.SWOOSH Terms of Service

Last Updated: November, 2022

Your access to, or use of, the .SWOOSH website at [https://www.swoosh.nike/] (the “Site”), as well as any services, features, and functionality provided through or on the Site (the “Services” and, collectively with the Site, the “.SWOOSH Platform”) is governed by these .SWOOSH Terms of Service (the “.SWOOSH Terms”) and the NIKE Terms of Use (together with the .SWOOSH Terms, the “Terms”). The Terms create a legally binding agreement between you and NIKE and its affiliates (which we may refer to as “NIKE,” “we,” “us,” or “our”) regarding your use of the .SWOOSH Platform. By clicking on a checkbox, an “I Agree” button or otherwise indicating your assent when registering to access or use the .SWOOSH Platform, or by otherwise using the .SWOOSH Platform, you agree to the Terms.

If there is any conflict between these .SWOOSH Terms and the NIKE Terms of Use, these .SWOOSH Terms will govern for purposes of your access or use of the .SWOOSH Platform.  Notwithstanding the foregoing, nothing in these .SWOOSH Terms limits any of our rights under the NIKE Terms of Use or any additional terms that they reference.

We may make changes to these Terms from time to time. If we make changes, we will provide you with notice of such changes, such as by sending an email, providing a notice through our Services or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of the .SWOOSH Platform after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using the .SWOOSH Platform. 

1.         Privacy

The .SWOOSH Privacy Policy (the “.SWOOSH Privacy Policy”) supplements the Nike Privacy Policy, which together explain how we collect, use, share or otherwise process information about you when you use the .SWOOSH Platform.

2.         Eligibility to Access the .SWOOSH Platform

You are only eligible to use the .SWOOSH Platform if you have, or create, an account on the nike.com website (your “Nike Account”) that is in good standing. 

You will also need to have, or open, accounts with one or more third party service providers for external wallet hosting services and credit card payment processing, which may require you to be at least 18 years of age.  As described further below, without an external wallet or the ability to make payments by credit card, you may not be able to access the .SWOOSH Platform or may not be able to use  functions of the .SWOOSH Platform.

3.         Nike Account; Nike Account Security.

In order to access and use the .SWOOSH Platform, you must register for access using your existing Nike Account.  Without limiting your obligations under Section 1 of the Nike Terms of Use (Ground Rules), you agree to provide accurate information to register for, maintain, enable functionality or as otherwise requested in connection with your access or use of the .SWOOSH Platform or any other services provided by Nike. You must promptly update this information if it changes.

You are solely responsible for maintaining the security of your Nike Account and control over any usernames, passwords, or any other codes that you use to access the .SWOOSH Platform and any other Nike services available in connection with your Nike Account. You are responsible for monitoring your Nike Account and for any activities occurring on your Nike Account using your account credentials (including unauthorized activities). Inform Nike immediately of any unauthorized use of your Nike Account.  You are responsible for anything that happens through your Nike Account – with or without your permission. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, NIKE IS NOT RESPONSIBLE FOR ANY LOSS OR ACTIVITY THAT RESULTS FROM THE UNAUTHORIZED USE OF YOUR NIKE ACCOUNT.

4.         Supported External Accounts.

In order to successfully complete your registration for the .SWOOSH Platform and receive your .SWOOSH ID (as described below) or Digital Collectibles (as defined below), you will be required to link your Nike Account to a supported external digital wallet account (“Supported External Account”) provided by an approved third party vendor (“Supported Vendor”). You may only link one Supported External Account to your Nike Account at a time. Supported Vendors who can provided a Supported External Account will be identified during the registration process. 

We are not in any way affiliated with Supported Vendors. Your use of each Supported Vendor’s products and services is subject to its applicable terms of service (such terms, the “Supported Vendor Terms”). Nike is not a party to these Supported Vendor Terms, is not responsible for any products or services provided by any Supported Vendor and will have no liability or responsibility in connection with the Supported Vendor Terms or the Supported Vendor products or services. You are responsible for complying with any applicable Supported Vendors Terms, and you should review any applicable Supported Vendor Terms before linking your Supported External Account.  We will not be liable to you for any loss that results from your use of a Supported Vendor’s products and services, including Supported External Accounts.

5.         .SWOOSH ID.

