Non-fungible Token (NFT) Purchase and License Agreement
NFTs continue to play a major role for brands in the entertainment, collectible, art, and sports industries, despite recent crypto challenges. The unique nature of NFTs, which includes both the artwork and images that are available for public viewing and the underlying code based on blockchain technologies, blurs the lines between traditional purchase, sale, and license agreements. Clearly defining the intellectual property included within a given NFT and striking an appropriate balance between a purchaser’s and seller’s rights is therefore essential in complex NFT-related transactions. To help clarify those complexities (and others), we’ve drafted a template agreement that can serve as a starting point for those looking to offer NFTs to the general public. The template agreement is currently live on LexisNexis and is available below.
NOTICE OF LIMITATIONS OF LIABILITY,
ARBITRATION, AND CLASS ACTION WAIVERS
THIS AGREEMENT CONTAINS VARIOUS LIMITATIONS AND EXCLUSIONS OF LIABILITY IN SECTIONS 6. (DISCLAIMERS) AND 8. (LIMITATION OF LIABILITY), AND AN ARBITRATION CLAUSE AND CLASS ACTION WAIVER IN SECTION 9. (DISPUTE RESOLUTION). BY PURCHASING, USING, OR OTHERWISE ACCEPTING OWNERSHIP OF THE NFT, YOU AGREE, ON BEHALF OF YOURSELF AND ANY OTHER PERSON OR ENTITY THAT YOU REPRESENT, TO RESOLVE ALL DISPUTES THROUGH BINDING INDIVIDUAL ARBITRATION, WHICH MEANS THAT YOU WAIVE ANY RIGHT TO HAVE THOSE DISPUTES DECIDED BY A JUDGE OR JURY, AND THAT YOU WAIVE YOUR RIGHT TO PARTICIPATE IN CLASS ACTIONS, CLASS ARBITRATIONS, OR REPRESENTATIVE ACTIONS. ALSO, THIS AGREEMENT, ALONG WITH ANY OTHER TERMS AND CONDITIONS REFERRED TO IN IT, INCLUDE YOUR RELEASE OF ALL CLAIMS FOR ANY DAMAGES AGAINST SELLER AND CERTAIN THIRD PARTIES THAT MAY ARISE OUT OF OR ARE OTHERWISE RELATED TO YOUR PURCHASE, USE, OR ACCEPTANCE OF OWNERSHIP OF THE NFT.
- Ownership; Purchase Terms.
- NFT Ownership. When You purchase or otherwise accept ownership of the NFT, You acquire all right, title, and interest in and to the NFT, including, the right to sell, transfer, assign, donate, or otherwise dispose of ownership of the NFT, subject to the terms and conditions of this Agreement. You do not gain any right, title, or interest in or to any of the artwork, images, music, audiovisual works, or other content associated with, or represented by, the NFT (collectively, Artwork). Your rights to use the Artwork are subject to the terms and conditions of this Agreement, including in Section 2. (License Grant and Restrictions).
- Reserved Rights. All right, title, and interest in and to the Artwork is hereby expressly reserved for Seller, including Seller's rights in and to U.S. and foreign: (a) trademarks, service marks, trade dress, trade names, logos, domain names, and other similar designations of source or origin, together with the goodwill associated with any of the above; (b) copyrights, moral rights, and all other rights relating to works of authorship (whether copyrightable or not), including computer programs, and rights in data and databases; (c) industrial design rights; (d) rights of publicity; and (e) all other intellectual property and proprietary rights of any kind, in each case whether registered or unregistered, and including all registrations and applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection anywhere in the world, whether now or later existing (collectively, Seller's IP). You hereby acknowledge and agree that You will do nothing inconsistent with Seller's ownership of Seller's IP and will not use Seller's IP other than pursuant to the terms and conditions of this Agreement, including the licenses granted in Section 2. (License Grant and Restrictions). Seller retains the sole and exclusive right to apply for and own any registrations in and to Seller's IP (and any components of Seller's IP) and to bring any infringement, misappropriation, or unfair competition proceedings that involve Seller's IP. You further acknowledge and agree that all of Your uses of Seller's IP shall inure solely to the benefit of Seller. If You nevertheless acquire any rights in Seller's IP, by operation of law or otherwise, You hereby irrevocably assign such rights to Seller, without any further action required by any of the parties.
