Last Updated/Effective Date: February 18, 2022
These terms and conditions constitute a legally binding agreement (“Agreement” or “Terms”) between you (“you,” “your,” and similar forms) and Blockchain Creative Labs, LLC (“BCL,” we,” “us,” or similar forms), governing your License of certain Licensed Content for incorporation into and association with Licensed NFTs. By uploading any content to the webpage currently located at sxswcreators.bcl.xyz or sxsw.bcl.xyz (“Website”) or as part of the Creator Content Program, you consent to treatment of such content and all compilations, derivatives, selections, synchronizations, and groupings thereof as Licensed Content and expressly acknowledge that you have read, understand, and agree to be bound by these terms. If you do not understand or agree to the terms of this Agreement, you may not upload content for treatment as Licensed Content.
PLEASE READ THESE TERMS CAREFULLY BEFORE UPLOADING CONTENT TO THE WEBSITE. IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO ACCEPT THESE TERMS ON THAT ENTITY’S BEHALF, IN WHICH CASE “YOU” WILL MEAN THAT ENTITY.
THIS AGREEMENT CONTAINS PROVISIONS LIMITING LIABILITY AND REQUIRING YOU TO SUBMIT ANY DISPUTES WITH BCL PARTIES ARISING OUT OF OR RELATING TO THIS AGREEMENT TO ARBITRATION ON AN INDIVIDUAL BASIS AND TO WAIVE ALL RIGHTS TO BRING SUCH DISPUTES IN COURT, BEFORE OR A JURY, OR AS A CLASS, COLLECTIVE, OR OTHER REPRESENTATIVE ACTION OR PROCEEDING. BY UPLOADING CONTENT TO THE WEBSITE OR AS PART OF THE CREATOR CONTENT PROGRAM YOU ARE CONFIRMING THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY THE ARBITRATION AGREEMENT AND DISCLAIMERS SECTION.
- “BCL Parties” means BCL and each of its parent, subsidiary, and affiliate companies, and each of their respective officers, directors, members, affiliates, agents, attorneys, licensees, licensors, and employees.
- “Licensed Content” means media content that you upload to the Website, regardless of format, including video, photographic, sound, or other content, and all compilations, derivatives, selections, synchronizations, and groupings thereof.
- “Primary Net Revenue” means any amounts of the cryptocurrency USDC actually received by BCL from its initial, direct sales of Licensed NFTs (“Primary Gross Revenue”), less (at BCL’s discretion): (i) adjustments, returns, or chargebacks; (ii) any electronic processing fees, including gas fees, paid by BCL relating to the sale; (iii) sales taxes to government authorities actually paid and associated with BCL’s sale or distribution of the Licensed NFTs; (iv) any other direct expenses incurred in receiving Primary Gross Revenue. For the avoidance of doubt, amounts received by BCL from its initial, direct sales of Licensed NFTs received in fiat currency or cryptocurrency other than the cryptocurrency USDC shall not be included in Primary Net Revenue.
- “Secondary Net Revenue” means any amounts of the cryptocurrency USDC actually received by BCL as royalties from secondary sales of Licensed NFTs, including on third-party platforms (“Secondary Gross Revenue”), less (at BCL’s discretion): (i) any electronic processing fees, including gas fees, paid by BCL relating to the secondary sale; and (ii) any other direct expenses incurred in receiving Secondary Gross Revenue. For avoidance of doubt, Secondary Gross Revenue shall only include amounts actually received by BCL and shall not include amounts received by BCL in any fiat currency or cryptocurrency other than the cryptocurrency USDC. The mechanics of royalty collection on secondary NFT sales remain uncertain, and BCL cannot guarantee the ability to collect any Secondary Gross Revenue or Secondary Net Revenue or any amounts thereof.
- You hereby irrevocably grant BCL an exclusive, worldwide, perpetual, irrevocable, assignable, sublicensable right and license (the “License”), but not the obligation, to use and exploit the Licensed Content for association with and design, development, minting, marketing, drop, sale, auction, distribution, exploitation, advertisement, marketing, promotion, and publicization of non-fungible tokens (“Licensed NFTs”) for distribution by BCL in a manner and at a time of BCL’s sole discretion, including in connection with the 2022 South by Southwest Conference and Festival. BCL has sole discretion as to the design and distribution of any Licensed NFTs, including as to smart contract design, coding, blockchain selection, selection, compilation, synchronization, and creation of derivative works with Licensed Content, means of association with such Licensed NFTs, and methods of sale or distribution, including on BCL or third-party platforms. You agree and understand you will have no approval rights in the above.
