Terms of Service
TERMS OF SERVICE AND NFT SALE AND DISTRIBUTION
Last Updated, April 30, 2024
These terms and conditions constitute a legally binding agreement (“Agreement” or “Terms”) between you (“you,” “your,” and similar forms) and Blockchain Creative Labs, LLC, 5161 Lankershim Blvd., North Hollywood, California (“BCL,” we,” “us,” or similar forms) governing: (a) your use of any website published or otherwise made available by BCL (“Website(s)”) and (b) your purchase, receipt, transfer, sale, ownership, and use and any features of any BCL NFTs (collectively, the Websites, and BCL NFTs referred to as “Services”). By using any Services and by accepting this Agreement, including by signing up to receive or purchasing BCL NFTs, through participation in a proof of attendance protocol requiring acceptance of this Agreement, through purchase or receipt of BCL 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 BCL NFTs.
Unless otherwise specified, the Services that BCL is providing on any Website and with respect to the BCL NFTs pursuant to these Terms comprise: (i) the Art and other content contained on the Website and associated with BCL NFTs; (ii) in some cases the functionalities of the Website or BCL NFTs, as described in the Website and/or in metadata associated with BCL NFTs; (iii) any message boards, contests, promotions, rewards programs, or any other features offered from time to time by BCL that link or otherwise refer users to these Terms; and (iv) the Website (collectively the “BCL Services”). With respect to certain Websites and BCL NFTs, including those that utilize the Eluvio Content Fabric or other Eluvio blockchain, certain services, content, technology software, and functionalities associated with the Website and BCL NFTs, including any smart contracts, the Eluvio blockchain, the Website-provided electronic wallet holding any BCL NFTs, user accounts, and all payment functionalities, are services that are provided by or on behalf of Eluvio (collectively, “Eluvio Services”), over which you acknowledge BCL has no responsibility. For the avoidance of doubt, BCL Services exclude all Eluvio Services. You should consult and accept any applicable third-party terms and conditions to which you agree before you use any of the Services.
PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE WEBSITE OR BEFORE BUYING, RECEIVING, TRANSFERRING, OR SELLING BCL 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.
IMPORTANT NOTICE REGARDING DISPUTE RESOLUTION: BY USING THIS SITE AND/OR ACCEPTING THIS AGREEMENT, YOU AND WE ARE AGREEING (WITH LIMITED EXCEPTIONS) TO RESOLVE ANY DISPUTE BETWEEN US THROUGH A DISPUTE RESOLUTION PROCEDURE DESCRIBED IN THE ARBITRATION SECTION BELOW. YOU AND BCL WAIVE THE RIGHT TO BRING OR PARTICIPATE IN A CLASS ACTION IN CONNECTION WITH SUCH DISPUTES. PLEASE REVIEW CAREFULLY THE ARBITRATION SECTION BELOW TITLED “INFORMAL DISPUTE RESOLUTION PROCEDURE, ARBITRATION AGREEMENT AND CLASS ACTION WAIVER” BELOW FOR DETAILS REGARDING THIS DISPUTE RESOLUTION PROCEDURE (INCLUDING THE PROCEDURE TO OPT OUT OF ARBITRATION).
Please note that certain provisions set out in the section below captioned “Additional Terms for UK Consumers” apply to the extent you are acting as a “consumer” located in the UK only (“UK Consumer”). A UK Consumer is a resident of the United Kingdom or a person otherwise considered to be a data subject for purposes of UK GDPR. For the purpose of these Terms, a “consumer” is an individual acting for purposes that are wholly or mainly outside that individual’s trade, business, craft or profession.
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.
- Definitions.
1. “Art” means any art, graphics, images, designs, logos, taglines, videos, photographs, or other content and intellectual property embodied therein, that may be associated with a BCL NFT, including through a link in the BCL NFT metadata, that you acquire, as described in a Webpage. As described in a Webpage, Artist or BCL may update, revise, or modify the Art associated with each BCL NFT.
2. “Artist” means any creator, owner, or licensor of Art.
3. “BCL Parties” means BCL, Artists, Eluvio, Inc. (“Eluvio”) and each of their parent, subsidiary, and affiliate companies, and each of their respective officers, directors, members, shareholders or other owners, affiliates, agents, attorneys, licensees, licensors, and employees.
4. “Licensed NFT” means a BCL NFT that you own, including by virtue of purchase in an initial sale, purchase in a secondary sale, or other distribution.
