Terms, Conditions & Privacy
contact information (such as name, email address, postal address and phone number) when you make an inquiry or contact us;
contact information, bank account and other financial information, date of birth, government-issued identification information (including social insurance number), employment information and information regarding your financial goals when you register for a trading service with us or communicate with us regarding a trading service;
contact information and payment card information when you purchase another product or service from us;
to administer your relationship with ICG, including to contact and correspond with you regarding the trading services we provide to you, your accounts with us and the other products and services you have purchased from us, to create a confidential profile for you and to provide you with trading customer service;
to facilitate your interactions and transactions with ICG, including to provide you with personalized preferences;
to provide products and services to you;
to process and respond to your inquiries, requests and other communications;
to provide you with information (including by email and other electronic messages) regarding ICG and our products and services and products and services offered by other businesses, to the extent permitted by applicable law;
to maintain, protect and improve ICG’s products and services and to develop new products and services;
to protect and enforce ICG’s legal rights, interests and remedies and to protect the business, operations and clients of ICG or other persons, including security and fraud monitoring and prevention; and
to comply with legal and regulatory requirements.
Subject to your right to with…
CREATOR TERMS AND CONDITIONS OF USE
A Hard Working Man is an NFT platform and marketplace (the “Platform”) that provides creators with the tools and technology to create, mint, and sell customized non-fungible tokens via blockchain technology (“NFTs”).
ACCEPTANCE OF TERMS AND CONDITIONS OF USE
a. By using the Platform, you grant and license to Block Entertainment Limited the right to mint and sell NFTs embodying or granting access to unique digital assets, content, experiences, property or packages (“Creator Content”).
b. You shall set up a “creator” profile on the Platform. Block Entertainment Limited shall have the right to store your identification metadata, e-mail, and profile details, and Block Entertainment Limited shall have the right to run a verification of profile procedure to confirm the accuracy of such data. Personally identifying information is subject to Block Entertainment Limited’s Privacy Statement, the terms of which are incorporated herein. Please review Block Entertainment Limited’s Privacy Statement at [link to Privacy Statement].
c. You shall have sole access and control over your account via a personal password or other identification technology (e.g., fingerprint). You shall be responsible for updating and maintaining the accuracy of the information you provide Block Entertainment Limited relating to your account.
d. You agree that the initial sale of the NFTs may be made only via the Platform.
e. You grant Block Entertainment Limited the right to use your name, related trademarks, and Creator Content in connection with the sale, promotion, and advertising of NFTs and the Platform.
f. You shall be solely responsible for the terms to be encoded in the NFT smart contract (i.e., the on-chain data that facilitates the rules and utility associated with the NFT). As between you and Block Entertainment Limited, you shall be responsible for the administration, execution and fulfillment of the primary and secondary market sales of the NFTs.
g. You agree that your marketing efforts comply with current applicable laws and regulations, including those governing digital assets and tokenized representations of assets, and privacy compliance. You agree that at no time will the marketing efforts (i) encourage speculative behavior in connection with any NFT or (ii) indicate that the value of any NFT is derived from or linked to your or the Platform’s efforts or labor. .
h. With respect to any packages, experiences, or other non-digital types of redeemables, you shall be solely responsible and liable for the facilitation, implementation, rules and regulations, policies, operations and performance with respect to such experiences.
2 Ownership/Intellectual Property
a. The Creator Content, including any copyrights and trademarks therein and thereto, but specifically excluding the Underlying Service Provider Technology, shall be owned and controlled by you.
b. “Underlying Service Provider Technology” shall mean (i) Block Entertainment Limited’s know-how, processes, methodologies, inventions, know-how, user interface designs, architecture, libraries,documentation (both printed and electronic), copyrights and trademarks, and (ii) any improvements, developments, derivatives, enhancements or extensions of the foregoing conceived, reduced to practice, or developed by Block Entertainment Limited that are not uniquely applicable to the Creator Content and that have general applicability in the art. Any and all rights in and to the Underlying Service Provider Technology shall be owned, controlled, and reserved by Block Entertainment Limited. Subject to the terms and conditions of this agreement, to the extent (if at all) any Underlying Service Provider Technology is incorporated into or necessary to create and use the Creator Content and NFTs, Block Entertainment Limited hereby grants to you a non-exclusive, transferable, sub-licensable, royalty-free, perpetual, irrevocable, worldwide license to fully exploit, sell, reproduce, manufacture, distribute, publicly perform, sublicense, and otherwise use the Underlying Service Provider Technology as embodied in or related to the Creator Content or NFTs.