During or after the registration process, you will create your .SWOOSH ID.  Your .SWOOSH ID is Digital Collectible (as that term is defined below) that is subject to the Digital Collectible Terms you agree to at the time of registration, as well as these Terms.  As part of the creation of your .SWOOSH ID, the .SWOOSH Platform will enable you to trace, assemble or otherwise create an image, design or other work of authorship that may incorporate various Nike proprietary logos, trademarks or other content for use as part of your .SWOOSH ID (the “ID Design”).  As between you and Nike, the ID Design is owned by Nike.  You hereby assign to Nike all right, title and interest in the ID Design and all intellectual property rights in or to the ID Design.  For avoidance of doubt, the ID Design is not “User Content” as that term is defined in the Nike Terms of Use.  

The .SWOOSH ID is a unique Digital Collectible comprised of (a) a nonfungible, blockchain-based digital token (“NFT”) that, as long as it is retained in a current supported External Account linked to your Nike Account, is used as part of your digital identify for your Nike Account, and (b) a license to use the ID Design as the Related Content (as defined below) for the .SWOOSH ID pursuant to the Digital Collectible Terms for the .SWOOSH ID as long as the associated NFT is retained in a current Support External Account linked to your Nike Account.

Upon successfully registering to access the .SWOOSH Platform and creation of your .SWOOSH ID, Nike will transfer your .SWOOSH ID to your Supported External Account.  Notwithstanding anything in the Digital Collectible Terms, during the “Beta” launch period, which remains in Nike’s sole discretion, your .SWOOSH ID, and other Digital Collectibles airdropped or minted from Nike, may not be transferable by you for a period of time after it being transferred to your Supported External Account.

6.         Digital Collectibles

Acquisition. The Services may enable you to purchase or otherwise receive Digital Collectibles through the .SWOOSH Platform.  Each “Digital Collectible” is a digital asset comprised of an NFT together with the license rights to an associated digital work of authorship or other content, whether or not copyrighted or copyrightable, and regardless of the format in which any of the foregoing is made available (“Related Content”). The license rights for any Related Content, any restrictions on those license rights and other terms and conditions governing any Digital Collectible that you purchase or receive through the Services will be presented to you at the time of purchase and a link to those terms will be embedded in the metadata for the NFT (“Digital Collectible Terms”).  By acquiring any Digital Collectible through the .SWOOSH Platform, you agree to the Digital Collectible Terms for that Digital Collectible. 

We currently only accept payments in U.S. Dollars through our third-party payment processor. Payments using other fiat currencies or cryptocurrencies are not supported.

All pricing and payment terms are as set forth on the .SWOOSH Platform, and any payment obligations you incur are binding at the time of purchase. All sales are final. Unless otherwise required by applicable law, we will not provide a refund on any purchase.

When you purchase or otherwise acquire Digital Collectibles through the .SWOOSH Platform you represent, warrant, acknowledge and agree to the following:

a.   you are acquiring Digital Collectibles solely for consumptive use in connection with the Services or for your own personal collection, use, and enjoyment, and not for distribution;

b.   you are not acquiring Digital Collectibles as an investment and you have no expectation of economic benefit or profit as a holder of Digital Collectibles;

c.   you are acquiring Digital Collectibles for your own use and not with a present intention or view to sell the Digital Collectibles to anyone else;

d.   you will not acquire any equity or other ownership or legal interest in Nike by virtue of owning Digital Collectibles;

e.   you will not portray Digital Collectibles as an investment or an opportunity to obtain an economic benefit or profit;

f.    you have an adequate understanding of the functionality and characteristics of Digital Collectibles;

g.   your acquisition and use of Digital Collectibles complies with applicable laws and regulations in your jurisdiction, including, without limitation, legal capacity, regulatory restrictions and governmental consents;

h.   you will not use Digital Collectibles for any illegal purpose or for any kind of wagering, betting or gambling; and

i.    you will comply with applicable tax obligations arising from your acquisition of Digital Collectibles.

Storage of Digital Collectibles. We do not offer a hosted digital wallet on the .SWOOSH Platform or otherwise hold, or take custody of, Digital Collectibles for you or any other user. You will be required to link a Supported External Account before you will be able to purchase or receive any Digital Collectibles through the .SWOOSH Platform.  We will deliver any Digital Collectibles that you purchase or otherwise acquire from us directly to your Supported External Account.

You will be responsible for safekeeping the password associated with your Supported External Account and for compliance with the Supported Vendor Terms applicable to your Supported External Account. Do not expect Nike to be able to recover Digital Collectibles for you in the event that you lose access to your Supported External Account or under any other circumstances.