- Purchase and Fees. If you are the initial purchaser of the NFT, You agree to purchase and pay for the NFT in accordance with the terms and conditions of the marketplace on which the NFT is offered. By purchasing or otherwise accepting ownership of the NFT, You agree to pay all applicable fees and You authorize Seller to automatically deduct [Optional: Resale Royalties (as defined below) and] any transaction fees (including gas fees applicable to the blockchain supporting the NFT) directly from Your crypto wallet or other authorized and legal payment method. Seller has no control over the execution of any smart contract operation or functionality or any transaction fees associated with the NFT. Seller additionally does not have the ability to reverse any transactions. Accordingly, Seller shall not be liable to You or to any third party for any claims or damages arising out of or relating to Your use or transfer of, or other interactions with, the NFT or Artwork[, or any related Experiences (as defined below)].
- Taxes. You are responsible for any and all sales, use, value-added, GST, and other taxes, duties, and assessments now or hereafter claimed or imposed by any governmental, regulatory, or administrative authority governing Your use of or interaction with the NFT or Artwork [and any related Experiences], including any taxes that may become payable as a result of Your sale, transfer, assignment, donation, or other disposal of ownership of the NFT.
- License Grant and Restrictions.
- Artwork License. Subject to Your compliance with the terms and conditions of this Agreement, including in Section (b) (Restrictions on License Rights), Seller hereby grants to You, for as long as You own the NFT, a limited, non-exclusive, worldwide, non-sublicensable right and license to use the Artwork: (a) for personal non-commercial use; and (b) as necessary to effectuate secondary sales or transfers to other persons or entities lawfully purchasing or accepting ownership of the NFT either through a recognized third-party marketplace or through another authorized and legal method of transfer, whether now or later known, provided that the Artwork, including Seller's IP, appears in its original form and does not constitute a derivative work. This license is transferrable only if all of the conditions in Section (b) (Effect of Transfer) are met in full. All of Your rights to the Artwork are as expressly stated in this Section (a); there are no implied rights.
- Restrictions on License Rights. You hereby understand and agree that the license to the Artwork granted in this Agreement is conditioned on Your agreement that, for as long as You hold ownership rights in and to the NFT, you will not and will not encourage or permit others to: (a) [Optional: modify the Artwork or any of Seller's IP embodied in it in any manner, including any shapes, designs, drawings, attributes, or color schemes, without Seller's express prior written consent;] (b) use the Artwork in any manner that depicts, constitutes, or encourages hate speech, intolerance, cruelty, violence, vulgarity (e.g., pornography), offensive behavior, political statements, or illegal, unlawful, defamatory, harassing, abusive, or fraudulent activities or language; (c) attempt to or actually register or otherwise acquire any trademark, copyright, or other intellectual property or proprietary rights in or to the Artwork or any of Seller's IP; (d) represent or imply that Seller endorses or otherwise supports Your use of or interactions with the NFT or Artwork[, or the Experiences]; (e) [Optional: make any defamatory or otherwise false or misleading statements about Seller, the NFT or Artwork[, or the Experiences]]; (f) engage in any fraudulent or deceptive activity intended or designed to artificially increase or decrease the value of the NFT; or (g) use any software, hardware or other technology, device or means, including any virus, worm, malware, malicious, or other harmful computer code, the purpose or effect of which is to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner the security or integrity of the systems and marketplaces supporting the NFT or Artwork[, or the Experiences], including any associated crypto wallets or smart contracts.
- Additional Terms.
- Third-Party Marketplaces. Seller relies on third-party marketplaces to facilitate transactions involving the NFT, including any of Your uses of or other interactions with the NFT. Accordingly, Your transactions involving the NFT are subject to the terms and conditions of such third-party marketplaces, including those on which Your transactions occur, whether or not through such thirdparty marketplaces' service offerings (i.e., marketplace NFT or crypto wallets). Seller is not in control of, and You hereby agree not to hold Seller responsible or liable for, such third-party marketplaces' terms and conditions. Further, Your uses of and other interactions with the NFT may be limited or otherwise affected if: (a) the terms and conditions or pricing of such third-party marketplaces change; (b) You or Seller cannot comply with the terms and conditions of such third-party marketplaces or any update or modification to them; or (c) a third-party marketplace dissolves, declares bankruptcy, becomes insolvent, or otherwise ceases business operations.