3 Block Entertainment Limited Fee.
a. You shall encode the Block Entertainment Limited Fee and Block Entertainment Limited crypto wallet address as provided by Block Entertainment Limited in the NFT smart contract.
b. With respect to NFT sales on the primary market via the Platform, the Block Entertainment Limited Fee shall be Five Percent (5%) of Gross Revenue
c. With respect to NFT sales on the secondary market, the Block Entertainment Limited Fee shall be Five Percent (5%) of Gross Revenue
d. “Gross Revenue” shall mean the currency exchanged for the purchase of the NFT less any third party transaction fees and costs charged for mining and other sales transactions (e.g., gas fees) with respect to the NFT.
e. You shall be solely responsible for paying royalties, fees, and other payments to any third parties, including record labels, music publishers, or persons engaged by you, including producers, mixers, guest artists, etc.
f. You and Block Entertainment Limited shall each be solely responsible for the set-up, maintenance, security (including “seeds”), and control of a cryptocurrency “wallet” (i.e., an individual device, program, or service which stores public and private keys for cryptocurrency transactions) to hold its share of cryptocurrency. Neither party shall be responsible for the other party with respect to the protection and maintenance of their respective wallet
4 Warranties and Representations/Acknowledgements/Indemnification
a. You warrant and represent that (i) you are the sole and exclusive owner of any Creator Content used in the creation of NFTs pursuant to this agreement, (ii) you are over the age of 18 and have the right to enter into this agreement and to grant and/or license the use of the Creator Content as part of the NFTs, (iii) no materials, ideas, artwork, or other properties of any kind that are furnished or designated by you as embodied, associated, or used in connection with the NFTs will violate or infringe upon the rights of any person or company; (iv) no waivers, licenses, permissions or rights are required for the use and exploitation of the Creator Content, or to the extent that any waivers, licenses, or permissions are required, you shall be solely responsible for securing all third-party rights, including the compensation required for such third-party rights; and (v) you shall be solely responsible for any royalties or payments due to any publishers of any underlying composition exploited via the NFT and any third party royalty participants, including any producers, mixers, etc. of any recording exploited via the NFT
b. As a condition of your use of the Platform, you warrant and represent that you will not use the Platform for any purpose that is unlawful or prohibited by this agreement. You agree not to use the Platform in any manner that could damage, disable, overburden or impair the website, or interfere with any user’s enjoyment of the platform. You agree not to reproduce, distribute, modify, or otherwise use content or information contained on or obtained from or through the Platform. You also agree not to do any of the following: Circumvent, remove, alter, deactivate, degrade or thwart any of the content protections in the Platform; use any robot, spider, scraper or other automated means to access the Platform; revise engineer or disassemble any software or other products or processes accessible through the Platform; insert any code or product to manipulate the content available on the Platform, or use any data mining or extraction methods. In addition, you agree not to upload, post, e-mail, or otherwise send or transmit any material or code designated to interrupt, destroy, or limit the functionality of software, hardware, or other equipment or technology associated with the Platform, including any viruses, malware, code or programs.
c. You shall comply with all applicable laws, rule and regulations, as well as with the terms, conditions, guidelines, and policies of any website, social media platform or service that you may use in connection with any social media posts concerning NFTs. By participating in the sale of NFTs via the Platform, you are not endorsing the Platform. You shall not make any post or disclosure that would cause the public to believe that you are endorsing the Platform in exchange for some form of consideration
d. You acknowledge that sales hosted on the Platform are not intended to be an offering or sale of securities, swaps on either securities or commodities or a financial instrument of any kind as may be determined by any law, rule, or regulation. Block Entertainment Limited makes no warranty or representation regarding the application of securities laws and the regulation of sales of NFTs by the SEC or the application of any tax laws by the Internal Revenue Service or the U.S. Treasury Department
e. You acknowledge that the price and liquidity of blockchain assets, including NFTs, are extremely volatile and may be subject to large fluctuations; fluctuations in the price of other digital assets could materially and adversely affect NFTs, which may also be subject to significant price volatility; legislative and regulatory changes or actions at the state, federal, or international level may adversely affect the use, transfer, exchange, and value of NFTs; NFTs are not legal tender and are not backed by the government; transactions in NFTs may be irreversible, and, accordingly, losses due to fraudulent or accidental transactions may not be recoverable; some transactions in NFTs shall be deemed to be made when recorded on a public ledger, which is not necessarily the date or time of the transaction; the value of NFTs may be derived from the continued willingness of market participants to exchange fiat currency or digital assets for NFTs, which may result in the potential for permanent and total loss of value of a particular NFT should the market for that NFT disappear; the nature of NFTs may lead to an increased risk of fraud or cyber-attack and may mean that technological difficulties experienced by Block Entertainment Limited may prevent the access to or use of the digital assets described herein. You acknowledge that this agreement does not, however, disclose all of the risks associated with NFTs and other digital assets
f. You hereby expressly waive and release any and all claims, now known or hereafter known, against Block Entertainment Limited, its affiliates and their officers, directors, manager(s), employees, agents, shareholders/members (collectively, “Releasees”), related to the minting and sale NFTs. You covenant not to make or bring any such claim against Block Entertainment Limited or any other Releasees, and forever release and discharge Block Entertainment Limited and all other Releasees from liability under such claims.
