This Curators Society NFT Purchase and License Agreement (this “Agreement”), is a legally binding agreement by and between Heavenly Gate Foundation (the “Foundation”) and the initial and any subsequent purchaser of this Curators Society NFT (defined below) (“you” or “Purchaser”). The Foundation and each Purchaser may be referred to throughout this Agreement collectively as the “Parties” or individually as a “Party”.
1. Agreement to Terms.
(a) General. By purchasing a Curators Society NFT, you acknowledge that you have carefully read and agree to the terms of this Agreement. “Curators Society NFT” means a non-fungible token (NFT) (i.e., a controllable electronic record recorded on a blockchain) that is ERC721-compliant and, as of its
genesis issuance, is linked to a display of a Curators Society character and Access Rights. Curators Society NFTs are controllable electronic records recorded on the Ethereum blockchain. A “Curators Society Character” means each of the unique digital characters that are provided and licensed by the Foundation, each associated with, and linked to, one or more Curators Society NFTs. For avoidance of doubt, the Curators Society Characters are digital in nature and does not include, are not linked to, and are not sold together with, any items or representations that have physical dimensions such as mass or volume. This Agreement governs your participation in the Primary Transactions (as defined below) on https://mint.cakeapp.xyz/curatorssociety or any subdomain thereof (collectively, the “Curators Society Mint Website”) as well as Secondary Transactions between Transferors and Transferees (as defined below).
(b) Additional Terms: The access and use of the Curators Society Mint Website are subject to the separate terms of the Curators Society website located at www.curatorssociety.io or any subdomain thereof (the “Curators Society Website”). Purchaser further acknowledges that it has carefully read and has accepted the (i) Terms of Service located at the bottom of the Curators Society Website (the “Curators Society Website Terms”) and (ii) the Curators Society Website Privacy Policy located at the bottom of the Curators Society Website (the “Curators Society Website Privacy Policy”) because the Curators Society Website Terms and the Curators Society Website Privacy Policy govern its use of the Curators Society Website. This Agreement controls, if there is a conflict between the Curators Society Website Terms, the Curators Society Website Privacy Policy, and this Agreement with respect to the Curators Society NFTs and the respective Curators Society Characters.
(c) Curators Society NFTs may be available for purchase or transfer (i) on one or more third-party platforms, such as OpenSea, or other marketplaces that may be established from time to time (each, an “NFT Marketplace”), which we do not operate, or (ii) directly from third-party owners of Curators (such transactions, “Direct Sales”). The access and use of any NFT Marketplace are subject to the separate terms of that NFT Marketplace and any Direct Sales are subject to the terms thereof. In addition, although we do not guarantee that they will, third parties may grant Curator Society NFT owners various entitlements and benefits. If a third party does so, such entitlements and benefits will be subject to whatever terms are provided by such third parties. The Foundation Parties (as defined below) are not responsible or liable for any third-party NFT Marketplace, any Direct Sales, or any third-party entitlements or benefits. You covenant not to sue the Foundation Parties based on activities that may occur on such NFT Marketplaces, any Direct Sales (except Direct Sales for which a Foundation Party is the seller or purchase), due to third-party benefits or entitlements.
2. Ownership of Curators Society NFT.
(a) When Purchaser acquires a Curators Society NFT, Purchaser owns all personal property rights with respect to that Curators Society NFT (e.g., the right to freely sell, transfer, or otherwise dispose of that Curators Society NFT). Such rights, however, do not include the ownership of the intellectual property rights in the respective Curators Society Character (which are licensed pursuant to Section (3) below).
(b) Ownership of a Curators Society NFT purchased in any transaction of a Curators Society NFT may entitle the Purchaser to certain rights and benefits offered by the Foundation or third parties in their respective sole discretion (“Access Rights”). Access Rights, if any, may be offered pursuant to separate terms published from time to time by the Foundation or a third party.
(c) Purchaser represents and warrants that it will not transfer a Curators Society NFT in any Secondary Transaction to a Transferee that is (i) located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; or is (ii) listed on any U.S. Government list of prohibited or restricted parties (“Prohibited Transferees”). A “Secondary Transaction” means any transaction in which a Curators Society NFT is sold by one owner to another owner, or is otherwise transferred, distributed, or disseminated (regardless of whether consideration is paid) in any manner that is not a Primary Transaction; and “Primary Transaction” means a transaction facilitated through the Curators Society Website in which a Curators Society NFT is first sold to Purchaser.
