TERMS OF SERVICE AND NFT SALE AND DISTRIBUTION
Last Updated, February 21, 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 (a) your use of the website located at sxsw.bcl.xyz and embedded applications (“Website”) and (b) your purchase and/or receipt of NFTs as part of the BCL’s South by Southwest NFT Drop (“SXSW 22 Drop” and “SXSW 22 Drop NFTs”) as well as other NFTs that BCL may transmit from time to time as set forth in this Agreement (“Additional NFTs”) (collectively, the Website, SXSW 22 Drop NFTs, and Additional NFTs referred to as “Services”). By using any Services and by accepting this Agreement, including by signing up for the SXSW 22 Drop, through participation in a proof of attendance protocol requiring acceptance of this Agreement, purchase or receipt of SXSW 22 Drop NFTs, purchase or receipt of Additional NFTs, or otherwise, you 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 use the Services or purchase or receive SXSW 22 Drop NFTs or Additional NFTs.
PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE WEBSITE OR BEFORE BUYING, RECEIVING, TRANSFERRING, OR SELLING SXSW 22 DROP NFTS OR ADDITIONAL NFTS. 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 AND ANY SUBSEQUENT HOLDER OR PURCHASER OF SXSW 22 DROP NFTS OR ADDITIONAL NFTS TO SUBMIT ANY DISPUTES WITH BCL PARTIES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES 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 USING THE SERVICES OR HOLDING OR PURCHASING ANY SXS2 22 DRO NFTS OR ADDITIONAL NFTS YOU ARE CONFIRMING THAT YOU UNDERSTAND AND AGREE TO BE BUND BY THE ARBITRATION AGREEMENT AND DISCLAIMERS SECTION.
We may modify these Terms. Please review the “Last Updated” date at the top of these Terms to see the date of last revision. You agree to periodically review these Terms for updates and revisions and agree to be bound by any such updates and revisions. We may notify you separately of updates and revisions, but such notifications are not a precondition to your agreement to them.
- “Art” means any art, graphics, images, designs, logos, taglines, videos, photographs, or other content and intellectual property that may be associated with a SXSW 22 DROP NFT or Additional NFT that you acquire.
- “Artist” means any creator, owner, or licensor of Art, including BCL.
- “BCL Parties” means BCL, Artists, and each of their parent, subsidiary, and affiliate companies, and each of their respective officers, directors, members, affiliates, agents, attorneys, licensees, licensors, including, without limitation, SXSW, LLC, and employees. For purposes of clarity, all references to BCL Parties shall also apply to SXSW.
- “Licensed NFT” means a SXSW 22 Drop NFT or Additional NFT that you own, including by virtue of purchase in an initial sale, purchase in a secondary sale, or other distribution.
- “Licensed Rights” with respect to a Licensed NFT, for which you are the current rightful owner, has the definition and meaning described in Section 3(1).
- “Name and Likeness” means names, nicknames, images, likenesses, marks, copyrights, trade dress, and all other intellectual properties of BCL and the BCL Parties.
- “SXSW 22 Drop NFT” means a blockchain-based non-fungible token (“NFT”), distributed as part of the SXSW 22 Drop, that conveys a limited license, set forth in Section 3(1), to specific associated Art, which may be initially described in a uniform resource indicator embedded in the NFT or on a BCL web platform.
- “Additional NFT” means a blockchain-based non-fungible token (“NFT”), transmitted by BCL outside of the SXSW 22 Drop, pursuant to the terms of this Agreement, that conveys a limited license, set forth in Section 3(1), to specific associated Art, which may be initially described in a uniform resource indicator embedded in the NFT or on a BCL web platform.
- You acknowledge and agree that BCL or the BCL Parties own all legal right, title, and interest in and to the Art (and any marks contained therein) and the Name and Likeness as well as all intellectual property rights therein. The rights that you have in and to any Licensed NFT and Art are limited to those expressly stated in Section 3 of this Agreement. The BCL Parties and their licensors reserve all rights and ownership in and to any Licensed NFT, Name and Likeness, and Art not expressly granted to you in Section 3.
- You acknowledge and agree that, subject to Section 3, BCL owns all legal right, title, and interest in and to all other elements of the Services and all intellectual property rights therein (including, without limitation, all content, designs, information, “look and feel,” organization, compilation of the content, data, and all other elements of the Services (collectively the “Service Materials”). You acknowledge that the Service Materials are protected by copyright, trade dress, patent, and trademark laws, international conventions, other relevant intellectual property and proprietary rights, and applicable laws. All Service Materials are copyrighted property owned or otherwise controlled by BCL or its affiliates, and all trademarks, service marks, and trade names associated with the Services or otherwise contained in the Service Materials are proprietary to or otherwise controlled by BCL.