g. SOLO MAKES NO WARRANTIES WHATSOEVER WITH RESPECT TO THE SOLO PLATFORM, ANY CONTENT AND SOFTWARE ASSOCIATE THEREWITH, OR ANY OTHER FEATURES OR FUNCTIONALITIES; THE SOLO PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. SOLO DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE SOLO PLATFORM WILL BE UNINTERUPED OR ERROR-FREE
h. Block Entertainment Limited has the discretion to alter any or all redeemables and post drop incentives to the purchasers
i. IN NO EVENT SHALL SOLO OR ANY OF ITS OWNERS, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR REPRESENTATIVES BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, WHETHER UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY WHATSOEVER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, INTELLECTUAL PROPERTY INFRINGEMENT, PRICE DEPRECIATION, LEGAL OR REGULATORY ENFORCEMENT, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE, ARISING OUT OF THIS AGREEMENT AND YOUR USE OF THE SOLO PLATFORM
i. Subject to the terms and conditions of this agreement, each party hereto (an “Indemnifying Party”) agrees to indemnify and hold harmless the other party and its officers, managers, directors, owners, members, agents, employees, representatives, and their respective successors and assigns (each, an “Indemnified Party”), from and against any and all claims, liabilities, damages, costs, and expenses, including reasonable outside attorneys’ fees, witnesses’ fees and related costs incurred by such Indemnified Party and arising from any claim, action or demand by a third party against the Indemnified Party to the extent caused by (i) the Indemnifying Party’s breach of its warranties, representations, or agreements hereunder, or (ii) the Indemnifying Party or its representatives’ gross negligence, fraud or willful misconduct.
5 Suspension/Termination Rights. Without limiting any other remedy available at law or equity, Block Entertainment Limited may suspend your account and/or terminate this agreement and your right to use the Platform, effective immediately, if (a) you materially breach any of the provisions of this agreement, (b) you are not a verified artist/seller, (c) in the event of a third party claim or anticipated claim, or if Block Entertainment Limited believes that any of the Creator Content has been reproduced in a way that constitutes copyright infringement, or (d) Block Entertainment Limited reasonably believes there is fraudulent activity occurring with your account, or (e) Block Entertainment Limited may otherwise be exposed to any legal risk or liability.
a. Block Entertainment Limited may test various aspects of the Platform, including the website, user interfaces, services and features. Block Entertainment Limited shall have the right to make changes from time to time and without notice in how Block Entertainment Limited offers and operates the Platform
b. Block Entertainment Limited may use any comments, information, ideas, concepts, reviews or techniques contained in any communication or feedback from you with respect to the operation, functionality, or improvement of the Platform, including responses to questionnaires or postings through any public forum, without any acknowledgement or compensation to you
c. This agreement may not be modified or amended without the written consent of the parties. This agreement, including any schedules hereto, constitutes the sole agreement of the parties and supersedes all verbal negotiations and prior writings with respect to the subject matter hereof
d. This agreement shall be governed by and construed pursuant the laws of Singapore without regard for conflict of law principles. The sole jurisdiction and venue for actions related to the subject matter hereof shall be the state and federal courts located in Singapore. You consent to the jurisdiction of such courts and agree that process may be served in the manner provided herein for giving notices or otherwise as allowed by Singapore
e. No waiver by either party of any breach by the other party of any of the provisions of this agreement shall be deemed a waiver of any preceding or succeeding breach of the same or any other provisions hereof. No such waiver shall be effective unless in writing and then only to the extent expressly set forth in writing
f. Block Entertainment Limited may, from time to time, change these Creator Terms and Conditions of Use; such revisions shall be effective immediately. Block Entertainment Limited shall endeavor to post changes to the Creator Terms and Conditions of Use on the Platform website
g. By using the Platform, you consent to receiving electronic communication from Block Entertainment Limited relating to your account. These communications may involve sending you e-mails or posting communications on the Platform. You agree that any notices, agreements, or other communications sent electronically will satisfy any legal or contractual notice requirements. You also consent to receiving certain communications regarding features, offers, and promotions; provided that you shall be able to manage your account settings accordingly.
h. All notices to you may be given electronically at the e-mail addresses provided in Creator’s registration profile. All notices to Block Entertainment Limited shall be sent to .
OWNER ACKNOWLEDGES RECEIPT AND UNDERSTANDING OF THE AGREEMENT, AND AGREES TO BE BOUND BY ITS TERMS, IN THEIR ENTIRETY. OWNER’S ACCEPTANCE OF AN NFT SHALL BE DEEMED OWNER’S ACCEPTANCE OF, AND CONSENT TO BE GOVERNED BY, THE TERMS OF THE AGREEMENT. IF OWNER DOES NOT AGREE TO BE BOUND BY THE TERMS OF THE AGREEMENT IN THEIR ENTIRETY, THE LICENSE CONTEMPLATED HEREUNDER SHALL AUTOMATICALLY TERMINATE.
THIS AGREEMENT CONTAINS DISCLAIMERS OF WARRANTIES, LIMITATIONS OF LIABILITY, RELEASES, A CLASS-ACTION WAIVER, AND THE REQUIREMENT TO ARBITRATE ANY AND ALL CLAIMS THAT MAY ARISE HEREUNDER AGAINST THE COVERED PARTIES (AS DEFINED BELOW) WHO ARE EXPRESS THIRD-PARTY BENEFICIARIES OF THE MANDATORY ARBITRATION PROVISION. THE AFOREMENTIONED PROVISIONS ARE AN ESSENTIAL BASIS OF THIS AGREEMENT
In consideration of the premises and the mutual covenants set forth below and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be bound, the parties hereto agree as follows:
Licenses & Restrictions.
