T&Cs

1. Introduction

Welcome to the 1Kind website (www.1Kind.com), owned and operated by 1Kind Pty Ltd ACN 653 857 580 (“1kind”, “we”, “us” or “our”).

These Terms and Conditions (Terms) govern your access to and use of the 1Kind website including without limitation your participation in Auctions for NFTs (each defined below), our services both online and offline, and any other software provided or in connection with those services (collectively, the Services).

Auction Rules are available at section 8 of these Terms. Further specific terms may apply to an Auction, or the NFTs, Items or Experiences listed for Auction, in which case those terms will be available on the 1Kind website (Specific Terms) and become part of your agreement with us if you participate in those Auctions.

As our services expand, we will need to provide additional terms to cover the expanded service offering (Additional Terms). Any Additional Terms which are available with the relevant services become part of your agreement with us if you use those services.

These Terms and any applicable Specific Terms and Additional Terms comprise the entire agreement between 1Kind and you in relation to use of the Services and create a binding legal arrangement between you and 1Kind.

2. Acceptance of Terms

By using or accessing the 1Kind website in any manner, you affirm, represent and warrant that:

• (a) you have read, understand and agree to be bound by all of the Terms (including any Specific Terms and Additional Terms, our Privacy Policy and other agreements incorporated into these Terms);
• (b) you have the right, authority and capacity to enter into these Terms in your own capacity or on behalf of someone else;
• (c) you meet all of the eligibility and any other requirements; and
• (d) your access and use of the 1Kind website is permitted by and shall not violate any applicable laws including those in your jurisdiction.

If you do not understand or accept these Terms, you must exit 1Kind's website immediately and you are prohibited from visiting, accessing, using or participating in Auctions or any Services of 1Kind.

3. Changes to Terms

1Kind reserves the right to change or modify these Terms at any time and at our sole discretion. If we decide to make changes to these Terms, we will provide notice of such changes, such as by sending an email notification, providing notice via the 1Kind website, or updating the “Last Updated” date at the top of these Terms. By continuing to access or use the Services, you confirm your acceptance of the revised Terms and all of the terms incorporated therein by reference.

We encourage you to review our Terms frequently to ensure that you understand them. Your use of the 1Kind website, and any use of the Services through it, are subject to these Terms and all applicable laws.

4. Minors

If you are 13 or older but under the age of 18, you represent that you have reviewed these Terms with your parent or legal guardian to make sure that you and your parent or legal guardian understand these Terms. If you are a parent or guardian permitting a person under the age of 18 (a Minor) to create an account, you agree to:

• (a) exercise supervision over the Minor's use of our website;
• (b) assume all risks associated with the Minor's use of our website, including the transmission of content or information to and from third parties via the Internet;
• (c) ensure that the content and information that the Minor may encounter on our website are suitable for the Minor;
• (d) assume liabilities resulting from the Minor's use of our website;
• (e) ensure the accuracy and truthfulness of all information submitted by the Minor; and
• (f) provide the consents contained in these Terms on behalf of the Minor.

We may ask you to confirm that you have your parent's or guardian's permission and that they have agreed to these Terms on your behalf, and, even if we do not do this, we will assume that this is the case and will provide access to our website and your account on this basis.

5. Collection, disclosure, and Privacy Policy

5.1. Collection on registration

When you register your interest to receive news about 1Kind and upcoming Auctions by providing your name, email address and country of residence, we require your email address in order to provide you with news about 1Kind, upcoming Auctions and for purposes otherwise set out in our Privacy Policy at https://1kind.com/privacy-policy.

5.2. Collection on connecting MetaMask wallet and submitting a Bid

When you connect your MetaMask wallet to the 1Kind website, we collect the IP address from the device you use and your Ethereum public address. When you submit a Bid, we also store the amount of the Bid associated with your IP address and Ethereum public address.

5.3. Collection on enquiries, reports and feedback

You may choose to make enquiries, report suspicious market activity or submit comments, bug reports, ideas, or other feedback about the 1Kind website and our Services, including without limitation about how to improve the 1Kind website (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 and all rights necessary for us to incorporate and use your Feedback for any purpose.

5.4. Disclosure

When you register your interest to receive news about 1Kind and upcoming Auctions by providing your name, email address and country of residence, we require your email address in order to provide you with news about 1Kind, upcoming Auctions and for purposes otherwise set out in our Privacy Policy at https://1kind.com/privacy-policy.