- With respect to any Licensed NFT sold or distributed by BCL, regardless of the means of sale or distribution, you irrevocably grant the owner of the Licensed NFT a worldwide, perpetual, irrevocable (by you) license (“Owner License”) to use, copy, and display the Licensed Content for the following purposes: (i) the owner’s personal, non-commercial use; (ii) as part of a marketplace that permits the purchase and sale of Licensed NFTs, provided that the marketplace cryptographically verifies each Licensed NFT owner’s rights to display the associated Licensed Content to ensure only the actual owner can display the Licensed Content; or (iii) as part of a third-party website or application that permits the inclusion, involvement, or participation of Licensed NFTs, provided that the website or application cryptographically verifies each Licensed NFT owner’s rights to display the associated Licensed Content to ensure only the actual owner can display the Licensed Content.
- The owner of any Licensed NFT has the right to transfer any Licensed NFT subject to terms provided by BCL. The Owner License applies only to the current owner of any Licensed NFT, passes with transfer of the Licensed NFT to each subsequent owner, and terminates in the previous owner. The Owner License is also subject to certain Terms and Conditions.
- For any Licensed NFTs created from your Licensed Content and sold directly by BCL, if you provide BCL with a valid Ethereum public address at the time you submit the Licensed Content, within thirty (30) days of the sale, BCL will transmit to that address USDC corresponding to ninety percent (90%) of the Primary Net Revenue. If you do not provide BCL with a valid Ethereum public address at the time you submit the Licensed Content, you will receive no share of and will have no entitlement to any Primary Net Revenue.
- For any Licensed NFTs created from your Licensed Content, if you provided BCL with a valid Ethereum public address at the time you submit the Licensed Content, within ninety (90) days of receipt of Secondary Gross Revenue, BCL will transmit to that address USDC corresponding to five percent (5%) of that Secondary Net Revenue. BCL reserves the rights to make any payments of Secondary Net Revenue on a periodic basis. If you do not provide BCL with a valid Ethereum public address at the time you submit the Licensed Content, you will receive no share of and will have no entitlement to any Secondary Net Revenue. For avoidance of doubt, the mechanics of royalty collection on secondary NFT sales remain uncertain, and BCL cannot guarantee the existence or amount of any Secondary Gross Revenue or Secondary Net Revenue for distribution to you.
4. Ownership of Rights.
BCL or its licensors own all right, title, and interest in and to (i) all aspects of the Licensed NFTs apart from the Licensed Content and any web-based platform used to ingest or receive the Licensed Content or distribute, sell, use, or display the Licensed NFTs, including any software code, designs, algorithms, and look and feel of such platforms (ii) all of its trademarks, service marks, trade names, logos, and other indicia of branding. BCL shall be considered, forever and for all purposes throughout the universe, the author and sole copyright owner of the Licensed NFTs apart from the Licensed Content. To the extent required, you hereby grant, transfer, sell, and assign to BCL all copyright and ownership rights in the Licensed NFTs, apart from the Licensed Content, of every kind and nature whether now or hereafter known or created which may not have so vested throughout the universe in perpetuity. You hereby waive any so-called “moral rights of authors” and “droit moral” rights (and any similar or analogous rights under the applicable laws of any country of the world) that you may have in the Licensed NFTs, apart from the Licensed Content. You agree, upon request, to execute, acknowledge, and deliver to BCL or its designee such additional documents consistent herewith as BCL may deem necessary to evidence, maintain, or protect its rights hereunder, failing which you hereby designate BCL as your attorney-in-fact (such designation irrevocable and coupled with interest) for the limited purpose of executing such documents. BCL will provide you with copies of any documents that are so executed, provided that a casual or inadvertent failure to provide such copies will not constitute a breach of this Agreement or affect the validity of such documents.
All use of Licensed NFTs as contemplated under this Agreement inures to the benefit of BCL. You shall not acquire any rights in the Licensed NFTs (excluding the Licensed Content) by virtue of any use as contemplated herein. You hereby assign to BCL any and all trademarks and trademark rights in the Licensed NFTs (excluding the Licensed Content).
6. Creator Content Program.
- You may receive an email from us offering to take certain content you provide (“Creator Content”) and turn it into a compilation, derivative, selection, synchronization, or grouping for your use as Licensed Content (the “Creator Content Program”). If so, by responding to the email and providing us with content you agree to the terms of this Agreement, including this Section.
