©2024 Ether By VIII
Last updated: 15th May 2023
These Terms ("Terms") set forth the terms and conditions applicable to the purchase of all non-fungible blockchain-based digital tokens ("NFT") made available by Project Ether Limited ("Ether", "we", "us" or "our") through OpenSea or any other Third Party Platform (“Platform(s)”). By acquiring any NFT associated with Ether-Owned Content (as defined below) through the Platform(s), or by subsequently acquiring any such NFT from any previous owner of the NFT, you, or the legal entity you represent, agree to be bound by these Terms:
1. Each NFT made available by us through the Platform(s) is associated with certain digital works of authorship or other content ("Related Content"). Related Content is protected from unauthorized use and exploitation under intellectual property laws around the world, including but not limited to laws regarding copyright, trademark, trade secret, rights of publicity and moral rights, regardless of the format in which the Related Content is made available. Related Content is separate from the associated NFT, and is not sold or otherwise transferred to you. Your ownership of the NFT is mediated entirely by the smart contracts and the blockchain network. While you own the NFT, you do not own the Related Content. Instead, you are granted a limited license to the Related Content which provides what you can, and cannot do, with the Related Content. The limited license you are granted is described further herein.
2. These Terms apply only when all Related Content for a particular NFT is exclusively owned or controlled by us ("Ether-Owned Content"). The description on the Platform(s) of the NFT will include information about whether the Related Content for that particular NFT is Ether-Owned Content. If any of the Related Content for that NFT is owned by a third party, different terms may apply and you may be directed to review and agree to the terms and conditions of such third party. We do not endorse any third party’s terms and conditions, nor do we guarantee the accuracy of the information contained on them. In addition, we have no control over the Related Content nor over the terms and conditions of third-party, and we shall not be liable for any loss you may suffer from Related Content of an NFT owned by a third party.
3. Subject to your compliance with these Terms, for as long as you own the applicable NFT, we grant you a limited, personal, non-exclusive, non-sublicensable, worldwide license in any Ether-Owned Content to:
a. copy the Ether-Owned Content for non-commercial, personal use; and
b. display and perform the Ether-Owned Content for non-commercial, personal use.
The license does not include a right to create derivative works of the Ether-Owned Content except as necessary to adapt and depict the Ether-Owned Content pursuant to this license.
4. You may request to obtain a license to use Ether-Owned Content for limited commercial use by emailing us at: firstname.lastname@example.org
Each request will be evaluated on a case-by-case basis and we may require you to enter into a separate written license agreement with us.
5. Save as provided for in Paragraph 4, Paragraph 3 sets forth all of your license rights hereunder with respect to any Ether-Owned Content. There are no other license rights, whether express or implied, with respect to any of the Ether-Owned Content and no other license rights are granted. Without limiting the foregoing, the license granted herein do not grant you the right to, and you will not, and you will not authorize, permit or assist any third party to:
a. exercise the NFT or any of the license rights granted herein in any way that results in direct or indirect, compensation, financial benefit or commercial gain of any kind to you or any third party, whether currently realized or to be provided in the future and regardless of the nature thereof (whether monetary, conveyance of assets, in-kind products or services or other item or service of value);
b. grant any sublicense of the NFT or any license rights herein;
c. impersonate another person;
d. delete, remove or obscure any trademark notice, copyright notice or other intellectual property notice in any Ether-Owned Content;
e. exercise the NFT or any license rights herein to create, endorse, support, promote or condone any content, material or speech that is defamatory, obscene, pornographic, indecent, abusive, fraudulent, offensive, harassing, violent, hateful, racist, discriminatory, inflammatory or otherwise objectionable or inappropriate or that promotes any such behaviour or activity as determined by Ether at its discretion;
f. distribute viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or any other items of a destructive or deceptive nature;
g. reverse engineer, decompile or attempt to discover the source code for any NFT or Ether-Owned Content except to the extent that applicable law permits you to do so notwithstanding this prohibition; or
h. use the NFT or any Ether-Owned Content in any manner not expressly authorized herein or exercise any license rights herein in any manner that violates applicable law, promote, or encourage illegal activity (including, without limitation, money laundering).