- Third-Party Sites[Optional: Experiences]. The NFT may grant You access to certain in-person or virtual experiences or facilitate access to third-party websites (Third-Party Sites). [Optional: Certain inperson or virtual experiences are listed on Exhibit A. (Experiences) along with further details concerning redeeming such Experiences.] Third-Party Sites [and certain Experiences] are not under Seller's control and You hereby agree that You will not hold Seller liable or responsible for any content or information contained on or in any Third-Party Sites, including for any errors, omissions, or inaccuracies, or for any losses or damages of any kind incurred as a result of Your use of or access to any Third-Party Site [or Experience]. You use or rely on Third-Party Sites [and redeem and attend Experiences] at Your own risk and subject to any license agreements, terms and conditions, privacy policies, and other notifications, disclaimers, and legal requirements applicable to such Third-Party Sites [and Experiences]. Links and other access to Third-Party Sites [and Experiences] are provided or facilitated only as a convenience or benefit to You and do not necessarily constitute or imply Seller's endorsement or support of them. Seller does not guarantee the availability, accuracy, or display of or access to any Third-Party Sites [or Experiences] and reserves the right to remove, delete, alter, edit, suspend, or otherwise modify any interactions with or access to such Third-Party Sites [or Experiences] made available on or through the NFT, at any time and in Seller's sole discretion. Any opinions, advice, statements, offers, services, performances, or other content expressed, displayed, or made available on any Third-Party Sites [or through any Experiences]: (a) are those of the respective authors or applicable distributors; and (b) may be protected by copyright, trademark, right of publicity, and other U.S. or international intellectual property or proprietary rights Laws (as defined below). By using or otherwise owning the NFT, You do not acquire any right, title, or interest in or to any ThirdParty Sites [or Experiences] or any portion of them.
- Your Termination Rights. Subject to Sections (b) (Effect of Transfer) and (d) (Effect of Termination), You may sell, assign, donate, or otherwise transfer ownership of the NFT at any time. Except as otherwise expressly stated in this Agreement, this Agreement will cease to apply to any given person, following that person's sale, assignment, donation, or other transfer of ownership of the NFT. The transferor will, however, continue to be bound by the surviving provisions as stated in Section (d) (Effect of Termination) below.
- Effect of Transfer. Prior to selling, transferring, assigning, donating, or otherwise disposing of Your ownership of the NFT, You must provide, or cause to be provided, to any third-party intending to accept ownership rights in the NFT, adequate notice of this Agreement, including a description of the material terms and a link to or copy of this Agreement. Doing so is a condition of any transfer of the NFT. If you do not comply with this condition, Your transfer will be null and void and grounds for immediate termination of this Agreement by Seller. By accepting ownership of the NFT, the transferee shall be deemed to have accepted all of the terms and conditions of this Agreement and from that point on shall be considered "You" under this Agreement. You also hereby acknowledge and agree that all subsequent sales, assignments, donations, or other transfers of ownership of the NFT shall be cryptographically recorded on the blockchain supporting the NFT and that all payments for the NFT shall originate from the intended third-party transferee's crypto wallet. [Optional: Further, [percentage]% of such third-party transferee's gross purchase price, if any, for the NFT shall automatically be paid to Seller through the use of smart contracts associated with the NFT (the Resale
- Seller's Termination Rights. Seller may also terminate this Agreement immediately if: (a) You breach of any of the terms and conditions of this Agreement, including any of the restrictions in Section (b) (Restrictions on License Rights); or (b) You unlawfully or illegally use the NFT.
- Effect of Termination. On termination of this Agreement, for any reason, including Your sale, assignment, donation, or other transfer of Your ownership of the NFT, all of the rights and licenses that Seller has granted to You under this Agreement shall immediately terminate without any requirement of further notice.Sections 1. (Ownership; Purchase Terms), (b) (Restrictions on License Rights), 3. (Additional Terms), (d) (Effect of Termination), 5. (Assumption of Risk), 6. (Disclaimers), 7. (Indemnification), 8. (Limitation of Liability), 9. (Dispute Resolution), and 11. (Miscellaneous) shall survive the termination of this Agreement for any reason, along with all related definitions and any other provisions that, by their nature, are intended to survive termination.
- Assumption of Risk.
- Sellers Rights and Obligations. You acknowledge and agree that Seller is not responsible for the website that hosts the Artwork or any blockchain or distributed ledger on which the NFT is recorded, or for repairing, supporting, replacing, or maintaining same. You further understand and agree that Seller has no obligation to maintain any link or other connection between the NFT and the Artwork.