5. “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(a).
6. “Intellectual Property” means names, nicknames, images, likenesses, marks, copyrights, trade dress, and all other intellectual properties of BCL and the BCL Parties.
7. “BCL NFT” means a blockchain-based asset known as a non-fungible token or NFT, created, designed, sold, or distributed by BCL, that conveys a limited license, set forth in Section 3(a), to specific associated Art, which may be initially described in a uniform resource indicator embedded on a blockchain or on a Webpage.
- Ownership.
1. You acknowledge and agree that, as between you and BCL, BCL or the BCL Parties own all legal right, title, and interest in and to the Art and the Intellectual Property 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, Intellectual Property, and Art not expressly granted to you in Section 3.
2. You acknowledge and agree that, subject to Section 3, BCL or the BCL Parties own 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 the BCL Parties or their 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 the BCL Parties.
3. 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 and the BCL Parties reserve all rights in and to the Service Materials not expressly granted to you in this Agreement.
4. Ownership of your BCL NFTs is mediated entirely by one or more blockchains. BCL retains the right to transfer your BCL NFTs to different blockchains by various means, including by offering to exchange BCL NFTs on one blockchain for comparable BCL NFTs on another blockchain and by discontinuing certain support for BCL NFTs on the legacy blockchain. For clarity, BCL does not operate and is not responsible for any blockchain. We may be unable to seize, freeze, or otherwise modify ownership of a BCL NFT.
- Rights.
1. 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-sublicensable, non-transferable (except as specifically provided below in Section 3(b)), 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. The License applies only to Art currently associated with each Licensed NFT, and BCL may change or modify such Art as described in Section 1.
2. You have the limited right to transfer any Licensed NFT, subject to technological availability, which the BCL Parties cannot guarantee, 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, all terms concerning transmission of royalties embedded in smart contract or other metadata associated with the Licensed NFT are followed; (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 any platform through which you are transferring the Licensed NFT. For avoidance of doubt, secondary royalties 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. Transfer of your Licensed NFT may be limited to certain platforms, and the BCL Parties make no representation that you will have any ability or right to transfer your Licensed NFT to another platform or blockchain.
3. By virtue of accepting this Agreement, including by receipt of BCL NFTs or otherwise, you agree to allow BCL to transmit additional BCL NFTs into your digital wallet or address, and such additional BCL NFTs shall be subject to the Terms of this Agreement, including the Licensed Rights.
4. The License granted in Section 3(a) 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(a) 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 to the Art associated with the Licensed NFT.
5. In some cases, user accounts, wallets, payment providers, or other features on a Website may be provided by a third party, including Eluvio. BCL is not responsible or liable for such third-party services, including the security and privacy practices thereof. You should exercise caution and review any third-party terms and privacy policy.
6. Where specified, certain storage, purchases, sales, transfers, and other transactions of BCL NFTs, including, but not limited to, those transactions conducted or mediated by Eluvio, those conducted between users on any Website, any transactions using a third-party electronic wallet, and any payment processes used to carry out those transactions, may be third-party services, not provided by BCL. BCL is not responsible or liable for such Services. With respect to any third-party electronic wallet services, BCL has no control over and is not responsible for those third parties, including the security or privacy practices of such third parties. You should exercise caution and review the privacy statements applicable to such third parties.
7. In some cases, ownership of a Licensed NFT may confer upon you as the current owner certain benefits, such as access to events or online forums (such as Discord), discounts, rewards programs, or other features. Such benefits may be described in any Website where such Licensed NFT is sold or distributed, are provided at BCL’s sole discretion, may be revoked at any time, and may require acceptance of additional terms and conditions.
- Conditions of Use and Prohibited Activities.
`1. 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 are legal, proper, and in accordance with these Terms and any applicable laws or regulations.
2. 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 of 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 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 volunteer (xviii) involve fractionalizing, dividing or selling a portion of an NFT or otherwise including the NFT in any security or other investment or financial scheme or (xix) use the NFT in any way that would violate any legal or regulatory obligation or prohibition (each, a “Category A Prohibited Activity”).
3. You will not use the Services, BCL Services or content available on or through the Services or BCL Services – inclusive of text, photographs, images, audio/video clips, “look and feel,” metadata, or compilations of the Services or BCL Services and/or Content for the development of any software program, including, but not limited to, training or otherwise developing a machine learning or artificial intelligence system or algorithm.
4. 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”).