3. License of Curators Society Character.
(a) Non-Commercial License to the Curators Society Character. The Foundation hereby grants to you, for so long as you own the Curators Society NFT (as recorded on the relevant blockchain), a non-exclusive, revocable, non-sublicensable, royalty-free license to use, copy, and display the Curators Society Character linked with your purchased Curators Society NFT solely for the following purposes:
(i) for your own personal, non-commercial use whether in a private setting or whether within virtual or digital environments, virtual or digital gaming worlds or other navigable and perceivable virtual or digital mediums, including to create a reasonable number of back-up copies and a physical print out, each to be retained only for so long as you own the associated Curators Society NFT; (ii) as part of a Foundation or third party’s website or application that permits the inclusion, involvement, or participation of your Curators Society Character, provided that the website/application cryptographically verifies that only the actual owner can display the Curators Society Character, and the Curators Society Character is no longer visible once the owner of the Curator leaves the website/application; and (iii) efforts to sell or otherwise transfer the associated Curators Society NFT consistent with the ownership of it (e.g., posting the Curators Society Character on a sales listing on an NFT marketplace) (the “Non-Commercial License”). The Non-Commercial License is non-transferrable, except that it will automatically transfer in connection with the transfer of the Curators Society NFT.
(b) Full Commercial License to the Curators Society Character. In addition, subject to your compliance with this Agreement, the Foundation hereby grants to you, for so long as you own a Curators Society NFT(as recorded on the relevant blockchain), an exclusive, royalty-free, worldwide, revocable license, with the right to sublicense, to use, copy, distribute, create derivative works of (subject to the below), and display the Curators Society Character linked to your purchased Curators Society NFT for Commercial Purposes. “Commercial Purposes” means the use of the Curators Society NFT(for all lawful commercial purposes, whether known now or created in the future. Such purposes may include
merchandising, inclusion in physical or digital media, or display in “metaverses” or other interactive digital environments. You will have the right to retain all revenue that you generate through your exercise of your rights under this Section.
(c) Derivative Works. Your rights also include the right to create derivative works of the Curators Society Character to depict the character depicted in the Curators Society NFT that you own in goods or media by, for example, showing their full body or back, or reformatting the relevant Curators Society Character for a particular medium. You may also modify the Curators Society Character to create minor variations in the appearance or clothing, but such rights do not include the right to create characters substantially or confusingly similar to Curators Society Characters that you do not own.
(d) Enforcement. You will have the non-exclusive right, but not the obligation, to bring an action to enforce any infringement of any rights you hold in the Art linked to your Curators Society Character as set forth in Sections 3(a)-(c). We will have no obligation to support any such action. We may also choose to bring such an action in our sole discretion.
(e) Protection. You will have the right to procure registration or other intellectual property protection in the works that you create in exercising your license to the Curators Society Character linked to your Curators Society NFT in a manner that complies with the terms of this Agreement, including that the Foundation retains ownership of the underlying Curators Society Character. However, you must and hereby do agree to transfer any such registration or other protection in connection with a Permitted Transfer of your Curators Society NFT, unless you expressly agree otherwise in writing with the Transferee.
(f) Name and Trademarks. As provided in Section 4(c), no trademark rights are granted to you by the Foundation. However, you may acquire trademark rights yourself in your Curators Society NFT (which, for avoidance of doubt, do not include rights to the “Curator Society” trademark) through the exercise of your license rights above in accordance with, and subject to, applicable law. Any trademark rights that you acquire, and the associated goodwill, will transfer in connection with a Permitted Transfer of your Curators Society NFT unless you expressly agree otherwise in writing with the Transferee.
(g) Transfer. The licenses in Section 3 are non-transferrable, except that they will automatically transfer in connection with a Permitted Transfer of your Curators Society NFT.
4. Reservation of Rights.
(a) General. All rights in and to the Curators Society Character not expressly provided for in this Agreement are hereby reserved by the Foundation. The Curators Society Character is licensed, not sold. As between the Foundation and you, the Foundation owns and will retain all title, interest, ownership rights and intellectual property rights in and to the Curators Society Character.
