Terms and Conditions
Terms and Conditions
Last Modified: August 31, 2023
Welcome to myNILpay!
myNILpay, Inc., a Texas corporation (together with its affiliates, agents, representatives, consultants, employees, officers, and directors –“myNILpay”, “we”, “us” and/or “our”), provides the fan-driven marketplace platform for collegiate sports fans and student-athletes located at https://www.mynilpay.com/ (collectively with other myNILpay platforms or websites, the “Site”) and the mobile application (“App”) that enables Student-Athletes to license use of their Name, Image and Likeness to myNILpay and manage payment collection for the creation and issuance of certain digital assets (“Digital Assets,” as further defined below) and allows users to receive such Digital Assets created by myNILpay on behalf of collegiate student-athletes (collectively, such services and related myNILpay products or services, including any new features and applications, together with the Site and App, the “Services”).
Portions of the Services are publicly available to all visitors to the myNILpay.com (“Site”) (the “Visitors”), whereas other portions of the Services are available only to registered users with an Account on the Services (collectively, the “Members”). These Terms and Conditions (“Agreement”) apply to both Visitors and Members (collectively, the “Users”).
This Agreement contains important information regarding your rights with respect to the Site and the Services, including your relationship with us. Please read them carefully and review them regularly.
BY CLICKING THE “ACCEPT” BUTTON WHEN CREATING AN ACCOUNT OR LOGGING IN, YOU:
(B) ACKNOWLEDGE THAT YOU WILL ONLY USE THE SERVICES FOR LAWFUL PURPOSES;
(C) REPRESENT THAT YOU HAVE THE AUTHORITY AND ARE FULLY ABLE AND COMPETENT TO ENTER THIS AGREEMENT ON BEHALF OF YOURSELF OR AN ENTITY, IF APPLICABLE;
(D) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE THE SERVICES.
1. Certain Definitions.
In addition to other terms used and defined throughout these Terms and Conditions, the following capitalized terms shall have the following meanings:
“Digital Asset” shall mean a non-fungible token (“NFT”) initially and directly sold or offered for sale by myNILpay or its affiliate(s) on the myNILpay platform. For clarity, a "Digital Asset” under this Agreement includes Digital Assets as further defined in the myNILpay Digital Asset Terms and Conditions and any NFT that is provided by myNILpay but also any NFT that is sold in a secondary sale by persons or entities who are not myNILpay or its affiliate(s), so long as myNILpay or its affiliate(s) initially and directly provided or generated such NFT on the myNILpay platform; and (b) the description of the NFT notes that the NFT is provided by myNILpay.
“Fan” shall mean a User who receives a Digital Asset in exchange for a Transaction Fee paid to a Student-Athlete;
“International Student Athlete” shall mean any Student-Athlete who is not a United States citizen or a lawful permanent resident of the United States of America;
“NCAA” shall mean the National Collegiate Athletic Association;
“Student-Athlete” shall mean a User seeking to use the Services as an eligible NCAA collegiate student-athlete, including International Student Athletes.
“Transaction” shall mean each instance in which a Fan receives a Digital Asset from one or more Student-Athletes using the Services by providing a Transaction Fee.
“Transaction Fees” shall mean payments made by Fans to Student-Athletes through the Services, less any applicable sales tax and Service Fees.
You must be at least eighteen (18) years of age or the age of majority in your applicable state to use the Services. When you use the Services, you represent that you are at least the age of majority in the jurisdiction where you reside. You also represent that your use of the Services does not violate any applicable law or regulation.
3. Member Accounts.
3.1. Creation of Account. In order to use the Services as a Member, you are required to create a myNILpay account (“Account”, as further defined below). You represent that the information in your Account, and any other information you otherwise provide to us, is accurate, current and complete information, and agree to update it and keep it accurate, current and complete. We reserve the right to suspend or terminate your Account or your access to the Services if any information provided to us proves to be untrue, inaccurate, not current, or incomplete. It shall be a violation of this Agreement to (a) submit inauthentic information for Account registration or maintenance, (b) create or control more than one Account without our express written authorization (including, but not limited to, using a name that is not yours, using a temporary or secondary email address, or providing any other falsified information), or (c) allow any other person to use your Account to participate in or otherwise use the Services.