5. 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 you have paid for such Licensed NFT. We may also impose limits on certain features and services offered on a Website or restrict your access to parts or all of a Website without notice, and we have no liability to you for any such limitations or restrictions.
6. 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.
- Restrictions on Use of NFTs.
`1. 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, Intellectual Property, 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, Intellectual Property, 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, Intellectual Property, 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, Intellectual Property, 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, Intellectual Property, 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, Intellectual Property, or Art associated with any Licensed NFT; or (vii) otherwise utilize Art from any Licensed NFT for any commercial benefit.
2. To the extent that any Licensed NFT, Intellectual Property, 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.
- Termination of Services.
1. 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.
2. 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.
3. 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 party 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.
4. 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.
- 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(b); (ii) you breach this Agreement; (iii) you use the Licensed NFT, Intellectual Property, 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; (V) THAT ANY DATA THAT YOU DISCLOSE WHEN YOU USE THE SERVICES WILL BE SECURE; OR (VI) THAT YOU WILL EVER BE ABLE TO MOVE LICENSED NFTS ONTO ANOTHER BLOCKCHAIN OR PLATFORM. 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.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, 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 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.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, BCL PARTIES 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.
- Limitation of Liability.
NOTHING IN THESE TERMS LIMITS OR EXCLUDES OUR LIABILITY TO THE EXTENT THAT IT CANNOT BE LEGALLY LIMITED OR EXCLUDED BY APPLICABLE LAW.
YOU UNDERSTAND AND AGREE THAT THE BCL PARTIES WILL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY WHETHER IN CONTRACT (INCLUDING UNDER AN INDEMNITY OR WARRANTY), IN TORT (INCLUDING NEGLIGENCE), FOR BREACH OF STATUTORY DUTY, OR OTHERWISE, ARISING UNDER OR IN CONNECTION WITH THESE TERMS AND CONDITIONS FOR: ANY LOSS OF PROFITS, 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, OR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES WHICH YOU MAY INCUR, HOWSOEVER CAUSED AND UNDER ANY THEORY OF LIABILITY 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 REGARDLESS OF WHETHER YOU ARE OR ARE NOT A CONSUMER (INCLUDING A UK CONSUMER), 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 DIGITAL CONTENT OR 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.
THE LIMITATIONS IN THIS SECTION APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF FOX HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. FOR CLARIFICATION, THIS AGREEMENT DOES NOT LIMIT FOX’S LIABILITY FOR FRAUD, FRAUDULENT MISREPRESENTATION, DEATH, OR PERSONAL INJURY TO THE EXTENT THAT APPLICABLE LAW WOULD PROHIBIT SUCH A LIMITATION.
- Assumption of Risk.
1. 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, hacks, attacks, intrusions, negligence, mis-use of technology resources, and insider manipulation, 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 any particular blockchain or that the Art will continue to be hosted 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 you 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.
2. 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.
- Governing Law.
This Agreement and any Licensed NFT will be governed by, and construed in accordance with, the laws of the State of New York, without regard to its conflict of law provisions.
Except with respect to Disputes to be resolved through the process in accordance with Section 16 contained above, you and BCL agree to submit to the exclusive jurisdiction of the federal or state courts located in New York, New York, unless otherwise mandated by law, to resolve any Dispute arising out of the Agreement, the Services or the BCL 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, UNDER OR IN CONNECTION WITH THIS AGREEMENT.
YOU AND WE AGREE THAT ANY CAUSE OF ACTION YOU OR WE MAY HAVE ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SERVICES OR THE BCL 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.
- 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.
- Eligibility
1. The Websites, Services, and BCL 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 Websites, Services, and BCL NFTs are not available to individuals who are or have been in violation of this Agreement.
2. By using any Website or Services, or bidding on, purchasing, or receiving any BCL 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 sanctions that would prohibit your use of the Websites or Services or your purchase, receipt, or transfer of BCL NFTs, by virtue of location in a comprehensively sanctioned jurisdiction, identification on the OFAC Specifically Designated Nationals and Blocked Persons List, or otherwise.
14. Indemnity.
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 attorneys 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.
- Force Majeure.