(b) Limitations. Without limitation of Section 4(a) above, the license in Section 3(b) does not include: (i) the right to use the Curators Society Character to create non-fungible tokens or other digital items accounted for on a distributed ledger; (ii) the right to create derivative works of the Curators Society Character, except as expressly provided herein; or (iii) the right to use the Curators Society NFT or the Curators Society Character to create, or as the basis of, any token or digital items accounted for or recorded on a distributed ledger, including, but not limited to, any token or digital items accounted for or recorded on a distributed ledger that represent (A) an ownership interest in the Curators Society NFT, or (B) any right that is convertible for, exchangeable into, or exercisable for, any right, title or interest in or to the Curators Society NFT or the Curators Society Character. The Purchaser also shall not, nor permit any third party to do or attempt to do any of the following, without express prior written consent from the
Foundation, represent or imply that your exercise of the Non-Commercial License is endorsed by or affiliated with the Foundation.
(c) No Rights to Trademarks. For avoidance of doubt, the licenses in Section 3 do not include the right to use any Foundation Party trademarks (e.g., Curators Society and Zodiac Labs). No trademark or other rights based on designation of source or origin are licensed to you. Notwithstanding the foregoing, to the extent you acquire any rights to any Foundation Party trademarks, in consideration for the licenses granted pursuant to Section 3(b), you hereby assign to the applicable Foundation Party all rights, title, and interest in and to such trademarks, together with all associated goodwill.
(d) Disputes Among Owners. The Foundation has no obligation to support the resolution of or to resolve any dispute that may arise between or among Curator Society NFT owners.
(e) Clarifications. The Foundation reserves the right, but has no obligation, to clarify the terms of this Agreement in relation to novel or unforeseen circumstances in its sole and exclusive discretion. If the Foundation issues or provides any clarification about the terms of this Agreement, such clarification will be binding on the Purchaser, and Purchaser hereby waives any right that Purchaser may have to dispute it in any manner.
5. Payment and Fees.
(a) Purchase and Sale. Purchaser hereby agrees to purchase the Curators Society NFT at the price set forth on the transaction page of the Curators Society Mint Website (the “Primary Transaction Purchase Price”). Without limiting any of the foregoing, the valid acceptance of this Agreement,
including the delivery of the Curators Society NFT, is conditioned upon the following terms being met:
(i) Purchaser’s payment of the Primary Transaction Purchase Price, (ii) Purchaser’s provision, through the Curators Society Mint Website, a Ethereum Network-compatible network wallet address and a “wallet” that is compatible with the Curators Society Mint Website (“Wallet”) to which the Purchaser’s Curators Society NFT will be delivered; and (iii) Purchaser’s successful completion (as determined by the Foundation in its sole discretion) of any applicable diligence and other processes as requested by the Foundation. If the Purchaser fails to meet any of the conditions above, the Foundation may suspend the delivery of the purchased Curators Society NFT or terminate the Primary Transaction.
(b) Purchaser Representations.
(i) Qualifications. Purchaser represents and warrants that it:
1. is not a U.S. Person as defined in Rule 902(k) of Regulation S under the Securities Act of 1933, as amended;
2. the offer and sale of the Curators Society NFTs herein was made in an offshore transaction (as defined in Rule 902(h) of Regulation S);
3. no directed selling efforts (as defined in Rule 902(c) of Regulation S) were made in the United States;
4. is not acquiring or using the Services for the account or benefit of any U.S. Person;
5. is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country;
6. is not listed on any U.S. Government list of prohibited or restricted parties;
7. is the age of majority in Purchaser’s place of residence and has the legal capacity to enter into this Agreement;
8. will use and interact with the Curators Society NFTs and Curators Society Character only for lawful purposes and in accordance with this Agreement; and
9. will not use the Curators Society NFTs or Curators Society Character to violate any law, regulation or ordinance or any right of the Foundation, its licensors or any third party, including without limitation, any right of privacy, publicity, copyright, trademark, or patent. Purchaser further agrees that it will comply with all applicable law.