Our Privacy Policy explains: (i) how we store and use, and how you may access and correct your personal information; (ii) how you can lodge a complaint regarding the handling of your personal information; and (iii) how we will handle any complaint. If you would like any further information about our privacy policies or practices, please contact us at contact@1Kind.com.

By providing your personal information to us, you consent to the collection, use, storage and disclosure of that information as described in the Privacy Policy and these Terms.

6. Definitions

6.1. Auction

The sale to the public of NFTs in an NFT Collection, where each individual NFT is listed for auction exclusively and for the first time on the 1Kind website. Each Participant submits a Bid and may submit a subsequent, higher Bid which cancels the Participant's existing Bid within the Bidding Window. Each Successful Bidder receives the NFT that is the subject of their Bid once 1Kind confirms sufficient WETH is available at your Ethereum public address to pay the Auction Price and 1Kind accepts the Bid either at the Closing Time or at 1Kind's discretion if the Reserve Price has been met.

6.2. Auction Price

The amount of the highest Bid submitted in an Auction at the Closing Time or at a later time if the Bidding Window is extended at our discretion, denominated in WETH and paid by the Successful Bidder in WETH.

6.3. Auction Rules

As set out in section 8 of these Terms and as modified or supplemented by any Specific Terms or Additional Terms.

6.4. Bid

A Participant's legally binding, non-revocable offer to 1Kind to purchase an NFT, expressed in WETH

6.5. Bidding Window

The duration of time between the Opening Time and the Closing Time of an Auction.

6.6. Closing Time

The time as stated on the 1Kind website, unless shortened or extended at our discretion.

6.7. ETH

Ether, known by the ticker “ETH”, is the native cryptographic token of the Ethereum blockchain.

6.8. Gas Fee

A fee, paid in ETH, for a transaction to be processed on the Ethereum blockchain, which is paid to the Ethereum network and not paid to or determined by 1Kind.

6.9. NFT

An NFT is a unique, non-fungible token that has been created on the Ethereum blockchain using an “ERC-standard” smart contract. Unless Specific Terms apply, the non-fungible token will be created using the ERC-721 standard, further information which is available at https://ethereum.org/en/developers/docs/standards/tokens/erc-721/ . When the non-fungible token smart contract is deployed on the Ethereum blockchain a permanent and unchangeable record is created on the Ethereum ledger.

6.9.1. Experiences

Subject to any Specific Terms, an NFT that represents a right to access, and in some cases to on-sell, in-person or virtual experiences where:

• (a) on or before the Experience Expiry Date, the NFT Buyer (or Subsequent NFT Buyer) must visit the 1Kind website to prove their ownership of the NFT to gain access to a webpage to provide information to arrange the experience with the NFT Figure within 12 months after the Experience Claim Date;

and where,

Experience Expiry Date means 12 months from the date the NFT Buyer purchased the NFT; and

Experience Claim Date means the date that the Experience is claimed when the NFT Buyer (or Subsequent NFT Buyer) accesses the 1Kind website to prove their ownership of the NFT to gain access to a webpage to provide information to arrange the experience with the NFT Figure.

6.9.2. Items

Subject to any Specific Terms and the 1Kind License, an NFT that represents a right to own, resell, licence or otherwise deal with a physical and/or digital article where the NFT Buyer must visit the 1Kind website to prove their ownership of the NFT to gain access to:

• (a) a digital file that holds exclusive original digital images or authenticated copies of physical or digital images and/or digital video owned or licensed by the NFT Figure; and/or
• (b) a webpage to provide information to take physical delivery of something that exists in the real world as a tangible thing such as a notebook, original illustrations, or costumes owned or licenced by the NFT Figure.

6.10. NFT Collection

A suite of individual NFTs that make up a collection of multiple NFTs associated with an NFT Figure which are listed for auction exclusively on the 1Kind website.

6.11. NFT Buyer

The person, persons or entity with the lawful ability to sign transactions through their MetaMask wallet that submitted the Successful Bid in an Auction and pays the Auction Price following the Auction.

6.12. NFT Figure

The person, persons or entity, including the world's most remarkable artists, musicians, creators and thinkers, that represent and warrant that they own all rights to sell or licence or otherwise deal with the Item or Experience embedded in an NFT sold via Auction on the 1Kind website.

6.13. Opening Time

The time the Auction commences as stated on the 1Kind website, whereby Participants can begin making Bids, unless varied at our discretion.

6.14. Participant

A person or persons with the lawful ability to sign transactions through their MetaMask wallet that they connect to the 1Kind website to submit a Bid in an Auction in accordance with these Terms, in particular the Auction Rules at section 8 of these Terms, and includes actors seeking to influence the result of the Auction.

