BLOCKPERKS CREATOR/ ARTIST NFT AGREEMENT
TERMS OF SERVICE
Blockperks (“The Service'', or “Blockperks Service”) is an NFT launchpad and/ or “Platform” that serves to facilitate content producers, creators, artists, influencers and publishers in the publication and distribution of their works and for users to purchase digital content in a variety of formats. Blockperks Service provides content creators, artists, influencers and publishers with NFT (Non-Fungible-Token) minting, listing and promotional services. The Agreement set forth in this document applies to all individuals and/ or organizations supplying content to the Blockperks Service (“Creators'', “You” or “Creator”) and constitutes a binding, legal agreement (“Agreement”) between the Creator and Blockperks. By using the Blockperks Service, you accept the terms and conditions described below, and you warrant and represent that you have the legal capacity to enter into this Agreement. This Agreement also sets forth terms of the use of Blockperks ’s NFT minting, listing and promotional service
- Blockperks :Blockperks and its licensors, affiliates, successors and assigns.
- Content :Content that is digital that may consist of spoken word audio, information, data, text, software, music, sound, photographs, graphics, video, messages or other materials.
- You or Creator, Artist, Influencer or Signee :Individual and/or entity supplying content to Blockperks or an individual and /or entity for whom Blockperks has created content at the individual/entity’s option.
- User :Any person who views content on the Blockperks Platform.
- Subscriber :Any person who pays a subscription to view content hosted on the Blockperks Platform.
- Exclusivity :Exclusive relationship between Blockperks and Creator concerning either content production and publication or NFT minting and listing, or both, for an agreed-upon duration.
- IP :Intellectual Property as defined customarily by law or as defined elsewhere in this agreement.
- NFT or NFTs :Non-Fungible Tokens. A non-fungible token is a unit of data stored on a blockchain that certifies a digital asset to be unique and not interchangeable.
I. Creator Agreement Terms
In consideration of the mutual promises contained herein, and other good and valuable consideration, the sufficiency of which is hereby acknowledged, You hereby agree as follows:
- License. As a Creator distributing your work through Blockperks’s Service and/ or Platform, you retain your copyright in the Content. However, by submitting Content to Blockperks you hereby grant Blockperks a worldwide, non-exclusive, royalty-free, sub-licensable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and Blockperks’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each User of the Service a non-exclusive license to access and display your Content through the Service, and to use such Content as permitted through the functionality of the Service and under these Terms of Service. The above licenses granted by you in user comments you submit are perpetual and irrevocable
- Blockperks reserves the right to display advertising before, after or in conjunction with the distribution of Content that is freely available. Creator and its licensees shall retain full control and ownership of, and absolute liability for all content contained and uploaded to Blockperks Platform. Blockperks retains the right to alter the design or layout of the Platform. Blockperks retains the right to remove any content from a Blockperks Platform as outlined in this Agreement.
- As a Creator distributing Content through Blockperks, you represent and warrant that the Content:
- Is owned by you, or to the extent owned by someone else, that you have obtained that party’s express permission to provide the Content to Blockperks for use, copying and distribution under the license in this Agreement;
- Does not violate any copyright, trademark, trade secret or other intellectual property rights of any third party;
- Does not invade any individual’s right of privacy or publicity;
- Does not contain material that is unlawful, obscene, defamatory, pornographic, indecent, lewd, harassing, threatening, harmful, invasive of privacy or publicity rights, abusive, inflammatory or otherwise objectionable, Does not include malicious code, which includes, without limitation, viruses, Trojan horses, worms, time bombs, cancelbots, or any other computer programming routines that may damage, interfere with, surreptitiously intercept, or expropriate any system, program, data, or personal information;
- Does not break the law, facilitate the breaking of the law, or violate any applicable regulation or Blockperks ’s rules or policies;
- Does not offer or disseminate fraudulent goods, services, schemes, or promotions, or promote domain names, URLs, or hyperlinks that constitute commercial content such as that found in advertising, promotions, or solicitations;
- That if any of the above representations and warranties set forth directly above are not true, that you will indemnify Blockperks , their employees, representatives, affiliates, partners or assigns and hold them harmless for any such damages resulting therefrom, including compensation for their attorney’s fees, court costs or any other expenses related to such breach of this agreement.