- Crypto Assets. Seller does not store, send, or receive crypto assets, including tokens available on any blockchain. Any transfer of crypto assets occurs within the supporting blockchain, which Seller does not control. Due to rapidly changing pricing and fluctuating demand, increased regulation, and other variables, public blockchains and associated distributed ledgers can experience significant periods of network congestion, inconsistent, or slowed processing speeds, and unpredictable failures. As a result, transactions, including Your sale, assignment, donation, or other transfer of ownership of the NFT, may be: (a) irreversible, and losses due to fraudulent or accidental transactions may occur; and (b) recorded on a public blockchain's distributed ledger at a time later than when You or Seller initiated the transaction involving the NFT.
- Internet Based Transfers. Certain risks associated with using an Internet based digital asset are inherent, including risks arising out of or relating to 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 Your crypto wallet or other method of holding and transferring crypto assets. You agree not to hold Seller liable or responsible for any communication failures, disruptions, errors, distortions, inaccuracies, or delays that You may experience when conducting or otherwise engaging in any transactions involving the NFT or Artwork, regardless of how such transaction was initiated or completed.
- Regulations. Digital assets, including blockchain-based assets such as the NFT, are subject to developing statutes, regulations, rules, orders, treaties, and other laws (collectively, Laws) worldwide. Such Laws, and any updates or changes to them, may affect this Agreement or its terms and conditions. If any Laws cause this Agreement, any provision of it, or any terms and conditions incorporated in it by reference, to become illegal or unenforceable, Seller shall not be deemed in breach of this Agreement, and, at Seller's option, Seller may terminate this Agreement [including any rights to any Experiences offered in connection with the NFT].
- Volatility; Securities. The price and liquidity of blockchain assets, such as the NFT, are volatile and may be subject to large fluctuations that could materially and adversely affect the value, price, and other aspects of the NFT. The value of the NFT may be derived from the continued willingness of market participants to exchange fiat currency or digital assets for the NFT, which may result in the potential for permanent and total loss of value of the NFT, should the market for the NFT disappear.
The NFT is not intended to be a "security" under any Laws, including the Securities Act of 1933, Securities Exchange Act of 1934, or the Investment Company Act of 1940, each as amended.
- THE NFT AND ARTWORK[, AND ANY EXPERIENCES,] ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTY OF ANY KIND AND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, SELLER HEREBY EXPRESSLY DISCLAIMS ANY ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER ARISING OUT OF TRADE USAGE, COURSE OF DEALING, STATUTE OR COMMON LAW, INCLUDING ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, TITLE, AND NONINFRINGEMENT. WITHOUT LIMITING THE ABOVE, SELLER MAKES NO REPRESENTATION OR WARRANTY CONCERNING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR RELIABILITY OF THE ARTWORK OR ANY INFORMATION OR CONTENT DISPLAYED IN CONNECTION WITH THE NFT[, OR ANY EXPERIENCES,] OR THAT THE NFT AND ARTWORK[, OR EXPERIENCES] WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS.