6.15. Reserve Price

The minimum price, denominated in WETH, of an NFT listed for auction on the 1Kind website. For each NFT listed for auction on the 1Kind website either ‘Below reserve' or ‘Reserve reached' will be displayed as applicable throughout the course of the Auction.

6.16. Royalty

The Auction Price is inclusive of a five (5) percent royalty to 1Kind.

6.17. Subsequent NFT Buyer

Any person that purchases an NFT from the NFT Collection from the NFT Buyer or another person that has assumed beneficial ownership of the NFT after the NFT Buyer.

6.18. Successful Bidder

A Participant that has submitted the highest Bid at the Closing Time of the Auction or a Bid above the Reserve Price that is accepted at 1Kind's discretion and that has a sufficient WETH balance available at their Ethereum public address to pay the Auction Price once 1Kind accepts the Bid either at the Closing Time or at 1Kind's discretion if the Reserve Price has been met.

6.19. WETH

Wrapped ether, known by the ticker “WETH”, that has been acquired by a person either:

• (a) holding ETH and upon making a Bid on the 1Kind website being prompted to and signing a transaction via their Metamask wallet to convert the ETH to WETH; or
• (b) on a centralised or decentralised digital asset exchange; or
• (c) by a person interacting with a smart contract designed to receive and hold a transfer of ETH and return an equivalent number of WETH, less any Gas Fees.

6.20. 1Kind License

The license that applies to the purchase of Items as described in clause 18 below.

7. Registration

You may register your interest to receive news about 1Kind and upcoming Auctions but this does not mean you have created an account with us.

When you register, you will provide us with your email address. We will handle your email address and any other personal information we collect as a result of email correspondence with you in accordance with our Privacy Policy.

8. Auction Rules

8.1. Access to Auctions

On the 1Kind website, you can participate in Auctions by connecting your MetaMask wallet (https://metamask.io/) which requires you to sign the connection transaction.

At this time, the 1Kind website is only compatible with MetaMask but other digital wallets that are compatible with the Ethereum blockchain may be supported in future.

8.2. Bidding

When submitting your Bid, you will be prompted to sign to authorise the Bid but the WETH will remain at your Ethereum public address, no Gas Fee will be incurred and a data record of your Bid amount denominated in WETH as well as your IP address and Ethereum public address will be stored in a secure database controlled by 1Kind.

Bids (i.e., offers to purchase NFTs) can only be made during the Bidding Window of an Auction if you hold WETH at your Ethereum public address. If you only hold ETH at your Ethereum public address, before making a Bid you will be prompted to sign to authorise a wrapping transaction via your Metamask wallet and pay a Gas Fee.

Participants can only submit one Bid per Auction at a time. Participants that have already submitted a Bid in an Auction may submit a higher Bid in that Auction which will cancel the existing Bid. Participants can submit Bids in multiple Auctions across the 1Kind website up to the Participant's WETH balance at their Ethereum public address.

Participants that do not maintain a sufficient WETH balance at their Ethereum public address for the duration of the Auction may have their Bid cancelled during the Auction.

8.3. Reserve Prices

1Kind reserves all rights to end an Auction before the Closing Time if the Reserve Price has been met, or extend an Auction if the Reserve Price has not been met.

8.4. Failed transaction

If you made the Successful Bid but did not maintain a sufficient WETH balance at the time the 1Kind smart contract called for the WETH balance to trigger the payment of WETH you forfeit the right to purchase the NFT. If you had a sufficient WETH balance and the transaction fails due to network error or other circumstances outside of your control please send an email to contact@1Kind.com for support within 24 hours of the Closing Time of the Auction.

8.5. Paying the Auction Price

If your Bid is successful at the Closing Time of an Auction, and subject to completion of any processes that are applicable to the particular Auction, NFT, Item or Experience, your WETH will automatically be transferred to 1Kind to pay the Auction Price and the NFT will be transferred to your Ethereum public address. You will need to take additional steps to add the NFT smart contract to your Metamask wallet to display the NFT in your MetaMask wallet.

8.6. Purchase of NFT

Once the Participant with the Successful Bid pays the Auction Price to 1Kind, that Participant becomes the NFT Buyer.

8.7. Failure to pay Auction Price within a reasonable time

Except for the IP address of the device used by a Participant to submit a Bid, a Participant's Ethereum public address and the Bid amount, no information is collected by 1Kind to be able to identify each Participant or the Participant with a Successful Bid. Accordingly, if the Participant with a Successful Bid does not hold sufficient WETH to pay the Auction Price after the Auction and the transaction fails in accordance with clause 8.4 but you do not send an email to contact@1Kind.com for support within the time stipulated, 1Kind reserves all rights to re-list the NFT for Auction on the 1Kind website and determine other action appropriate such as blocking of access of the Participant for future Auctions.