6. We retain all rights, title and interest in the Ether-Owned Content and all intellectual property rights in any Ether-Owned Content. Except for the license rights expressly granted in Paragraph 3, above, you do not have and will not have any right, title or interest in or to any Ether-Owned Content. Without limiting the foregoing, the Ether-Owned Content may include trade names, brands, logos, trademarks, names, likenesses, images or other personal characteristics of persons or characters ("Embedded IP"). Your use of such Embedded IP is limited to use in connection with the exercise of your license rights under these Terms and subject to all limitations set forth herein and any other restrictions that we may inform you of in the future. You may not use any such Embedded IP in connection with any business, product or service, or in any manner that may imply endorsement of any business, message, product or service, or that is likely to cause confusion or dilute, blur or tarnish such Embedded IP. All use of such Embedded IP, including any goodwill generated by such use, will inure to the benefit of us. You may not use any Embedded IP for any commercial use, including to register any domain names or social media accounts using any Embedded IP. You may not remove, delete or obscure any trademark notice, copyright notice or other intellectual property notice in any Ether-Owned Content. All rights in and to the Embedded IP and any other intellectual property of us not expressly licensed herein are hereby reserved. All goodwill arising from any use of the Embedded IP will inure solely to us and our affiliates.
7. You will not:
a. create, sell or attempt to create or sell, fractionalized interests in the NFT,
b. separate, unlink or decouple the Ether-Owned Content from the NFT with which it is associated, or
c. use any Ether-Owned Content to create, sell or attempt to create or sell any new cryptographic token.
8. To the extent that you are not prohibited from doing so by any other terms or conditions applicable to a particular NFT, you may transfer the NFT to a third party, provided that the following conditions are complied with:
a. such transfer is conducted through a marketplace or other platform that cryptographically verifies that you are the actual owner of the applicable NFT;
b. such transfer complies with any applicable terms of the marketplace or other platform on which such sale or other transfer takes place and any applicable laws, regulations, regulatory guidance, and rules;
c. you have not breached any of these Terms before such transfer;
d. your license granted under these Terms has not been terminated prior to such transfer. After such transfer, your right to display and perform the Ether-Owned Content and all other license rights under these Terms will immediately terminate; and
e. the transferee by purchasing your NFT shall be deemed to accept and be bound by the Terms.
9. You acknowledge and agree that we have a right to set a royalty fee in relation to each transfer of the NFT in perpetuity and use those funds in any manner we see fit.
10. You represent and warrant that:
a. if individual, you are at least 18 years old or of legal age to form a binding contract under applicable laws;
b. you are not subject to any financial sanctions, embargoes or other restrictive measures imposed by the United Nations, European Union, Office of Foreign Assets Control (OFAC) of the United States or any governmental authority in any jurisdiction;
c. you are not a citizen or resident of, or to the extent it is a corporate entity, not formed or incorporated in, any jurisdiction in which these Terms or the ownership of the NFTs is prohibited by applicable laws; and
d. you are not impersonating any other person.
11. We (along with each of our directors, employees, affiliates and directors and employees of our affiliates) will have no responsibility or liability, and you hereby waive and release any and all claims, arising out of or in connection with:
a. any blockchain or related technology;
b. any digital wallet, Ether technology or related service;
c. the transfer or loss of any NFT or the inability to demonstrate ownership or control of any NFT;
d. any marketplace or other platform for buying, selling or transferring any NFT, including the Platform(s);
e. any other platform or service provided by any third party or any technology related thereto;
f. any computer, server, network device or other hardware or any Internet service provider or other telecommunications service or hardware;
g. any other service, equipment, technology or network or data transfer infrastructure not owned and controlled by us; and/or
h. any and all losses, damages or claims arising from: (i) user error, such as forgotten passwords or loss of secret key; (ii) server failure or data loss; (iii) corrupted wallet files; and/or (iv) unauthorized access or activities by third parties, including but not limited to the use of viruses, phishing, bruteforcing or other means of attack against the blockchain or digital wallets.
12. You will indemnify and hold harmless, and at our request defend, us (along with each of our directors, employees, affiliates and directors and employees of our affiliates) from and against any and all claims, demands, liabilities, damages, penalties, fines, taxes, costs and expenses (including without limitation reasonable attorneys’ fees and court costs) arising out of or in connection with any breach of these Terms or unauthorized use of any Ether-Owned Content, your ownership or transfer of any NFT, or exercise of any license rights hereunder by you.
13. WE AND OUR AFFILIATES MAKE NFTS AND ETHER-OWNED CONTENT, AVAILABLE "AS IS", "WHERE IS" AND EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND ANY WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE IN TRADE. WE MAKE NO REPRESENTATION, WARRANTY, OR GUARANTEE THAT THE NFTS WILL MEET YOUR REQUIREMENTS, OR WILL BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. NOR WE MAKE ANY REPRESENTATION, WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY INFORMATION OR CONTENT RELATED TO THE NFTS.
