ICONOGRAPHIKA NFT LICENSE AGREEMENT
The following license has been adapted by IconoGraphika Inc., a corporation incorporated under the laws of Canada (“IconoGraphika”), from a template provided by AH Capital Management, L.L.C. (“a16z Crypto”). The template was created through a partnership of a16z Crypto, Latham & Watkins LLP and DLA Piper LLP (US). The full title of the template is The Sample “Can’t Be Evil” NFT License, Exhibit 5 — Personal License With Hate Speech Termination (“CBE-PR-HS”). The text of the template as at August 29, 2022, and prior to adaptation by IconoGraphika, can be viewed at:
By acquiring lawful ownership to a non-fungible token (“NFT”) associated with the NFT project made available under this NFT License (“IconoGraphika NFT”) created by the owner or entity that has created this IconoGraphika NFT (IconoGraphika or “we” or “our”), you agree to these NFT License Terms and Conditions (the “Terms”). When you lawfully own an IconoGraphika NFT, you own all personal property rights to the NFT underlying the IconoGraphika NFT (e.g., the right to freely sell, transfer, or otherwise dispose of that IconoGraphika NFT). However, your rights to the associated artwork, images, video, content or other works of authorship linked to your specific IconoGraphika NFT which was developed by IconoGraphika (“NFT Media”) are only as outlined below.
1. NFT LICENSE GRANT
1.1 NFT Media License. For as long as you lawfully own an IconoGraphika NFT, IconoGraphika grants you a nonexclusive, perpetual, irrevocable (except as set forth in Section 3.2 below) worldwide license under our copyrights to use, distribute, reproduce, display, and perform (but not modify) the specific NFT Media linked to your IconoGraphika NFT for personal, non-commercial uses, with the right to sublicense such rights solely to third parties to enable the right to display the NFT Media, with IconoGraphika being a third party beneficiary to all such sublicenses with the ability to enforce such agreements. This license includes the right to display NFT Media as your profile picture, and on personal use items such as your coffee mug, sweatshirt or hat, and on personal use conveyances such as your vehicle, vessel or aircraft. All intellectual property rights in and to the NFT Media and any other intellectual property rights of IconoGraphika not expressly licensed herein are reserved by IconoGraphika.
1.3 No Rights to Trademarks. Nothing in these Terms is meant to grant you any rights to any logos, trademarks, service marks, and trade dress associated with IconoGraphika or the IconoGraphika NFTs (“Project Trademarks”). Unless you have our prior written approval, you may not use any Project Trademarks for any use that would require a license from us, including to register any domain names or social media accounts using any Project Trademarks or to advertise or promote any other products or services.
1.4 Transfer and Sublicensing. The licenses granted in these Terms are non-transferrable, except that if you lawfully transfer ownership of your IconoGraphika NFT, the license to the NFT Media in Section 1.1 to you shall terminate upon the effective date of such transfer, and such licenses will be assigned to the new owner of the IconoGraphika NFT associated with such NFT Media. As a condition to sales, transfers or similar transactions of the IconoGraphika NFTs, the transferee agrees upon the acquisition of the IconoGraphika NFT that (a) the transferee is not a Restricted Party and (b) the transferee accepts these Terms. Further, if you choose to sublicense any of your licensed rights set forth in Section 1.1 above, you are only permitted to do so if any such sublicensees agree (i) that they are not Restricted Parties and (ii) that if your licensed rights in Section 1.1 are transferred (such as because you sell your IconoGraphika NFT), then any such sublicenses you have granted in such licensed rights will automatically terminate. Because virtually all public blockchains are licensed under open source licenses, it is possible that the blockchain may fork, merge, or duplicate the original blockchain that initially recorded ownership of your IconoGraphika NFT. In such case, any rights granted under these Terms to owners of any IconoGraphika NFT will only be granted to the lawful owners of such IconoGraphika NFT whose ownership is recorded on the mainnet version of the blockchain that is generally recognized and predominantly supported in the blockchain industry as the legitimate successor of the original blockchain (as determined in our sole discretion).
1.5 Third Party Content. IconoGraphika hereby represents and warrants to you that all of the copyrights in the NFT Media are owned by IconoGraphika, and does not contain (a) any artwork, images, video, content or other works of authorship, (b) logos, trademarks, service marks, or trade dress or rights of personality in which the relevant intellectual property rights are not owned by IconoGraphika (“Third Party Content”), provided that the foregoing shall not apply if IconoGraphika has obtained a license to such Third Party Content consistent with the licenses under this Agreement or IconoGraphika has supplemented this NFT License with an additional license that governs your right to use such Third Party Content. For the purpose of this representation and warranty, IconoGraphika does not own or claim to own any intellectual property right in any nation state flag or emblem, or national air force name, roundel, flash or aircraft name, or third party company name or brand, any of which IconoGraphika may have made artistic depictions of, in the NFT Media.