8.8. NFT ownership and licensing

Subject to any Specific Terms, all NFTs purchased by NFT Buyers are subject to the 1Kind License the terms of which are set out at clause 18 below. All NFT Buyers agree to purchase the NFT subject to the conditions of the 1Kind Licence and any Specific Terms.

NFT Buyers do not secure any legal ownership, right, or title to any copyrights, trademarks, or other intellectual property rights to the content or substance of any Item or Experience, other than the rights afforded to the NFT Buyer by the limited 1Kind License granted by these Terms to the content or substance of the Item or Experience. 1Kind and/or the NFT Figure expressly reserve all copyright underlying NFTs sold by Auction on the 1Kind website, including but not limited to the right to reproduce, communicate to the public, prepare derivative works or adaptations, to perform, and to distribute.

8.9. Use of third-party software

All Bids made through the 1Kind website are facilitated and run through MetaMask which is a third-party electronic wallet extension (Third-party Extension). The 1Kind website is the interface for an Ethereum-based auction application, which allows each user to interact with the smart contracts deployed to the Ethereum blockchain to assist with the facilitation of Auctions.

By using a Third-party Extension to access our Services you agree that you are governed by the terms of service and privacy policy for the applicable Third-party Extension. For example, if you are using MetaMask, the Terms of Service and Privacy Policy are available at (https://metamask.io/terms.html) and (https://metamask.io/privacy.html) respectively, but may be updated from time to time.

In connecting your MetaMask wallet to 1Kind's website, submitting Bids and authorising the payment of the Auction Price in WETH, each transaction is passed on to MetaMask, which completes the transaction on your behalf.

9. Participants and NFT Buyers: Acknowledgements, representations and warranties

9.1. Acknowledgements

Participants and NFT Buyers acknowledge, understand and agree that:

• (a) submitting a Bid constitutes a legally binding, and non-revocable offer to purchase an NFT;
• (b) they bear full responsibility for verifying the legitimacy, authenticity, and legal right to acquire ownership, resell, license or otherwise deal with NFTs they bid on and in the case of a Successful Bid purchase via the 1Kind website;
• (c) 1Kind NFTs may be encumbered by actual or possible copyright or trademark claims against the NFT;
• (d) the price of an NFT purchased on the 1Kind website may have been influenced by activity outside of the control of 1Kind;
• (e) under no circumstances will the operation of all or any portion of the 1Kind website or Auctions be deemed to create a relationship that includes the provision or tendering of investment, financial, legal, tax or accounting advice;
• (f) 1Kind is not a fiduciary nor owes any duties to any Participant or NFT Buyer, including the duty to ensure fair pricing of NFTs or to police behaviour in the lead up to and during an Auction;
• (g) they are solely responsible for any fees, including any internet connection fees or mobile fees and Gas Fees, that are incurred when accessing the Services, submitting Bids, or paying the Auction Price via the 1Kind website;
• (h) the value of Gas Fees changes, often unpredictably, and is entirely outside of the control of 1Kind or the 1Kind website or smart contracts and under no circumstances will a contract, agreement, offer, sale, bid, or other transaction on the 1Kind website or smart contracts be invalidated, revocable, retractable, or otherwise unenforceable on the basis that the Gas Fee for the given transaction was unknown, too high, or otherwise unacceptable to a Participant;
• (i) Gas Fees are non-refundable under all circumstances;
• (j) they are solely responsible for seeking independent professional legal and tax advice in relation to their participation in an Auction and purchase of an NFT if a Successful Bid is made;
• (k) they are solely responsible for any and all sales, use, value-added, royalty withholding taxes and other taxes, duties and assessments now or hereafter claimed or imposed by any governmental authority associated with their use of the 1Kind website and including, without limitation, any taxes that may become payable as the result of their acquisition of an NFT;
• (l) for the avoidance of doubt, the NFT Buyer or any Subsequent NFT Buyer is solely responsible for determining and paying any amount of royalty withholding tax on the Royalty or any other component of the Auction Price to the revenue authority of their jurisdiction of tax residence as an additional amount to the Auction Price;
• (m) they solely bear the risk of initiating, interacting with, participating in Auctions and take full responsibility and liability for the outcome of any transaction they initiate, whether or not the 1Kind website, smart contracts, third-party software, Participants and other actors behave as expected or intended;
• (n) you understand that blockchain and smart contract technologies are experimental, speculative and inherently risky and you are willing to accept the risks associated with cryptographic systems such as smart contracts, the Ethereum blockchain, non-fungible tokens, the interplanetary file system and Third-Party Extensions like MetaMask;
• (o) the 1Kind smart contracts may be subject to bugs, malfunctions, timing errors, hacking and theft, or changes to the protocol rules of the Ethereum blockchain (i.e., "forks"), which can adversely affect the smart contracts and may expose you to a risk of total loss, forfeiture of your digital assets, or lost opportunities to buy and sell digital assets;
• (p) secondary market sales are not supported on the 1Kind website;
• (q) except for the IP address of the device used to submit a Bid, a Participant's Ethereum public address and the Bid amount, no information is collected by 1Kind to be able to identify each Participant or the Participant with a Successful Bid and as such, if the Participant with a Successful Bid does not hold sufficient WETH to pay the Auction Price after the Auction, the NFT Seller and/or 1Kind reserve all rights to re-list the NFT for Auction; and
• (r) 1Kind, the 1Kind website, smart contracts and the Ethereum blockchain could be impacted by one or more regulatory inquiries, regulatory enforcement actions, or legislative change which could impede or limit the ability of 1Kind to continue to develop the 1Kind website and conduct Auctions, or which could impede or limit your ability to access or use the 1Kind website or the Ethereum blockchain.