7.         Services Available Only to Specific Digital Collectible Owners

Certain Services may be made available exclusively to the owner of a particular Digital Collectible or a combination of a particular Digital Collectible.  You may be required to demonstrate ownership of the Associated NFT for the applicable Digital Collectible in order to access these Services. Without limiting any other right to terminate or suspend Services under these Terms, we may terminate your access or use of these Services in the event that you transfer the applicable Digital Collectible to someone else.  

8.         Promotions

Any airdrops, giveaways, sweepstakes, contests, raffles, surveys, games or similar promotions (collectively, “Promotions”) made available through or in connection with the .SWOOSH Platform or in association with any Digital Collectible you hold may be governed by rules that are separate from these Terms. If you participate in any Promotions, please review the applicable rules as well as the .SWOOSH Privacy Policy. If the rules for a Promotion conflict with these Terms, the Promotion rules will govern.

9.         Additional Benefits

Products, content, Promotions or Services made available on the .SWOOSH Platform may be an “Additional Benefit” (as that term is defined in the Digital Collectible Terms).  None of Nike or any third party has any obligation to provide any Additional Benefit and none of Nike or any third party will have any responsibility or liability for, arising out of, or relating to any Additional Benefit.

Any digital works of authorship or other content made available through the .SWOOSH Platform to a holder of a Digital Collectible that is intended as an “Additional Benefit” (as that term is defined in the Digital Collectible Terms) will be identified as such on the .SWOOSH Platform or at the time of download. Any such content will be licensed to you for as long as you are the holder of the applicable Digital Collectible pursuant to the terms of any license presented at the time of download or, if no such terms are presented, pursuant to the applicable Digital Collectible Terms as Related Content for that particular Digital Collectible. Any other digital works of authorship and other content made available through the .SWOOSH Platform is part of the Services and no license rights are granted to you with respect to any such content.

10.       Suspension of access to the .SWOOSH Platform ;

Without limiting our rights under the NIKE Terms of Use, including Section 8 of the NIKE Terms of Use (Termination), which applies to your access and use to the .SWOOSH Platform, we have the right to immediately suspend your Nike Account, pause or cancel your access to the .SWOOSH Platform, or close your Nike Account if we suspect, in our sole discretion, that:

• Your Nike Account is being used for money laundering, to evade sanctions or to engage in illegal activity,
• You have concealed or provided false identification information or other details,
• You have engaged in fraudulent activity, or
• You have engaged in transactions, activities or conduct in violation of these Terms.

We may require you to provide additional information and documents in certain circumstances, such as at the request of any government authority, as any applicable law or regulation dictates, or to investigate a potential violation of these Terms or the Digital Collectible Terms. In such cases, we, in our sole discretion, may disable your access or Nike Account and block your ability to access the .SWOOSH Platform until such additional information and documents are processed by us.  If you do not provide complete and accurate information in response to such a request, Nike may refuse to restore your access to the .SWOOSH Platform or Services.

Your access and use of the .SWOOSH Platform may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance, or repair of the .SWOOSH Platform or other actions that Nike, in our sole discretion, may elect to take.

11.       Prohibited Conduct and Content

In addition to your obligations under NIKE’s Terms of Use, including Section 4 (Nike User Code of Conduct), which apply to your use of the .SWOOSH Platform,  you will not:

•  violate any applicable law, contract, intellectual property right or other third-party right or commit a tort, while using our Services;
• use or attempt to use another user’s account without authorization from that user and Nike;
• claim any username for the purpose of reselling it, confusing others, deriving others’ goodwill, or otherwise engage in name squatting;
• impersonate or otherwise misrepresent your affiliation with a person or entity;
• sell, resell or commercially use our Services;
• distribute spam, including through sending unwanted NFTs to other users;
• copy, reproduce, distribute, publicly perform or publicly display all or portions of our Services, except as expressly permitted by us or our licensors;
• modify our Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Services;
• bypass or ignore instructions that control access to the Service, including attempting to circumvent any rate limiting systems by using multiple API keys, directing traffic through multiple IP addresses, or otherwise obfuscating the source of traffic you send to us;
• use our Services other than for their intended purpose and in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services in any manner;
• reverse engineer, duplicate, decompile, disassemble, or decode any aspect of the Services, or do 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 Services;
• attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of our Services that you are not authorized to access;
• infringe or violate the intellectual property rights or any other rights of others;
• create or display illegal content, such as content that may involve child sexual exploitation;
• use the Service to engage in price manipulation, fraud, or other deceptive, misleading, or manipulative activity;
• use any data mining, 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 Services pages or functionality;
• engage in behaviors that have the intention or the effect of artificially causing an item or collection to appear at the top of search results, or artificially increasing view counts, favorites, or other metrics that we might use to sort search results;
• develop or use any applications that interact with our Services without our prior written consent; or
• use our Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.