3.3. Confidentiality; Security. When you create an Account, you will be asked to create a password. You are solely responsible for maintaining the confidentiality of your Account and password and for restricting access to your computer/mobile device, and you agree to accept responsibility for all activities, charges (if applicable), and damages that occur under your Account. If you discover any unauthorized use of your Account, or other known Account-related security breach, you must report it to us immediately. You agree that you are responsible for anything that happens through your Account until you close your Account or prove that your Account security was compromised due to no fault of your own. We cannot and will not be liable for any loss or damage arising from your failure to comply with this section.
3.4. Transaction Records. myNILpay prepares records for every Completed Transaction (as defined in Section 17) and issues such record to each Member via email. Records may include the breakdown of Transaction Fees and information made in connection to receipt of Digital Assets, including applicable taxes, and may include specific information about you, including your name, contact information, as well as a description of the Digital Asset received. myNILpay shall not be liable to you for any mistakes in or corrections to any records.
4. Availability of the Services
You acknowledge that there may be interruptions in service or events that are beyond our control. While we use reasonable efforts to keep the Services accessible, the Services may be unavailable from time to time for any reason including, without limitation, system down time for routine maintenance. You further understand that there may be interruptions in service or events on third-party sites that may affect your use of the Services and that are beyond our control to prevent or correct. Accordingly, we cannot accept any responsibility for any connectivity issues that you may experience when using the Site or Services or for any loss of material, data, transactions or other information caused by system outages, whether planned or unplanned. You hereby agree that we cannot be held liable to you or any third party should we exercise our right to modify, suspend or discontinue the Services.
5. Use of the Services; Reservation of Rights
5.1. User Acknowledgment. myNILpay is not responsible for any loss or damage arising out of any decisions ultimately made or implemented based on a User’s use of the Services, including but not limited to losses, costs, expenses, damages, or liabilities incurred as a result of or relating to any content posted or obtained through the Services. myNILpay has no control over and does not guarantee the pricing, quality, safety or legality of any Digital Assets promoted or sold on the Services.
5.3. Permitted Use; License Grant. Subject to the terms of this Agreement, myNILpay grants you a personal, limited, revocable, non-exclusive, non-sublicensable and nontransferable license to access and use the Services strictly in accordance with this Agreement and all applicable laws, rules, and regulations. You are responsible for all of your activity in connection with the Services.
5.4. Reservation of Rights. myNILpay reserves the right to modify, suspend or discontinue all or any aspect of the Services to anyone for any reason at our sole discretion, with or without any notice. myNILpay reserves the right to modify, suspend, or discontinue the Services (including, but not limited to, the availability of any feature or content), whether temporarily or permanently at any time for any reason. You agree that myNILpay shall not be liable to you or to any third party for any modification, suspension, or discontinuation of the Services. We may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability. myNILpay may, in its sole discretion: (a) cancel unconfirmed Accounts, duplicate Accounts, or Accounts that have been inactive for a substantial period of time; (b) remove any special status associated with an Account, and (c) take technical and/or legal steps to limit or prevent any User’s use of the Services, including imposing limits on certain features of the Services or restricting access to parts or all of the Services, in each case without notice or liability.