- Under the Creator Content Program, we will take Creator Content and turn it into a compilation, derivative, selection, synchronization, or grouping, which you hereby agree to use and submit, without alteration, as Licensed Content, and for no other purpose.
- By participating in the Creator Content Program, you irrevocably grant BCL an exclusive, worldwide, perpetual, irrevocable, assignable, sublicensable right and license, but not the obligation, to turn your Creator Content, in a manner determined in BCL’s sole discretion, into a compilation, derivative, selection, synchronization, or grouping for your use as Licensed Content. You agree and understand you will have no approval rights in the above.
- By participating in the Creator Content Program you represent and warrant that you have the right and authority to grant the rights to Creator Content licensed herein.
- For avoidance of doubt, BCL has no obligation to turn any Creator Content into a compilation, derivative, selection, synchronization, or grouping for use and submission as Licensed Content and may refuse to do so for any reason in BCL’s sole discretion, including if use as Licensed Content would violate any provision of this Agreement. Additionally, BCL’s acceptance of Creator Content for use in the Creator Content Program shall not constitute BCL’s acknowledgment that any resulting Licensed Content complies with the provisions of this Agreement, nor shall it constitute BCL’s waiver of any argument to the contrary or of any other provision of this Agreement.
7. Representations and Warranties.
By entering into this Agreement, you represent and warrant the following: (i) you have the full power and authority to enter into this Agreement and perform its obligations hereunder; (ii) this Agreement constitutes a valid and binding obligation of each Party enforceable against it in accordance with its terms; (iii) you will at all times comply with all obligations under this Agreement; (iv) you have the right and authority to grant the rights to Licensed Content licensed herein subject to the License, Owner License, and other terms hereof; (v) none of the rights to Licensed Content as licensed pursuant to the License, Owner License, and this Agreement for the uses herein infringe upon the intellectual property rights of any other person or violate applicable law; (vi) you have not granted to any third party a right, title, or interest that conflicts with the rights granted herein with respect to the Licensed Content; and (vii) the Licensed Content does not contain, consist of, reference, or depict hatred, intolerance, violence, cruelty, or anything else that could reasonably be found to constitute hate speech or otherwise infringe upon the rights of others, drugs (including, without limitation, both prescription and nonprescription) or other supplements, death, pornography or other “adult only” or sexually explicit activities, massage parlors, prostitution or any dating or escort services, weapons or ammunition, denigration or discrimination against individuals based on race, national origin, gender, religion, disability, ethnicity, sexual orientation, gender identity or age, medical conditions, or political campaigns or causes.
You agree to provide reasonable cooperation to BCL in the enforcement of its rights in the Licensed Content.
9. Disclaimer of Other Warranties.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT ANY SERVICES PROVIDED BY BCL ASSOCIATED WITH THIS AGREEMENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE BCL PARTIES MAKE NO EXPRESS WARRANTIES AND HEREBY DISCLAIM ALL IMPLIED WARRANTIES REGARDING ANY SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, CORRECTNESS, ACCURACY, OR RELIABILITY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE BCL PARTIES DO NOT REPRESENT OR WARRANT TO YOU THAT: (I) ANY SALE, DISTRIBUTION, OR OTHER USE OF LICENSED CONTENT WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (II) ANY SALE, DISTRIBUTION, OR OTHER USE OF THE LICENSED CONTENT WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR; (III) DATA PROVIDED THROUGH SERVICES ASSOCIATED WITH THIS AGREEMENT WILL BE ACCURATE; (IV) ANY LICENSED CONTENT, SERVICES, OR FEATURES MADE AVAILABLE THROUGH SERVICES ASSOCIATED WITH THIS AGREEMENT ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (V) THAT ANY DATA THAT YOU DISCLOSE WILL BE SECURE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN CONTRACTS WITH CONSUMERS, SO SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET AND AGREE THAT WE HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY BREACH OF SECURITY UNLESS IT IS DUE TO OUR GROSS NEGLIGENCE.
WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSSES YOU INCUR AS THE RESULT OF YOUR SUBMISSION OF LICENSED CONTENT, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (I) USER ERROR, SUCH AS FORGOTTEN PASSWORDS OR INCORRECTLY CONSTRUED SMART CONTRACTS OR OTHER TRANSACTIONS; (II) SERVER FAILURE OR DATA LOSS; (III) CORRUPTED FILES; OR (IV) UNAUTHORIZED ACCESS OR ACTIVITIES BY THIRD PARTIES, INCLUDING, BUT NOT LIMITED TO, THE USE OF VIRUSES, PHISHING, BRUTE-FORCING OR OTHER MEANS OF ATTACK AGAINST THE SERVICES OR ANY DIGITAL WALLET OR ADDRESS.
NFTS ARE INTANGIBLE DIGITAL ASSETS THAT EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN ON A DIGITAL LEDGER THAT IS DECENTRALIZED OR MANAGED BY A THIRD PARTY. ALL SMART CONTRACTS ARE DEPLOYED TO AND OCCUR ON THE DIGITAL LEDGER. WE HAVE NO CONTROL OVER AND MAKE NO GUARANTEES OR PROMISES WITH RESPECT TO THE CONTINUED FUNCTIONING OVER ANY BLOCKCHAIN OR DIGITAL LEDGER, INCLUDING THOSE ASSOCIATED WITH THE LICENSED NFTS.
WE ARE NOT RESPONSIBLE FOR LOSSES DUE TO MALFUNCTION, DELAY, DISUSE, OR OTHER FAULT OF BLOCKCHAINS OR ANY OTHER PUBLIC NETWORK OR ANY DIGITAL WALLET. BLOCKCHAIN FORKS OR SIMILAR ACTIONS MAY RESULT IN MULTIPLICATION OF LICENSED NFTS. WE RESERVE THE RIGHT, IN OUR SOLE DISCRETION, TO DETERMINE WHICH BLOCKCHAIN FORK REPRESENTS THE DIGITAL LEDGER ASSOCIATED WITH ANY LICENSED NFTS.
10. Limitation of Liability.
YOU UNDERSTAND AND AGREE THAT THE BCL PARTIES WILL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES WHICH YOU MAY INCUR, HOWSOEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF PROFITS (WHETHER INCURRED DIRECTLY OR INDIRECTLY), LOSS OF GOODWILL OR BUSINESS REPUTATION, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, DIMINUTION OF VALUE OR ANY OTHER INTANGIBLE LOSS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
YOU ACKNOWLEDGE AND AGREE THAT WE HAVE ENTERED INTO THESE TERMS IN RELIANCE UPON THE REPRESENTATIONS AND WARRANTIES, DISCLAIMERS, AND LIMITATIONS OF LIABILITY SET FORTH HEREIN, WHICH REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN US AND YOU AND FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN US AND YOU. WE WOULD NOT BE ABLE TO PROVIDE THE SERVICES TO YOU WITHOUT THESE LIMITATIONS.
YOU ACKNOWLEDGE AND AGREE THAT ANY DAMAGES YOU INCUR ARISING OUT OF THE ACTS OR OMISSIONS OF THE BCL PARTIES OR USE OF THE LICENSED CONTENT ARE NOT IRREPARABLE AND ARE INSUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR OTHER EQUITABLE RELIEF RESTRICTING THE AVAILABILITY OF OR ANY PERSON’S ABILITY TO ACCESS ANY PORTION OF THE SERVICES.
11. Assumption of Risk.
- In entering into this Agreement, you assume the following risks: (A) there may exist no market or other means to transfer or sell Licensed NFTs; (B) to the extent a market or price for Licensed NFTs exists, any sale or resale prices may be volatile and unpredictable, depending on factors such as supply and demand, and no particular price can be guaranteed, promised, or expected; (C) the market or other resale price of Licensed NFTs may be materially impacted or diminished by innumerable variables, including publicity or events concerning the BCL Parties or their brands; (D) there are risks associated with using and purchasing NFTs and other blockchain-based assets, including, but not limited to, the risk of hardware, software, Internet, and blockchain malfunctions, failures, delays, or downtime, the risk that third parties may obtain unauthorized access to Licensed NFTs or to any digital wallets, private keys, or other security devices securing Licensed NFTs, and the BCL Parties will not be held liable for any unauthorized access or theft of Licensed NFTs resulting from any failure to secure them; (E) the BCL Parties cannot guarantee the continued availability of the Licensed NFTs on the Internet; (F) upgrades or changes to one or more blockchains, including forks, may have adverse impacts on the value, resale price, and functionality of Licensed NFTs; (G) the BCL Parties cannot guarantee and make no promises concerning the continued availability, viability, or functionality of any third-party platform, software, or device, including digital wallet providers, NFT platforms, or cryptocurrency exchanges; (H) theft, compromise, or loss of any digital wallets, private keys, or other security devices securing Licensed NFTs may lead to their loss; (I) blockchain transactions may be irreversible, and there is a risk that unintended, unauthorized, or accidental transfers of Licensed NFTs may be irreversible, leading to the loss of Licensed NFTs; (J) the general risks of hacking, security weaknesses, fraud, counterfeiting, cyberattacks, and other technological difficulties; (K) the risk that various laws, whether in current form, amended form, or new form, as currently interpreted or as interpreted in the future, particularly governing blockchain and blockchain-based assets and technologies, may materially impact or eliminate the value, price, or functionality of Licensed NFTs; (L) purchase, use, resale, or other actions concerning your Licensed NFTs may subject you to various taxes, for which you agree to be solely responsible; (M) NFTs and blockchain-based assets may not be considered legal tender by any government; (N) the BCL Parties have no control over and are not responsible or liable for interactions or transactions with third parties, including digital wallet providers, co-branded services providers, payment processors, NFT platforms, or cryptocurrency exchanges.