- You agree that to the best of your knowledge, all purported factual information in the Content you upload is true and accurate, and the use of any information in the Content will not result in personal injury to any user. Creators are prohibited from using Blockperks to impersonate another person or entity or to forge any e-mail communication or message.
As a Blockperks Creator, you may submit Content to the Blockperks Service, including but not limited to videos and user comments. You understand that Blockperks does not guarantee any confidentiality with respect to any Content you submit.
- You shall be solely responsible for your own Content and the consequences of submitting content to the Blockperks Service. You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish Content you submit; and you license to Blockperks all patent, trademarks, trade secret, copyright or other proprietary rights in and to such Content for publication on the Service pursuant to these Terms of Service.
- You further agree that Content you submit to the Service will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant Blockperks all of the license rights granted herein.
- Blockperks does not endorse any Content submitted to the Service by any user or other licensor, or any opinion, recommendation, or advice expressed therein, and Blockperks expressly disclaims any and all liability in connection with Content. Blockperks does not permit copyright infringing activities and infringement of intellectual property rights on the Service, and Blockperks will remove all Content if properly notified if it is shown that such Content infringes on another’s intellectual property rights. Blockperks reserves the right to decide whether Content violates this agreement or its Terms of Service for reasons other than copyright infringement, such as, but not limited to, any illegal content, pornography, obscenity, or excessive length. Blockperks is a private service and may at any time, without prior notice and in its sole discretion, remove such Content and/or terminate a user’s account for submitting such material in violation of these Terms of Service without prior notice.
- License to Other Users: You further grant all Users of the Blockperks Service permission to view or download your content for their personal, non commercial purposes. This permission and license shall not apply to content that is exclusive to paying subscribers on Blockperks platform. The foregoing licenses are in addition to any license you may decide to grant (e.g., a Creative Commons license).
- Duration of Licenses: The above licenses will continue until the termination of this agreement. Additionally, Blockperks shall be granted a 45 day period to remove licensed content from any media under Blockperks 's control. Notwithstanding the foregoing, the license for legal archival/preservation purposes will continue indefinitely. Please note that removed content may be cached in search engine indices after removal and that Blockperks has no control over such caching.
- Additional Content Provisions. As between you and Blockperks , you own all content that you submit to the Blockperks Service. You grant Blockperks and its affiliates a worldwide, perpetual, irrevocable, non-exclusive, royalty-free license and right to copy, transmit, distribute, publicly perform and display (through all media now known or hereafter created), and make derivative works from your content. In addition, you waive any so-called “moral rights'' in your content. You further grant all Users of the Blockperks Service permission to view your content for their personal, non-commercial purposes. If you make suggestions to Blockperks on improving or adding new features to the Block perks Service, Blockperks shall have the right to use your suggestions without any compensation to you.
- Blockperks shall cover its’ website platform and hosting costs which may be incurred in relation to the Creators’ NFT promotion, however, if the Creator wishes to work with a designer of their own choosing the Creator shall cover the costs of such designer.
- Creator, at its choosing, may grant to Blockperks the option to operate various communication functions of the Platform such as web chat, email correspondence etc. on Creator’s behalf. Limitations of liability for such operations are described in Section 7 herein.
2. IndemnityTo the extent permitted by applicable law, you agree to defend, indemnify and hold harmless Blockperks, its parent corporation, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service; (ii) your violation of any term of these Terms of Service; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that your Content caused damage to a third party. This defense and indemnification obligation will survive these Terms of Service and your use of the Service.
3. Term of Agreement.This Agreement is effective at all times whilst you the Creator are using the Blockperks website and/ or whilst you have any NFT’s for sale or otherwise on the Blockperks website application. Blockperks may terminate or suspend this Agreement immediately if in Blockperks’s sole judgment you the Creator breaches any of the terms and conditions of this Agreement. All provisions of this Agreement relating to payment, disclaimers, limitation of liability, indemnification, confidentiality, and proprietary rights shall survive termination or expiration of this Agreement.
4. Operation of Service. Blockperks may at its discretion suspend or terminate operation of the Service for maintenance or other reasons. In addition, for maintenance reasons, because of technical issues, or for other reasons, Blockperks Platform could be unavailable from time to time. Blockperks makes no commitment, warranty or guarantee that the Service will operate in a timely, uninterrupted or error-free manner, or that the Service will meet Creator’s purposes. Blockperks may also in its discretion modify the features, availability, operation and/or look and feel of the Service from time to time without notice to the Creator. In the case of custom sites created by Blockperks on behalf of the Creator, Blockperks will notify the Creator within reasonable time of such changes made to the custom site.
