warranty and the extent of our liability will be the minimum permitted by Law.
11. Buyer’s Representations and Warranties.
In addition to any representations and/or warranties set forth elsewhere in these TOS, you represent and warrant that at all relevant times:
(a) your bids on any Property are genuine and are not the product of any collusive or other anti-competitive agreement and are otherwise consistent with any applicable antitrust laws;
(b) neither your performance under these TOS, nor your purchase or receipt of Property in accordance with the terms herein, has violated or will violate any applicable Law;
(c) your purchase of Property and, if you are acting as an agent on behalf of a principal, the arrangement between you and your principal, will not facilitate tax crimes;
(d) you have no knowledge or reason to suspect that (i) the funds used to purchase Property are connected with the proceeds of criminal activity, or (ii) you or your principal, if applicable (or, if you are an entity, any person(s) or entity(ies) with a beneficial or ownership interest in you), are under investigation, charged with, or convicted of any substantive or predicate money laundering or economic sanctions crime, terrorist activity, tax evasion or act in violation of any anti-bribery or anti-corruption law (including the UK Bribery Act 2010 and the US Foreign Corrupt Practices Act);
(e) you (and your principal, if applicable) are not, nor are you (or your principal, if applicable) owned, controlled, or acting on behalf of, an entity or individual that is: (i) the subject of economic sanctions, embargoes or other trade restrictions in any jurisdiction, including those administered and enforced by the United States, European Union, United Kingdom, United Nations Security Council, or other applicable sanctions authority (collectively, “Sanctions”), or (ii) located, organized, or resident in a country or territory that is the subject of Sanctions (including Crimea, Cuba, Iran, North Korea, and Syria) (collectively, “Sanctioned Jurisdictions”);
(f) you (and your principal, if applicable) are currently in compliance, and for the past five (5) years have complied, with applicable Sanctions, anti-money laundering, anti-terrorism, and anti-bribery or anti-corruption laws;
(g) payment of the Purchase Price will not be funded directly or indirectly by or from anyone that is the subject of Sanctions or located, organized, or resident in a Sanctioned Jurisdiction;
(h) no party directly or indirectly involved in the purchase will be the subject of Sanctions, nor owned or controlled by any individual or entity that is the subject of Sanctions or otherwise located, organized, or resident in a Sanctioned Jurisdiction, unless expressly authorized in writing by the government authority having jurisdiction over the purchase and with the prior express written consent of Sotheby’s;
(i) if you are acting as agent on behalf of a principal, you have taken steps reasonably designed to ensure compliance with Sanctions, anti-money laundering, anti-terrorism, and anti-bribery or anti-corruption laws, including but not limited to, conducting appropriate due diligence on your principal and screening source of funds. You will retain and make available upon request the documentation evidencing such due diligence for at least five (5) years after the purchase, and all commissions payable to you for this consignment have been authorized by your principal;
(j) your purchase will not cause (or otherwise result in) us, Sellers, or anyone else to violate any Sanctions, anti-money laundering, anti-terrorism, or anti-bribery or anti-corruption law;
(k) you are of legal age, in the jurisdiction in which you reside, to enter into a binding contract (and in any event are older than thirteen (13) years of age); and
(l) have full legal authority without any further action or other party’s consent to enter into and perform this agreement and to give these representations and warranties; if you are an entity, the individual bidding on your behalf is authorized to do so and the entity is duly incorporated or formed, validly existing and in good standing in the jurisdiction where it is incorporated or formed.