NFTs. The “NFTs” sold or otherwise transferred to Owner pursuant to the Agreement are non-fungible tokens, ownership of which are registered on a blockchain. Each NFT is associated with a single instance of a digital art file (“Digital Art”) and/or other entitlements. As detailed below, Owner may own a token, but shall have only a limited license to the Digital Art, subject to the terms and conditions of the Agreement. Owner must ensure that she/he/it obtains and maintains a functioning self-custody wallet such as MetaMask® or Coinbase Wallet® or similar (“Wallet”) capable of accessing the NFTs, as well as any cryptocurrencies necessary to purchase and/or sell the NFTs including, where applicable, Ethereum (“ETH”).
Digital Art. The Digital Art is subject to copyright and other intellectual property protections, which rights are and shall remain owned by Licensor and/or third parties.
License. Upon a valid transfer of an NFT to Owner, Licensor grants Owner a limited, non-sublicensable, license to use, publish, and display the Digital Art during the Term, subject to Owner’s compliance with the terms and conditions of the Agreement including, without limitation, the restrictions in Section 1.4. below, solely for the following purposes: (a) for her/his/its own personal, non-commercial use; (b) to list the NFT for resale or trade as part of an NFT marketplace that permits the purchase and sale of the NFT; provided, that the marketplace cryptographically verifies each NFT owner’s rights to display the Digital Art associated with the NFT to ensure that only the actual owner can display the Digital Art; and/or (c) as part of a third party website or application that permits the inclusion, involvement, or participation of NFTs; provided, that the website/application cryptographically verifies each NFT owner’s rights to display the Digital Art associated with the NFT to ensure that only the actual owner can display the Digital Art; and provided, further, that the Digital Art is no longer visible once the owner of the NFT leaves the website/application (the “Owner License”). The Owner license is non-transferable, except that it will automatically transfer in connection with a Permitted Transfer (defined below) of the subject NFT. Upon expiration of the Term or breach of any condition of the Agreement by Owner, all license rights shall immediately terminate.
License Restrictions. The Digital Art provided pursuant to the Agreement is licensed, not sold, and Owner receives no title to or ownership of the Digital Art or any associated intellectual property rights thereto. Without limiting the foregoing, the license to the Digital Art does not grant Owner any right, title or interest in or to the individual layered files, traits or digital works associated with same (collectively, the “Layered Files”). Except for the express license granted to Owner by the Owner License, no other rights (express or implied) to the Digital Art are granted and all rights that are not specifically granted to Owner are reserved by Licensor, as applicable and as between Owner and Licensor. This includes, but is not limited to, the intellectual property rights, and publicity rights, associated with the images, names, logos, Layered Files, trademarks, the ability to mint 3D, voxel or other versions of the NFTs, the smart contract code, or anything else not specifically granted by the Owner License. Without limiting the generality of the foregoing, Owner shall not, nor authorize, permit, or assist any third party to do, or attempt to do, any of the
following: (a) copy, modify, create derivative works from, or distribute the Digital Art or an NFT; (b) display the Digital Art other than as expressly licensed in Section 1.3; (c) use an NFT or Digital Art to advertise, market or sell a product and/or service; (d) incorporate an NFT or Digital Art in videos or other media; (e) sell merchandise incorporating an NFT or Digital Art; (f) attempt to register any trademark, copyright, or otherwise acquire additional intellectual property rights in or to a Digital Art; (g) impose a fee or require other consideration for another to view a Digital Art; (h) use a Digital Art for its or any third party’s commercial benefit; (i) use a Digital Art to create, sell or attempt to create or sell any new cryptographic token; or (j) fractionalize, pool, rent or stake an NFT or Digital Art, unless done so in compliance with all applicable laws, rules or regulations. Moreover, Owner agrees not to: (i) remove any copyright or other legal notices associated with an NFT or Digital Art; or (ii) remove or alter any metadata of an NFT including, without limitation, any link or other reference to the Agreement. Failure to comply with the conditions set forth in Sections 1.3 and 1.4 hereof constitutes a material breach of the Agreement.