5. Disclaimers.The Blockperks Service and all software, services, information, materials, forums, tools and Content provided or offered on the Service are provided or offered by Blockperks and its third-party licensors and content providers on an “as-is”, “as-available” basis, without representation or warranty of any kind by Blockperks , including but not limited to the implied warranties of merchantability, non-infringement and fitness for a particular purpose.
6. Limitation of Liability.In no event shall Blockperks or any of its officers, employees, directors, affiliates, agents or third-party licensors and content providers be liable to Creator or anyone else for any special, consequential, indirect, cover, punitive, incidental or similar damages (including, without limitation, lost profits, lost sales, or lost business) directly or indirectly related to or arising out of the Service, Content on the Service, or any transaction entered hereunder, whether in contract, tort or otherwise, even if Blockperks or one of its officers, employees, affiliates or agents has been advised of the possibility of such damages. If the Creator grants Blockperks the right to use various functions of the Service on behalf of the Creator, such as replying to chat or email messages, Blockperks shall act in good faith and take reasonable steps to prevent any acts of gross negligence, misrepresentation or misconduct by it’s Directors, agents, employees and/ or contractors acting in such capacity however shall not be liable for any such damages whatsoever or in case of any gross negligence or recklessness on part of Blockperks, its contractors, agents or its’ employees. Any action under this Agreement must be commenced within one (1) year after such cause of action occurs.
7. Standards.Creator shall conduct business in a manner that reflects favorably at all times on the Services and the good name, goodwill, and reputation of Blockperks. Creator shall avoid deceptive, misleading, or unethical practices that are or might be detrimental or disparaging to Blockperks or its services. Creator shall make no covenants, representations, warranties or guarantees to end Users or to the trade with respect to the specifications, features, or capabilities of the services which are inconsistent with the literature distributed by Channel Runner, or which are inconsistent with the then current Blockperks End User Agreement. Channel Runner will notify Blockperks immediately in writing of any knowledge or suspicion of any violations of Blockperks’s patents, copyrights, trademarks, or other proprietary rights.
8. Proprietary Rights.Creator acknowledges and agrees that all applicable copyrights, trade secrets, patents and other intellectual and property rights in the Services and the Platform and all other items provided hereunder are and remain in Blockperks. In addition, the overall look and feel and the compilation of all materials and content on Service are owned by Blockperks. It is expressly understood that no title to or ownership of the Services, or any part thereof is hereby transferred to Creator. Creator shall not reverse engineer, decompile, disassemble or otherwise derive source code from the Services. All rights not expressly granted herein are reserved to Blockperks .
9. Trademarks.Blockperks authorizes Creator to use Blockperks ’s current and future trademarks, service marks and trade names (“Marks”) solely in connection with the marketing and distribution of Services and Content pursuant to this Agreement.
10. CorrespondenceAny correspondence or notifications Blockperks makes pursuant to this agreement may be made via any physical or digital written form, including but not limited to postal service, email, and notifications delivered via the Service.
- No amendments or modifications may be made to this Agreement except as set forth in the Agreement and Amendments section below or in a written document, agreed to by both parties.
- This Creator Agreement and all rights appurtenant hereto shall be fully transferable or assignable by Blockperks, in whole or in part, by operation of law, by virtue of an acquisition or merger of Blockperks, or otherwise, without any consent of Creator. Blockperks without any additional notice or consent on the part of Creator may enter into any agency or sub-distribution or super distribution agreements with respect to all or a portion of the Content or other materials of any Creator.
- Subject to the above, this Agreement shall be binding upon and inure to the benefit of the successors and assigns of the respective Parties hereto.
- Every provision of this Agreement is intended to be severable. If any section of this Agreement is found to be invalid or unenforceable, then such section will be deemed amended and interpreted, if possible, in a way that renders it enforceable. If such an interpretation is not possible, then the section will be deemed removed from this Agreement and the rest of this Agreement will remain in full force and effect.