1.6 Restrictions. Notwithstanding any of the above, you may not use the NFT Media in any way that constitutes unlawful, defamatory, harassing, abusive, fraudulent, racist, hateful, vulgar, cruel, illegal or obscene activity, or that promotes any such activity, as determined in IconoGraphika’s sole discretion, it being understood that IconoGraphika may designate another entity such as a decentralized autonomous organization (“DAO”) or committee of a DAO to make this determination in IconoGraphika’s place, in which case IconoGraphika will be bound by that other entity’s decision. If an IconoGraphika NFT is fractionalized into smaller ownership interests (which may be represented by other tokens), the rights licensed hereunder do not transfer to each of the owners of such fractionalized interests in the IconoGraphika NFT, but are only granted to those who own all fractionalized interests in an IconoGraphika NFT or as may otherwise be agreed by the owners of such fractionalized interests if each of such owners agree that (a) the owner is not a Restricted Party and (b) the owner accepts these Terms. In order to purchase the IconoGraphika NFT if you are an individual, you must be 18 years of age or older if the age of lawfully capacity of forming binding contracts is older in the relevant jurisdiction. If you are an entity, the individual agreeing to the Terms must have the legal authority to bind the entity. If (a) you are an individual, you agree on your own behalf and (b) if you are an entity, you agree that neither the entity nor any of your owners or investors or any of their directors, officers, employees, agents or affiliates acting on your behalf: (i) is related in any way to, the governments of, or any persons within, any country or jurisdiction under a U.S. embargo enforced by the Office of Foreign Assets Control (“OFAC”), or any persons who are named on any list of sanctioned individuals or entities; (ii) is (or has ever been) prohibited from the transaction pursuant to U.S. anti-money laundering, anti-terrorist, economic sanctions and asset control laws; and (iii) is resident in a country or jurisdiction under a U.S. embargo enforced by OFAC (“Restricted Parties”).
2. DISCLAIMERS, LIMITATIONS OF LIABILITY, AND INDEMNIFICATION
2.1 Disclaimers. YOUR ACCESS TO AND USE OF THE ICONOGRAPHIKA NFT AND NFT MEDIA IS AT YOUR OWN RISK. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ICONOGRAPHIKA, ITS PARENTS, AFFILIATES, PARTNERS, EMPLOYEES, OFFICERS, DIRECTORS, CONTRACTORS, AGENTS, LICENSORS AND EQUITY HOLDERS (THE “ICONOGRAPHIKA ENTITIES”) DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT IN THE ICONOGRAPHIKA NFTS AND NFT MEDIA. THE ICONOGRAPHIKA ENTITIES MAKE NO WARRANTY OR REPRESENTATION AND DISCLAIM ALL RESPONSIBILITY AND LIABILITY FOR: (A) THE COMPLETENESS, ACCURACY, AVAILABILITY, TIMELINESS, ORIGINALITY, SECURITY OR RELIABILITY OF THE ICONOGRAPHIKA NFTS AND NFT MEDIA; (B) THE OPERATION OR COMPATIBILITY WITH ANY OTHER APPLICATION OR ANY PARTICULAR SYSTEM, DEVICE, BLOCKCHAIN, DIGITAL WALLET, HARDWARE OR MARKETPLACE; AND © WHETHER THE ICONOGRAPHIKA NFTS AND NFT MEDIA WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE OR ERROR-FREE BASIS; AND (D) THE DELETION OF, OR THE FAILURE TO STORE OR TRANSMIT THE ICONOGRAPHIKA NFTS AND NFT MEDIA. THE ICONOGRAPHIKA NFTS AND NFT MEDIA ARE INTENDED FOR CONSUMER ENJOYMENT, USE AND CONSUMPTION ONLY.
2.2 Limitations of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, YOU AGREE THAT IN NO EVENT WILL THE ICONOGRAPHIKA ENTITIES BE LIABLE (A) FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE ICONOGRAPHIKA NFT OR THE NFT MEDIA), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THESE TERMS OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE ICONOGRAPHIKA NFTS AND NFT MEDIA OR THESE TERMS AND WHETHER IN CONTRACT, PRODUCT LIABILITY OR TORT (INCLUDING STRICT LIABILITY OR NEGLIGENCE) OR OTHERWISE, EVEN IF THE ICONOGRAPHIKA ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (B) FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE DELIVERY, USE OR PERFORMANCE OF THE ICONOGRAPHIKA NFTS AND NFT MEDIA. THE MAXIMUM AGGREGATE LIABILITY OF THE ICONOGRAPHIKA ENTITIES FOR ALL DAMAGES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING STRICT LIABILITY OR NEGLIGENCE) OR OTHERWISE, SHALL BE THE GREATER OF (I) $1,000 OR (II) THE AMOUNT YOU PAID FOR YOUR ICONOGRAPHIKA NFT. SOME JURISDICTIONS) DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU.
