1. Each NFT made available by Artist through the Marketplace is associated with certain digital works of authorship or other content, whether or not copyrighted or copyrightable, and regardless of the format in which any of the foregoing is made available (“Related Content”). Related Content is separate from the associated NFT, and is not sold or otherwise transferred to you but is instead licensed to you to the extent set forth in these Terms. A “Digital Collectible” consists of the applicable NFT originally acquired through the Marketplace and the license rights granted pursuant to these Terms for the Related Content.
2. These Terms apply when Related Content for a particular NFT is owned or controlled by the Artist, including where Related Content is licensed to the Artist for these purposes (“Artist-Owned Content”). The description on the Marketplace of the applicable NFT or Digital Collectible or the smart contract providing for the creation of the applicable NFT will include information about whether the Related Content for that particular NFT or Digital Collectible is Artist-Owned Content or stating whether these Terms apply.
3. Subject to your compliance with these Terms, for as long as you own the applicable NFT (as evidenced on the blockchain on which such NFT was deployed by the Artist), the Artist grants you a limited, personal, non-exclusive, non-sublicensable, worldwide license under any copyright owned or held by the Artist in any Artist-Owned Content to copy, display and perform the Artist-Owned Content for non-commercial, personal use, including as part of (i) a marketplace that permits the purchase and sale of such NFT, or (ii) a third-party website or application that permits the inclusion or involvement of such NFT, provided that in the case of either (i) or (ii), the marketplace, application or website cryptographically verifies your ownership of the NFT in order to permit you to advertise the NFT for sale or to display any visual or audio elements of the NFT.
4. Section 3 sets forth all of your license rights hereunder with respect to any Artist-Owned Content. There are no other license rights, whether express or implied, with respect to any of the Artist-Owned Content, or any derivative works thereof, and no license rights are granted under any patent, trademark, trade secret or other intellectual property or proprietary right other than any copyright owned or controlled by the Artist. This is true even if exercise of any license rights granted herein would be prevented, frustrated or impaired without such a license. Without limiting the foregoing, the licenses granted herein do not grant you the right to, and you will not, and you will not authorize, permit or assist any third party to:
5. The Artist retains all right, title and interest in the Artist-Owned Content and all copyright or other intellectual property rights in any Artist-Owned Content. Except for the license rights expressly granted in Section 3, above, you do not have and will not have any right, title or interest in or to any Artist-Owned Content. Without limiting the foregoing, the Artist-Owned Content may include trade names, brands, logos, trademarks, names, likenesses, images or other personal characteristics of persons or characters (“Embedded IP”). Your use of such Embedded IP is limited to use in connection with the exercise of your license rights under these Terms and subject to all limitations set forth herein and any other restrictions that the Artist may inform you of in the future. You may not use any such Embedded IP in connection with any business, product or service, or in any manner that may imply endorsement of any business, message, product or service, or that is likely to cause confusion or dilute, blur or tarnish such Embedded IP. All use of such Embedded IP, including any goodwill generated by such use, will inure to the benefit of the Artist.
6. You understand that the Artist will continue to further modify and develop Artist-Owned Content. On behalf of yourself and your heirs, successors and assigns, you irrevocably and perpetually covenant and agree not to file or assert before any court or other government tribunal or authority, any claim, counterclaim, demand, action, suit or other proceeding with respect to the limited license granted herein against:
7. You will not:
8. To the extent that you are not prohibited from doing so by any other terms or conditions applicable to a particular NFT or Digital Collectible, you may transfer the NFT to a third party, provided that the following conditions are met:
9. Upon transfer of any NFT, in consideration of the transfer of the license rights set forth in these Terms, the ongoing hosting of any Artist-Owned Content and any other associated services, you acknowledge and agree that the Artist may be paid a fee in an amount calculated by multiplying the total amount paid by the acquirer for the NFT (without any deductions of any kind) by the percentage applicable to the NFT specified at Transfer Fees (the “Transfer Fee”).
10. THE DIGITAL COLLECTIBLE IS INTENDED FOR CONSUMER ENJOYMENT, USE AND CONSUMPTION ONLY. IT IS NOT A “SECURITY,” AS DEFINED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED, OR UNDER THE SECURITIES LAWS OF ANY U.S. STATE.
11. You will comply with any NFT issuance or marketing policy that Artist may provide to you or post on the Marketplace, as updated from time to time.