- SELLER WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY CLAIMS OR LOSSES THAT ARISE OUT OF OR ARE RELATED TO ANY FAILURE OR ABNORMAL BEHAVIOR OF ANY SOFTWARE OR SYSTEMS THAT SUPPORT OR ARE OTHERWISE ASSOCIATED WITH THE NFT OR ARTWORK[, OR THE EXPERIENCES], INCLUDING ANY MEDIA SERVERS, CRYPTO WALLETS, SMART CONTRACTS, BLOCKCHAINS, NODE COMMUNICATIONS, THIRD-PARTY MARKETPLACES, OR OTHER DISTRIBUTED LEDGER TECHNOLOGIES. FURTHER, SELLER ACCEPTS NO RESPONSIBILITY OR LIABILITY FOR ANY CLAIMS OR LOSSES THAT ARISE OUT OF OR ARE OTHERWISE RELATED TO: (I) ERRORS SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED ADDRESSES; (II) SERVER FAILURE OR DATA LOSS; (III) CORRUPTED CRYPTOGRAPHIC FILES, INCLUDING THOSE RELATING TO YOUR CRYPTO WALLET; (IV) THE BEHAVIOR OR OUTPUT OF ANY SOFTWARE OR HARDWARE, INCLUDING ANY FEATURES, DEVELOPMENT ERRORS, OR OTHER ISSUES OF ANY MEDIA SERVER, BLOCKCHAIN OR CRYPTO WALLET; (V) ANY OTHER UNAUTHORIZED THIRD-PARTY ACTIVITIES; OR (VI) THE USE OF ANY SOFTWARE, HARDWARE OR OTHER MEANS, INCLUDING ANY VIRUS, WORM, MALWARE, MALICIOUS OR OTHER HARMFUL
COMPUTER CODE, THE PURPOSE OR EFFECT OF WHICH IS TO DESTROY, DISRUPT, DISABLE, DISTORT, OR OTHERWISE HARM OR IMPEDE IN ANY MANNER THE SECURITY OR INTEGRITY OF THE SOFTWARE AND SYSTEMS THAT SUPPORT OR ARE OTHERWISE ASSOCIATED WITH THE NFT OR ARTWORK[,OR THE EXPERIENCES], INCLUDING ANY MEDIA SERVERS, CRYPTO WALLETS, SMART CONTRACTS, BLOCKCHAINS, NODE COMMUNICATIONS, THIRD-PARTY MARKETPLACES, OR OTHER DISTRIBUTED LEDGER TECHNOLOGIES.
- THE NFT IS A DIGITAL ASSET. IT EXISTS ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE APPLICABLE BLOCKCHAIN NETWORK AND ITS ASSOCIATED DISTRIBUTED LEDGER. ANY TRANSFER OF TITLE TO ANY DIGITAL ASSET, SUCH AS THE NFT, OCCURS ON A PUBLIC BLOCKCHAIN'S DISTRIBUTED LEDGER WITHIN SUCH BLOCKCHAIN'S NETWORK, WHICH SELLER DOES NOT OWN OR CONTROL. ACCORDINGLY, SELLER MAKES
NO REPRESENTATIONS, WARRANTIES, OR GUARANTIES THAT SELLER OR ANY THIRDPARTY MARKETPLACE CAN EFFECT TRANSFER OF ANY RIGHT, TITLE, OR INTEREST IN OR TO THE NFT. YOU BEAR FULL RESPONSIBILITY FOR VERIFYING THE IDENTITY, LEGITIMACY, AND AUTHENTICITY OF ASSETS YOU PURCHASE THROUGH THIRD-PARTY MARKETPLACES, INCLUDING THE NFT. NOTWITHSTANDING ANY INDICATORS AND MESSAGES THAT MAY SUGGEST THE IDENTITY, LEGITIMACY, OR AUTHENTICITY OF THE NFT, SELLER MAKES NO CLAIMS CONCERNING, NOR ANY REPRESENTATION, WARRANTY, OR GUARANTEE PERTAINING TO, THE IDENTITY, LEGITIMACY, OR AUTHENTICITY OF ASSETS AVAILABLE ON OR THROUGH ANY THIRD-PARTY MARKETPLACES, INCLUDING WITH RESPECT TO THE NFT OR ANY TRANSACTION THAT SELLER OR YOU MAY CONDUCT OR OTHERWISE ENGAGE IN ON OR THROUGH SUCH THIRD-PARTY MARKETPLACES.
- SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES INCONSUMER CONTRACTS. AS A RESULT, THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
- THE NFT AND ARTWORK[, AND ANY EXPERIENCES,] ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTY OF ANY KIND AND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, SELLER HEREBY EXPRESSLY DISCLAIMS ANY ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER ARISING OUT OF TRADE USAGE, COURSE OF DEALING, STATUTE OR COMMON LAW, INCLUDING ANY WARRANTY OF MERCHANTABILITY,
- Indemnities. Without limiting any other provision of this Agreement, You shall indemnify, defend, and hold harmless Seller, its parents, subsidiaries and affiliates, and its and their respective officers, directors, managers, members, employees, agents, representatives, successors, and assigns (with Seller, each a Seller Party, and collectively, the Seller Parties) from and against any and all actual or alleged demands, allegations, claims, suits, actions, or other proceedings (collectively, Claims) and any related orders, awards, fines, penalties, settlements, costs, expenses, damages, liabilities, judgments, or other losses, including reasonable attorneys' fees (collectively, Losses), that arise out of or are related to Your: (a) purchase, ownership, sale, assignment, donation, or any other transfer or use of, or interaction with, the NFT or Your use of any Artwork[, or your redemption of any Experiences]; (b) alleged or actual breach of this Agreement, including Sections 1. (Ownership), 2. (License Grant and Restrictions), and 3. (Additional Terms); (c) alleged or actual violation of any applicable Laws in connection with any of Your uses of or interactions with the NFT or Artwork[, or any Experiences]; or (d) fraud, misconduct, or other misrepresentation in connection with the NFT or Artwork[, or any Experiences]. The above indemnities, however, do not apply to Claims or Losses arising solely from Seller's fraud, gross negligence, or willful misconduct. You shall not settle or otherwise compromise any Claim without Seller's prior written consent.