12. Acknowledgment and Acceptance of Risk.
12.1. Inherent Risks of Smart Contracts and Blockchain Technology. Where the purchase of Property in a given transaction involves assets and activities memorialized on the blockchain, certain related activities (which may extend to, in relation to the Metaverse Platform, purchases, sales, listings, bids, transfers and other functionalities) utilize experimental smart contract and blockchain technology. You represent and warrant that you are knowledgeable, experienced and sophisticated in using blockchain technology and that you acknowledge, understand and are willing to accept the risks associated with related technological and cryptographic systems such as blockchains, NFTs, smart contracts, consensus algorithms, cryptocurrencies, decentralized or peer-to-peer networks and systems, Arweave and the InterPlanetary File System. You further acknowledge and agree that such technological and cryptographic systems (inclusive of the examples listed in the preceding sentence) may be subject to malfunctions, bugs, timing errors, hacking and theft, changes to the protocol rules of the blockchain (i.e., “forks”), hardware, software and/or Internet connectivity failures, unauthorized third party data access, and other technological risks, any of which can adversely affect the relevant smart contracts and may expose you to a risk of loss, forfeiture of your digital currency or NFTs, or lost opportunities to buy or sell Property. You accept the inherent security risks of providing information and conducting business over the Internet, and acknowledge that Sotheby’s assumes no liability or responsibility for any such failures, risks, or uncertainties, nor for any communication failures, disruptions, errors, distortions or delays you may experience when using the Metaverse Platform or the Property, however so caused.
12.1.1 You acknowledge and agree that our staff are not information technology or data experts. You acknowledge that the Metaverse Platform is subject to flaws and acknowledge that you are solely responsible for evaluating any code provided by the Metaverse Platform. This warning and others provided in these TOS by Sotheby’s shall in no way evidence or represent an ongoing duty to alert you to all of the potential risks of utilizing or accessing the Metaverse Platform. The Metaverse Platform may experience or be the target of sophisticated cyber-attacks, unexpected surges in activity or other operational or technical difficulties that may cause interruptions to or delays on the Metaverse Platform.
12.2. Acknowledgement of the Volatility of the Valuation of Blockchain Assets. You acknowledge and agree that the prices of blockchain assets (including NFTs) are extremely volatile and unpredictable, that such assets may have no or little inherent or intrinsic value and that fluctuations in the price or markets of those or other digital assets could materially and adversely affect the value of Property purchased on the Metaverse Platform (which may itself be subject to significant price volatility).
12.2.1. We do not make any representations of any kind that the value of any Property (including any NFTs which may be included therein) bought or sold on the Metaverse Platform will retain the value of its original purchase price or attain any future value. You acknowledge that the value and/or utility of an NFT can be based on both subjective factors and market forces (e.g., the market(s) for cryptocurrencies, the issuance of new regulations, etc.), and any fluctuations in value of Property are outside of the control of Sotheby’s or the Metaverse Platform.
12.3 Risks and Limitations of the Metaverse Platform. You accept and acknowledge that (a) we do and will rely on third-party platforms (such as Mojito Inc. and other service providers and licensors) in the operation of the Metaverse Platform and for support in the facilitation of transactions, the recording of any transfer of title to Property in the decentralized ledger within the blockchain, the processing of payments, user administration and account services, and other assistance, tasks and support relating to the operation and administration of the Metaverse Platform (collectively, “Platform Providers”); (b) the Metaverse Platform may suffer if we are unable to maintain a good relationship with such Platform Providers (e.g., if such Platform Providers change their terms and conditions or pricing, if we violate or are unable to comply with the terms and conditions applicable to such platforms, or if any of such platforms lose market share, fall out of favor or are unavailable for a prolonged period of time); (c) the applicable regulatory landscape governing blockchain technologies, cryptocurrencies, NFTs and other digital assets is uncertain, and new regulations or policies may materially adversely affect the development of the Metaverse Platform and the value or utility (or both) of Property, as well as interfere with our ability to operate or improve upon the Metaverse Platform (or your ability to access or use the Metaverse Platform or applicable smart contracts); (d) a lack of use or public interest in the creation and development of distributed ecosystems could negatively impact the development of the Metaverse Platform, and therefore the potential utility or value of Property; and (e) there are risks associated with purchasing user-generated content (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), that Property may be encumbered by actual or possible copyright or trademark claims, and that we make no representations or warranties as to the quality, origin, legitimacy, authenticity, identity or ownership of any the of Property in the Metaverse Platform or any of the Referenced Content related thereto.
12.4. No Implicit Endorsements. You acknowledge that reference on the Metaverse Platform to any products, services, processes or other information by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by us, and that we do not endorse or assume any responsibility for any activities of or resources, products, services, content or promotions owned, controlled, operated or sponsored by third parties (including Third Party Sites).