Transfers. Subject to the transfer restrictions set forth herein, and payment to Licensor of the Resale Royalty (defined below), Owner may transfer ownership of an NFT including, without limitation, the Owner License and Entitlements (if any), to a third-party (a “Secondary Acquirer”); provided that: (a) Owner has not breached the Agreement prior to the transfer; (b) the Owner License has not otherwise expired or been terminated for any reason; (c) Owner notifies the Secondary Acquirer that any sale of the NFT by the Secondary Acquirer shall be subject to the Resale Royalty; (d) such transfer is conducted through a marketplace or other platform that cryptographically verifies that the Owner is the actual, current owner of the NFT; (e) Secondary Acquirer is not placed on the “Specially Designated Nationals and Blocked Persons List” by the Office of Foreign Assets Control (OFAC) of the United States Department of the Treasury, the “Denied Persons List” by the Bureau of Industry and Security of the United States Department of Commerce or is a resident, citizen or entity located or incorporated under the laws of any country, territory or other jurisdiction subject to a U.S. Government embargo; (f) such transfer complies with all applicable laws, rules, regulations, regulatory guidance, and terms of the marketplace or other platform on which such sale or transfer takes place, including compliance with any anti-money laundering, anti-bribery laws, and political donation or contribution laws; and (g) Owner ensures that the Secondary Acquirer is made aware of the Agreement and agrees to be bound by its obligations and restrictions (a “Permitted Transfer”). Upon conclusion of a Permitted Transfer, including acceptance of the Agreement, Secondary Acquirer shall be deemed the Owner for purpose of this Owner Agreement. In no case shall the Owner License or any Entitlement(s) (defined below) granted under the Agreement be transferrable apart from ownership of the subject NFT. For clarity, only a single individual/entity may own an NFT at any time, and only that individual/entity has the Owner License or access to any Entitlement(s)). As used herein, the term “Resale Royalty” means the royalty amount Licensor shall receive for any sale of an NFT by the Owner, equal to ten percent (10%) of the purchase price, taken from the Owner’s or any Secondary Acquirer’s (who becomes an Owner) sale proceeds. Owner shall pay any and all transaction fees, payment transfer fees and taxes (other than taxes on Licensor’s net income) associated with the Permissible Transfer and shall not deduct any such amounts from the amount paid to Licensor as the Resale Royalty. To the extent a smart contract associated with the NFT is programmed to automatically transfer the Resale Royalty to Licensor, payment shall be deemed made when and if such Resale Royalty is actually paid to Licensor.
Event Description. Subject to the restrictions set forth in Subsection 2.2 herein below, the acquisition of an NFT may entitle the current Owner thereof to a certain additional entitlement(s) as may be offered by the Licensor, in its sole discretion (the “Entitlements”), each subject to availability and the restrictions set forth in Subsection 2.2 below and as otherwise communicated by Licensor from time-to-time.
Restrictions. Notwithstanding a valid transfer of ownership of an NFT, once the Entitlement for each event has been redeemed by an Owner of the subject NFT, no subsequent Owner of that same NFT shall have the right to redeem such Entitlement. No Entitlement may be licensed, sold, transferred, rented or assigned, separate and apart from a Permitted Transfer of ownership of the NFT. Any Entitlement(s) must be redeemed by the Owner, or it/they will be forfeited. The Entitlements have no cash value. Redemption of the Entitlement(s) are subject to availability, and Licensor reserves the right to reschedule each Entitlement, in its sole discretion, including for circumstances beyond Licensor’s control.
Procedure: Owner may claim the Entitlement(s) by following the procedures detailed on the Site, or as otherwise communicated to Owner by Licensor.
Warranty; Disclaimers and Assumption of Risk.
Owner Warranty. Owner represents and warrants that Owner: (a) is at least the age of majority in Owner’s state of residence (which is typically 18 in most U.S. states) and has the legal capacity to enter into the Agreement; (b) will use and interact with each NFT, including the Digital Art associated therewith, only for lawful purposes and in accordance with the Agreement and all applicable laws, rules and regulations; and (c) will not use the NFT, including
the Digital Art associated therewith, to violate any law, regulation or ordinance or any right of Licensor or any third party, including, without limitation, any right of privacy, publicity, copyright, trademark and/or patent.
DISCLAIMER; ASSUMPTION OF RISK. THE NFTS AND ASSOCIATED DIGITAL OBJECTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OR SUPPORT OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR AND ITS RESPECTIVE OFFICERS, EMPLOYEES, MEMBERS, DIRECTORS, SHAREHOLDERS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, AND LICENSORS (COLLECTIVELY, “COVERED PARTIES”) DISCLAIM ANY AND ALL WARRANTIES, CONDITIONS, AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING THOSE RELATED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR MAKES NO WARRANTY THAT AN NFT OR THE ASSOCIATED DIGITAL OBJECT WILL MEET OWNER’S REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. FURTHER, LICENSOR PROVIDES NO WARRANTY REGARDING, AND WILL HAVE NO RESPONSIBILITY FOR, ANY CLAIM ARISING OUT OF: (a) A MODIFICATION OF AN NFT OR ASSOCIATED DIGITAL ART MADE BY ANYONE OTHER THAN LICENSOR, UNLESS LICENSOR APPROVES SUCH MODIFICATION IN WRITING, IN ADVANCE; (b) OWNER’S MISUSE OF OR MISREPRESENTATION REGARDING AN NFT OR ASSOCIATED DIGITAL ART; (c) THE FLUCTUATION IN VALUE OF AN NFT; AND/OR (d) ANY TECHNOLOGY THAT FAILS TO PERFORM OR CEASES TO EXIST.