14. IN NO EVENT WILL WE (ALONG WITH EACH OF OUR DIRECTORS, EMPLOYEES, AFFILIATES, AND DIRECTORS AND EMPLOYEES OF OUR AFFILIATES) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST DATA OR LOSS OF GOODWILL), OR INCIDENTAL DAMAGES, ARISING OUT OF OR RELATING TO THESE TERMS, THE NFT, ETHER-OWNED CONTENT, OR ANY INFORMATION, SERVICES, PRODUCTS OR SOFTWARE MADE AVAILABLE OR ACCESSIBLE TO YOU, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF WE OR OUR THIRD PARTY SUPPLIERS OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, WE (ALONG WITH EACH OF OUR DIRECTORS, EMPLOYEES, AFFILIATES, AND DIRECTORS AND EMPLOYEES OF OUR AFFILIATES) SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS, AND TAKES NO RESPONSIBILITY FOR, AND SHALL NOT BE LIABLE FOR, ANY USE OF THE NFTS, 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) UNAUTHORISED ACCESS TO THE NFTS; OR (V) ANY THIRD PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, HACKING, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, WE (ALONG WITH EACH OF OUR DIRECTORS, EMPLOYEES, AFFILIATES, AND DIRECTORS AND EMPLOYEES OF OUR AFFILIATES) SHALL NOT BE RESPONSIBLE FOR ANY KIND OF FAILURE, ABNORMAL BEHAVIOR OF SOFTWARE (E.G., WALLET OR SMART CONTRACT), BLOCKCHAINS OR ANY OTHER FEATURES OF THE NFTS. NEITHER WE (ALONG WITH EACH OF OUR DIRECTORS, EMPLOYEES, AFFILIATES, AND DIRECTORS AND EMPLOYEES OF OUR AFFILIATES) SHALL BE RESPONSIBLE FOR CASUALTIES DUE TO LATE REPORT BY DEVELOPERS OR REPRESENTATIVES (OR NO REPORT AT ALL) OF ANY ISSUES WITH THE BLOCKCHAIN SUPPORTING THE NFTS, INCLUDING FORKS, TECHNICAL NODE ISSUES OR ANY OTHER ISSUES HAVING LOSSES AS A RESULT.
15. You are solely responsible for determining what, if any, taxes and gas fees apply to the purchase, sale or transfer of the NFTs. We are not responsible for determining or paying the taxes or gas fees that apply to such transactions.
16. In addition to any other rights and remedies to which we may be entitled under contract, at law or in equity, if you breach any of your obligations under these Terms, your right to display and perform the Ether-Owned Content and any and all other license rights that you may have under these Terms will immediately terminate. Upon termination you will immediately cease all use of the NFT any Ether-Owned Content including, but not limited to all use on any platform or any display of the NFT and Ether-Owned Content. Ether may disable any functionality for the affected NFT and Ether-Owned Content, prohibit any platform or service from retrieving or rendering any such NFT and Ether-Owned Content in connection with the services they provide, and take other steps to prevent unauthorized use of any the NFT and Ether-Owned Content. We will have no obligation or liability to you for any such actions and you will not interfere with, or seek to prevent, any such actions.
17. These Terms supplement the additional terms and conditions in any information or materials provided with the NFT and any Ether-Owned Content as well as the terms provided on http://ether.site/ ("Additional Terms"). In the event of any conflict or inconsistency between these Terms and any Additional Terms, these Terms will supersede and govern. These Terms and any Additional Terms constitute the entire agreement between you and Ether with respect to the subject matter hereof, and supersede any and all prior or contemporaneous written or oral agreements or understandings between you and us relating to the NFT or any Ether-Owned Content.
18. The governing law of the contract shall be the laws of the British Virgin Islands. Any dispute, controversy, difference or claim arising out of or relating to these Terms, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it shall be referred to and finally resolved by arbitration administered by the British Virgin Islands International Arbitration Centre ("BVIIAC") under the BVIIAC Administered Arbitration Rules in force when the Notice of Arbitration is submitted. The law of this arbitration clause shall be the laws of the British Virgin Islands. The seat of arbitration shall be the British Virgin Islands. The number of arbitrators shall be one (1). The arbitration proceedings shall be conducted in English.
19. If any provision of these Terms is found to be unlawful, void or for any reason unenforceable, that provision will be enforced to the maximum extent permitted by law and otherwise deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions.
20. The failure of us to insist upon or enforce strict performance of any of the provisions of these Terms or to exercise any rights or remedies under these Terms will not be construed as a waiver or relinquishment to any extent of our right to assert or rely upon any such provisions, rights or remedies in that or any other instance; rather, the same will be and remain in full force and effect.
21. You acknowledge and agree that a breach of these Terms may cause irreparable injury to us for which monetary damages would not be an adequate remedy and we shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.
22. To the extent permissible under applicable law, you acknowledge and agree that by purchasing a NFT, you are hereby deemed to have expressly and irrevocably waived any withdrawal rights (or any similar rights under applicable consumer protection law) in respect of that NFT.