(ii) Community Participation. Purchaser acknowledges and agrees that the Curators Society NFTs may entitle the holder the right to participate in a blockchain-powered community, featuring digital and physical community events and certain other benefits (the “Curators Society Community”). Purchaser currently is a member of the Curators Society Community.
(iii) Consumptive Purposes Only. Purchaser acknowledges and agrees that the Curators Society NFTs may not be sold, transferred or converted into any value for any purposes other than the participation and expansion of the Curators Society Community. By participating in the distribution of the Curators Society NFTs, Purchaser hereby agrees and acknowledges that (A) it is not purchasing the Curators Society NFT with the intent or expectation of profits from any appreciation in value or otherwise from the Curators Society NFTs, and (B) it is receiving the Curators Society NFTs with the sole intention of actively participating in the Curators Society Community and enjoying it for consumptive, non-commercial purposes.
(iv) Qualified Consumer. Purchaser acknowledges and agrees that it has sufficient understanding of the Curators Society Community and functionality, usage, storage, transmission mechanisms and other material characteristics of non-fungible cryptographic tokens, token wallets and other token storage mechanisms, public and private key management, blockchain technology, and blockchain-based software systems to understand this Agreement. Purchaser understands, acknowledges and agrees that such knowledge allows it to participate in the Curators Society Community and to appreciate the implications and risks of acquiring the Curators Society NFTs herein.
(c) Form of Payment. All payments for the Primary Transaction Purchase Price shall be made via ETH, unless otherwise determined in the Foundation’s sole discretion. The U.S. dollar exchange rate for any other forms of payment shall be determined solely by the Foundation, or an assignee or agent and additional transaction fees may apply.
(d) Gas Fees. By buying or selling a Curators Society NFT on the Curators Society Mint Website or any other platform, you agree to pay all applicable fees, including, but not limited to, any transaction fees and Gas Fees, as applicable. “Gas Fees” fund the network of computers that run the decentralized Ethereum network, meaning that Purchaser will need to pay a Gas Fee for each transaction that occurs via the Ethereum network. The Foundation does not have any insight into or control over these payments or transactions, nor does the Foundation have the ability to reverse any transactions. Accordingly, the Foundation will have no liability to you or to any third party for any claims or damages that may arise as a result of any transactions of the Curators Society NFTs that you engage in.
(e) Transfers: All Secondary Transactions are subject to Section 5(b) of this Agreement, as well as the following terms: (i) the Curators Society NFT transferee (the “Transferee”) shall, by purchasing or otherwise receiving the Curators Society NFT, be deemed to accept all of the terms of this Agreement as a “Purchaser” hereof (other than with respect to Sections 5(a) and 5(c)); and (ii) the Curators Society NFT transferor (the “Transferor”) shall provide notice to the Transferee of this Agreement, including a link or other method by which the terms of this Agreement can be accessible by the Transferee, and shall cause the Transferee to agree to the terms of this Agreement.
(i) Purchaser further acknowledges and agrees that: (A) all Secondary Transactions will be effected on the Ethereum blockchain, the blockchain network governing the Curators Society NFTs, and Purchaser will be required to make or receive payments exclusively through its cryptocurrency wallet; (B) the Transferor shall pay or cause to be paid to the Foundation (or its designee) an amount equal to 6.0% of the total purchase price for the
Curators Society NFT in connection with the transaction between the Transferor and the Transferee (the “Royalty Payment”), which Royalty Payment shall be paid on the same terms and at the same time as the Transferor is paid by the Transferee. You acknowledge and agree that the Royalty Payment; and (d) each such subsequent transaction shall be effected on the Ethereum blockchain. For the avoidance of doubt, you (as Transferor) and
all subsequent Transferees (to the extent they are Transferors) are responsible for paying each Royalty Payment to the extent such Royalty Payment is not automatically paid as a result of the operation of the smart contract related to the Curator.
(ii) Without limitation of any other termination rights, the Foundation may suspend or terminate the Non-Commercial License to the Curators Society Character if it has a reasonable basis for believing (A) the Purchaser is located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; (B) the Purchaser is listed on any U.S. Government list of prohibited or restricted parties; or (C) the Purchase has violated any other applicable law.