- In addition to assuming the above risks, you acknowledge that you understand it is your sole responsibility to determine the nature, suitability, and appropriateness of these risks for yourself.
12. Governing Law.
This Agreement and all matters related to it and any Licensed Content and Licensed NFTs shall be governed by the laws of the State of California, without regard to conflict of law principles.
13. Changes to this Agreement.
The BCL Parties may make changes to this Agreement from time to time. When the BCL Parties make such changes, we will make the updated Agreement available at this or another location and update the date on the Agreement accordingly. It is your responsibility to check periodically for such updates. Any changes to this Agreement will apply on the date that they are made.
- Submission of Licensed Content for use in Licensed NFTs is available only to individuals who have the right and authority to enter into this Agreement and are fully able and competent to understand and satisfy its terms, conditions, and obligations.
- By submitting Licensed Content, you represent and warrant that you are at least 18 years old or of the age of majority in your country or territory, whichever is older. You also represent that you are not a person subject to sanctions or other legal restrictions that would prohibit your submission of Licensed Content, by virtue of location in a comprehensively sanctioned jurisdiction, identification on the Office of Foreign Assets Control Specifically Designated Nationals and Blocked Persons List, or otherwise.
You agree to indemnify and hold harmless the BCL Parties and each of their respective parents, divisions, affiliated companies, subsidiaries, distributors, subdistributors, licensees, successors and assigns, the entities exhibiting any of BCL’s programs and other content, each of their sponsors and their advertising agency, and the respective owners, officers, directors, shareholders, agents, and employees of each of them against any third-party claims, actions, demands, suits, losses, costs, liability, and expenses (including reasonable attorney’s fees) allegedly or actually arising out of, relating to, or resulting from the following: (1) your breach of this Agreement; (2) your violation of any applicable law or rights of a third party; (3) use of any Licensed NFTs or Art other than as permitted in this Agreement; (4) other wrongful conduct.
16. Force Majeure.
- We will not be liable or responsible to the you, nor be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any of these Terms, when and to the extent such failure or delay is caused by or results from a Force Majeure Event. For purposes of these Terms, a “Force Majeure Event” shall mean any one or more of the following events beyond the reasonable control of either party: (i) an act of God or public enemy; (ii) war (declared or undeclared); (iii) sabotage; rebellion; riot; act(s) or threatened act(s) of terrorism; or civil commotion; (iv) labor dispute of any kind or nature; (v) embargo; (vi) natural or man-made disaster (e.g., fire, flood, earthquake, landslide, tornado, hurricane, blizzard, volcanic eruption, tsunami, storm, drought, explosion and the like); (vii) natural or man-made epidemic/pandemic (inclusive without limitation of COVID-19; viral outbreaks; public health crises; and/or global health emergencies) and their resulting governmental action, societal restrictions, and/or curtailment or closure of any means of travel, modes of public transit, and/or common carriers); (viii) casualty and/or death; (ix) act(s) of any federal, state, and/or local instrumentality, including, but not limited to, any restriction, declaration, regulation and/or any other action or order that may impact travel, movement, large gatherings, and/or the entertainment industry; (x) the failure, scarcity, or unavailability of necessary equipment, utilities, and other resources (similar or dissimilar); and/or (xi) for any reason with similar consequences, foreseeable or unforeseeable.