1. We will not be liable or responsible to 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.
2. If we 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.
16. Informal Dispute Resolution Procedure, Arbitration Agreement And Class Action Waiver.
So that BCL can maintain the ability to offer you and other users the Services and the BCL Services, you and we agree to the following mechanisms for resolving any Dispute between us:
1. Dispute. 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 BCL, 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 BCL that arise from or in any way relate to or concern any Content, the Site or services provided by BCL including but not limited to the BCL Services (as defined above), this Section 16, any other aspect of this Agreement or any prior versions of this Agreement (including their applicability and their conformance to applicable law), and any disputes relating to telephonic, text message, or any other communications either of us received from the other. The only exceptions to this Section 16 are that: (i) each of you and BCL retains the right to sue in small claims court; (ii) each of you and BCL may bring suit in court against the other to enjoin infringement or other misuse of intellectual property rights; and (iii) each of you and BCL may bring suit in court to determine the enforceability of Sub-Section 16.2 and/or Sub-Section 16.11
2. Mandatory Informal Dispute Resolution Process. You and BCL agree that good-faith, informal efforts to resolve disputes often can result in a prompt, cost-effective, and mutually beneficial outcome. Therefore, if either you or BCL wants to bring or resolve a Dispute, you or BCL must follow the mandatory informal dispute resolution process as a precondition to the ability to file an arbitration demand or lawsuit:
`1. Notice. You or BCL must first send 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 BCL Service to which the Notice relates, and the relief requested, including damages, if any, and a detailed calculation for them. Your Notice also must contain your email address and (if different) the email address associated with your BCL account (if you have an account with BCL). Our Notice must also be sent to your email address associated with your BCL account (if you have an account with BCL), and you consent to receive any such Notice as part of these dispute resolution terms. You and we must include in any Notice to each other a personally signed statement (from you or us—not from your or our counsel) verifying the accuracy of the contents of the Notice, and if you are represented by counsel, your signed statement authorizing BCL to disclose your BCL account details to your attorney while seeking to resolve your claim. We each must individualize our Notice, meaning it can concern only our Dispute and no other person’s Dispute. You must send your Notice to BCL by email to [email protected] or by mail to: Arbitration Notice of Dispute, Fox Corporation, 2121 Avenue of the Stars, Suite 1200, Los Angeles, California, 90067. In the case of a Dispute initiated by you or us, it is the sender’s responsibility to prove that the sender provided the notice in the manner that is required in this paragraph.
2. Good Faith Effort to Informally Resolve Dispute. After receipt of a completed Notice, the parties shall engage in a good faith effort to resolve the Dispute for a period of 60 days (which can be extended by agreement). You and BCL agree that, after receipt of the completed Notice, the recipient may request an individualized telephone or video settlement conference and both parties will personally attend (with counsel, if represented). You and BCL agree that the parties (and counsel, if represented) shall work cooperatively to schedule the conference at the earliest mutually convenient time and to seek to reach a resolution. If you and BCL do not reach an agreement to resolve the issues identified in the Notice within 60 days after the completed Notice is received (or a longer time if agreed to by the parties), you or BCL may commence a proceeding as noted below.
3. Arbitration Agreement. If you and we do not resolve the Dispute within 60 days of the submission of the Notice in accordance with the Informal Dispute Resolution Procedures, BCL, including its Affiliates, agents, employees, predecessors in interest, successors, and assigns, and you agree that any Dispute between you and BCL, regarding any aspect of your relationship with BCL, will be resolved in a binding, confidential, individual and fair arbitration process, and not in court, subject to the exceptions noted in Sub-Section 16.7 below. Thus, subject to those exceptions, you and BCL agree to give up the right to sue in court, including that you and BCL agree to waive their right to a jury trial.
4. Controlling Law Regarding Arbitration Process and Agreement to Arbitrate. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1–16, governs the interpretation and enforcement of the provisions in Section 16 related to the arbitration process. The agreements in Section 16 shall survive termination of the Agreement. Any original action to compel arbitration under Section 4 of the FAA (or analogous state law) must be brought in a state or federal court located in New York City, unless mandated by law to be filed in another state or federal court. If the FAA is found to not apply to any issue regarding the interpretation or enforcement of the parties’ agreement to arbitrate, then that issue shall be determined by the laws of the State of New York. Any arbitration between you and BCL will be administered by the American Arbitration Association (“AAA”) pursuant to their then-applicable rules, including their mass arbitration supplementary rules and mass arbitration fee schedule, as applicable, as modified by Section 16. AAA’s rules and fee schedules can be found at www.adr.org. Except in the event of a Mass Filing as described in Sub-Section 16.11 below, the arbitration shall be conducted by a single, neutral arbitrator. If you and BCL cannot agree on an arbitrator, the arbitrator will be appointed pursuant to the AAA’s rules.