6. Warranty Disclaimers and Assumption of Risk.
THE CURATORS SOCIETY NFTS ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, THE FOUNDATION EXPLICITLY DISCLAIMS ON BEHALF OF ITSELF AND ALL OTHER PERSONS, ENTITIES AND PARTIES THAT ARE OR IN THE FUTURE MAY PROVIDE ANY ENTITLEMENTS, RIGHTS, PRIVILEGES, PREFERENCES, OR BENEFITS, OF ANY KIND OR IN ANY FORM, TO PURCHASER IN ITS CAPACITY AS A HOLDER OF THE CURATORS SOCIETY NFT, AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, AGENTS, AND REPRERESENTATIVES (COLLECTIVELY, THE “DISCLAIMED PARTIES”), AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. THE FOUNDATION ON BEHALF OF ITSELF AND THE DISCLAIMED PARTIES MAKES NO WARRANTY THAT THE CURATORS SOCIETY NFTS WILL MEET PURCHASER’S REQUIREMENTS, THE CURATORS SOCIETY CHARACTER WILL BE DISPLAYED OR AVAILABLE IN THEM, OR THE CURATORS SOCIETY NFT BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. NEITHER THE FOUNDATION NOR THE DISCLAIMED PARTIES MAKE ANY WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY INFORMATION OR CONTENT RELATED TO THE CURATORS SOCIETY NFTS.
NEITHER THE FOUNDATION NOR THE DISCLAIMED PARTIES WILL BE RESPONSIBLE OR LIABLE TO PURCHASER FOR ANY LOSS AND TAKES NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO YOU FOR, ANY USE OF THE CURATORS SOCIETY NFT, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (I) USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED WALLET ADDRESSES; (II) SERVER FAILURE OR DATA LOSS; (III) CORRUPTED FILES; (IV) UNAUTHORIZED ACCESS TO CURATORS SOCIETY NFT; OR (V) ANY THIRD PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, HACKING, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK.
THE CURATORS SOCIETY NFTS ARE INTANGIBLE DIGITAL ASSETS. THEY EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE APPLICABLE BLOCKCHAIN NETWORK. ANY TRANSFER OF TITLE THAT MIGHT OCCUR IN ANY UNIQUE DIGITAL ASSET OCCURS ON THE DECENTRALIZED LEDGER WITHIN SUCH BLOCKCHAIN NETWORK, WHICH NEITHER THE FOUNDATION NOR ANY DISCLAIMED PARTY CONTROLS. NEITHER THE FOUNDATION NOR ANY DISCLAIMED PARTY GUARANTEES THAT THE FOUNDATION OR ANY DISCLAIMED PARTYCAN EFFECT THE TRANSFER OF TITLE OR RIGHT IN ANY CURATORS SOCIETY NFT. PURCHASER BEARS FULL RESPONSIBILITY FOR VERIFYING THE IDENTITY, LEGITIMACY, AND AUTHENTICITY OF ASSETS PURCHASER PURCHASES THROUGH THE CURATORS SOCIETY WEBSITE. NOTWITHSTANDING INDICATORS AND MESSAGES THAT SUGGEST VERIFICATION, NEITHER THE FOUNDATION NOR ANY DISCLAIMED PARTY MAKES ANY CLAIMS ABOUT THE IDENTITY, LEGITIMACY, OR AUTHENTICITY OF ASSETS ON THE CURATORS SOCIETY WEBSITE OR ANY PURPORTED SECONDARY TRANSACTIONS. NEITHER THE FOUNDATION NOR ANY DISCLAIMED PARTY IS RESPONSIBLE FOR ANY KIND OF FAILURE, ABNORMAL BEHAVIOR OF SOFTWARE (E.G., WALLET, SMART CONTRACT), BLOCKCHAINS OR ANY OTHER FEATURES OF THE CURATORS SOCIETY NFTS. NEITHER THE FOUNDATION NOR ANY DISCLAIMED PARTY IS RESPONSIBLE FOR CASUALTIES DUE TO LATE REPORT BY DEVELOPERS OR REPRESENTATIVES (OR NO REPORT AT ALL) OF ANY ISSUES WITH THE BLOCKCHAIN SUPPORTING THE CURATORS SOCIETY NFTS, INCLUDING FORKS, TECHNICAL NODE ISSUES OR ANY OTHER ISSUES HAVING FUND LOSSES AS A RESULT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN CONTRACTS WITH CONSUMERS, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
7. Assumption of Risk. Purchaser accepts and acknowledges all risks associated with the following:
(a) The disclaimers set forth in Section 6 above.