- Except as expressly set forth herein, your use of the Services does not grant you ownership of or any other rights with respect to any Service Materials or any other content, data, or other materials that you may access on or through the Services. BCL reserves all rights in and to the Service Materials not expressly granted to you in this Agreement.
- Your Licensed Rights (“Licensed Rights” or “License”). You acknowledge and agree that the Licensed NFTs are made available solely as collectibles for entertainment purposes. Without limiting the foregoing and subject to your continued compliance with this Agreement, BCL grants to you, for as long as you own them, a worldwide, revocable, non-exclusive, non-transferable (except as specifically provided below in Section 3(2)), royalty-free license to use, copy, and display the Art for any Licensed NFTs solely for the following purposes: (i) your own personal, non-commercial use; (ii) as part of a marketplace that permits the purchase and sale of your Licensed NFTs, provided that the marketplace cryptographically verifies each Licensed NFT owner’s rights to display the associated Art to ensure only the actual owner can display the Art; or (iii) as part of a third-party website or application that permits the inclusion, involvement, or participation of your Licensed NFT, provided that the website/application cryptographically verifies each Licensed NFT owner’s rights to display the associated Art to ensure only the actual owner can display the Art.
- Permissible Transfers of Your Licensed NFT. You have the limited right to transfer any Licensed NFT, provided that (i) the initial and all subsequent transferees accept all terms of this Agreement; (ii) you ensure that upon your sale of the Licensed NFT, ten percent (10%) of the sales price, exclusive of marketplace fees and commissions, is transmitted to BCL Parties in USDC (“Secondary Royalties”), either via an automated process on a third-party marketplace or through your own transmission to the following Ethereum public address 0xa3Eb025D0E02C692669956f82319c1F96b8f9B9e; (iii) you have not breached this Agreement or any terms incorporated herein; and (iv) prior to the transfer your license to the Licensed NFT has not been terminated. You acknowledge and agree that the foregoing amounts payable to BCL under this Section are exclusive of any additional fees imposed or required by the platform through which you are transferring the Licensed NFT. For avoidance of doubt, Secondary Royalties of up to ten percent (10%) plus additional percentages, fees, and commissions taken by a third-party marketplace may be automatically deducted, in the currency of purchase or another currency, from any sales price of Licensed NFTs.
- By virtue of accepting this Agreement, including by signing up for the SXSW 22 Drop, through participation in a proof of attendance protocol requiring acceptance of this Agreement, receipt of SXSW 22 Drop NFTs, receipt of Additional NFTs, or otherwise, you agree to allow BCL to transmit Additional NFTs into your digital wallet or address, and such Additional NFTs shall be subject to the Terms of this Agreement, including the Licensed Rights.
- The License granted in Section 3(1) above applies only to the extent that you continue to own the applicable Licensed NFT. If at any time you sell, swap, donate, give away, transfer, or otherwise dispose of your Licensed NFT for any reason, the License granted in Section 3(1) above will immediately expire with respect to that Licensed NFT and associated Art without the requirement of notice, and you will have no further rights in or tow the Art associated with the Licensed NFT.
Conditions of Use and Prohibited Activities.
- You agree that you are responsible for your own conduct while accessing the Services and for any consequences thereof. You agree to use the Services only for purposes that our legal, proper, and in accordance with these Terms and any applicable laws or regulations.