6. Prohibited Conduct.
By Using the Site and/or Services, you understand and agree that you will not use the Services to engage in the prohibited conduct below:
a. You shall not use the Services for any illegal or fraudulent purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, data protection and privacy;
b. You shall not use the Services for purposes of competitive analysis, the development of a competing product or service, or any other purpose that is to our commercial disadvantage;
c. You shall not submit information or documentation to the Services that pertains or belongs to any other party;
d. You shall not post, store, send, transmit, or disseminate any information or material which infringes any patents, trademarks, trade secrets, copyrights, or any other proprietary or intellectual property rights;
e. You shall not use the Services in any way that (i) posts, lists, or uploads content that is false, inaccurate, misleading, deceptive; (ii) contains any threat of violence to others; (iii) is in furtherance of illegal activities; (iv) is harassing, hateful, libelous, defamatory, abusive, or constitutes spam; or (v) is pornographic, predatory, sexually graphic, racist, offensive, harmful to a minor, or would otherwise violate the rights of any third party or give rise to civil or criminal liability;
f. You shall not attempt to use any method to gain unauthorized access to any features of the Services;
g. You shall not directly or indirectly decipher, decompile, remove, disassemble, reverse engineer, or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services, security-related features of the Services, features that prevent or restrict use or copying of any content accessible through the Services, or features that enforce limitations on use of the Services, except to the extent applicable laws specifically prohibit such restriction;
h. You shall not directly or indirectly modify, translate, or otherwise create derivative works of any part of the Services, nor republish, sell, rent, or sublicense, reproduce, duplicate, or copy material from the Services;
i. You shall not directly or indirectly license, copy, sell, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder or commercially exploit the Services, in whole or in part;
j. You shall not harvest or collect information about other Users without their consent;
k. You shall not directly or indirectly take any action that constitutes unsolicited or unauthorized advertising or promotional material or any junk mail, spam, or chain letters; contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit, or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password, or other information of myNILpay or any third party; or that impersonates any person or entity, including any employee or representative of myNILpay;
l. You shall not directly or indirectly take any action that imposes or may impose (as determined by myNILpay in its sole discretion) an unreasonable or disproportionately large load on myNILpay’s or its third-party providers’ infrastructure; interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Service; run any form of auto-responder or “spam” on the Services; or use automated means (including but not limited to scripts, third-party tools, bots, or web scrapers) to interact with the Services in any way;
m. You shall not create a false identity on the Services, misrepresent your identity, impersonate any person or entity (including any employee or representative of myNILpay), create, use, or attempt to use an Account for anyone other than you, or sell or otherwise transfer your Account; and
n. YOU SHALL NOT USE THE SERVICES FOR RECRUITING COLLEGE STUDENT-ATHLETES, PAY-TO-PLAY, OR ANY OTHER PURPOSE WHICH VIOLATES NCAA POLICIES, RULES OR REGULATIONS OR APPLICABLE STATE OR FEDERAL LAW.
If for any reason we determine that you have failed to follow these rules, we reserve the right to prohibit any and all current or future use of the Services by you. If we have reason to suspect, or learn that anyone is violating this Agreement, we may investigate and/or take legal action as necessary including bringing a lawsuit for damages caused by the violation. We reserve the right to investigate and take appropriate legal action, including without limitation, cooperating with and assisting law enforcement or government agencies in any resulting investigations of illegal conduct.
Further, we reserve the right to suspend or terminate your Account or your ability to access the Services if any information provided to us proves to be untrue, inaccurate, not current, or incomplete. It shall be a violation of this Agreement to (a) submit inauthentic information for Account registration or maintenance, (b) create or control more than one Account without our express written authorization (including, but not limited to, using a name that is not yours, using a temporary or secondary email address, or providing any other falsified information), or (c) allow any other person to use your Account to participate in or otherwise use the Services.
7.2. myNILpay Processing Fees; Commissions. In consideration of MyNILpay’s provision of the Services for your use and benefit hereunder, you agree to allow MyNILpay to collect a fixed transactional processing fee for each Completed Transaction (“Fixed Fee”) as well as a commission fee based on the aggregate amount of the Transaction Fees for such Completed Transaction (“Commissions”). The Fixed Fees and Commissions (collectively, the “Service Fees”) are subject to myNILpay then-current schedules, which shall be disclosed in the Services to Fans and Student-Athletes. myNILpay reserves the right to change the Service Fees at any time in myNILpay’s sole discretion and myNILpay will provide you with notice in the event of such change to any Service Fees. Continued use of the Services after any such change to the Service Fees shall constitute your consent to such change.
