Terms of Use
These Terms of Use (“Terms”) set forth the terms and conditions applicable to certain Digital Collectibles (as defined below) made available for minting or purchase on a website (“Website”) operated by Operator, LLC, a Wyoming limited liability company (“Operator”), or at Operator’s direction. By acquiring any non-fungible blockchain-based digital token (“NFT”) associated with Operator-Owned Content (as defined below) through the Website or by subsequently acquiring any such NFT from any previous owner of the NFT, you agree to be bound by these Terms.
1. Each NFT made available by Operator through the Website 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 Website 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 Operator, including where Related Content is licensed to Operator for these purposes (“Operator-Owned Content”). The description on the Website 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 Operator-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 Operator), Operator grants you a limited, personal, non-exclusive, non-sublicensable, worldwide license under any copyright owned or held by Operator in any Operator-Owned Content to copy, display and perform the Operator-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 Operator-Owned Content. There are no other license rights, whether express or implied, with respect to any of the Operator-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 Operator. 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:
Exercise any of the license rights granted herein in any way that results in direct or indirect, compensation, financial benefit or commercial gain of any kind (other than directly from a sale of an NFT you own) to you or any third party, whether currently realized or to be provided in the future and regardless of the nature thereof (whether monetary, conveyance of assets, in-kind products or services or other item or service of value);
Crop, distort, manipulate, reconfigure, mimic, animate, edit, extract portions, frame grab, change the pitch or speed of, intentionally alter the color of the Operator-Owned Content, or otherwise create derivative works based on the Operator-Owned Content;
Grant any sublicense of any license rights herein;
Delete, remove or obscure any trademark notice, copyright notice or other intellectual property notice in any Operator-Owned Content;
Exercise any license rights herein to create, endorse, support, promote or condone any content, material or speech that is defamatory, obscene, pornographic, indecent, abusive, offensive, harassing, violent, hateful, racist, discriminatory, inflammatory or otherwise objectionable or inappropriate as determined by Operator at its discretion;
Reverse engineer, decompile or attempt to discover the source code for any NFT or Operator-Owned Content except to the extent that applicable law permits you to do so notwithstanding this prohibition; or
Use any Operator-Owned Content in any manner not expressly authorized herein or exercise any license rights herein in any manner that violates applicable law.
5. Operator retains all right, title and interest in the Operator-Owned Content and all copyright or other intellectual property rights in any Operator-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 Operator-Owned Content. Without limiting the foregoing, the Operator-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 Operator 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 Operator and its Affiliates. An “Affiliate” of Operator is (i) Ania Catherine, (ii) Dejha Ti, or (iii) any person or entity that controls, is controlled by or is under common control with Operator whether now or in the future, and where “control” means ownership of 50% or more of the shares or other ownership interest if an entity or the ability to direct the management or policies of an entity.
6. You understand that Operator and its Affiliates will continue to further modify and develop on any Operator-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:
Any of Operator, any Affiliate of Operator or any of their respective shareholders, directors, officers, employees, contractors, representatives, agents, licensees, distributors, resellers, or business partners,
Any customers of any of the foregoing, or
Any successor or assign of any of the foregoing.
7. You will not:
Create, sell or attempt to create or sell, fractionalized interests in the NFT or the Digital Collectible,
Separate, unlink or decouple the Operator-Owned Content from the NFT with which it is associated to form the Digital Collectible, or
Use any Operator-Owned Content to create, sell or attempt to create or sell any new cryptographic token.
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:
Such transfer is conducted through a marketplace or other platform that cryptographically verifies that you are the actual owner of the applicable NFT;
Such transfer must comply with any applicable terms of the marketplace or other platform on which such sale or other transfer takes place and any applicable laws, regulations, regulatory guidance, and rules; and
After such transfer, your right to display and perform the Operator-Owned Content and all other license rights under these Terms will immediately and automatically terminate without notice.
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 Operator-Owned Content and any other associated services, you acknowledge and agree that Operator 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 Operator may provide to you or post on its Website, as updated from time to time.
12. From time to time at their discretion, Operator 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”). None of Operator or any third party has any 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 Operator as an Additional Benefit will be licensed on the same terms set forth herein for, and will otherwise be treated as, Operator-Owned Content. Any physical item provided as an Additional Benefit is not part of the Operator-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. Operator will have no responsibility or liability, and you hereby waive and release any and all claims, arising out of or in connection with:
Any blockchain or related technology;
Any digital wallet technology (including MetaMask or any other provider), similar technology or related service;
The transfer or loss of any NFT or the inability to demonstrate ownership or control of any NFT;
Any marketplace or other platform for buying, selling or transferring any NFT including, if applicable, the Website;
Any platform or service provided by any third party or any technology related thereto;
Any Additional Benefit provided by any third party, or any terms or conditions applicable to any such Additional Benefit;
Any computer, server, network device or other hardware or any Internet service provider or other telecommunications service or hardware; or
Any other service, equipment, technology or network or data transfer infrastructure not owned and controlled by Operator.
14. You will indemnify and hold harmless, and at Operator’s request defend, Operator and its 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 Operator-Owned Content, your ownership or transfer of any NFT, or exercise of any license rights hereunder by you.
15. OPERATOR AND ITS AFFILIATES MAKE DIGITAL COLLECTIBLES, NFTS AND OPERATOR-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 OPERATOR OR ITS 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 OPERATOR AND ITS 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 Operator 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 the Operator-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 Operator-Owned Content. Operator may disable MetaMask or similar functionality for the affected Operator-Owned Content, prohibit any platform or service from retrieving or rendering any such Operator-Owned Content in connection with the services they provide and take other steps to prevent unauthorized use of any Operator-Owned Content. Operator 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 Operator-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 Operator with respect to the subject matter hereof and supersede any and all prior or contemporaneous written or oral agreements or understandings between you and Operator relating to any NFT, Operator-Owned Content or Digital Collectible.
20. These Terms will be construed in accordance with the laws of the state of Wyoming 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 Massachusetts 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 Operator. 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 Operator 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 Operator'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.