- This Agreement is governed by the laws of the United Kingdom, without regard to its choice of law provisions. The parties agree that any dispute involving Blockperks related to this Agreement or the Blockperks Service that cannot be settled by good faith negotiation shall be submitted to arbitration in accordance with the prevalent rules governing arbitration in the United Kingdom. The location of the arbitration shall be in London, UK. The arbitration shall be conducted by a single arbitrator with experience in computer/technology matters and in the publishing industry. The decision of the arbitrator shall be legally binding and shall be enforceable in any court of competent jurisdiction.
- Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. After the Notice is received, you and Blockperks may attempt to resolve the claim or dispute informally. If you and Blockperks do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
- Each party shall be excused from performance and shall not be liable for any delay caused by the occurrence of any contingency beyond the reasonable control either of the excused party or its subcontractors or suppliers, except for obligations to make payments hereunder. These contingencies include, but are not limited to, war, sabotage, insurrection, riot or other act of civil disobedience, labor disturbance or shortage, act of public enemy, failure or delay in transportation, act of any government affecting the terms hereof, accident, fire, explosion, flood, severe weather or other act of God.
- This Agreement does not create a partnership nor does it designate either party as the agent, employee, legal representative, partner or joint venture of the other party for any purpose whatsoever.
- Creator agrees that it has the full power and authority to enter into and perform in accordance with the terms of this Agreement. Creator agrees that this Agreement is a legal, valid and binding obligation, and that its terms and conditions can be enforced. Blockperks may change the terms in this Agreement from time to time. When the terms are changed, Blockperks will notify the Creator. Creator agrees to review changes to the terms of this Agreement. If the Creator does not agree to be bound by any future changes, you should promptly notify Blockperks and discontinue your use of the Service. If you use the Service after Blockperks has notified you of a change to these terms, you are agreeing to be bound by all of the changes.
- Taxes. . Creators shall be solely responsible for payment of taxes and any and all tax liability resulting from payments made to them by Blockperks for content received pursuant to the terms of this agreement, whether or not a 1099 is received from Blockperks. Creator shall hold Blockperks harmless and indemnify them for Creator’s failure to pay any taxes owed to any governmental authority on revenue received pursuant to this agreement.NFT Agreement Terms
12. Blockperks NFT Platform.
- The Blockperks NFT Platform.This part of the Agreement governs Creator’s use of the Blockperks Services ( “Blockperks Services' ' or the “Platform”) with regard to the minting and listing of NFTs (Non Fungible Tokens). In addition to services described in the section of this Agreement titled “Creator Agreement” the Platform is a software application created, operated and made publicly available by Blockperks for, among other things, the Minting of and facilitating transactions involving NFTs on behalf of Creators. Blockperks also shall prepare, and the Creator shall grant Blockperks the right to do so, the profile of the Creator which may include any publicly available information. Such profile shall be a part of each NFT.
- Alterations to Platform.Blockperks may from time-to-time change or discontinue any or all aspects or features of the Platform, including by altering the smart contracts which are included in the Platform pursuant to upgrades, forks, security incident responses or chain migrations, etc. In such events, the Creator may no longer be able to interact with or read the data from the Platform through any or all previously compatible applications.
13. Prohibited Uses.Creator must not, directly or indirectly:
- Engage in or attempt to engage in any act or omission, employ any device, scheme or artifice to defraud, or otherwise materially mislead, Blockperks or any Person using the Platform;
- use the Platform by or on behalf of a competitor of Blockperks ;
- engage or attempt to engage in or assist any hack of or attack on the Platform, including any “sybil attack,” “DoS attack” or “griefing attack” or theft of NFTs, or funds, or upload files that contain viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or any other similar software or programs that may damage the operation of another’s computer or property or interfere with the Platform or the Blockperks Protocol;
- provide Blockperks with Creator IP, or upload, or otherwise make available, Creator IP or files that contain images, photographs, software or other material that, or Mint, list, buy, sell or trade any Creator NFT that
- a. infringes or is in a manner infringing the copyright, trademark, patent, trade secret, privacy, publicity or other Intellectual Property Rights of others; or
- b. is libelous, defamatory, profane, obscene, pornographic, indecent, unlawful or otherwise objectionable;
- defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of another user of the Platform;
- attempt to circumvent any content-filtering techniques on the Platform;
- engage in or knowingly facilitate any “front-running,” “wash trading,” “pump and dump trading,” “ramping,” “cornering” or fraudulent, deceptive or manipulative trading activities, including:
- trading an NFT at successively lower or higher prices for the purpose of creating or inducing a false, misleading or artificial appearance of activity in such NFT, unduly or improperly influencing the market price for such NFT trading on the Platform or establishing a price which does not reflect the true state of the market in such NFT;
- for the purpose of creating or inducing a false or misleading appearance of activity in an NFT or creating or inducing a false or misleading appearance with respect to the market in an NFT: (A) executing or causing the execution of any transaction in an NFT which involves no material change in the beneficial ownership thereof; or (B) entering any order for the purchase or sale of an NFT with the knowledge that an order of substantially the same size, and at substantially the same price, for the sale of such NFT, has been or will be entered by or for the same or different parties; or
- participating in, facilitating, assisting or knowingly transacting with any pool, syndicate or joint account organized for the purpose of unfairly or deceptively influencing the market price of an NFT;
- utilize the Platform to transact in securities, commodities futures, trading of commodities on a leveraged, margined or financed basis, binary options (including prediction-market transactions), real estate or real estate leases, equipment leases, debt financings, equity financings or other similar transactions; utilize the Platform to engage in any insider trading or any other similar unlawful activities.