- Without limiting the foregoing, you warrant and agree that your use of the Services will not (and will not allow any third party to), in any manner: (i) involve the sending, uploading, distributing, or disseminating any unlawful, defamatory, harassing, abusive, fraudulent, obscene, or otherwise objectionable content; (ii) involve the distribution of any viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or any other items of a destructive or deceptive nature; (iii) involve the uploading, posting, transmitting, or otherwise making available through or in connection with the services any content that infringe the intellectual property rights of any party; (iv) involve using the Services to violate the legal rights (such as rights of privacy and publicity) of others; (v) involve engaging in, promoting, or encouraging illegal activity (including, without limitation, money laundering); (vi) involve interfering with other users’ enjoyment of the Services; (vii) involve interfering with, damaging, disabling, disrupting, impairing, creating an undue burden on, or gaining unauthorized access to the Services, including BCL servers, networks, or accounts; (viii) involve exploiting the Services for any unauthorized commercial purpose; (ix) involve modifying, adapting, translating, or reverse engineering any portion of the Services; (x) involve removing any copyright, trademark, or other proprietary rights notices contained in or on the Services, in whole or in part; (xi) involve reformatting or framing any portion of the Services; (xii) involve covering, removing, disabling, or obscuring advertisements or other portions of the Services; (xiii) involve displaying any content on the Services that contains any hate-related or violent content or contains any other material, products, or services that violate or encourage conduct that would violate any criminal laws, any other applicable laws, or any third-party rights; (xiv) involve using any spider, site search/retrieval application, or other device to retrieve or index any portion of the Services, or to collect information about it users for any unauthorized purpose; (xv) involve accessing or using the Services for the purpose of creating a product or service that is competitive with any of our products or services; (xvi) involve engaging in commercial activity (including but not limited to advertisements or solicitations of business; sales; contests; sweepstakes; creating, recreating, distributing, or advertising an index of any significant portion of the Website or its content; or building a business using the Website or its content); (xvii) involve abusing, harassing, or threatening another user of the Services or of any of our authorized representatives, customer service personnel, moderators, or volunteers (including, without limitation, filing support tickets with false information, sending excessive emails or support tickets, obstructing our employees from doing their jobs, refusing to follow the instructions of our employees, or publicly disparaging us by implying favoritism by our employees or otherwise; or (xviii) involve using any abusive, defamatory, ethnically or racially offensive, harassing, harmful, hateful, obscene, offensive, sexually explicit, threatening, or vulgar language when communicating with another user of the Services or any of our authorized representatives, customer service personnel, chat board moderators, or volunteers (each, a “Category A Prohibited Activity”).
- Without limiting the foregoing, you warrant and agree that your use of the Services will not (and will not allow any third party to), in any manner: (i) access the Services by automated means or under false or fraudulent pretenses; (ii) involve the impersonation of another person (via the use of an email address or otherwise); (iii) involve using, employing, or operating “bots” or other similar forms of automation to engage in any activity with respect to the Services; (iv) otherwise involve or result in the wrongful seizure or receipt of any Website content or Art (each, a “Category B Prohibited Activity”).
- If you engage in any of the Prohibited Activities, we may, at our sole and absolute discretion, without notice or liability to you, and without limiting any of our other rights or remedies at law or in equity, immediately suspend or terminate your user account, freeze your Licensed NFT, or delete or disassociate Art associated with your Licensed NFT. In any such event, you will not receive a refund of any amounts under any circumstances for such Licensed NFT. We may also impose limits on certain features and services offered on the Website or restrict your access to parts or all of the Website without notice, and we have no liability to you for any such limitations or restrictions.
- Notwithstanding the foregoing, if we reasonably believe that you are engaged in any of the Category B Prohibited Activities, in addition to our right to immediately suspend or terminate your access to the Services and delete or disassociate Art associated with your Licensed NFTs, or freeze such Licensed NFTs, we also reserve the right, at our sole and absolute discretion, without notice or liability to you, to take any or all of the following actions: (i) cancel or reverse any transaction that took place via or as the result of such activities, and (ii) immediately confiscate any Licensed NFTs purchased or acquired as the result of such activities.
5. Restrictions on Use of NFTs.
- You agree that you may not, nor permit any third party to do or attempt to do any of the following without prior written consent from BCL in each case: (i) modify any Licensed NFT, Name and Likeness, or Art associated with any Licensed NFT in any way, including, without limitation, the shapes, designs, drawings, attributes, or color schemes; (ii) use any Licensed NFT, Name and Likeness, or Art associated with any Licensed NFTs to advertise, market, or sell any product or service or engage in any commercial activity; (iii) use any Licensed NFT, Name and Likeness, or Art associated with any Licensed NFT in connection with images, videos, or other forms of media that 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; (iv) use any Licensed NFT, Name and Likeness, or Art associated with any Licensed NFTs in movies, videos, or other forms of media, except solely for your own personal, noncommercial use; (v) sell, distribute for commercial gain (including, without limitation, free transfer in the hopes of eventual commercial gain), or otherwise commercialize merchandise that includes, contains, or consists of any Licensed NFT, Name and Likeness, or Art associated with any Licensed NFT; (vi) attempt to trademark, copyright, or otherwise acquire any intellectual property rights not provided herein or to any Licensed NFT, Name and Likeness, or Art associated with any Licensed NFT; (vii) otherwise utilize Art from any Licensed NFT for any commercial benefit; or (viii) create any derivative works from any Licensed NFT.