The commission fee will be determined by transaction amount tier as defined below:
Transaction amount: $20 - $5,000
Commission Fee: 10%
Student-Athlete Earnings: 90%
7.3. Maximum and Minimum Transaction Amount. For each Transaction, as defined below, a Fan may select a maximum transaction amount of USD $5,000 (five thousand U.S. Dollars) (“Maximum Transaction Amount”), and a minimum transaction amount of USD$ 20 (twenty U.S. Dollars) (“Minimum Transaction Amount”). Each transaction is subject to applicable taxes and Service Fees, as set forth in this Agreement. If a Fan would like to select an amount more than the Maximum Transaction Amount, they should contact MVP@mynilpay.com.
7.4. Transaction Currency. All myNILpay transactions are settled in U.S. dollars (“USD”). You will be responsible for payment of any fees or expenses imposed by your payment card provider or the payment processor to settle the transaction in USD.
7.5. Taxes. You shall be solely responsible for any fees or costs incurred in connection with, and for paying any applicable income, sales, or other taxes that you may be subject to, as a result of using the Services. You acknowledge and agree that you are responsible for the filing and payment of any and all taxes on your own income arising from your use of the Services.
8. Intellectual Property Rights
8.1. myNILpay Content. Through the Services, we may make accessible various content, including, but not limited to, videos, photographs, images, artwork, graphics, audio clips, comments, data, text, software, scripts, campaigns, other material and information, and associated trademarks and copyrightable works (collectively, “myNILpay Content”). myNILpay Content shall remain the sole and exclusive property of myNILpay and its licensors and all rights not specifically granted to Users are reserved by myNILpay or its licensors.
8.2. myNILpay Intellectual Property Rights. The Services and myNILpay Content are protected in many ways, including copyrights, trademarks, service marks, and other rights and laws. You agree to respect all legal notices, information, and restrictions contained in any content accessed through the Services, including in any myNILpay Content. You also agree not to change, translate, or otherwise create derivative works based off myNILpay Content. All other User Content viewed through the Services is the property of its respective owner. You have a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to use the Services and myNILpay Content solely for legally permitted activities related to our Services as outlined in this Agreement.
9. Advertisements and Third-Party Sites
9.1. Advertisements. The Services may contain third party advertisements, corporate sponsorships and/or branded content (for example, from our marketing or launch partners as may be designated on the App or Site). The sponsors that provide these advertisements or sponsorships are solely responsible for ensuring that the materials submitted for inclusion on the Services are accurate and that they comply with all applicable laws. We are not responsible for the acts or omissions of any sponsor or advertiser.
9.2. Third-Party Sites. The Services may permit you to link to other websites or resources on the internet. Links on the Services to third party websites, if any, are provided only as a convenience to you. If you use these links, you will leave the Services. The inclusion or integration of third-party services or links does not imply control of, endorsement by, or affiliation with myNILpay. Your dealings with third parties are solely between you and such third parties. You agree that we will not be responsible or liable for any content, goods or services provided on or through these outside websites or for your use or inability to use such websites. You will use these links at your own risk.
10 Term and Termination
10.1. Term. The term of this Agreement commences when you access the Services by any means and will continue in effect until terminated by you when you cancel your Account, or by us in accordance with the terms of this Agreement. You may terminate this Agreement by cancelling your Account through your Account settings or by sending us an email at email@example.com.
10.2. Termination by myNILpay. We may suspend or cancel your Account without notice to you if you violate this Agreement, or for any reason at all. If your Account is cancelled, we reserve the right to remove your Account information along with any of your Account settings from our servers with NO liability or notice to you. Once your Account information and Account settings are removed, you will not be able to recover data associated with your use of the Services and you will lose access to your Account and all of your User Content.
10.3. Effect of Termination. Upon termination, your license to use our Services terminates and you must cease all use of the Services. All provisions of this Agreement that by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, limitations of liability, and arbitration. You acknowledge and understand that our rights regarding any User Content you submitted to the Services before your Account was terminated shall survive termination. For the avoidance of doubt, we may retain User Content in our backups, archives and disaster recovery systems until such User Content is deleted in the ordinary course of business. Termination will not limit any of myNILpay’s rights or remedies at law or in equity.
11. DISCLAIMER OF WARRANTIES
THE SERVICES AND ALL INFORMATION CONTAINED HEREIN ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTIES OF ANY KIND.