17. Arbitration Agreement and Class Action Waiver.
- You agree that any Dispute (as defined herein) between you and the BCL Parties, regarding any aspect of your relationship with the BCL Parties, will be resolved in a binding, confidential, individual, and fair arbitration process, and not in court. Each of you and the BCL Parties agree to give up the right to sue in court.
- The term “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any dispute, claim, demand, count, cause of action, or controversy between you and the BCL Parties, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, or any other intentional tort), or any other legal or equitable theory. The term “Dispute” specifically includes, but is not limited to, any disputes, actions, claims, or controversies between you and the BCL Parties that arise from or in any way relate to or concern any products or services provided by the BCL Parties including but not limited to the Licensed NFTs, this Arbitration Agreement, any other aspect of these Terms (including their applicability and their conformance to applicable law), any billing disputes, and any disputes relating to telephonic, text message, or any other communications either of us received from the other. The only exceptions to this Arbitration Agreement are that (a) each of you and the BCL Parties retain the right to sue in small claims court and (b) each of you and the BCL Parties may bring suit in court against the other to enjoin infringement or other misuse of intellectual property rights. Disputes over whether these exceptions apply shall be resolved by the court in which such action has been brought; all other disputes over arbitrability shall be resolved by the arbitrator.
- Each of you and the BCL Parties also agree to give up the ability to seek to represent, in a class action or otherwise, anyone but each of you.
- There is no judge or jury in arbitration, and court review of an arbitration award is limited. An arbitrator must follow these Terms. The arbitrator, however, can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief, or statutory damages) provided that they are recoverable under these Terms.
- These Terms evidence a transaction in interstate commerce, and thus the Federal Arbitration Act, 9 U.S.C. §§ 1-16, governs the interpretation and enforcement of this Arbitration Agreement. This Arbitration Agreement shall survive termination of these Terms.
- Any arbitration between you and the BCL Parties will be conducted by the Judicial Arbitration and Mediation Services, Inc. (“JAMS”), pursuant to the JAMS Streamlined Arbitration Rules & Procedures effective June 1, 2021 (the “JAMS Rules”), as modified by this agreement to arbitrate. The arbitration shall be conducted by a single, neutral arbitrator, and if you and the BCL Parties involved cannot agree on who that single arbitrator will be, the arbitrator will be appointed pursuant to the JAMS Rules. The JAMS Rules are available on its website at https://www.jamsadr.com/rules-streamlined-arbitration/. The arbitrator is bound by these Terms.
- If either you or a BCL Party wants to arbitrate a claim, you or that BCL Party must first send by mail and email to the other a written Notice of Dispute (“Notice”) that sets forth the name, address, and contact information of the party giving notice, the specific facts giving rise to the Dispute, the claim to which the Notice relates, and the relief requested. Your Notice to the BCL Party must be sent by mail and email to: Fox Corporation, 10201 West Pico Boulevard, Los Angeles, CA 90064, [email protected]. The involved BCL Party will send any Notice to you at the contact information we have for you or that you provide, if any. It is the sender’s responsibility to ensure that the recipient receives the Notice. During the first 45 days after you or we send a Notice to the other, you and we may try to reach a settlement of the Dispute.
- If you and we do not resolve the Dispute within 45 days, either you or we may initiate arbitration in accordance with the JAMS Rules. Further instructions on submitting a Demand for Arbitration may be found at http://www.jamsadr.com/files/Uploads/Documents/JAMS_Arbitration_Demand.pdf. In addition to filing this Demand for Arbitration with JAMS in accordance with its rules and procedures, you must send a copy of this completed Demand for Arbitration to BCL at the address listed above to which you sent your Notice of Dispute.
- You and the BCL Parties agree to abide by the following rules in any arbitration: (i) YOU AND THE BCL PARTIES MAY BRING CLAIMS AGAINST THE OTHERS ONLY IN YOUR OR THEIR INDIVIDUAL CAPACITIES, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE OR MULTI-CLAIMANT PROCEEDING, AND THE ARBITRATOR SHALL HAVE NO POWER TO AWARD CLASS-WIDE RELIEF; (ii) the involved BCL Parties will pay arbitration costs as required by the JAMS Consumer Arbitration Minimum Standards and consistent with this Section; (iii) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law and these Terms; and (iv) each side pays his, her or their own attorneys’ fees, except as otherwise provided in this Section.