FURTHER, OWNER UNDERSTANDS AND AGREES THAT OWNERSHIP OF, AND TRANSACTIONS INVOLVING, AN NFT MAY REQUIRE OR RELY ON THIRD-PARTY TECHNOLOGY AND/OR PLATFORMS INCLUDING, WITHOUT LIMITATION, DIGITAL WALLETS, BLOCKCHAINS OR RELATED TECHNOLOGY, SMART CONTRACTS, INTERNET SERVICE PROVIDERS, MARKETPLACES, EQUIPMENT OR OTHER INFRASTRUCTURE (COLLECTIVELY, “THIRD PARTY TECHNOLOGY”). OWNER UNDERSTANDS AND AGREES THAT THE EXISTENCE AND PERFORMANCE OF THIRD PARTY TECHNOLOGY ARE OUTSIDE OF LICENSOR’S CONTROL. TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, LICENSOR DISCLAIMS ALL LIABILITY FOR THE USE, UNAVAILABILITY, OR FAILURE OF ANY THIRD PARTY TECHNOLOGY.
THE NFTS ARE INTENDED AS COLLECTIBLE ITEMS FOR INDIVIDUAL ENJOYMENT ONLY. THEY ARE NOT MEANT AS INVESTMENT VEHICLES. LICENSOR MAKES ABSOLUTELY NO PROMISE OR GUARANTEE THAT THE NFTS WILL INCREASE IN VALUE, OR MAINTAIN THE SAME VALUE AS THE AMOUNT OWNER PAID TO PURCHASE SAME. OWNER UNDERSTANDS AND AGREES THAT THE NFTS HAVE NO INHERENT MONETARY VALUE, AND THEY SHOULD BE TREATED AS NOTHING MORE THAN COLLECTIBLES WITH POTENTIAL FUTURE VALUE OR LACK THEREOF. PLEASE BE AWARE THAT THE PRICES OF NFTS ARE EXTREMELY VOLATILE, AND PRICE FLUCTUATIONS IN ETH COULD IMPACT THE PRICE OF NFTS BOTH POSITIVELY AND NEGATIVELY. GIVEN THIS VOLATILITY, NFTS SHOULD NOT BE CONSIDERED INVESTMENTS. OWNER ASSUMES ALL RISKS IN CONNECTION THEREWITH. NO INFORMATION AND/OR CONTENT MADE AVAILABLE BY AND/OR THROUGH THE SITE OR OTHERWISE BY LICENSOR IS OR SHOULD BE CONSIDERED ADVICE OR AN INVITATION TO ENTER INTO AN AGREEMENT FOR ANY INVESTMENT PURPOSE. FURTHER, NO ELEMENT OF THE NFTS QUALIFIES OR IS INTENDED TO BE AN OFFERING OF SECURITIES IN ANY JURISDICTION, NOR DOES IT CONSTITUTE AN OFFER OR AN INVITATION TO PURCHASE SHARES, SECURITIES OR OTHER FINANCIAL PRODUCTS. OWNER IS SOLELY AND EXCLUSIVELY RESPONSIBLE FOR ASSURING THAT THE PURCHASE AND SALE OF NFTS, AND THE USE OF CRYPTOCURRENCIES, COMPLIES THE WITH LAWS AND REGULATIONS IN OWNER’S JURISDICTION. OWNER ASSUMES ALL RISKS ASSOCIATED WITH USING AN INTERNET-BASED CRYPTOCURRENCY INCLUDING, BUT NOT LIMITED TO, THE RISK OF HARDWARE, SOFTWARE AND INTERNET CONNECTIONS, THE RISK OF MALICIOUS SOFTWARE INTRODUCTION, AND THE RISK THAT THIRD PARTIES MAY OBTAIN UNAUTHORIZED ACCESS TO INFORMATION STORED WITHIN OWNER’S WALLET. NFTS, CRYPTOCURRENCIES AND BLOCKCHAIN TECHNOLOGY ARE RELATIVELY NEW AND THE REGULATORY LANDSCAPE IS UNSETTLED. NEW REGULATIONS COULD NEGATIVELY IMPACT SUCH
TECHNOLOGIES WHICH MAY, IN TURN, IMPACT THE VALUE OF OWNER’S NFTS. OWNER UNDERSTANDS AND ACCEPTS ALL RISK IN THAT REGARD. WITHOUT LIMITING THE FOREGOING, OWNER ASSUMES ALL RESPONSIBILITY FOR ANY ADVERSE EFFECTS OF DISRUPTIONS OR OTHER ISSUES IMPACTING ETH OR THE ETHEREUM PLATFORM.
Limitation of Liability; Indemnity.
Dollar Cap. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COVERED PARTIES’ CUMULATIVE LIABILITY UNDER THE AGREEMENT, FOR ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE GREATER OF: (a) THE AMOUNT PAID TO LICENSOR FOR THE INITIAL SALE OF THE SUBJECT NFT(S); OR (b) ONE HUNDRED DOLLARS ($100).
Excluded Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE COVERED PARTIES BE LIABLE UNDER ANY CLAIM ARISING OUT OF OR RELATED TO THE AGREEMENT FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR OTHER NONDIRECT DAMAGES OF ANY KIND OR FOR ANY SPECIAL, PUNITIVE OR SIMILAR DAMAGES OR EXPENSES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR OTHER ECONOMIC LOSS, LOST REIMBURSEMENTS, LOST DATA, OR LOST SAVINGS), EVEN IF THE APPLICABLE COVERED PARTY(IES) WAS/WERE ADVISED OF THE POSSIBILITY OF THE OCCURRENCE OF SUCH DAMAGES.