5. Alternative Arbitration Provider. If AAA is not available to arbitrate, including because it is not able to administer the arbitration(s) consistent with the rules, procedures, and terms of Section 16, including those described in Sub-Section 16.11, the parties will select an alternative arbitration provider. If the parties cannot agree on an appropriate alternative arbitration provider, then the parties will ask a court of competent jurisdiction to appoint an arbitrator pursuant to 9 U.S.C. § 5 that is able to administer the arbitration(s) consistent with the rules, procedures, and terms of this Section 16, including, as applicable, Sub-Section 16.11. Section 16 will govern to the extent it conflicts with the arbitration provider’s rules. For arbitrations before the AAA, the AAA’s Consumer Arbitration Rules and Optional Rules For Emergency Measures of Protection shall apply.
6. Filing Fee and Costs. The initiating party must pay all filing fees for the arbitration. Your and BCL’s responsibility to pay other administrative and arbitrator costs will be as set forth in the applicable arbitration provider’s rules, unless the arbitrator determines the claims are frivolous. If a claim is determined to be frivolous, the claimant is responsible for reimbursing the respondent for its portion of all such administrative, hearing, and/or other fees incurred as a result of the frivolous claim.
7. Waiver of Fees and Costs. You may qualify for a waiver of certain arbitration costs under the applicable arbitration provider’s rules or other applicable law. If you meet the standard for proceeding in forma pauperis in federal court, the state court of your residence, or the state court where the arbitration is brought, cannot obtain a waiver from the arbitration provider of any filing fees you are required to pay, and the arbitration provider refuses to administer the arbitration without your payment of said fees, BCL will pay the filing fees for you.
8. Enforceability of Certain Provisions of Section 16. Notwithstanding Sub-Section 16.3 through Sub-Section 16.7, a claim regarding enforceability of any portion of Sub-Section 16.2 and/or Sub-Section 16.11 must be brought in federal or state court. Courts shall have the exclusive authority to determine: (i) the enforceability of any or all of the procedures set forth in Sub-Section 16.2 and/or Sub-Section 16.11; and (ii) if any or all the procedures set forth in Sub-Section 16.2 and/or Sub-Section 16.11 are unenforceable, whether that or those procedures are severable from the remaining provisions of Section 16 and the consequences of said severance. If the court determines that Sub-Section 16.2 is enforceable, it will also decide whether the party seeking to arbitrate the Dispute complied with the process in Sub-Section 16.2.
9. You and BCL also agree to give up the ability to seek to represent, in a class action or otherwise, anyone but each of you and BCL, including in arbitration and in state or federal court. Therefore:
YOU AND BCL MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, 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.
10. You understand there is no judge or jury in arbitration, and court review of an arbitration award is limited. An arbitrator must follow the dispute resolution process described in Section 16. Subject to Sub-Section 16.8, the arbitrator has exclusive authority to resolve all issues relating to the parties’ Dispute. The arbitrator will have the authority to grant motions dispositive of all or part of any claim. The arbitrator 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 this Agreement. The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us.
11. Related Cases and Mass Filings. If your Notice involves claims similar to those of at least 25 other customers, and if you and those other customers are represented by the same lawyers, or by lawyers who are coordinating with each other, or if BCL asserts 25 or more similar demands for arbitration or counterclaims against similarly-situated parties, within a period of 60 days or otherwise close in proximity, you and we agree that these claims will be related (“Related Cases”), and this shall be called a “Mass Filing.” The following procedures will apply to a Mass Filing:
1. Acknowledgment of Related Cases procedure.If you or BCL, or your or our counsel, files a demand for arbitration that has Related Cases, then you and we agree that the demand for arbitration shall be subject to the additional protocols set forth in this Sub-Section 16.11. If the parties disagree as to whether a series of filings fits within the definition of Mass Filing above, the arbitration provider shall resolve the disagreement. You and we also acknowledge that the adjudication of the dispute may be delayed and that any applicable statute of limitations shall be tolled from the time of filing of the demand for arbitration, and pending resolution of the proceedings described in this Sub-Section 16.11.