- Limitations of Liability.
- Excluded Damages. TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER SELLER NOR ANY OTHER SELLER PARTIES WILL BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE NFT OR ARTWORK[, OR ANY EXPERIENCES], WHETHER ARISING UNDER STATUTE, COMMON LAW, COURSE OF DEALING, TRADE USAGE, OR UNDER ANY OTHER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION ARE FUNDAMENTAL TO THIS AGREEMENT AND THAT SELLER WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR THE TERMS AND CONDITIONS IN THIS SECTION 8..
- Liability Cap. IN NO EVENT SHALL THE TOTAL AMOUNT OF DAMAGES FOR WHICH SELLER SHALL BE LIABLE IN CONNECTION WITH ANY AND ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NFT OR ARTWORK[, OR ANY EXPERIENCE], EXCEED,
IN THE AGGREGATE: [Optional: (A) THE TOTAL AMOUNT OF FEES RECEIVED BY SELLER FROM THE SALE OF THE NFT, IF YOU PURCHASED OWNERSHIP OF THE NFT DIRECTLY FROM SELLER; OR (B) THE TOTAL AMOUNT OF THE RESALE ROYALTY, IF ANY, IF YOU ACQUIRED OWNERSHIP OF THE NFT FROM ANY PARTY OTHER THAN SELLER] / [Optional: $[DOLLAR AMOUNT]USD].
- Dispute Resolution.
- Arbitration and Class Action Waiver Disclaimer. BY PURCHASING OR OTHERWISE ACCEPTING OWNERSHIP OF THE NFT, [REDEEMING OR ATTENDING ANY EXPERIENCE,] OR ACCESSING OR USING ANY OF THE ARTWORK, YOU AGREE TO RESOLVE ANY DISPUTE BETWEEN YOU AND SELLER ARISING OUT OF OR RELATING TO THE NFT OR ARTWORK[, OR ANY EXPERIENCE] BY INDIVIDUAL BINDING ARBITRATION, AS DESCRIBED IN THIS SECTION.PLEASE READ THESE DISPUTE RESOLUTION PROVISIONS CAREFULLY, AS THEY AFFECT YOUR RIGHTS AND WILL IMPACT THE RESOLUTION OF ANY CLAIMS THAT YOU AND SELLER MAY HAVE AGAINST EACH OTHER.
- Mandatory Arbitration. You hereby agree that any Claim or dispute between You and Seller, whether brought by You or by Seller, arising out of or relating in any way to this Agreement, the NFT or any Artwork[, or any Experience] (including whether a valid arbitration agreement exists and whether it covers the Claim or dispute) must be resolved through final, binding arbitration, except that either You or Seller may: (a) assert claims in small claims court if those claims qualify under applicable law; and (b) seek equitable relief in a court of competent jurisdiction in accordance with Section (i) (Equitable Relief). This arbitration obligation applies regardless of whether the Claim or dispute involves a warranty, tort, fraud, misrepresentation, product liability, negligence, violation of a statute, or any other legal theory. The arbitrator, and not any federal, state, or local court, will have exclusive authority to resolve any dispute relating to the interpretation, applicability, scope, unconscionability, arbitrability, enforceability, or formation of this arbitration provision, including any claim that all or any part of this arbitration provision is void or voidable. There is no judge or jury in arbitration, the arbitration will be subject to different rules than the rules that would apply in court, and court review of arbitration awards is very limited. An arbitrator can award, on an individual basis, the same damages and other relief as a court (including injunctive and declaratory relief and statutory damages), and must follow this Agreement, as a court would.