9.2. Representations and warranties

Participants and NFT Buyers represent and warrant that:

• (a) they are knowledgeable, experienced and sophisticated in using blockchain technology, the 1Kind website, and in initiating Ethereum-based transactions;
• (b) the WETH balance at their Ethereum public address is at least equal to the amount Bid for an NFT;
• (c) they have made enquiries to be satisfied as to the legitimacy, authenticity, and legal right to acquire ownership, resell, license or otherwise deal with NFTs they bid on or purchased via the 1Kind website;
• (d) they have made enquiries to confirm they are eligible and/or not prohibited from submitting Bids in Auctions and paying the Auction Price to perform the legally binding condition of payment following a Successful Bid in an Auction;
• (e) they will not accept, solicit, offer, Bid, engage with the smart contracts, or otherwise transact on or off of the 1Kind website with the intent to artificially devalue, inflate, or otherwise deceptively influence, misrepresent, or cause to be misrepresented the price of an NFT or NFT Collection; and
• (f) they will not engage in any deceptive conduct that may prevent competitive or fair bidding, artificially inflate or deflate the price of an NFT, simulate demand for an NFT, or any other anti-competitive bidding .

10. NFT Figures

10.1. Becoming an NFT Figure

Remarkable people and groups seeking an invitation to create and list NFT Collections for auction on the 1Kind website may enquire by email at partnerships@1Kind.com.

1Kind has unilateral discretion in curating its NFT Figures and NFT Collections and makes no guarantees or promises that any person or group will be approved, even if the person or group was invited by a member of 1Kind to submit the request.

10.2. Acknowledgements

The NFT Figure acknowledges, understands and agrees that by listing NFTs for sale by Auction on the 1Kind website:

• (a) they give an express grant of the limited license rights per the 1Kind License to the NFT Buyer and Subsequent NFT Buyers;
• (b) they give an express grant to 1Kind, its affiliates and successors a non-exclusive, world-wide, assignable, sub-licensable, perpetual, and royalty-bearing license to make copies of, display, perform, reproduce, and distribute content in relation to the NFTs on any media whether now known or later discovered for the broad purpose of operating, promoting, sharing, developing, marketing, and advertising 1Kind, the 1Kind website, or any other purpose related to 1Kind or its business, including without limitation, the express right to:
  
  • i. display or perform the subject of an Item or Experience on the 1Kind website, a third party platform, social media posts, blogs, editorials, advertising, market reports, virtual galleries, museums, virtual environments, editorials, or to the public;
  • ii. create and distribute digital or physical derivative works based on the subject of the Item or Experience, including without limitation, compilations, collective works, and anthologies;
  • iii. indexing the subject of the Item or Experience in electronic databases, indexes, catalogues, the smart contracts, or ledgers; and
  • iv. hosting, storing, distributing, and reproducing one or more copies of the subject of the Item or Experience within a distributed file keeping system, node cluster, or other database (e.g. IPFS) or causing, directing, or soliciting others to do so;
• (c) they are prohibited from providing anything to be the subject of an NFT that consists of unlicensed or unauthorized copyrighted content, including any imagery, design, audio, video, human likeness, or other unoriginal content not created, owned or appropriately licenced by the NFT Figure, not authorized for use by the NFT Figure, not in the public domain, or otherwise without a valid claim of fair use;
• (d) they are responsible for seeking their own professional independent legal advice about NFTs embodying content where the ownership or use rights is unknown or disputed; and
• (e) they are responsible for seeking their own professional independent legal advice about the legality in all applicable jurisdictions of their content and personality being associated with NFTs, Items and Experiences available for Auction on the 1Kind website and which may be subsequently traded on secondary market platforms beyond the control of the NFT Figure and 1Kind.