- utilize the Platform to buy, sell or advertise personal, professional or business services;
- utilize the Platform to engage in token-based or other financings of a business, enterprise, venture, decentralized autonomous organization (“DAO”), software development project or other initiative, including initial coin offerings (“ICO(s)”), decentralized autonomous coin offerings (“DAICO(s)”), initial exchange offerings (“IEO(s)”), “yield farming” or other token-based fundraising events; or
- utilize the Platform primarily as a general-purpose communications or messaging or social networking platform without the minting of NFT’s or social tokens.
14. Copyright Notice. Blockperks and the Blockperks Protocol, as well as any additional trademarks or service marks identified by Blockperks are the sole property of Blockperks. All rights reserved. All other trademarks appearing in the Platform are the property of their respective owners.
- . Except for the limited rights granted to Blockperks as set forth herein, Creator shall own all right, title, and interest, including, without limitation, all patent, copyright, trademark and trade secret rights, in and to the Creator IP and the Off-Chain Benefits. All NFTs minted under this agreement shall be subject to an indefinite license granted by the Creator to Blockperks .
16. NFT Minting and Listing Services.
- Minting Service. Blockperks shall, upon the delivery by Creator to Blockperks of (a) suitable Creator IP, whether still images, audio content or audiovisual content, (b) written specifications detailing any restrictions on, or rights or obligations of a purchaser of a Creator NFT with respect to, the use and exploitation of Creator IP (which specifications Blockperks shall display in connection with its offering of Creator NFTs), and (c) notice of any Off-Chain Benefits in respect of any Creator NFTs hereunder, subject to this Agreement: (i) use commercially reasonable efforts to use Creator IP to Mint and offer Creator NFTs via the Platform; and (ii) use commercially reasonable efforts to provide other such reasonable services and functions that are reasonably required for the proper performance and provisions of the Minting Service ((i)-(ii) collectively, the “Minting Service'').
- NFT Listing. Subject to this Agreement Blockperks will use commercially reasonable efforts and provide reasonable technical support to Creator to enable the trading of the Creator NFTs on the Platform and/ or on the Creator’s subdomain in all or parts of the Territory.
- Launch and Promotion Exclusivity: By Signing this agreement you, the Creator agree to launch any created NFTs associated with you or your public image (in any form they may be) after the signing date of this agreement exclusively with Blockperks . Once you have launched your platform and done promotion with Blockperks and wish to change the platform you may do so, but only after launching exclusively with Blockperks . In case you have done NFT drops prior to signing of this agreement with Blockperks , your subsequent NFT launches, drops or promotions associated with NFTs must be done with Blockperks .
- One Year Exclusivity: By Signing this agreement you, the Creator agree to launch any created NFT’s associated with you or your public image (in any form they may be) after the signing date of this agreement exclusively with Blockperks for a period of one year.
- TaxesThe liability for all transfer, documentary, sales, use, stamp, registration and other such similar taxes, and all conveyance fees, recording charges and other similar fees and incurred in connection with the Minting of a Creator NFT or any payment for any sale of any Creator NFT on the Platform or on any Creator’s subdomain shall be borne exclusively by, and is hereby assumed, by Creator.