2. Bellwether Arbitrations. Bellwether proceedings are encouraged by courts and arbitration administrators where there are multiple disputes involving similar claims against the same or related parties. The parties shall select ten individual arbitration claims (five per side), designated the “Initial Test Cases,” to proceed to arbitration. Only the Initial Test Cases shall be filed with the arbitrator. All other claims shall be held in abeyance. This means that the filing fees will be paid only for the Initial Test Cases; for all other demands for arbitration, the filing fees (together with any arbitrator consideration of the other demands) will be in abeyance, and neither You nor BCL will be required to pay any such filing fees. You and BCL also agree that neither you nor we shall be deemed to be in breach of Section 16 for failure to pay any such filing fees, and that neither you nor we shall be entitled to any contractual, statutory, or other remedies, damages, or sanctions of any kind for failure to pay any such filing fees. If, pursuant to this subsection, a party files non-Bellwether Arbitrations with the arbitration provider, the parties agree that the arbitration provider shall hold those demands in abeyance and not refer them to the arbitrator pending resolution of the Initial Test Cases. Unless the claims are resolved in advance or the schedule is extended, the arbitrators will render a final award for the Initial Test Cases within 120 days of the initial pre-hearing conference.
3. Global Mediation. Following the resolution of the Initial Test Cases, the parties agree to engage in a global mediation of all the remaining individual arbitration claims (“Global Mediation”), deferring any filing costs associated with the non-Initial Test Cases until the Initial Test Cases and subsequent Global Mediation have concluded. After the final awards are provided to the mediator in the Initial Test Cases, the mediator and the parties shall have 90 days to agree upon a substantive methodology and make an offer to resolve the outstanding cases. If the Parties are unable to resolve the outstanding claims during the Global Mediation, the unresolved Disputes may then be administered by the arbitration provider pursuant to this Agreement’s Batch Arbitration provision below and the arbitrator’s fee schedule for mass filings, unless the parties mutually agree otherwise in writing. You and we also acknowledge that any applicable statute of limitations shall be tolled pending resolution of the Bellwether Arbitration and Global Mediation process.
4. Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and BCL agree that in the event the Bellwether Arbitration and Global Mediation processes described above do not resolve the Disputes, the arbitration provider will (1) administer the remaining arbitration demands in batches of 50 demands per batch; (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”). The final award will provide for individual merit decisions for each separate claimant within the single batch arbitration award. If the arbitration provider will not administer the Batch Arbitration with one set of filing and administrative fees due per side per batch, then the arbitration provider’s mass arbitration fee schedule shall apply. AAA’s mass arbitration fee schedule is available on its website at www.adr.org/rules. For mass arbitrations before any other arbitration provider, if applicable, you and BCL agree that its mass arbitration fee schedule shall apply, as necessary.
5. Opting Out. If your claim is not resolved as part of the Bellwether Arbitration and Global Mediation process outlined above, the parties shall also have the opportunity to opt out of arbitration and bring the pending Dispute to the state or federal courts located in New York City, unless mandated by law to be filed in another state or federal court. The parties have 30 days of the failed Global Mediation process to opt out. This shall not provide an opportunity for either party to opt out of arbitration for other claims. You may opt out of arbitration by providing written notice of your intention to opt out to the arbitration provider and to Fox Corporation, Attention Arbitration Opt-Out, 2121 Avenue of the Stars, Suite 1200, Los Angeles, California, 90067 via USPS Priority Mail or hand delivery, by email to [email protected], or by notice to the attorney representing BCL in the arbitration proceeding. This written notice must be signed by you, even if it is also signed by your attorney. The written notice cannot be signed by an agent or other representative of yours in lieu of your signature. It must include a statement that you wish to opt out of arbitration within 30 days after the conclusion of the Global Mediation process. BCL may exercise its equivalent opt-out right by sending written notice to you or your attorney, agent, or representative if you are represented.
6. Enforcement of Subsection. A Court of competent jurisdiction shall have the power to enforce Section 16.11, including by injunctive, declaratory, or other relief.
12. Live Testimony. You must appear to testify at any arbitration hearing personally, virtually, or in another manner authorized by law or the arbitration provider. You agree that if you fail to appear in one of these forms to testify, you consent to have the arbitrator order that the case be closed immediately.
13. Discovery and Information Exchange. Regardless of how the arbitration proceeds, each of you and BCL shall cooperate in good faith in the exchange of non-privileged documents and information as necessary in accordance with the arbitration provider’s rules.
14. Attorney’s Fees and Fee Shifting. Each of you and BCL 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(s) the prevailing party to be paid its attorneys’ fees, and in such instance, the fees awarded shall be determined by the applicable law(s).