(b) Any entitlements, rights, privileges, preferences, or benefits, of any kind or in any form that you may receive or be granted as a holder of Curators Society NFTs, or any lack thereof of such entitlements, rights, privileges, preferences, or benefits.
(c) Purchaser is solely responsible for determining what, if any, taxes apply to Purchaser’s purchase, sale, or transfer of Curators Society NFTs. The Foundation is not responsible for determining or paying the taxes that apply to such transactions.
(d) Curators Society NFTs are a digital asset recorded and transferable on the Ethereum blockchain. Any transfer of Curators Society NFTs occurs through automated processes on the Ethereum blockchain, which is not controlled in any capacity by the Foundation. Transactions in Curators Society NFTs may be irreversible, and, accordingly, losses due to fraudulent or accidental transactions may not be recoverable. Some transactions of the Curators Society NFTs shall be deemed to be made when recorded on the Ethereum blockchain ledger, which is not necessarily the date or time that Purchaser initiated the transaction.
(e) There are risks associated with using an Internet based digital asset, including but not limited to, the risk of hardware, software and Internet connections, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to information stored within your Wallet. The Foundation will not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience when effecting Curators Society Character transactions, however caused, including any Gas Fees paid or payable in connection therewith. The Foundation does not store your password, passkey, private key or other credentials needed to access the Curators Society NFTs following sale, and will not be able to recover such items if you should lose them. Purchaser should keep a copy of your password, private key or passkey in a secure location. (f) Transactions involving the Curators Society NFTs may rely on third-party platforms to perform transactions which are outside of the Foundation’s control.
8. Links to Third Party Websites or Resources. Use and interaction of the Curators Society NFTs and Curators Society Character may allow Purchaser to access third-party websites (including websites that host the Curators Society Character) or other resources. The Foundation provides access only as a convenience and is not responsible for the content, products, or services on or available from those resources or links displayed on such websites. Without limiting Section 7, Purchaser acknowledges sole responsibility for and assumes all risk arising from Purchaser’s use of any third-party resources. Under no circumstances shall Purchaser’s inability to view its Curators Society Character on a third-party website serve as grounds for a claim against the Foundation.
9. Termination of Non-Commercial License to Curators Society Character. Purchaser’s Non-Commercial License to the Curators Society Character shall automatically and immediately terminate without notice if at any time: (a) Purchaser breaches any portion of this Agreement, including any failure to pay any Royalty Payment, (b) Purchaser engages in any unlawful activity related to the Curators Society NFT (including the receipt of the Curators Society NFT by a Prohibited Transferee) or (c) if the Foundation has a reasonable basis for believing that you have engaged in a subsequent transaction with respect to a Curators Society NFT that is not recorded on, effected by, or otherwise conducted using the Ethereum blockchain, or is otherwise conducted in a manner reasonably likely to cause the Royalty Payment to not be timely paid. Upon any termination, discontinuation or cancellation of Purchaser’s licenses to Curators Society Character, the Foundation may disable Purchaser’s access to the Curators Society Character and Purchaser shall delete, remove, or otherwise destroy any back up or single digital or physical copy of the Curators Society Character. Upon any termination, discontinuation or cancellation of the Non-Commercial License in this Agreement, the following Sections will survive: 2 and 4-16.
10. Indemnity. Purchaser shall defend, indemnify, and hold the Foundation , its subsidiary, and any and all affiliate companies and service providers, and each of their respective officers, directors, members, affiliates, agents, attorneys, and employees (collectively, the “Foundation Parties”) harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought by a third party (including any person who accesses or transacts using the Curators Society NFTs whether or not such person personally purchased the Curators Society NFTs) against any Foundation Party, or on account of the investigation, defense, or settlement thereof, arising out of or in
connection with (a) Purchaser’s purchase, ownership, use and interaction with the Curators Society NFTs, Non-Commercial License to the Curators Society Character or exploitation or use of the Access Rights, (b) Purchaser’s breach or anticipatory breach of this Agreement, (c) Purchaser’s violation or anticipatory violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental and quasi-governmental authorities in connection with Purchaser’s use or interaction with the Curators Society NFTs, and (d) any misrepresentation made by Purchaser (all of the foregoing, “Claims and Losses”). Purchaser will cooperate as fully required by the Foundation in the defense of any Claim and Losses. Notwithstanding the foregoing, the Foundation may act on behalf of the Purchaser to agree to any settlement or compromise with respect to any Claims and Losses, and any such agreement shall bind and be an obligation of the Purchaser. The Foundation reserves the right to assume the exclusive defense and control of any Claims and Losses. Purchaser will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of the Foundation.