17. Indemnification.Creator shall indemnify and hold harmless Blockperks , its Affiliates and their respective representatives (the “Indemnitees'') from and against, and shall compensate and reimburse each of the Indemnitees for, any Damages that are directly or indirectly suffered or incurred at any time by any of the Indemnitees or to which any of the Indemnitees may otherwise directly or indirectly become subject at any time and which arise directly or indirectly from or as a result of, or are directly or indirectly connected with: (a) any act or omission of or attributable to Creator, including, without limitation, any act or omission involving any third party in connection with the Minting, listing, buying, selling or trading of any Creator NFTs hereunder; (b) any breach of or inaccuracy in any of the representations and warranties made by Creator; (c) any breach or non-performance of any covenant or agreement made by Creator; (d) Creator IP or the Minting, listing, buying, selling or trading of any NFTs; (e) any Off-Chain Benefits (including the furnishing or any failure to furnish, or any acts or omissions of or attributable to Creator or any third party in respect of, same) or (f) Creator’s use or misuse of the Platform, including for any Prohibited Uses.
18. Representations and Warranties of Creator.Creator hereby represents and warrants, to and for the benefit of Blockperks , its Affiliates and its and their respective representatives, as follows:
- Authority.Creator has all requisite capacity, power and authority to enter into, and perform Creator’s obligations under, this Agreement, including to upload Creator IP or to Mint, list, buy, sell or trade of any Creator NFTs. The execution, delivery and performance of, and the performance of Creator’s obligations under, this Agreement have been duly authorized by all necessary action on the part of Creator and, if Creator is an entity, its board of directors or comparable authority, and no other proceedings on the part of Creator are necessary to authorize the execution, delivery or performance of by Creator of its obligations under this Agreement.
- Due Execution.This Agreement constitutes the legal, valid and binding obligation of Creator, enforceable against Creator in accordance with its terms
- Accuracy of Background Check Information. All information provided to Blockperks and/or its third-party designees, including its address and social security number or tax ID number, is accurate and complete. None of: (i) Creator; (ii) any Affiliate of Creator; (iii) any Person having a beneficial interest in Creator; or (iv) any Person for whom Creator is acting as agent or nominee in connection with this agreement is: (A) a country, territory, entity or individual named on an OFAC list as provided at http:// www.treas.gov/ofac, or a Person or entity prohibited under the OFAC programs, regardless of whether or not they appear on the OFAC list; or (B) a senior foreign political figure, or any immediate family member or close associate of a senior foreign political figure.
- Non-Contravention. . (i) if Creator is an entity, conflict with or violate any of the charter documents of Creator or any resolution adopted by its equity holders or other Persons having governance authority over the entity; (ii) the Creator will not contravene, conflict with or violate any right of any third party or any applicable Legal Requirement to which Creator or any of the assets owned or used by Creator, is subject; or (iii) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under any material contract or agreement of Creator, permit held by Creator or Legal Requirement applicable to Creator.
- Litigation.There is no Legal Proceeding pending that relates to Creator’s activities relating to the Minting of Creator NFTs or other token- or digital asset-trading or blockchain technology related activities.
- Intellectual Property and Related Matters. Creator is the sole and exclusive owner of all right, title and interest in and to all Intellectual Property Rights incorporated into or otherwise used, held for use or practiced in connection with (or planned by Creator to be incorporated into or otherwise used, held for use or practiced in connection with) the Creator IP, Off-Chain Benefits and the Minting of the Creator NFTs, other than any Intellectual Property Rights that are validly licensed (or provided on a hosted basis) to Creator pursuant to valid and binding Intellectual Property Licenses granted to Creator. By selling the NFT the Creator grants the buyer a non-commercial license to the NFT rights.
- Compliance. Creator has not failed to comply with, and has not violated, any applicable Legal Requirement relating to any blockchain technologies, token trading activities or Minting of NFTs. No investigation or review by any Governmental Entity is pending or, to Creator’s knowledge, has been threatened against or with respect to Creator.
- Orders.There is no Order to which Creator or any representative of Creator is subject that prohibits Creator or such representative from engaging in or continuing any conduct, activity or practice relating to Minting of NFTs.
- "Claim" means any past, present or future dispute, claim, controversy, demand, right, obligation, Liability, action or cause of action of any kind or nature, including any unknown, unsuspected or undisclosed claim.