15. Restrictions on Forms of Relief. 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 this Agreement. The arbitrator shall have no authority to award punitive, exemplary, multiplied or consequential damages or any other relief except those allowed under the law and this Agreement, including Section 9’s Limitation of Liability provisions. The arbitrator also may not order you or BCL to pay any monies to or take any actions with respect to persons other than you or BCL, respectively, unless you or BCL explicitly consents in advance, after an arbitrator is selected, to permit the arbitrator to enter such an order, as applicable. Further, unless you and BCL expressly agree, or subject to the provisions of Sub-Section 16.11. above, the arbitrator may not consolidate other persons’ claims with yours or ours, and may not otherwise preside over any form of a representative, multi-claimant or class proceeding.
16. Confidentiality. You and BCL 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 BCL agree that an order confirming the 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.
17. Severability of Portions of Section 16. With the exception of Sub-Section 16.9 and Sub-Section 16.11 (i.e., the waiver of the ability to proceed on behalf of multiple claimants or a purported class and the Mass Filing procedure), if any part of Section 16 is deemed invalid, unenforceable, or illegal, then the balance of Section 16 shall remain in effect and be construed in accordance with its terms as if the invalid, unenforceable, or illegal provision were not contained. If, however, either or both Sub-Section 16.9 or/and Sub-Section 16.11 is found invalid, unenforceable or illegal, then the remainder of Section 16 and this paragraph shall be null and void, but the rest of this Agreement, including the provisions governing in which court actions against BCL must be pursued and the choice of governing law will remain in effect and apply to any claim that, for this or any other reason, proceeds in court rather than in arbitration.
18. Court Proceedings. If a court issues a decision precluding or refusing to compel arbitration of any Dispute, the Dispute must be brought in the state or federal courts located in New York City, unless otherwise mandated by law to be filed in another state or federal court. For Disputes deemed not to be subject to arbitration, neither you nor BCL shall be precluded from participating in a class-wide settlement of those claims if brought by another BCL user or third party.
- Taxes.
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 BCL 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.
- Privacy.
Use of the Services is also governed by our Privacy Policy (the “Privacy policy“), which is available on each Website and is incorporated into and is a part of these Terms.
- Jurisdiction.
All Services described herein are provided in the United States. BCL does not represent that any Services or BCL NFTs are appropriate or available for use 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 BCL NFTs are available worldwide, and BCL makes no representation that you will be able to obtain any Services or BCL NFTs in any particular jurisdiction, either within or outside of the United States.
- Removal of Material that Infringes Copyright.
1. 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.
2. 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 BCL 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, 2121 Avenue of the Stars, Suite 1200 Los Angele, CA 90067, [email protected]. 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.
3. 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.
- Severability.
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.
- Integration.
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.
- 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.
- 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.
Additional Terms for UK Consumers
The following additional terms apply where you are a UK Consumer only:
Liability
Notwithstanding section 9 of the Terms, We shall only be liable to you for any loss that is a foreseeable result of our failure to comply with our obligations under these terms, but we are not liable for any loss that is not foreseeable.
In addition to the foregoing, if digital content that we have supplied damages a device or digital content belonging to you and you can demonstrate that this is caused by our failure to use reasonable care and skill, we will either repair the damage or pay you compensation which shall be limited as per the third paragraph of section 9 of the Terms.
However, we will not be liable for damage that you could have avoided by following our advice to apply an update offered to you free of charge or for damage that was caused by you failing to correctly follow installation instructions or to have in place the minimum system requirements advised by us. Please note that where you are a UK Consumer, we will not be liable for any business losses i.e. if you subsequently use the services and digital content for any commercial or business (including re-sale) purposes. In these cases, the original provisions of the second paragraph of section 9 of the Terms shall apply.
Your responsibility to us
Where you are a UK Consumer, to the fullest extent permitted by law, you will be responsible for any losses, expenses or other costs incurred by us as a result of your deliberate, reckless or intentional violation of these Terms.
Loss of right of withdrawal
Where you have acquired the Licensed NFTs in the initial sale from BCL, you hereby consent to immediate performance of the contract and acknowledge that you will lose your right of withdrawal from the contract once the Licensed NFTs have been received in your digital wallet.
Venue
Notwithstanding anything contrary in the Terms, to the extent you are a UK Consumer, you can bring legal proceedings in respect of these terms and conditions in the relevant United Kingdom courts.