12.5. Acknowledgement of Responsibilities for Transaction Outcomes. You acknowledge and agree that that use of the Metaverse Platform, including the creating, buying or selling of digital assets, may carry financial risk, and that the risk of loss may be substantial. All transaction decisions are made solely by you. Transactions carried out through the Metaverse Platform are irreversible, final and there are no refunds. By using the Metaverse Platform, you represent that you have been, are and will be solely responsible for making your own independent appraisal and investigations into the risks of a given transaction and the underlying digital assets. You acknowledge and assume the risk of initiating, interacting with and participating in transactions via the Metaverse Platform, in whatever means effectuated thereby, and take full responsibility and liability for the outcome of any transaction you initiate (regardless of whether the smart contracts, the Metaverse Platform, other market participants or other users behave as expected or intended) and all other aspects of your use of and access to the Metaverse Platform. Under no circumstances will the operation of all or any portion of the Metaverse Platform be deemed to create a relationship that includes the provision or tendering of investment advice.
13. Dispute Resolution.
13.1. Generally. EXCEPT AS OTHERWISE PROVIDED UNDER THESE TOS, ALL DISPUTES AND CLAIMS BETWEEN YOU AND SOTHEBY’S THAT ARISE OUT OF OR IN CONNECTION WITH, OR RELATE TO, THESE TOS SHALL BE RESOLVED, AT THE FILING PARTY'S ELECTION, IN EITHER A SMALL CLAIMS COURT OR BY FINAL AND BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION UNDER ITS COMMERCIAL ARBITRATION RULES AND SUPPLEMENTARY PROCEDURES FOR CONSUMER-RELATED DISPUTES, WHICH ARBITRATION SHALL TAKE PLACE IN NEW YORK, NEW YORK. ALL DISPUTES IN ARBITRATION WILL BE HANDLED SOLELY BETWEEN THE NAMED PARTIES, AND NOT ON ANY REPRESENTATIVE OR CLASS BASIS. FURTHER, UNLESS BOTH YOU AND SOTHEBY’S AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. THE ARBITRATOR MAY AWARD DECLARATORY OR INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY'S INDIVIDUAL CLAIM WITHOUT AFFECTING OTHER INDIVIDUALS.
13.1.1. YOU UNDERSTAND AND AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS BOTH YOU AND SOTHEBY’S SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION. THIS PROVISION DOES NOT PRECLUDE YOUR PARTICIPATION AS A MEMBER IN A CLASS ACTION FILED ON OR BEFORE AUGUST 20, 2011. THIS PROVISION IS NOT APPLICABLE TO THE EXTENT SUCH WAIVER IS PROHIBITED BY LAW.
13.1.2. YOU UNDERSTAND THAT YOU AND SOTHEBY’S ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS BEFORE A JURY.
14. Indemnification and Release.
14.1. General Indemnification. To the fullest extent permitted under applicable law, you agree to indemnify, defend and hold harmless the Sotheby’s Entities from and against any and all claims, causes of action, costs, proceedings, demands, obligations, losses, liabilities, penalties, damages, awards, judgments, interest, fees, and expenses (including reasonable attorneys’ fees and legal, court, settlement, and other related costs) of any kind or nature, in law or equity, whether in tort, contract or otherwise, arising out of or relating to, any actual or alleged (a) breach of these TOS; (b) inaccuracy or incompleteness of any Account information, User Content or other information provided or submitted by you in connection with your use of the Metaverse Platform; (c) use or misuse of the Metaverse Platform, Platform Content or Property; or (d) violation of the rights of a third party; in each of (a) - (d), whether by you, a co-conspirator, or anyone using your Account. You agree to promptly notify Sotheby’s of any third party claims covered under the foregoing indemnification obligation and agree that Sotheby’s shall have control of the defense or settlement of any such third party claims. If Sotheby’s assumes the defense of such a matter, you will reasonably cooperate with Sotheby’s in such defense. You hereby release, acquit, and forever discharge the Sotheby’s Entities from any damages, suits, or controversies or causes of action resulting from a sale of any of your listed Property occurring after the your breach of these TOS; or arising out of another Metaverse Platform user’s violation of these TOS. THE FOREGOING INDEMNITY IS IN ADDITION TO, AND NOT IN LIEU OF, ANY OTHER INDEMNITIES SET FORTH IN ANY WRITTEN AGREEMENT BETWEEN YOU AND SOTHEBY’S.