11.1. Disclaimer of User Content. myNILpay acts as a content host where Users contribute User Content in certain areas of the Services. Accordingly, myNILpay does not control and is not responsible for the User Content posted or submitted through the Services and myNILpay does not guarantee the accuracy, integrity, quality or appropriateness of any User Content transmitted to or through the Services. All User Content posted on the Services is the sole responsibility of the person from whom such User Content originated. myNILpay may, but has no obligation to screen, preview, monitor, or approve any User Content posted or submitted to the Services. Under no circumstances will myNILpay be liable in any way for any User Content.
11.2. Disclaimer of Actions of Users. myNILpay does not endorse any specific Student-Athletes and is not responsible or liable for any products or services, including but not limited to the Digital Assets, available or unavailable from, or promoted through, the Services. You should make whatever investigation or other resources that you deem necessary or appropriate before making payments to Student-Athletes and receiving Digital Assets through the Services. myNILpay is not responsible for the accessibility or unavailability of any User, including but not limited to the responsiveness or eligibility of any Student-Athlete. YOU WAIVE THE RIGHT TO BRING OR ASSERT ANY CLAIM AGAINST MYNILPAY RELATING TO ANY INTERACTIONS OR DEALINGS WITH ANY OTHER USER AND RELEASE MYNILPAY FROM ANY AND ALL LIABILITY FOR OR RELATING TO ANY INTERACTIONS OR DEALINGS WITH OTHER USERS.
11.3. Disclaimer of Warranties. THE SERVICES ARE PROVIDED TO USERS “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, MYNILPAY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICES AND DIGITAL ASSETS, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SATISFACTORY QUALITY, SECURITY, ACCURACY, AVAILABILITY, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, MYNILPAY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. WITHOUT LIMITING THE FOREGOING, MYNILPAY EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE APPEARANCE, FUNCTIONALITY, QUANTITY, RARITY, VALUE, OR ANY OTHER ASPECT OR ATTRIBUTE OF ANY OF THE DIGITAL ASSETS. ANY MATERIAL, CONTENT, OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED AND/OR USED THROUGH THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, DEVICE, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL, CONTENT OR INFORMATION. NO INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MYNILPAY SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. YOU AGREE THAT USE OF THE SERVICES IS AT YOUR OWN RISK AND THAT MYNILPAY ASSUMES NO RESPONSIBILITY OR LIABILITY FOR THE TRUTHFULNESS, ACCURACY, TIMELINESS OR COMPLETION OF THE CONTENT OR FAILURE BY THE SERVICES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
12. LIMITATION OF LIABILITY
12.1. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU HEREBY RELEASE MYNILPAY OR ITS AFFILIATES OR SUBSIDIARIES, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, CONSULTANTS, SUCCESSORS, AND ASSIGNS, FROM ALL LIABILITY ASSOCIATED WITH YOUR USE OF THE SERVICES. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED, IN NO EVENT SHALL MYNILPAY, NOR ITS AFFILIATES OR SUBSIDIARIES, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, CONSULTANTS, SUCCESSORS, AND ASSIGNS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICES (I) FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, ARISING OUT OF OR IN ANY WAY RELATED TO YOUR USE OF THE SERVICES (INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, LOSS OF DATA, LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY THE SERVICES, THE COST OF SUBSTITUTE GOODS OR SERVICES, OR ATTORNEYS FEES AND COSTS), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) ANY DIRECT DAMAGES IN EXCESS OF THE GREATER OF (IN THE AGGREGATE) ONE HUNDRED U.S. DOLLARS ($100.00) OR THE AMOUNT OF FEES PAID BY OR TO YOU, AS APPLICABLE, THROUGH THE SERVICES DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE. SOME STATES OR COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. IN THESE JURISDICTIONS, MYNILPAY LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
You agree to indemnify, defend, and hold harmless myNILpay (including our affiliates and subsidiaries, as well as our and their respective officers, directors, employees, agents, representatives, consultants, successors, and assigns) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to your use or misuse of the Service or your breach of this Agreement, including but not limited to your breach of any law or violation or misappropriation of the rights of a third party.