- To the extent that any Licensed NFT, Name and Likeness, or Art associated with any Licensed NFT contains the intellectual property of any third parties, you understand and agree as follows: (i) you will not have any right to use such third-party intellectual property in any way except as incorporated into the Art and subject to the license and restrictions contained herein; (ii) depending on the nature of the license granted from the owner or licensor of any such third-party intellectual property, BCL may need to pass through additional terms and restrictions on your ability to use the Art; (iii) to the extent that BCL informs you of such additional restrictions in writing (including electronically), you will be responsible for complying with all such restrictions from the date you receive such notice, and any failure to do so will constitute a breach of this Agreement.
6. Termination of Services.
- You agree that we, in our sole discretion and for any or no reason may terminate this Agreement and suspend or terminate your account(s) for any one or more of the Services (including, for the avoidance of doubt, your access to the Art) without the provision of prior notice. You agree that we will not be liable to you or to any third party for any such suspension or termination.
- If we terminate this Agreement or suspend or terminate your access to the Services due to your breach of these Terms or any suspected fraudulent, abusive, or illegal activity (including, without limitation, engagement in any of the Prohibited Activities), then termination of these Terms will be in addition to any other remedies we may have at law or equity.
- We have the right, without provision of prior notice, to take appropriate legal action, including, without limitation, referral to law enforcement or regulatory authority, or notifying the harmed part of any illegal or unauthorized use of the Services. Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone using the Services. You waive and hold all BCL Parties harmless from any and all claims resulting from action taken by any BCL Parties relating to investigations by either us or law enforcement authorities.
- The provisions of these Terms that by their nature and the context in which they appear would reasonably be expected to survive termination or expiration of these Terms will do so.
7. Termination of License.
The Licensed Rights granted to you hereunder shall automatically terminate and all rights shall return to the BCL Parties if at any time: (i) you sell, trade, donate, gift, transfer, or otherwise dispose of any Licensed NFT in a manner not compliant with Section 3(2) and/or this Agreement; (ii) you breach this Agreement; (iii) you use the Licensed NFT, Name and Likeness, or Art associated with any Licensed NFT in a manner that violates applicable law or the rights of third parties or is otherwise wrongful.
- DISCLAIMER OF WARRANTIES.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR ACCESS TO AND USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THAT THE SERVICES 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 THE SERVICES AND ANY PART OF IT, 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) YOUR ACCESS TO OR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS; (II) YOUR ACCESS TO OR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR; (III) DATA PROVIDED THROUGH THE SERVICES WILL BE ACCURATE; (IV) THE SERVICES OR ANY ART, CONTENT, SERVICES, OR FEATURES MADE AVAILABLE ON OR THROUGH THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (V) THAT ANY DATA THAT YOU DISCLOSE WHEN YOU USE THE SERVICES 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.
THE BCL PARTIES WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSSES YOU INCUR AS THE RESULT OF YOUR USE OF THE SERVICES, 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. THE BCL PARTIES 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.
8. 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.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE BCL PARTIES’ LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU FOR THE SERVICES.
YOU ACKNOWLEDGE AND AGREE THAT WE HAVE MADE THE SERVICES AVAILABLE TO YOU AND 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 YOUR USE OF THE SERVICES 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.
9. Assumption of Risk.
- In bidding on, purchasing, using, selling, receiving, or transferring any Licensed NFTs or associated Art, you assume the following risks: (A) there may exist no market or other means to transfer or sell your Licensed NFTs; (B) to the extent a market or price for your 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 your 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 your Licensed NFTs or to any digital wallets, private keys, or other security devices securing your Licensed NFTs, and the BCL Parties will not be held liable for any unauthorized access or theft of your Licensed NFTs resulting from your failure to secure them; (E) the BCL Parties cannot guarantee the continued availability of the Licensed NFTs or the Art on the Internet or that they will continue indefinitely to host the Art at any specific location or for any specific period of time; (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 your Licensed NFTs may lead to their loss; (I) blockchain transactions may be irreversible, and you bear the risk that unintended, unauthorized, or accidental transfers of your Licensed NFTs may be irreversible, leading to the loss of your 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 your Licensed NFTs; (J) purchase, use, resale, or other actions concerning your Licensed NFTs may subject your to various taxes, for which you agree to be solely responsible; (K) NFTs and blockchain-based assets may not be considered legal tender by any government; (L) the BCL Parties have no control over and are not responsible or liable for your 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.