10.3. Representations and warranties

The NFT Figure represents and warrants that:

• (a) they own all legal rights, titles, and interests in all intellectual property rights to Items and Experiences available for Auction on the 1Kind website, including but not limited to copyrights and trademarks;
• (b) as the copyright owner, the NFT Figure enjoys several exclusive rights including the right to reproduce, the right to prepare derivative works, the right to distribute, and the right to display or perform in relation to the Item or Experience;
• (c) to the extent the content of an Item or Experience is not created or owned by the NFT Figure, that the NFT Figure has permission to incorporate that content in the NFTs listed for Auction on the 1Kind website and that the listing for auction, display and marketing of the NFT does not violate any agreement, contract or obligation owed to a third party;
• (d) each subject of an Item or Experience is one of a kind and never before created or sold prior to being made available for Auction as an NFT; and
• (e) they will never create NFTs that are the same or similar to NFTs in their NFT Collection made available for sale by Auction on the 1Kind website.

10.4. Indemnity

NFT Figures agree to indemnify 1Kind and be held liable for any claim against 1Kind arising out of an NFT Figure's breach of these Terms. NFT Figures hereby release and forever discharge 1Kind from any damages or causes of action resulting from a sale of any of the NFT Figure's listed NFTs occurring after the NFT Figure's breach of these Terms.

11. Website content

The information on our website is not comprehensive and is intended to provide a preview of the calibre of NFT Sellers and Auctions that 1Kind will facilitate, as well as the NFTs available for Auction.

While we use all reasonable attempts to ensure the accuracy and completeness of the information on our website, to the extent permitted by law, including the Australian Consumer Law, we make no warranty regarding the information on this website. You should monitor any changes to the information contained on this website.

We are not liable to you or anyone else if interference with or damage to your computer systems occurs in connection with the use of this website or a linked website. You must take your own precautions to ensure that whatever you select for your use from our website is free of viruses or anything else (such as worms or Trojan horses) that may interfere with or damage the operations of your computer systems.

We may, from time to time and without notice, change or add to the website (including the Terms) or the information, products or services described in it. However, we do not undertake to keep the website updated. We are not liable to you or anyone else if errors occur in the information on the website or if that information is not up-to-date.

11.1. No commercial use

This website is for your personal, non-commercial use only. You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, commercially exploit, create derivative works from, transfer, or sell any Content, software, products or services contained within this website. You may not use this website, or any of its Content, to further any commercial purpose, including any advertising or advertising revenue generation activity on your own website.

12. Third party sites

Our website may contain links to websites operated by third parties. Those links are provided for convenience and may not remain current or be maintained. Unless expressly stated otherwise, we do not endorse and are not responsible for the content on those linked websites and have no control over or rights in those linked websites.

13. Intellectual property rights

Unless otherwise indicated, we own or license from third parties all rights, title and interest (including copyright, designs, patents, trademarks and other intellectual property and proprietary rights) in this website (whether registered or unregistered in any jurisdiction) and in all of the material (including all text, graphics, logos, audio, video and software) made available on this website (whether registered or unregistered in any jurisdiction) (Content).

Your use of this website and use of and access to any Content does not grant or transfer any rights, title or interest to you in relation to this website or the Content. However we do grant you a licence to access the website and view the Content on the terms and conditions set out in this Agreement and, where applicable, as expressly authorised by us and/or our third party licensors.

Any reproduction or redistribution of this website or the Content is prohibited and may result in civil and criminal penalties.