12. From time to time at their discretion, the Artist or third parties may make additional content, physical items or other benefits available to the holder of the applicable NFT (any of the foregoing, an “Additional Benefit”). The Artist or any third party has no obligation to inform you of, or to provide you with, any Additional Benefit, and you should therefore not expect any Additional Benefit when acquiring an NFT. It will be your responsibility to keep yourself apprised of the availability of any Additional Benefit and to take the necessary steps to apply for or collect any Additional Benefit. The terms and conditions applicable to any Additional Benefit will be set forth in the information or materials provided with the Additional Benefit. Except to the extent set forth in such information or materials which shall supersede and govern over any conflicting or inconsistent provisions in these Terms, any digital works of authorship made available by the Artist as an Additional Benefit will be licensed on the same terms set forth herein for, and will otherwise be treated as, Artist-Owned Content. Any physical item provided as an Additional Benefit is not part of the Artist-Owned Content and, except as otherwise provided in any separate terms and conditions applicable to the Additional Benefit, you will not have any license rights under any intellectual property rights in or to any such physical item.
13. The Artist will have no responsibility or liability, and you hereby waive and release any and all claims, arising out of or in connection with:
14. You will indemnify and hold harmless, and at the Artist's request defend, the Artist and any Affiliates from and against any and all claims, demands, liabilities, damages, penalties, fines, taxes, costs and expenses (including without limitation reasonable attorneys’ fees and court costs) arising out of or in connection with any breach of these Terms or unauthorized use of any Artist-Owned Content, your ownership or transfer of any NFT, or exercise of any license rights hereunder by you.
15. THE ARTIST AND ANY AFFILIATES MAKE DIGITAL COLLECTIBLES, NFTS AND ARTIST-OWNED CONTENT, AS WELL AS ANY ADDITIONAL BENEFIT THAT ANY OF THEM OR ANY THIRD PARTY MAY PROVIDE, AVAILABLE “AS IS”, “WHERE IS” AND EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE IN TRADE.
16. IN NO EVENT WILL THE ARTIST OR AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR OTHER NON-DIRECT DAMAGES OF ANY KIND OR FOR ANY SPECIAL, PUNITIVE OR SIMILAR DAMAGES.
17. THE MAXIMUM AGGREGATE LIABILITY OF THE ARTIST AND THEIR AFFILIATES FOR ALL DAMAGES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE $100.
18. In addition to any other rights and remedies to which the Artist may be entitled under contract, at law or in equity, if you breach any of your obligations under these Terms, your right to display and perform Artist-Owned Content and any and all other license rights that you may have under these Terms will immediately and automatically terminate without notice. Upon termination of your license rights, you will immediately cease all use of any Artist-Owned Content. The Artist may disable MetaMask or similar functionality for the affected Artist-Owned Content, prohibit any platform or service from retrieving or rendering any such Artist-Owned Content in connection with the services they provide and take other steps to prevent unauthorized use of any Artist-Owned Content. The Artist will have no obligation or liability to you for any such actions and you will not interfere with, or seek to prevent, any such actions.
19. These Terms supplement any additional terms and conditions in any information or materials provided with any Artist-Owned Content or Additional Benefit (“Additional Terms”). In the event of any conflict or inconsistency between these Terms and any Additional Terms, the Additional Terms will supersede and govern. These Terms and any Additional Terms constitute the entire agreement between you and the Artist with respect to the subject matter hereof and supersede any and all prior or contemporaneous written or oral agreements or understandings between you and the Artist relating to any NFT, Artist-Owned Content or Digital Collectible.
20. These Terms will be construed in accordance with the laws of the state of New York as applied to contracts made and performed entirely therein, and without regard to conflicts of laws principles to the contrary. All disputes relating to these Terms will be brought solely in the state or federal courts located in the state of New York and you hereby consent to the exclusive jurisdiction of such state and federal courts and waive any defense of forum non conveniens. EACH PARTY HEREBY EXPRESSLY WAIVES ANY RIGHT TO A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING BROUGHT BY OR AGAINST EITHER PARTY IN CONNECTION WITH THESE TERMS.
21. These Terms do not, and may not be construed to, create any partnership, joint venture or agency between you and the Artist. If any provision of these Terms is found to be unlawful, void or for any reason unenforceable, that provision will be enforced to the maximum extent permitted by law and otherwise deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions. The failure of the Artist to insist upon or enforce strict performance of any of the provisions of these Terms or to exercise any rights or remedies under these Terms will not be construed as a waiver or relinquishment to any extent of the Artist's right to assert or rely upon any such provisions, rights or remedies in that or any other instance; rather, the same will be and remain in full force and effect. You may not assign, transfer or otherwise dispose of these Terms (including any rights or obligations hereunder), and any purported assignment, transfer or other disposition will be null and void.