- Class Action Waiver. All arbitrations under this Agreement shall be conducted on an individual, and not on a class-wide, basis, and an arbitrator shall have no authority to certify a class or award classwide relief. The arbitrator is authorized only to award relief on behalf of the individual parties and only to the extent of their individual claims. You acknowledge and agree that unless Seller and You otherwise agree in writing, You may not seek to, and an arbitrator or court may not, join or consolidate Your claims with any other similar claims. You agree that You will not proceed in any court or arbitration proceedings as a representative of others (including in the capacity of a private attorney general), join in any court or arbitration proceedings brought by any other person, and understand that You may not be included as a member of any class that may be certified by a court or arbitrator. Your waiver of rights to bring or participate in court proceedings and as a representative or member of a class applies specifically, but is not limited to, claims brought under California's Unfair Competition Law, False Advertising Act and its Consumer Legal Remedies Act, Ohio's Unfair and Deceptive Trade Practices Act and any other state consumer protection Laws.
- Arbitration Procedures. Before commencing any arbitration proceedings under this Agreement, a party must first send to the other a written notice of dispute (Notice). Your Notice to Seller must be sent to Seller at [address]. Seller may send Notice to You using any contact information You provided to Seller (if you have not provided any such information to Seller, then Seller has no obligation to provide any Notice to You). If a party's claim is not resolved within sixty (60) days of delivery of the applicable Notice, You or Seller may commence arbitration proceedings in accordance with this Agreement. The arbitration will be conducted by a single, neutral arbitrator administered by JAMS or its successor (JAMS) and conducted pursuant to the then-current Streamlined Arbitration Rules and Procedures (available at https://www.jamsadr.com/rules-streamlined-arbitration/) and, if You are an individual, in accordance with JAMS' Consumer Arbitration Minimum Standards (available at https://www.jamsadr.com/consumer-minimum-standards/) (as applicable, the JAMS Rules). If the JAMS Rules conflict with any portion of this Agreement, this Agreement shall control. You and Seller shall mutually agree on a neutral arbitrator, provided that if the parties cannot agree on an arbitrator within ten (10) days, then JAMS will choose the arbitrator. The arbitration must be conducted in [city], [state], except that if You are an individual the arbitration may be conducted in the county or parish of Your primary residence, provided that both parties agree. You or Seller also may choose to have the arbitration conducted by telephone or other electronic means (e.g., video conference), based on written submissions, or in-person at another mutually agreed location. Payment of all filing, administration, and arbitrator fees will be governed by the JAMS Rules.
- Arbitration Awards and Costs. The arbitrator shall apply the governing law as provided in Section (g) (Choice of Law), except that the interpretation and enforcement of this arbitration provision shall be governed by the Federal Arbitration Act. The arbitrator shall be empowered to award the prevailing party any remedy available at law or in equity that is not otherwise specifically precluded by this Agreement, including injunctive or declaratory relief, specific performance, and damages. The arbitrator's award will consist of a written statement stating the disposition of each Claim or dispute. The award also will provide a concise written statement of the essential findings and conclusions on which the award is based. Each party shall pay its own fees and costs of its own attorneys, experts, and witnesses incurred in connection with any arbitration or court proceeding between the parties, notwithstanding any provision awarding attorneys' fees to a prevailing party that may be a part of any statute under which You or Seller may bring a Claim or dispute. The award of the arbitrator may be entered as a judgment in any court of competent jurisdiction.
- Jury Waiver. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, THE PARTIES EXPRESSLY AND IRREVOCABLY WAIVE ANY RIGHT TO A JURY TRIAL.
- Choice of Law. This Agreement shall be governed by, and construed in accordance with, the law of the [state] and applicable federal law, without regard to any conflict of laws principles. To the extent that any Claim or dispute is not subject to arbitration under this Section 9., such dispute must be resolved exclusively through an action brought in the appropriate state or federal court located in [city], [state] and both parties irrevocably and unconditionally consent to the jurisdiction and venue of such courts for the adjudication of any non-arbitrable claims and waive any objection to such courts on any basis, including inconvenience of the forum. The parties hereby expressly waive the right to a jury trial in connection with any such lawsuit and agree that no such lawsuit can be brought as a class action or other representative action.
- Contractual Limitations Period. YOU MUST FILE A COMPLAINT WITH JAMS OR A PERMITTED COURT WITHIN ONE YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENTS OR FACTS GIVING RISE TO A CLAIM OR DISPUTE, OR YOU WAIVE THE RIGHT TO PURSUE ANY SUCH CLAIM OR DISPUTE BASED ON SUCH EVENTS OR FACTS.