Clarifications & Disclaimers. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LIABILITIES LIMITED BY THIS SECTION 4 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF THE APPLICABLE COVERED PARTY(IES) IS/ARE ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF OWNER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COVERED PARTIES WILL NOT BE LIABLE TO OWNER FOR ANY USE OF AN NFT AND/OR ASSOCIATED DIGITAL OBJECT INCLUDING, BUT NOT LIMITED TO, ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (i) USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED WALLET ADDRESSES; (ii) SERVER FAILURE OR DATA LOSS; (iii) CORRUPTED CRYPTOCURRENCY WALLET FILES; (iv) UNAUTHORIZED ACCESS TO AN NFT AND/OR ASSOCIATED DIGITAL OBJECT; (v) ANY UNAUTHORIZED THIRD PARTY ACTIVITIES INCLUDING, WITHOUT LIMITATION, THE USE OF VIRUSES, PHISHING, BRUTE FORCING OR OTHER MEANS OF ATTACK AGAINST A BLOCKCHAIN NETWORK UNDERLYING AN NFT AND/OR ASSOCIATED DIGITAL OBJECT; (vi) OWNER’S FAILURE TO MAINTAIN THE SECURITY OF ITS WALLET’S PRIVATE KEY; (vii) ANY UNINTENDED TRANSFER OR LOSS OF AN NFT AND/OR ASSOCIATED DIGITAL OBJECT; (viii) THE FAILURE TO REALIZE ANY SPECIFIC INVESTMENT INCOME, REVENUE OR OTHER FINANCIAL OUTCOME; (ix) THE FAILURE TO OBTAIN ACCESS TO ANY ENTITLEMENT; AND/OR (x) OWNER’S INABILITY TO DEMONSTRATE OWNERSHIP AND/OR CONTROL OF AN NFT. If applicable law limits the application of the provisions of this Section 4, Licensor’s liability will be limited to the maximum extent permissible.
Indemnity. Owner shall indemnify, defend and hold harmless the Covered Parties from and against any and all claims, demands, causes of action, liabilities, damages, penalties, losses, fines, costs and expenses (including reasonable attorneys’ fees, legal costs and court costs, which shall be reimbursed as incurred) arising out of, related to, or in connection with, or alleging: (a) Owner’s breach of any provision contained in the Agreement, including, but not limited to, Owner’s failure to comply with the licensing conditions set forth in Section 1 hereof; (b) Owner’s use of an NFT in any way that violates any applicable laws, rules or regulations; (c) Owner’s unauthorized transfer, or purported transfer, of an NFT; or (d) Owner’s improper and/or unauthorized exercise of any license rights in and/or to an NFT.
Term & Termination.
Term. This Owner Agreement shall begin on the Effective Date as defined herein above and shall continue until terminated pursuant to the terms of this Owner Agreement (the “Term”).
Termination for Transfer. The Owner License applies only to the extent that Owner continues to own the subject NFT. If, at any time, the Owner sells, trades, donates, gives away, transfers, purports to transfer, or otherwise disposes of the subject NFT for any reason, this Owner Agreement, including, without limitation, the Owner License granted to Owner hereunder, will immediately terminate without the requirement of notice, and Owner will have no further rights in or to the subject NFT, Digital Art, or any Entitlement(s).
Termination for Transfer. Except for a Permitted Transfer effectuated in accordance with the terms of the Agreement, including, without limitation, Section 1.5 hereof, this Owner Agreement shall automatically terminate
upon any purported transfer by the Owner. For clarity, any transfer of an NFT, other than a Permitted Transfer, terminates the Owner Agreement, including without limitation, the Owner License and Entitlement in its entirety.
Termination for Cause. Licensor may terminate this Owner Agreement for Owner’s material breach of any term of the Agreement by written notice specifying in detail the nature of the breach, effective in thirty (30) days unless the Owner first cures such breach, or effective immediately if the breach is not subject to cure.
Effects of Termination. Upon termination of this Owner Agreement, Owner shall cease all use of the Digital Art and delete, destroy, or return all copies of the Digital Art in its possession or control. Owner acknowledges that any use of the Digital Art upon termination of the Owner License shall be deemed an intellectual property infringement. Any provision of this Owner Agreement that must survive to fulfill its essential purpose will survive termination or expiration.
Independent Contractors. The parties are independent contractors and shall so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.
Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of the Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, epidemics, pandemics, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, COVID-19 or any similar virus, disease and/or pandemic, as well as any private sector or governmental responses to any of the foregoing, or other causes beyond the performing party’s reasonable control.
Assignment & Successors. This Owner Agreement is not assignable or transferable by Owner, except pursuant to a Permitted Transfer of ownership of an NFT to a Secondary Acquirer, in which case the terms and conditions hereof will transfer and be binding upon and will inure to the benefit of the parties and their permitted successors and assigns. Any purported assignment or transfer by Owner in violation of this Section 6.3 is null and void.