14.2. Release from Copyright Claims. You irrevocably release, acquit, and forever discharge the Sotheby’s Entities of any liability for direct or indirect copyright or trademark infringement for Sotheby’s use of User Content and Referenced Content in accordance with these TOS.
15. Miscellaneous Terms
15.1. Reporting of Violations. You agree that you will report any violations of these TOS (including the Acceptable Use Policy) to sothebyslegal@sothebys.com. You agree to keep confidential all private correspondence with any members of the Sotheby’s team pertaining to another Metaverse Platform user’s alleged violation of these TOS or other inquiries about these TOS or Sotheby’s policies.
15.2. Severability of Terms. If any provision, term or clause of these TOS is found by a court of competent jurisdiction to be invalid or unenforceable, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these TOS remain in full force and effect.
15.3. Termination of these TOS. Notwithstanding anything to the contrary set forth in these TOS, we may terminate these TOS, cancel any transaction, terminate or suspend your access to all or any part of the Metaverse Platform at any time, and/or block or prevent future access to and use of the Metaverse Platform, in each case with or without cause, with or without notice and without attendant liability, effective immediately. Upon any termination, all rights and obligations of the parties hereunder shall cease and you shall immediately cease using the Metaverse Platform, except that (a) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) and all remedies for breach of these TOS shall survive and (b) the provisions of these TOS that by their nature are intended to survive termination will survive. For the avoidance of doubt, if we terminate these TOS or suspend or terminate your access to or use of the Metaverse Platform due to your breach of these TOS or any suspected fraudulent, abusive, or illegal activity, then termination of these TOS will be in addition to any other remedies we may have at law or in equity. You acknowledge and agree that, upon any termination or expiration of these TOS, we will have no obligation to maintain any User Content or any other information relating to your use of the Metaverse Platform in our databases or to forward any such information to you or to any third party.
15.4. Assignment. These TOS, and any rights, licenses and privileges granted herein, may not be transferred or assigned by you, but may be assigned or transferred by us without restriction, notice or other obligation to you.
15.5. Law and Jurisdiction. These TOS (which include the Privacy Policy, the Acceptable Use Policy, and the DMCA and Take-Down Policy) will be governed by and construed in accordance with the laws of the State of New York. Subject to the terms of Section 13 above, in the event of a dispute arising from or relating to these TOS, you agree to submit to the exclusive jurisdiction of the state courts of and the federal courts sitting in the State and County of New York, though Sotheby’s will retain the right to bring proceedings in a court other than the state and federal courts sitting in the State and County of New York.
15.6. No Waiver. Our failure to exercise or enforce any right or provision of these TOS will not constitute a waiver of such right or provision, and no act, omission or delay by us will be deemed a waiver or release of any of our rights hereunder.
15.7. Further Inquiries. You may direct questions about these TOS, or other issues, to:
Sotheby's
1334 York Avenue
New York, New York 10021
Attn: Metaverse Management
15.8. No Third Party Beneficiaries. Except as otherwise expressly provided herein, these TOS are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.
15.9. Interpretation. The section titles in these TOS are for convenience only and have no legal or contractual effect. The terms “include,” “includes,” and “including,” whether or not capitalized, mean “include, but are not limited to,” “includes, but is not limited to,” and “including, but not limited to,” respectively and are to be construed as inclusive, not exclusive.
15.10. Conflicts. These TOS are subject to any supplemental, and superseded by any conflicting, terms and conditions included in any applicable Listing Terms.
IF YOU DO NOT AGREE TO BE LEGALLY BOUND BY ALL OF THE FOREGOING TERMS, PLEASE DO NOT ACCESS OR USE THE METAVERSE PLATFORM IN ANY MANNER.
Last Updated: October 1, 2021