11. Limitation of Liability.
(a) TO THE MAXIMUM EXTENT PERMITTED BY LAW, NONE OF THE FOUNDATION PARTIES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE CURATORS SOCIETY NFTS OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE OR INTERACT WITH THE CURATORS SOCIETY NFTS OR ACCESS THE CURATORS SOCIETY CHARACTER, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE FOUNDATION PARTIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
(b) TO THE MAXIMUM EXTENT PERMITTED BY THE LAW OF THE APPLICABLE JURISDICTION, IN NO EVENT WILL THE AGGREGATE LIABILITY OF THE FOUNDATION PARTIES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE USE OF OR INABILITY TO USE OR INTERACT WITH THE CURATORS SOCIETY NFTS OR ACCESS THE CURATORS SOCIETY CHARACTER EXCEED THE PRIMARY TRANSACTION PURCHASE PRICE.
(c) THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE FOUNDATION AND PURCHASER.
12. Governing Law and Forum Choice. This Agreement and any action related thereto will be governed by the laws of Panama, without regard to its conflict of laws provisions. The parties expressly consent to personal and exclusive jurisdiction in the courts located in Panama City, Panama, and you and the Foundation each waive any objection to jurisdiction and venue in such courts.
13. General Terms. If any provision of this Agreement is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect. This Agreement will transfer and be binding upon and will inure to the benefit of the parties and their permitted successors and assigns, in particular any Transferee. This Agreement constitutes the entire agreement, and supersedes any and all prior or contemporaneous representations, understandings and agreements, between the Parties with respect to the subject matter of this Agreement, all of which are hereby merged into this Agreement. Without limitation, the terms of any other document, course of dealing, or course of trade will not modify this Agreement, except as expressly provided in this Agreement or as the Parties may agree in writing. This Agreement may be amended by the Foundation in its absolute and sole discretion; provided, that the Foundation shall give notice of any material amendments to this Agreement to the holders of the Curators Society NFTs through reasonable and public means (i.e., public post on a social media network, e.g., Twitter). Failure to promptly enforce a provision of this Agreement will not be construed as a waiver of such provision. Nothing contained in this Agreement will be deemed to create, or be construed as creating, a joint venture or partnership between the parties. Neither Party is, by virtue of this
Agreement or otherwise, authorized as an agent or legal representative of the other Party. Neither Party to this Agreement is granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf or in the name of the other party, or to bind such other Party in any manner. Nothing contained in this Agreement will be deemed to create any third-party beneficiary right upon any third party whatsoever. Each of the Parties acknowledges that it has had the opportunity to have this Agreement reviewed or not by independent legal counsel of its choice. If any one or more of the provisions of this Agreement should be ruled wholly or partly invalid or unenforceable, then the provisions held invalid or unenforceable will be deemed amended, and the court or other government body is authorized to reform the provision(s) to the minimum extent necessary to render them valid and enforceable in conformity with the parties’ intent as manifested herein. The
headings to Sections of this Agreement are for convenience or reference only and do not form a part of this Agreement and will not in any way affect its interpretation. Neither Party will be afforded or denied preference in the construction of this Agreement, whether by virtue of being the drafter or otherwise. For purposes of this Agreement, the words and phrases “include,” “includes”, “including” and “such as” are deemed to be followed by the words “without limitation”. Any notices or other communications provided by the Foundation under this Agreement be given by posting to the Curators Society Website or other website elected by the Foundation. Purchaser may give notice to the Foundation by mail per the below, effective upon receipt. The Parties have agreed to contract electronically, and accordingly, electronic signatures will be given the same effect and weight as originals.