- Equitable Relief. Notwithstanding any other provision in this Section 9., the parties acknowledge and agree that a breach of this Agreement, including Sections 1. (Ownership), 2. (License Grant and Restrictions), and 3. (Additional Terms), may cause irreparable harm to the non-breaching party, for which an award of damages would not be adequate compensation. Accordingly, You and Seller agree that, in the event of any such breach or threatened breach, either party will be entitled to equitable relief, including in the form of a restraining order, orders for preliminary or permanent injunction, specific performance, and any other relief that may be available from any court of competent jurisdiction, without any requirement to secure or post any bond or show any actual monetary damages. These remedies are not exclusive and are instead in addition to all other remedies available under this Agreement at law or in equity.
- Child Safety. You must be at least eighteen (18) years or older to accept ownership of or otherwise use or interact with the NFT. Minors under eighteen (18) and at least thirteen (13) years of age are only permitted to accept ownership of or otherwise use or interact with the NFT through a crypto wallet or other authorized and legal method owned by a parent or legal guardian, with their appropriate permission and under their direct supervision. Children under thirteen (13) years of age are not permitted to accept ownership of or otherwise access or engage with the NFT. By accepting ownership of or otherwise using or interacting with the NFT, You represent and warrant that you are in compliance with this Section (a).
- Export Controls. The NFT and any related or supporting software or systems, including any media servers, crypto wallets, smart contracts, blockchains, node communications, third-party marketplaces, or other distributed ledger technology, may be subject to U.S. export control Laws, including the Export Administration Regulations. You represent and warrant that: (a) you are not on the list of Specially Designated Nationals maintained by the U.S. Office of Foreign Assets Control or on any other U.S. government list of prohibited or restricted parties and are not owned or controlled by any person on such a list; and (b) you are not a resident of, or located in, any country or territory against which the U.S. maintains comprehensive sanctions (such as Cuba, Iran, Syria, North Korea, and the Crimea Region of Ukraine). You shall not, and shall not permit others to, directly or indirectly, export, reexport, or release the NFT or any related or supporting software or systems in or to any person, country, or territory that is prohibited from receiving them under applicable Laws, including any country subject to comprehensive sanctions or any individual or entity included on any U.S. government list of prohibited or restricted parties.
- Assignment. This Agreement will be binding upon, and will inure to the benefit of, the parties and their permitted successors and assigns. You may transfer this Agreement or any rights or obligations under it only to a third-party transferee that accepts ownership of the NFT and all of the terms and conditions of this Agreement in accordance with Section (b) (Effect of Transfer) above. Seller may transfer this Agreement without Your consent and after any such transfer, shall have no continuing obligation or liability to You.
- Independent Contractors. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party has authority to contract for nor bind the other party in any manner whatsoever.
- Amendment; Waiver. Seller may amend this Agreement at any time in its sole and absolute discretion; provided, that Seller shall provide reasonable notice to You of any material amendments to this Agreement through reasonable public means (i.e., public post on a social media network, through any websites associated with the NFT or Artwork that are owned or controlled by Seller, on any third-party site that hosts the Artwork, or on any third-party marketplace through which the NFT is sold). Your continued exercise of any license rights or other rights granted under this Agreement, including Your access to or use of any Artwork[ or redemption of any Experiences] after notice of an amendment has been posted constitutes Your acceptance of the amendment. No waiver by either party of any of the provisions of this Agreement will be effective unless explicitly stated in writing and signed by the waiving party. Except as otherwise expressly stated in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver; nor will any single or partial exercise of any right, remedy, power, or privilege preclude any other or further exercise, or the exercise of any other right, remedy, power, or privilege.
- Severability. If any court of competent jurisdiction determines that any provision of this Agreement is illegal, unenforceable, or invalid, such illegality, unenforceability, or invalidity shall not affect any other provision and all remaining provisions shall continue in full force and effect.
- Interpretation. The headings used in this Agreement will not affect the interpretation of this Agreement. Terms defined in the singular shall include the plural and vice versa; the words "include," "includes" and "including" shall be deemed to be followed by the words "without limitation"; the word "or" is not exclusive; and variants of the defined terms have the meanings the context requires.
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