- "Liability" means any debt, obligation, duty or liability of any nature (including any unknown, undisclosed, unmatured, unaccrued, unasserted, contingent, indirect, conditional, implied, vicarious, derivative, joint, several or secondary liability), regardless of whether such debt, obligation, duty or liability would be required to be disclosed on a balance sheet prepared in accordance with GAAP and regardless of whether such debt, obligation, duty or liability is immediately due and payable.
- "Blockperks" mean Blockperks , Blockperks ’s Affiliates and Blockperks ’s and Blockperks ’s Affiliates’ respective successors and past, present and future assigns and representatives.
- Release.Creator (on Creator’s own behalf and on behalf of Creator’s representatives and Affiliates) (Creator and such other Persons, the “Creator Persons'') hereby irrevocably, unconditionally and completely releases, acquits and forever discharges Blockperks and each of the Blockperks Persons from, and hereby irrevocably, unconditionally and completely waives and relinquishes, each and every Claim, that any Creator Person may have had in the past, may now have or may have in the future against Blockperks or any of the Blockperks Persons, directly or indirectly relating to or directly or indirectly arising out of any event, matter, cause, thing, act, omission or conduct occurring, existing or arising in connection with the Creator IP, or the Minting, selling, buying or trading of any Creator NFT or other use of the Platform (including Prohibited Uses) or execution or performance of any obligations pursuant to this Agreement, including any Claim based on a theory of quantum meruit, promissory estoppel or other equitable doctrine; provided, however, that Creator is not releasing any rights expressly provided to Creator under this Agreement.
- Necessary Actions. Creator represents and warrants that Creator has taken all actions necessary or appropriate to give full effect to the release given by Creator (on such Creator’s own behalf and on behalf of the other Creator Persons) in this Section.
- Further Assurances. Creator agrees that Creator shall execute and deliver (and ensure that the other Creator Persons execute and deliver) to Blockperks and the other Blockperks Persons such instruments and other documents, and shall take (and ensure the other Creator Persons take) such other actions, as Blockperks may request in good faith for the purpose of carrying out or evidencing the release and related matters set forth in this Section. Without limiting the generality of the foregoing, Creator agrees that Creator will not assert or attempt to assert, and will ensure that none of the other Creator Persons will assert or attempt to assert, any Claim of the type described or referred to in this Section of the agreement against Blockperks or any Blockperks Person at any time after the effectiveness of this Agreement.
- Definitions. For purposes of this Section 7:
20. Risks, Disclaimers, and Limitations of Liability.
- No Consequential, Incidental or Punitive Damages. Notwithstanding anything to the contrary contained in this Agreement, Blockperks shall not be liable to Creator or any other person, whether in contract, tort (including pursuant to any cause of action alleging negligence), warranty or otherwise, for special, incidental, consequential, indirect, punitive or exemplary damages (including but not limited to lost data, lost profits or savings, loss of business or other economic loss) arising out of or related to this Agreement, whether or not Blockperks has been advised or knew of the possibility of such damages, and regardless of the nature of the cause of action or theory asserted.
- Limitation of Liability.Blockperks’s liability for Damages to Creator, including but not limited to the loss of any proceeds from the sale of NFTs under the custody or control of Blockperks , other than as a direct result of fraud, gross negligence or intentional misconduct by Blockperks, shall in all cases be limited to, and under no circumstances shall exceed, the amounts retained by Blockperks in connection with the Minting and sale via the Platform of Creator NFTs.
- Disclaimer of Representations. Blockperks Services are being provided on an “AS IS” and “AS AVAILABLE” basis. To the fullest extent permitted by law, Blockperks is not making, and hereby disclaims, any and all information, statements, omissions, representations and warranties, express or implied, written or oral, equitable, legal or statutory, in connection with the Blockperks Services and/or Platform and the other matters contemplated by this Agreement, including any representations or warranties of title, non-infringement, merchantability, usage, security, uptime, reliability, suitability or fitness for any particular purpose, workmanship or technical quality of any code or software used in or relating to the Platform.