14. Dispute Resolution and Arbitration Provision
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
14.1. Initial Dispute Resolution. For any problem or dispute that you may have with us, you understand and agree that you will first give us an opportunity to resolve your problem or dispute. In order to initiate this dispute resolution process, you agree that you shall first send us a written description of your problem or dispute within thirty (30) days of the occurrence of the event giving rise to the problem or dispute by sending an email to: firstname.lastname@example.org. You then agree to negotiate with us in good faith about your problem or dispute for sixty (60) days. This should lead to resolution, but if for some reason your problem or dispute is not resolved satisfactorily within sixty (60) days after our receipt of your written description of it, you agree to the arbitration provisions below.
14.2. Binding Arbitration. If the parties do not reach an agreed upon solution under the Initial Dispute Resolution provision, then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to this Agreement (including formation, performance and breach), the parties’ relationship with each other and/or your use of the Services shall be finally settled by binding arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules and the supplementary procedures for consumer related disputes of the American Arbitration Association (the “AAA”), excluding any rules or procedures governing or permitting class actions. The Commercial Arbitration Rules governing the arbitration may be accessed at www.adr.org or by calling the AAA at +1.800.778.7879. The dispute shall be heard by a sole arbitrator. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement, including, but not limited to any claim that all or any part of this Agreement are void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitration rules also permit you to recover attorney’s fees in certain cases. The arbitrator’s award shall be written, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
14.3. Location. The arbitration will take place in Dallas County, Texas.
14.4. Class Action Waiver. The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND MYNILPAY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
14.5. Exceptions – Litigation of Intellectual Property and Small Claims Court Claims. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring an action in state or federal court to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
14.6. 30-Day Right to Opt-Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt-out to us at email@example.com. The notice must be sent within thirty (30) days of your first use of the Services, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt-out of these arbitration provisions, we also will not be bound by them.
14.7. Changes to this Section. We will provide thirty (30) days’ notice of any changes to this section. Changes will become effective on the 30th day, and will apply prospectively only to any claims arising after the 30th day. The Agreement and the relationship between you and myNILpay shall be governed by the laws of the State of Texas without regard to conflict of law provisions.
15.1. Assignment. This Agreement is personal to User, and you may not assign, transfer, sub-license, sub-contract, charge or otherwise encumber any of your rights or obligations under this Agreement without the prior written consent of myNILpay. myNILpay may assign, transfer, or delegate any of its rights and obligations hereunder without your consent. Any attempted assignment in violation of this Section 15.1 shall be null and void.
15.3. Geographic Restrictions. The Services are based in the state of Texas in the United States and provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access the Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Services from outside the United States, you are responsible for compliance with local laws.
15.4. Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule.
15.6. Digital Assets Not Intended for Investment. The Digital Assets are intended to facilitate meaningful ways for sports fans to support their favorite NCAA athletes, and Digital Assets are not intended as investment vehicles in any manner whatsoever. myNILpay makes no promise or guarantee that any of the Digital Assets will be worth anything beyond the value that a Fan deems the Digital Assets to be worth. By using the Services, you acknowledge and agree that: (a) the Digital Assets have no inherent monetary value, and that they should be treated as collectible items which may or may not have potential future value; (b) as a Fan, the Digital Assets are works of art or collectible items and are all that you are guaranteed to receive in exchange for your funds.
15.7. Relationship of the Parties. Becoming a User of our Services does not create an agency, employment, joint venture, franchise or partnership relationship between you and myNILpay.
15.8. Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
15.9. Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any other applicable terms, the terms of this Agreement shall govern.
15.10. Contact. If you have any questions about this Agreement, or feedback, comments, requests for technical support, and other communications related to the Services, please contact us at firstname.lastname@example.org.