14. Unacceptable activity

You must not do any act that we would deem to be inappropriate, is unlawful or is prohibited by any laws applicable to our website, including but not limited to:

• (a) any act that would constitute a breach of either the privacy (including uploading private or personal information without an individual's consent) or any other of the legal rights of individuals;
• (b) listing NFTs for auction, making bids during an Auction, and acquiring NFTs, for the purpose of concealing economic activity, laundering money, or financing terrorism;
• (c) using the 1Kind website and smart contracts to conceal or transfer proceeds or assets relating to criminal activity or to pay for an NFT for any other reason than to obtain the NFT;
• (d) using this website to defame or libel us, our employees or other individuals;
• (e) uploading files that contain viruses that may cause damage to our property or the property of other individuals;
• (f) posting or transmitting to this website any non-authorised material including, but not limited to, material that is, in our opinion, likely to cause annoyance, or which is defamatory, racist, obscene, threatening, pornographic or otherwise or which is detrimental to or in violation of our systems or a third party's systems or network security;
• (g) engaging in any attack, hack, denial-of-service attack, interference, or exploit of any 1Kind smart contract notwithstanding that an operation performed by a person that is technically permitted by a 1Kind smart contract may nevertheless be a violation of our Terms and the law;
• (h) using the Services in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Services, or that could damage, disable, overburden or impair the functioning of the Services in any manner;
• (i) developing, utilizing, or disseminating any software, or interacting with any API in any manner, that could damage, harm, or impair the 1Kind website, smart contracts or the Services;
• (j) reverse engineering any aspect of the Services, or doing anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any Service, area or code of the Service;
• (k) using any robot, spider, crawler, scraper, script, browser extension, offline reader or other automated means or interface not authorized by us to access the Services, extract data or otherwise interfere with or modify the rendering of Service pages or functionality;
• (l) using data collected from our Services to contact individuals, companies, or other persons or entities;
• (m) using data collected from our Services for any direct marketing activity (including without limitation, email marketing, SMS marketing, telemarketing, and direct marketing);
• (n) bypassing or ignoring instructions that control all automated access to the Services;
• (o) using the Service for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms;
• (p) using the Ethereum blockchain to carry out any illegal activities, including but not limited to money laundering, terrorist financing or deliberately engaging in activities designed to adversely affect the performance of the Ethereum blockchain, or the Services;
• (q) engaging in deceptive or manipulative trading activities;
• (r) placing misleading bids or offers.

If we allow you to post any information to our website, we have the right to take down this information at our sole discretion and without notice.

15. Liability

To the maximum extent permitted by law, including the Australian Consumer Law, in no event shall we be liable for any direct and indirect loss, damage or expense – irrespective of the manner in which it occurs – which may be suffered due to:

• (a) your use of our website;
• (b) your participation in Auctions;
• (c) the information or materials contained on or via our website (including smart contracts and NFTs), or as a result of the inaccessibility of this website and/or the fact that certain information or materials contained on it are incorrect, incomplete, insecure, unstable, unreliable or not up-to-date;
• (d) acts or omissions of any third parties, or your transactions or any other interaction with any such third parties or third-party software;
• (e) any smart contract or related failures, risks, or uncertainties associated with the Ethereum blockchain such as forks, technical node issues, repudiated transactions, migrations and updates or any other issues causing losses;
• (f) user error such as forgotten passwords or seed phrases and your standards of personal security that mean you lose control of your MetaMask wallet and/or the digital assets displayed therein;

To the extent of any liability that cannot lawfully be limited, 1Kind's liability for damages under these Terms shall in all cases be limited to, and under no circumstances shall exceed, the Australian dollar value of proceeds actually received by 1Kind after deducting all costs, fees, and liabilities incurred by or on behalf of 1Kind.

1Kind

16.1. Warranties and representations

To the maximum extent permitted by law, including the Australian Consumer Law, we make no warranties or representations about this website or the Content, including but not limited to warranties or representations that they will be complete, accurate or up-to-date, that access will be uninterrupted or error-free or free from viruses, or that this website will be secure.

To the maximum extent permitted by law, 1Kind makes no claim, representations or warranties:

• (a) as to the value, fairness of price or value of use of any NFTs available for sale by Auction on the 1Kind website or subsequently made available for sale on third-party sites;
• (b) of title, non-infringement, functionality, merchantability, usage, security, suitability or fitness for any particular purpose, workmanship or technical quality of any NFT, smart contract code, or software;
• (c) about the identity, legitimacy, authenticity or legal rights to acquire ownership, resell, license or otherwise deal with NFTs available on the 1Kind website;
• (d) that the 1Kind website, smart contracts, NFTs (including the delivery of Items which require third party processing and/or intervention), Ethereum blockchain and any third-party software will be available on an uninterrupted, timely, secure, or error-free basis or are or will be free of malicious code or will be accurate, complete or reliable.