Severability. To the extent permitted by applicable law, the parties waive any provision of law that would render any clause of the Agreement invalid or otherwise unenforceable in any respect. If any provision of the Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of the Agreement will continue in full force and effect.
No Waiver. Neither party will be deemed to have waived any of its rights under the Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of the Agreement will constitute a waiver of any other breach of the Agreement.
Dispute Resolution Provisions. The Agreement shall be treated as though it were executed and performed in Wilmington, Delaware and shall be governed by and construed in accordance with the laws of the State of Delaware (without regard to conflict of law principles). The parties (and Covered Parties) hereby agree to arbitrate all claims that may arise under and/or relate to the NFTs, Entitlements, Digital Art and/or the Agreement. Without limiting the foregoing, should a dispute arise between the parties/any Covered Parties including, without limitation, any matter concerning the NFTs, Entitlements, Digital Art, the terms and conditions of the Agreement or the breach of same by any party hereto: (a) the parties/Covered Parties agree to submit their dispute for resolution by arbitration before JAMS in New York, NY, in accordance with the then current Commercial Arbitration rules of JAMS; and (b) Owner agrees to first commence a formal dispute proceeding by completing and submitting an Initial Dispute Notice which can be found here. The Covered Party(ies) named in Owner’s Initial Dispute Notice (collectively, the “Named Parties”) may choose to provide Owner with a final written settlement offer after receiving Owner’s Initial Dispute Notice (“Final Settlement Offer”). If the applicable Named Party(ies) provide(s) Owner with a Final Settlement Offer and Owner does not accept it, or such Named Party(ies) cannot otherwise satisfactorily resolve Owner’s dispute and Owner wishes to proceed, Owner must submit Owner’s dispute for resolution by arbitration before the AAA, in Owner’s county of residence, by filing a separate Demand for Arbitration, which is available here. For claims of Ten Thousand Dollars ($10,000.00) or less, Owner can choose whether the arbitration proceeds in person, by telephone or based only on submissions. If the arbitrator awards Owner relief that is greater than the applicable Final Settlement Offer, then the Named Party(ies) will pay all filing, administration and arbitrator fees associated with the arbitration and, if Owner retained an attorney to represent Owner in connection with the arbitration, the Named Party(ies) will reimburse any reasonable attorneys’ fees that Owner’s attorney accrued for investigating, preparing and pursuing the claim in arbitration. Any award rendered shall be final and conclusive to the parties and a judgment thereon may be entered in any court of competent jurisdiction. Although the Named Party(ies) may have a right to an award of attorneys’ fees and expenses if Named Party(ies) prevail(s) in arbitration, the Named Party(ies) will not seek such an award from Owner unless the arbitrator determines that Owner’s claim was frivolous.
CLASS ACTION WAIVER: To the extent permitted by law, Owner agrees that Owner will not bring, join or participate in any class action lawsuit as to any claim, dispute or controversy that Owner may have against any of the Covered Parties. Owner agrees to the entry of injunctive relief to stop such a lawsuit or to remove Owner as a participant in the suit. Owner agrees to pay the attorney’s fees and court costs that any Covered Party incurs in seeking such relief. This provision preventing Owner from bringing, joining or participating in class action lawsuits: (i) does not constitute a waiver of any of Owner’s rights or remedies to pursue a claim individually and not as a class action in binding arbitration as provided above; and (ii) is an independent agreement. Owner may opt-out of these dispute resolution provisions by providing written notice of Owner’s decision within thirty (30) days of the date that Owner first purchases an NFT.
Entire Agreement. This Owner Agreement. Together with the Site Terms and the documents referenced therein, sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
Amendment. The Agreement may not be amended in any way except through a written agreement by authorized representatives of the Licensor and Owner.
Headings. All section headings and captions have been inserted for convenience only and shall not affect the interpretation of the Agreement.
Drafting. Each party providing Electronic Acceptance to the terms of the Agreement agrees that it has fully participated in the drafting of the Agreement and that no party shall be deemed to be the drafting party of the Agreement.
Electronic Signatures. Owner acknowledges and agrees that Owner accepts the Agreement via electronic means rather than via traditional handwritten signature (“Electronic Acceptance”). Owner acknowledges and agrees that by clicking on the submit button, or taking such other action as may be designated by Licensor as a means of accepting the Agreement, Owner is submitting a legally binding electronic signature and is entering into a legally binding contract. Owner acknowledges that Owner’s electronic submission constitutes Owner’s agreement and intent to be bound by the Agreement. Pursuant to any and all applicable statutes, regulations, rules, ordinances or other laws including, without limitation, the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the “E-Sign Act”) and other similar state and federal statutes, OWNER HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE SITE AND/OR ANY OTHER ONLINE PLATFORMS AND/OR SERVICES OPERATED BY LICENSOR. Further, Owner hereby waives any rights and/or requirements under any statutes, regulations, rules, ordinances or other law in any jurisdiction which requires an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means. Owner acknowledges and agrees that it has the ability to print information delivered to Owner electronically, or otherwise knows how to store that information in a way that ensures that it remains accessible to Owner in unchanged form.