15.11. Text Messaging. We will not initiate communications with you via text (SMS) messaging and we do not send marketing or automated messages via text. By initiating a communication with us via text/SMS messaging, you authorize myNILpay and its service providers to contact you at the number associated with your account via text for customer support purposes. You certify, warrant, and represent that the telephone number you have provided to us is your contact number and not someone else’s. You represent that you are permitted to receive calls and text messages at the telephone number you have provided to us. In each support request, we will reply with requests and methods to confirm the identity of the text/SMS message originator. If we are unable to confirm the identity of the sender to our sole satisfaction, we will terminate the text/SMS communication. Standard message and data rates may apply to all SMS messages (including text messages). If, at any time after initiating text messaging with us you desire to terminate such communication, you may do so by notifying us of such intent and the desired alternate method of communication.
16. Selecting a Student-Athlete
Fans may search the Services for and select their favorite Student-Athletes on the Site. Fans acknowledge and agree that the presence of a particular Student-Athlete on the Site does not mean that Student-Athlete has created an account and is eligible to receive Transaction Fees.
17. Receiving Digital Assets
Once a Fan has selected a Student-Athlete, the Fan may select the amount that it will pay (“Transaction Amount”). For Transaction Amounts at the MVP Tier level (as described in the following section), Fans must contact myNILpay at email@example.com for assistance in processing the transaction. Once the Student-Athlete creates an Account and receives the Transaction Fee, myNILpay will deliver a Digital Asset to the Fan (“Completed Transaction”). Each Digital Asset is created by myNILpay pursuant to a license granted by the Student-Athlete and will bear the Student-Athlete’s name, digital signature, and a unique piece of artwork. myNILpay reserves the right to make changes to the format of the Digital Asset for future Transactions. Each Digital Asset will be delivered to Fan’s Account upon occurrence of the Completed Transaction.
18. Digital Asset Tiers
Depending on the Transaction Amount, each Fan will receive a Digital Asset corresponding to the following tiers (“Digital Asset Tiers”):
Common Tier: $20 - $100
Elite Tier: $101 - $500
Rare Tier: $501 - $1,000
Ultimate Tier: $1,001 - $5,000
MVP Tier: $5,001 and above
Each Digital Asset received by a Fan will indicate which Digital Asset Tier that Digital Asset belongs. For Transaction Amounts at the MVP tier level, Fans must contact myNILpay at firstname.lastname@example.org for assistance in processing the transaction.
19. Group Transactions
In the case of group payments (“Group Transactions”) intending to result in payments to more than one Student-Athlete: (a) each Student-Athlete shall automatically receive the Transaction Fees designated for that particular Student-Athlete; (b) each Student-Athlete shall not be entitled to receive any amounts, in whole or in part, designated for any other Student-Athlete; and (c) Fan shall only pay for the Student-Athletes who accept the Transaction Fees offered pursuant to this Agreement. Other Transactions may occur if a User presents to Student-Athlete a business opportunity that Student-Athlete seeks to accept, at which point the User and Student-Athlete will be connected with a myNILpay account executive (“myNILpay Representative”) to facilitate the Transaction through the Services.
20. Payment Processing.
21. Refund Policy; Student-Athlete Acceptance Period.
There are no refunds for payments successfully transacted through a Completed Transaction. If a Student-Athlete fails to activate an Account within seven (7) days of a Fan’s attempted payment (“Acceptance Period”), the Transaction shall not become a Completed Transaction and Fan will not be charged the applicable Transaction Fee for such Student-Athlete.
22. myNILpay Cancellations.
myNILpay reserves the right (but is under no obligation) to cancel any Transaction if: (i) the payment method is declined; or (ii) if the Fan has been banned or removed from the Site for any reason. If myNILpay cancels the Transaction, a refund of the Transaction Amount shall be made to the original payment method.
23. Special Provisions Relating to Student-Athlete Accounts.
As a Student-Athlete, your information may automatically be included on the Services to facilitate payments to you. In order for you to use the Services, including accepting payments, however, you must create an account and provide required information. Upon creating an Account as a Student-Athlete, you acknowledge and agree that you appoint myNILpay as your limited payment collection agent solely for the purpose of accepting Transaction Fees.