- No Responsibility for NFTs; No Guarantee of Uniqueness or IP.Blockperks has no responsibility for the NFTs Minted, sold, bought or traded by Creator on the Platform. Blockperks does not investigate and cannot guarantee or warrant the authenticity, originality, uniqueness, marketability, legality or value of any NFT created or traded by Creator on the Platform. For the avoidance of doubt, Creator shall comply with, and Blockperks shall have no responsibility for any failure of Creator to comply with, any terms regarding the authenticity, originality, uniqueness, scarcity or other description or characteristics of the Creator NFTs furnished by or on behalf of Creator and displayed by Blockperks on the Platform. Blockperks can not and does not warrant, guarantee or promise that the NFTs minted by Blockperks shall have any commercial, monetary, market, social or any other value. NFTs created by Blockperks are not stocks, bonds, commodities, goods or securities. Additionally, in case of failure of the Blockchain technology supporting the NFT, Blockperks shall not be liable to the Creator for any losses.
21. Term and Termination.1. Subject to this Section, this agreement will remain in full force as per the terms of Section 4 of the Agreement titled “Term of Agreement” herein. Notwithstanding the above, in case of NFTs involving services or experiences, except in cases of loss of access to the NFT by its holder or failure of the Blockchain technology, the Creator is obligated to perform the service or experience even after the expiration of the terms of this agreement.
22. Changes.This agreement is subject to occasional revision, and if Blockperks makes any substantial changes, Blockperks may notify Creator by sending an email to the last e-mail address Creator provided (if any), and/or by prominently posting notice of the changes on the Platform. In the event that the last e-mail address that Creator provided is not valid, or for any reason is not capable of delivering to Creator the notice described above, Blockperks’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to this agreement will be effective upon the earlier of thirty (30) calendar days following the dispatch of an email notice to Creator (if applicable) or thirty (30) calendar days following the posting of notice of the changes on the Platform. These changes will be effective immediately for new Creators of the Platform. Continued use of the Platform following notice of such changes shall indicate Creator’s acknowledgement of such changes and agreement to be bound by the agreement and conditions of such changes.
23. Dispute Resolution concerning NFTs.Please read this NFT Arbitration Agreement carefully. It is part of your contract with Blockperks and affects your rights with regard to Non Fungible Tokens (NFTs). It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
- Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with this agreement or the use of any product or service provided by Blockperks , including NFTs that cannot be resolved informally shall be resolved by binding arbitration on an individual basis. The applicable law shall be the law of the United Kingdom, and the arbitration will take place in accordance with the prevalent rules governing arbitration in the United Kingdom. The location of the arbitration shall be in London, UK. The arbitration shall be conducted by a single arbitrator with experience in computer/ technology matters and in the publishing industry. The decision of the arbitrator shall be legally binding and shall be enforceable in any court of competent jurisdiction.
- Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. After the Notice is received, you and Blockperks may attempt to resolve the claim or dispute informally. If you and Blockperks do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
- Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
- Time Limits If you or Blockperks pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim).
- Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Blockperks , and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law and this agreement. The arbitrator shall 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 arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Blockperks .
- Waiver of Jury Trial.THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and Blockperks in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND Blockperks WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
- Waiver of Class or Consolidated Actions.ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
- Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law.
- Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
- Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
- Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Blockperks .
- Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement
- Claims Not Subject to Arbitration..Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
- Courts In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within the United Kingdom for such purpose.
24. Export. Blockperks NFT Platform may be subject to U.S. or E.U. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. or E.U. technical data acquired from Blockperks , or any products utilizing such data, in violation of the United States or European Union or its member states’ export laws or regulations.
25. Electronic Communications.The communications between you and Blockperks use electronic means, whether you use the Platform or send us emails, or whether Blockperks posts notices on the Platform or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Blockperks in an electronic form; and (b) agree that all and conditions, agreements, notices, disclosures, and other communications that Blockperks provides to you electronically satisfy any legal requirement that such com munications would satisfy if it were in hardcopy writing. The foregoing does not affect your non-waivable rights.
26. Entire Agreement.This Agreement constitutes the entire agreement between you and Blockperks regarding the use of the Platform including minting and listing of NFTs. However, in the event the parties entered into a separate referral agreement, the terms of both agreements shall be binding on the parties. The section titles in this agreement are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”. If any provision of this agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Blockperks is that of an independent contractor, and neither party is an agent or partner of the other. This agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Blockperks ’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. However, in the event the parties entered into a separate referral agreement, the terms of both agreements shall be binding on the parties.