16.2. Reserved rights

We reserve the right to restrict, suspend or terminate without notice your access to this website, any Content, or any feature of this website at any time without notice and we will not be responsible for any loss, cost, damage or liability that may arise as a result.

We reserve the right, in our sole and absolute discretion, to amend, modify, alter or supplement the smart contracts accessible through the 1Kind website or through which the Services are provided from time to time.

17. General

17.1. Jurisdiction and governing law

Your use of the 1Kind website and these Terms are governed by the law of Victoria, Australia and you submit to the non-exclusive jurisdiction of the courts exercising jurisdiction in Victoria, Australia.

17.2. Severability

If any provision of these Terms is found to be unlawful or unenforceable, then that provision will be deemed severable from these Terms and will not affect the enforceability of any other provisions.

18. 1Kind License

Subject to any Special Terms that may apply from time-to-time to any NFTs or NFT Collections and the rights granted in sub-clause 18.1 below, 1Kind and/or the NFT Figure (as applicable) expressly grant to the NFT Buyer a limited, worldwide, non-sublicensable, royalty-bearing intellectual property license to use and display any intellectual property (including copyright) that resides in the Item for private or domestic purposes.

18.1. NFT Buyers may display the Item

The NFT Buyer's limited license to display the Item, or perform the Item in the case of audio-visual works, includes, but is not limited to, the right to display or perform the Item privately or publicly:

• (i) for the purpose of promoting or sharing the NFT Buyer's purchase, ownership, or interest in the Item, for example, on social media platforms, blogs, digital galleries, or other Internet-based media platforms;
• (ii) for the purpose of sharing, promoting, discussing, or commenting on the Item;
• (iii) on third party marketplaces, exchanges, platforms, or applications in association with an offer to sell, or trade, the NFT associated with the Item; and
• (iv) within decentralised virtual environments, virtual worlds, virtual galleries, virtual museums, or other navigable and perceivable virtual environments, including simultaneous display of multiple copies of the Item within one or more virtual environments.

18.2. NFT Buyers shall not make commercial use of Item

NFT Buyers have the right to sell, trade, transfer, or use their 1Kind Items, but NFT Buyers may not make “commercial use” of the underlying Item including, for example, by selling copies of the Item, selling access to the Item, selling derivative works embodying the Item, or otherwise commercially exploiting the Item.

18.3. Other restrictions on the NFT Buyer's limited license

The NFT Buyer agrees that it may not, nor permit any third party, to do or attempt to do any of the foregoing without the NFT Figure's express prior written consent in each case:

• (i) modify, distort, mutilate, or perform any other modification to the Item which would be prejudicial to the NFT Figure's honour or reputation;
• (ii) use the Item to advertise, market, or sell any third party product or service;
• (iii) use the Item in connection with images, videos, or other forms of media that depict hatred, intolerance, violence, cruelty, or anything else that could reasonably be found to constitute hate speech or otherwise infringe upon the rights of others;
• (iv) incorporate the Item in movies, videos, video games, or any other forms of media for a commercial purpose, except to the limited extent that such use is expressly permitted by these Terms or solely for an NFT Buyer's personal, non-commercial use;
• (v) sell, distribute for commercial gain, or otherwise commercialize merchandise that includes, contains, or consists of the Item;
• (vi) attempt to trademark, copyright, or otherwise acquire additional intellectual property rights in or to the Item;
• (vii) attempt to mint, tokenize, or create an additional cryptographic token representing the same Item, whether on or off of the 1Kind website;
• (viii) falsify, misrepresent, or conceal the authorship of the Item; or
• (ix) otherwise utilize the Item for the NFT Buyer's or any third party's commercial benefit.

18.4. Limited license applies to the current owner of an Item

The user agrees and acknowledges that the lawful ownership, possession, and title to an Item is a necessary and sufficient condition precedent to receiving the limited license rights to the underlying Item provided by these Terms. Any subsequent transfer, dispossession, burning, or another relinquishment of an Item will immediately terminate the former owner's rights and interest in the license or Item as provided by these Terms.

18.5. User releases 1Kind from copyright claims

The NFT Figure and all NFT Buyers irrevocably release, acquit, and forever discharge 1Kind and its subsidiaries, affiliates, officers, and successors of any liability for direct or indirect copyright or trademark infringement for 1Kind use of an Item in accordance with these Terms, including without limitation, 1Kind solicitation, encouragement, or request for persons or third parties to host the Item for the purpose of operating a distributed database and 1Kind deployment or distribution of a reward, a token, or any other digital asset to users or third parties for hosting Items on a distributed database.