- JAMS charges filing and other fees to conduct arbitrations. The arbitration will be conducted in-person in Los Angeles, California or by remote hearing. The BCL Parties and you agree that, if the claims to be arbitrated total less than $10,000 (inclusive of attorneys’ fees), the claim ordinarily should be decided on written submissions only, without a telephonic or in-person hearing.
- Regardless of how the arbitration proceeds, each of you and the involved BCL Party shall cooperate in good faith in the exchange of non-privileged documents and information as necessary in accordance with the JAMS Rules, and the arbitrator shall issue a reasoned written decision sufficient to explain his or her findings and conclusions, which will be part of the arbitration award and admissible in any judicial proceeding to confirm, correct, or vacate the award.
- Each of you and the involved BCL Party may incur attorneys’ fees during the arbitration. Each side agrees to pay his, her, or their own attorneys’ fees unless the claim(s) at issue permit the prevailing party to be paid its attorneys’ fees, and in such instance, the fees awarded shall be determined by the applicable law(s). In addition, if the arbitrator, at the request of the winning party, finds that the losing party brought a claim or asserted a defense frivolously or for an improper purpose, then regardless of the amount in dispute, the arbitrator must order the losing party to pay both sides’ arbitration fees and may order the losing party to pay the winning party’s reasonable attorneys’ fees, unless such an award of fees is prohibited by applicable law.
- The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief, only to the extent necessary to provide relief warranted by that party’s individual claim, only as permitted by applicable law, and only to the extent that declaratory and injunctive relief are permitted by these Terms. The arbitrator shall have no authority to award punitive, exemplary, multiplied or consequential damages or any other relief not allowed under these Terms, nor shall the arbitrator have any authority to enter any award that is contrary to or inconsistent with any applicable statute, case law, or constitutional law, nor shall they have any power to modify, change, or excuse performance of any material term of this Agreement. The arbitrator also may not order any involved BCL Party to pay any monies to or take any actions with respect to persons other than you, unless the involved BCL Party explicitly consents in advance, after an arbitrator is selected, to permit the arbitrator to enter such an order. Further, unless the involved BCL Party expressly agrees, the arbitrator may not consolidate other persons’ claims with yours and may not otherwise preside over any form of a representative, multi-claimant or class proceeding.
- You and the BCL Parties agree to maintain the confidential nature of the arbitration proceeding and shall not disclose the fact of the arbitration, any documents exchanged as part of any mediation, proceedings of the arbitration, the arbitrator’s decision and the existence or amount of any award, except as may be necessary to prepare for or conduct the arbitration (in which case anyone becoming privy to confidential information must undertake to preserve its confidentiality), or except as may be necessary in connection with a court application for a provisional remedy, a judicial challenge to an award or its enforcement, an order confirming the award, or unless otherwise required by law or court order. In keeping with the confidential nature of the arbitration, you and the BCL Parties agree that an order confirming award is only necessary if the obligations of the award have not been performed. Therefore, before taking any steps to confirm the arbitration award, the party seeking confirmation of the award must give the other party notice of its intention to confirm the award. If the party who would be the respondent in any such confirmation proceeding performs its obligation under the terms of the arbitration award within 15 business days of such notice, the party who gave notice of its intent to confirm the award shall not seek to confirm or otherwise enforce the award.
- If any part of this Arbitration Agreement is deemed invalid, unenforceable, or illegal, then the balance of this Arbitration Agreement shall remain in effect and be construed in accordance with its terms as if the invalid, unenforceable, or illegal provision were not contained.
You will be solely responsible to pay any and all sales, use, value-added, and other taxes, customs, import or export, or other duties and assessments, as well as any amounts levied in lieu thereof (except taxes on our net income) now or hereafter claimed or imposed by any national, supranational, federal, state, local, or other jurisdiction (collectively “Taxes,” including any interest thereon and penalties in respect thereof) associated with your submission of Licensed Content. Except for income taxes levied on us, you: (a) will pay or reimburse us for all Taxes, including value added taxes and Taxes that are required by international tax treaties, and based on charges set, services performed or payments made hereunder as are now or hereafter may be imposed; and (b) will not be entitled to deduct the amount of any such Taxes from any payment made to us pursuant to these Terms.