Enforcement of this Section 11 is at our discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. In addition, this Section 11 does not create any private right of action on the part of any third party or any reasonable expectation that our Services will not contain any content that is prohibited by such rules.

12.       Indemnification; Limitation of Liability; Disclaimers

Limitation of Liability; Indemnification. For the avoidance of doubt, the provisions under Section 9 of the Nike Terms of Use (Indemnification / Limitation of Liability) also apply to  your access and use of the .SWOOSH Platform, including use of the Services.

Without limiting anything in Section 9 of the Nike Terms of Use (Indemnification / Limitation of Liability), to the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless Nike and our subsidiaries and affiliates, and each of our respective officers, directors, agents, partners and employees (individually and collectively, the “Nike Parties”) from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising out of or related to

a.   Your access to or use of the .SWOOSH Platform or any Services (including, without limitation, Digital Collectibles, Additional Benefits, Promotion or Related Content);

b.   Your Feedback;

c.   Your violation of these Terms (including, without limitation, the terms and conditions with respect to any Digital Collectible, Promotion, Additional Benefit or Related Content) or the Digital Collectible Terms;

d.   Your violation, misappropriation or infringement of any intellectual property, privacy, or other rights of another;

e.   Your use of any Supported External Account; or

f.    Your conduct in connection with our Services.

You will cooperate with the Nike Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys’ fees). Nike Parties will have control of the defense or settlement, at Nike’s sole option, of any third-party Claims.

Disclaimers. YOUR USE OF THE .SWOOSH PLATFORM AND SERVICES IS AT YOUR SOLE RISK. EXCEPT AS OTHERWISE PROVIDED IN A WRITING BY US, THE .SWOOSH PLATFORM, SERVICES, ANY CONTENT IN THE SERVICES, AND ANY AND ALL RELATED CONTENT, THIRD-PARTY CONTENT, ADDITIONAL BENEFIT AND DIGITAL COLLECTIBLE IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. IN ADDITION, WE DO NOT REPRESENT OR WARRANT THAT the .SWOOSH PLATFORM, SERVICES, RELATED CONTENT, THIRD-PARTY CONTENT, ADDITIONAL BENEFITS OR ANY DIGITAL COLLECTIBLES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. WHILE WE ATTEMPTS TO MAKE YOUR USE OF OUR SERVICES SAFE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT OUR SERVICES OR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF OUR SERVICES.

WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSS AND TAKE NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO YOU FOR, ANY ACCESS TO OR USE OF ANY RELATED CONTENT, THIRD-PARTY CONTENT, ADDITIONAL BENEFIT OR DIGITAL COLLECTIBLE INCLUDING BUT NOT LIMITED TO ANY LOSS, DAMAGE OR CLAIM ARISING FROM: (A) USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, MISTYPED ADDRESSES; (B) SERVER FAILURE OR DATA LOSS; (C) CORRUPTED WALLET FILES; (D) UNAUTHORIZED ACCESS TO APPLICATIONS; OR (E) ANY UNAUTHORIZED THIRD PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK AGAINST THE SITE OR APPLICABLE BLOCKCHAIN.

THE DIGITAL COLLECTIBLES ARE INTANGIBLE DIGITAL ASSETS. THEY EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED ON THE BLOCKCHAIN NETWORK. ANY TRANSFER OF CONTROL THAT MIGHT OCCUR IN ANY UNIQUE DIGITAL ASSET OCCURS ON THE APPLICABLE BLOCKCHAIN NETWORK.

The Digital Collectibles are currently available only on the Polygon Blockchain.  In the event that you transfer a Digital Collectible to a digital wallet that is not compatible with the Polygon Blockchain, your Digital Collectible may be lost, destroyed or otherwise become unavailable to you.