2.3 Assumption of Risk. THE VALUE OF THE ICONOGRAPHIKA NFTS IS SUBJECTIVE, HAVE NO INHERENT VALUE AND THEREFOR CAN BE VOLATILE. YOU AGREE TO ASSUME ALL RISK ASSOCIATED WITH THE USE AND VALUE OF THE ICONOGRAPHIKA NFT AND NFT MEDIA.
2.4 Fundamental Elements. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE ICONOGRAPHIKA ENTITIES AND YOU.
2.5 Template Provider Disclaimers. You and IconoGraphika each agree and acknowledge and agree that (i) these terms are based on a template that has been provided for public use, and (ii) each party and its heirs, successors and assigns, irrevocably covenants and agrees not to assert or bring any suit, claim, demand or challenge against the providers of such template, their parents, affiliates, related companies, officers, directors, employees, agents, representatives, partners, service providers and licensors (the “Template Provider Entities”) in connection with these terms, (iii) the availability of these terms shall not be construed as legal advice for any particular facts or circumstances and are not meant to replace consulting competent counsel who is aware of your specific facts and circumstances and those of IconoGraphika, and (iv) these terms might not reflect all current updates to the law or applicable interpretive guidance.
2.6 Indemnification. By entering into these Terms and accessing or using the IconoGraphika NFTs or NFT Media, you agree that you shall defend, indemnify and hold the IconoGraphika Entities harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) incurred by the IconoGraphika Entities arising out of or in connection with: (i) your violation or breach of any term of these Terms or any applicable law or regulation; (ii) your violation of any rights of any third party; (iii) your access to or use of the IconoGraphika NFT or NFT Media; or (iv) any fraud, negligence or wilful misconduct committed by you. For these limited purposes, the IconoGraphika Entities (other than IconoGraphika) are third party beneficiaries of the Terms.
3. ADDITIONAL PROVISIONS
3.1 Additional Features. IconoGraphika may choose to make additional features, access, content, items or other benefits available to owners of IconoGraphika NFTs (“Additional Features”). IconoGraphika has no duty or obligation to provide you with any Additional Features, and you should not expect any Additional Features when acquiring an IconoGraphika NFT. Additional Features may be subject to additional terms and conditions, which may be presented to you at the time they are made available.
3.2 Termination of License. If you materially breach any of the provisions of these Terms, IconoGraphika may terminate all of the licenses granted to you under these Terms. IconoGraphika will use commercially reasonable efforts to provide you with notice of such termination, though for the avoidance of doubt your licenses shall terminate regardless of whether such notice is actually received. Upon the termination of your licenses, you shall cease all use of the rights granted in Article 1 and shall cease all further use of the NFT Media, and all sublicenses you have granted in the NFT Media shall automatically terminate. The following sections shall survive the termination of these Terms and shall continue in full force and effect subsequent to and notwithstanding any termination of these Terms by IconoGraphika or you: Sections 1.3, 1.4, 1.6, 2.1, 2.2, 2.3, 2.4, 2.5, 2.6, 3.3 and 3.4. Termination will not limit any of IconoGraphika’s other rights or remedies at law or in equity.
3.3 Miscellaneous. These Terms constitutes the entire and exclusive understanding and agreement between IconoGraphika and you regarding the IconoGraphika NFT and NFT Media and supersedes and replaces any and all prior oral or written understandings or agreements between IconoGraphika and you regarding the IconoGraphika NFT and NFT Media. If any provision of these Terms shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions. These Terms and the licenses granted hereunder may be freely assigned by IconoGraphika. Any purported assignment in violation of these Terms will be null and void. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default.
3.4 Governing Law & Dispute Resolution. These Terms shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein and you and IconoGraphika hereby irrevocably attorn to the jurisdiction of the courts of Ontario. You and IconoGraphika shall cooperate in good faith to resolve any dispute, controversy or claim arising out of, relating to or in connection with these Terms, including with respect to the formation, applicability, breach, termination, validity or enforceability thereof (a “Dispute”). If the parties are unable to resolve a Dispute within ninety (90) days of notice of such Dispute being received by all parties, such Dispute shall be adjudicated in the courts of Ontario. Any dispute arising out of or related to these Terms is personal to you and IconoGraphika and will not be brought as a class action or any other type of representative proceeding. You and IconoGraphika each agree that any claims may only be brought on an individual basis and not as a plaintiff or class member in any purported class or representative action or other proceeding in which a person attempts to resolve a dispute as a representative of another person or group of persons.