20. United States Jurisdiction.
Submission of Licensed Content and any services under this Agreement are available in the United States. BCL does not represent that submission of Licensed Content, sale or other distribution of Licensed NFTs, or any other services described in this Agreement are available or appropriate for use in other locations. If you submit Licensed Content or otherwise enter this Agreement from any jurisdiction other than the United States, you agree that you do so of your own initiative, and you are responsible for complying with local laws as applicable to your submission of Licensed Content and to the other terms of this Agreement.
Submission of Licensed Content, sale or other distribution of Licensed NFTs, and other services described in this Agreement are not available in all jurisdictions, and BCL makes no representation that you will be able to submit Licensed Content, that BCL will sell or distribute Licensed NFTs, or that any other services or terms of this Agreement will be capable of performance in any particular jurisdiction, either within or outside of the United States.
21. Removal of Material that Infringes Copyright.
- The BCL Parties respect the intellectual property of others and require that our users do the same. BCL will respond expeditiously to claims of copyright infringement and reserves the right to remove or disable access to any Licensed Content or other content that infringes the copyright of any person under the laws of the United States upon receipt of a notice that substantially complies with the requirements of 17 U.S.C. §512(c)(3) as set forth below. BCL may also block or terminate access to content submitters who are repeat infringers.
- If you believe that any Licensed Content or other content associated with the Website infringes your copyright, you must send BCL’s designated Copyright Agent a written notification of claimed infringement that contains substantially all of the following information: (i) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (ii) identification of the claimed infringing material and information reasonably sufficient to permit us to locate the material in the Licensed NFTs or Website (such as a URL); (iii) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and an email address; (iv) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (v) a statement by you that the above information in your notification is accurate and a statement by you, made under penalty of perjury, that you are the owner of an exclusive right that is allegedly infringed or are authorized to act on the owner’s behalf; and (vi) your physical or electronic signature. BCL’s Copyright Agent for notification of claimed infringement is: Fox Corporation, Copyright Agent, 10201 West Pico Boulevard, Los Angeles, CA 90064, [email protected], (310) 369-3921.This contact information is exclusively for the purpose of notifying BCL of claimed infringement. Please be advised that requests sent to the Copyright Agent without the appropriate subject line or for purposes other than communication about copyright claims may not be reviewed or responded to.
- If you have submitted Licensed Content or other content that BCL has removed due to a notice of claimed infringement from a copyright owner, BCL will take reasonable steps to notify you that the material has been removed or disabled. This notice may be by means of a general notice on a website or by written or electronic communication to such address(es) you have provided to BCL, if any. You may provide counter-notification in response to such notice in a written communication directed to the Copyright Agent as described above that includes the following: (i) identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled; (ii) a statement by you, under penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; (iii) your name, address, telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located, or if your address is outside of the United States, for any judicial district in which BCL may be found, and that you will accept service of process from the person who provided notification requesting the removal or disabling of access to the material or such person’s agent; and (iv) your physical or electronic signature. Please note that under 17 U.S.C. §512(f), any person who knowingly makes material misrepresentations in a notification of claimed infringement or any counter-notification may be liable for damages.
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
This Agreement sets forth the entire agreement and understanding of the parties hereto with respect to the Licensed Content, the Licensed NFTs, and all subject matters relating thereto, and this Agreement supersedes and nullifies all other statements, agreements, or understandings, oral or written, made between the parties hereto.
24. Relationship of the Parties.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and any BCL Party as a result of these Terms, your submission of Licensed Content, or any use of Licensed NFTs.
25. No Waivers.
Our failure or delay in exercising or enforcing any right or provision of these Terms will not constitute or be deemed a waiver of future exercise or enforcement of such right or provision. The waiver of any right or provision of these Terms will be effective only if in writing and signed for and on behalf of us by a duly authorized representative.
26. Venue, Waiver of Right to Trial by Jury, and Statute of Limitations
Except with respect to Disputes to be resolved through an arbitration process according to these Terms, you and the BCL Parties agree to submit to the exclusive jurisdiction of the state and federal courts of Los Angeles, California to resolve any Dispute arising out of or related to these Terms, your submission of Licensed Content, or any use of Licensed NFTs.
You hereby knowingly, voluntarily, and intentionally waive any right you may have to a trial by jury in respect of any litigation (including, but not limited to, any claims, counterclaims, cross-claims, or third-party claims) arising out of, related to, or in connection with these Terms.
You agree that any cause of action you may have arising out of or related to these Terms, your submission of Licensed Content, or use of Licensed NFTs must be commenced within one (1) year after such cause of action accrues. After such period, such cause of action shall be permanently barred.