Like physical collectibles, the price of Digital Collectibles may be subject to fluctuation based upon broader industry trends and sentiment. Legislative and regulatory changes or actions at the state, federal, or international level may adversely affect the use, transfer, exchange, and value of Digital Collectibles. Unlike cryptocurrencies and other fungible digital assets, Digital Collectibles and the Associated NFTs are not used to make payments. Digital Collectibles and the Associated NFTs are not mutually interchangeable and cannot be divided into smaller parts. These design features limit the usefulness of Digital Collectibles or Associated NFTs as a form of payment or substitute for currency. Instead, Digital Collectibles are enjoyed as a collectible digital asset.

Although many users have no interest in parting with their Digital Collectibles, should you ultimately decide in the future to trade or sell your Digital Collectible, you understand that your Digital Collectible is unique, and the value of your Digital Collectible is solely dependent on another person’s interest in your unique Digital Collectible and what he or she would be willing to trade for it or spend to purchase it. You understand that the value of your unique Digital Collectible is driven by many factors outside of your control and outside of our control, such as a buyer’s own connection and affinity with your unique Digital Collectible, the general interest in the Related Content (which can increase or decrease over time), general interest in collectibles (both physical and digital) overall, and many other factors. Given the above factors, you understand there is no guarantee that, should you ultimately want to sell or trade your unique Digital Collectible, you will be able to find a buyer for it or a person to trade with for your Digital Collectible, and if you are able to find a buyer or person to trade with, there is no guarantee that value of what you receive or the price you receive will be higher or lower at any time as compared to what you perceive as your value or what you spent or traded for to obtain your Digital Collectible.

Any future value of a Digital Collectible is not something that we or any third party can control or will attempt to control or influence. We are not responsible for sustained losses due to vulnerability or any kind of failure, abnormal behavior of software (e.g., wallet, smart contract), the applicable blockchain or other third party service or infrastructure, including Supported External Accounts and Supported Vendors, or any other features of Digital Collectibles. We are not responsible for sustained losses due to late reports by developers or representatives (or no report at all) of any issues with the applicable blockchain supporting Digital Collectibles including forks, technical node issues or any other issues having fund losses as a result.

In some cases, we integrate directly with third parties, including but not limited to, online merchant platforms, mailing list platforms, and social media platforms (“Third Party APIs”). We have no control over the uptime and functionality made available through Third Party APIs and as such certain aspects of the .SWOOSH Platform could incur an outage outside of our control, and certain aspects of the .SWOOSH Platform’s functionality could be impacted by changes of features made available through Third Party APIs.

The .SWOOSH Platform is subject to flaws, defects and bugs.  You are solely responsible for evaluating any code provided by the .SWOOSH Platform. The .SWOOSH Platform may experience cyber-attacks, unexpected surges in activity, or other operational or technical difficulties that may cause interruptions or delays. You accept the risk of the .SWOOSH Platform failure resulting from unanticipated or heightened technical difficulties, including those resulting from sophisticated attacks, and you agree not to hold us accountable for any related losses.

13.       Disputes; Governing Law; Additional Terms

For the avoidance of doubt, the provisions under Section 10 of the NIKE Terms of Use (Disputes / Additional Terms) of the NIKE Terms of Use, including without limitation Choice of Law provisions, also apply to your access and use of the .SWOOSH Platform and these Supplemental Terms.

14.       Modifying and Terminating our Services

Without limiting our obligations under Section 8 of the NIKE Terms of Use (Termination), which applies to your access and use to the .SWOOSH Platform, we reserve the right to modify the .SWOOSH Platform or to suspend or stop providing all or portions of our Services at any time. You also have the right to stop using the .SWOOSH Platform at any time. We are not responsible for any loss or harm related to your inability to access or use our the .SWOOSH Platform or Services.

15.       Severability

If any provision or part of a provision of these .SWOOSH Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these .SWOOSH Terms and does not affect the validity and enforceability of any remaining provisions.

16.       Relationship of these Terms and Digital Collectible Terms

If you breach any obligation under any Digital Collectible Terms, including without limitation any obligation to make payments to Nike, such breach shall constitute a breach of these Terms.

17.       Miscellaneous

The failure of Nike to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms 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. You agree that communications and transactions between us may be conducted electronically. These Terms may not be transferred, assigned or delegated by you, by operation of law or otherwise, without our prior written consent, and any attempted transfer, assignment or delegation without such consent will be void and without effect. We may freely transfer, assign or delegate these Terms or our Services, in whole or in part, without your prior written consent.