24. International Student-Athletes.
BY REGISTERING AN ACCOUNT AND AGREEING TO THE TERMS OF THIS AGREEMENT, EACH INTERNATIONAL STUDENT-ATHLETE ASSUMES THE RISK THAT THE SERVICES MIGHT BE FOUND TO CONSTITUTE “EMPLOYMENT” AS DEFINED UNDER THE U.S. IMMIGRATION AND NATIONALITY ACT AND/OR OTHER APPLICABLE STATE OR FEDERAL LAWS OR POLICIES. EACH INTERNATIONAL STUDENT-ATHLETE AGREES THAT MYNILPAY SHALL NOT BE LIABLE IN THE EVENT THAT THE INTERNATIONAL STUDENT-ATHLETE’S USE OF THE SERVICES AFFECTS THE STATUS OF HIS OR HER U.S. VISA OR IMMIGRATION STATUS.
25. Grant of License for the Use of Student-Athlete Name, Image and Likeness.
By creating an Account, Student-Athlete grants myNILpay a worldwide, royalty-free, non-exclusive, sub-licensable, unconditional, perpetual and transferable license to display your name, image, and likeness in a form clearly indicating your status as a Student-Athlete in order to enable your use of the Services. Student-Athlete further grants myNILpay a worldwide, royalty-free, non-exclusive, sub-licensable, unconditional, perpetual and transferable license to create digital artwork displaying the Student-Athlete’s name, image, and/or likeness and issue that artwork to a Fan in exchange for Transaction Fees. Student-Athlete expressly acknowledges and agrees to having selected and approved the digital signature that is applied on the digital artwork to represent their signature as their own.
26. Compliance with NCAA Policies and State Laws Concerning Name, Image and Likeness Activities.
Each Student-Athlete understands and agrees that the NCAA and the Student-Athlete’s applicable university (each a “University”), maintain rules and regulations concerning eligibility requirements for Student-Athlete to qualify as a collegiate student-athlete (collectively, “Eligibility Requirements”). Student-Athlete further understands and agrees that it is solely responsible for meeting its Eligibility Requirements, including but not limited to independently determining whether use of the Services complies with the applicable (1) NCAA policies, (2) state and federal law concerning name, image and likeness activities, (3) policies of a Student-Athlete’s University or athletic department, and (4) any other laws, rules, regulations or policies.
27. Reporting of NIL Activities.
Student-Athlete acknowledges and agrees that it is solely responsible for reporting any NIL activity to its University where required. To assist the Student-Athlete with its reporting obligations, if any, myNILpay prepares records for every Completed Transaction and issues such record to each Member via email. Records may include the breakdown of Transaction Fees and information made in connection to receipt of Digital Assets, including applicable taxes, and may include specific information about you, including your name, contact information, as well as a description of the Digital Asset received. myNILpay shall not be liable to you for any mistakes in or corrections to any records.
myNILpay, in its sole discretion, and without obligation to do so, may send periodic compliance notices to Universities regarding Transactions with Student Athletes who are known to be enrolled at the applicable University. By using myNILpay you consent to such disclosures made by myNILpay to the applicable University.
28. Cancellation Policy; Student-Athlete Acceptance Period.
Once a Student-Athlete activates its Account, the myNILpay settings are set to automatically accept all Transaction Fees. If a Student-Athlete seeks to refuse any Transaction Fees, the Student-Athlete must do so through BlueSnap. If a Student-Athlete fails to activate an account within seven (7) days of the Fan’s attempted payment(“Acceptance Period”), the transaction will be cancelled and the Student-Athlete will not receive the Transaction Fee.
29. myNILpay Cancellations.
myNILpay reserves the right (but is under no obligation) to cancel any Transaction if: (i) the payment method is declined; or (ii) if the Fan has been banned or removed from the Site for any reason. If myNILpay cancels the Transaction, a refund of the Transaction Amount shall be made to the original payment method.
30. Taxes; Transaction Fees.
Student-Athlete understands and agrees that it is solely responsible for any fees or costs incurred in connection with, and for paying any applicable income, sales, or other taxes that Student-Athlete may be subject to, as a result of using the Services, and for providing and maintaining current and accurate payment details in Student-Athlete’s Account for acceptance of Transaction Fees. Student-Athlete further understands that its Account will be set up to automatically accept any Transaction Fees.