10. Governing Law.
This Agreement and all matters related to it and any Licensed NFT shall be governed by the laws of the State of California, without regard to conflict of law principles.
11. 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. Your continued access or use of the Licensed NFTs and the Art following any changes to the Agreement will constitute your binding acceptance of such changes.
- The Website, Services, SXSW 22 Drop NFTs, and Additional NFTs are only available to individuals who have the right and authority to enter into this Agreement, are fully able and competent to understand and satisfy its terms, conditions, and obligations, and who are purchasing any Licensed NFTs with lawfully obtained currency or cryptocurrency. The Website, Services, SXSW 22 Drop NFTs, and Additional NFTs are not available to individuals who are or have been in violation of this Agreement.
- By using the Website or Services, or bidding on, purchasing, or receiving any SXSW 22 Drop NFTs or Additional NFTs, 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 OFAC sanctions that would prohibit your use of the Website or Services or your purchase, receipt, or transfer of SXSW 22 Drop NFTs or Additional NFTs, by virtue of location in a comprehensively sanctioned jurisdiction, identification on the OFAC 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 or linking to the NFT marketplace, 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.
14. Force Majeure.
- The BCL Parties 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, civil commotion; (iv) labor dispute of any kind or nature; (v) embargo; (vi) natural and/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.
- If the BCL Parties suffer a Force Majeure Event, we will use reasonable efforts to promptly notify you of the Force Majeure Event, stating the period of time the occurrence is expected to continue. We will use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. We will resume the performance of our obligations as soon as reasonably practicable after the removal of the cause.
15. 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. Notwithstanding the foregoing, any copyright infringement claim brought under the U.S. Copyright Act may be pursued in federal 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 Services (as defined above), the SXSW 22 Drop NFTs, the Additional 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 Consumer Arbitration Minimum Standards are available at https://www.jamsadr.com/consumer-minimum-standards/. 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 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 Service to which the Notice relates, and the relief requested. Your Notice to the BCL Party must be sent by mail to: Fox Corporation, 10201 West Pico Boulevard, Los Angeles, CA 90064. 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 the BCL Parties 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.
- (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 its own attorneys’ fees, except as otherwise provided in this Section.
- JAMS charges filing and other fees to conduct arbitrations. Ordinarily, the claimant has to pay the filing fee to initiate arbitration, but if you wish to commence an arbitration against a BCL Party, you and the BCL Party acknowledge and agree to abide by the following: (i) If you are seeking to recover less than $10,000 (inclusive of attorneys’ fees), the involved BCL Party will pay the filing fee on your behalf or reimburse your payment of it; (ii) if you are seeking to recover $10,000 or more, you will have to pay the filing fee charged by JAMS, but the involved BCL Party will reimburse the filing fee if you prevail on all claims decided upon by the arbitrator; (iii) 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. The BCL Parties will not request a hearing for any claims totaling less than $10,000. This provision shall not be construed by the arbitrator to deprive you of any rights you may have to a telephonic or in-person hearing in your hometown area pursuant to the JAMS Rules; (iv) the BCL Parties and you agree that, if the claims to be arbitrated total $10,000 or more, the arbitration will occur in a manner and place consistent with the JAMS Rules.
- 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 its 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 use of the Services or receipt, purchase, transfer, or sale of any SXSW 22 Drop NFT or Additional NFT. Except for income taxes levied on us, you: (a) will pay or reimburse us for all Taxes, including value added taxes and Taxes 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.
18. United States Jurisdiction.
All Services described herein are provided in the United States. BCL does not represent that any Services or NFTs are appropriate or available for us in other locations. If you use the Services or Website from a 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 use of the Website and Services.
Not all of the Services or NFTs are available worldwide, and BCL makes no representation that you will be able to obtain any Services or NFTs in any particular jurisdiction, either within or outside of the United States.
19. 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 Art 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 the Services to users or Artists who are repeat infringers.
- If you believe that any Art or other content on the Services 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 Art or the Services (such as a description of the Licensed NFT at issue); (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 Art 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 Services, the Licensed NFTs, and the Art, and this Agreement supersedes and nullifies all other statements, agreements, or understandings, oral or written, made between the parties hereto.
22. 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 or your use of the Services.
23. No Waivers.
Our failure or delay to exercise or enforce 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.
24. 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 or your use of the Services.
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 or your use of the Services must be commenced within one (1) year after such cause of action accrues. After such period, such cause of action shall be permanently barred.