the HERO’S JOURNEY NFT COLLECTION - TERMS OF SERVICE
Updated 25 November 2021
These Hero's Journey Collection NFT Terms of Service constitute a legally binding agreement (this "Agreement") between you and Mr. Lee ("Artist”) and govern your participation in any Hero's Journey Collection NFT Auction (“NFT Auction”), purchase and use of any Hero's Journey NFTs.
By participating in any Hero's Journey Collection NFT Auction, purchasing any Hero's Journey NFTs, you expressly acknowledge that you understand this Agreement and accept all of its terms and conditions. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN YOU MAY NOT PARTICIPATE IN ANY NFT AUCTION OR PURCHASE ANY HERO’S JOURNEY NFTS.
1. Definitions
"Intellectual Property Rights" means any works of authorship, copyrights, moral rights, trademarks, service marks, trade names, goodwill, trade secrets, know-how, patents, designs, algorithms and other industrial property and proprietary rights and any and all rights in or associated with any of the foregoing (including rights in any registrations, applications, renewals, extensions, continuations, divisions or reissues), recognized in any country or jurisdiction in the world.
"NFT Auction" means the offering by the Artist of any Hero's Journey NFT occurring on the Foundation.app Auction platform.
“Non Fungible Trainers” means the physical 1/1 pair of trainers associated with each Hero's Journey NFT.
"Hero's Journey NFT Art" means the underlying concept from which the Hero's Journey NFT was created and any art, graphics, images, videos, designs, logos, taglines, drawings, and all other audiovisual materials, sound, music and text (including, without limitation, fonts) that may be associated with your Hero's Journey NFT.
"Hero's Journey NFT" means any non-fungible token on the Ethereum blockchain that you either successfully provided the highest bid for at an NFT Auction or otherwise rightfully acquired from a legitimate source, where proof of your acquisition is recorded through and can be traced via smart contracts on the Ethereum blockchain to the original highest bidder in the applicable NFT Auction.
2. The Auction
If you bid on a Hero's Journey NFT in an NFT Auction, you agree not only to be bound by the terms of this Agreement but by any and all terms of service applicable to the Foundation.app platform. The Artist is not affiliated with Foundation.app nor any other third-party site, product, or service you might access, visit, or use for the purpose of enabling you to participate in an NFT Auction. The Artist is also not liable for any acts or omissions of Foundation.app or any other third party, or for any damages you may suffer as a result of your transactions or any other interaction with them.
3. Ownership
You acknowledge and agree that, as between you and the Artist, the Artist owns all legal right, title, and interest in and to any and all Hero's Journey NFTs (including all Intellectual Property Rights therein) (collectively, the "Artist Materials"). You acknowledge that the Artist Materials are protected by applicable laws including applicable copyright and trademark laws. The rights that you have in and to the Hero's Journey NFTs are limited to those expressly stated in Section 4 of this Agreement. The Artist reserves all rights and ownership in and to the Artist Materials not expressly granted to you in this Agreement.
You acknowledge and agree that, except as expressly set forth in this Agreement to the contrary: (a) your acquisition of a Hero's Journey NFT does not give you any rights or licenses in or to the Artist Materials; (b) you do not have the right to modify, reproduce, create derivative works of, distribute, sell, license or otherwise commercialize any elements of the Artist Materials; (c) you will not apply for, register, or otherwise use or attempt to use any Artist trademarks or service marks, or any confusingly similar marks, anywhere in the world; and (d) you have no right to and shall in no event take any enforcement action (including by, for example, sending DMCA takedown notices) or make any claims based on any Artist Materials without the Artist’s prior written consent in each instance, and the Artist may, in his sole discretion, undertake any necessary actions to prevent any unlicensed or unauthorized use and/or distribution of any Artist Materials.
4. Licensed Rights
(a) Your Licensed Rights. You acknowledge and agree that the Hero's Journey NFTs are made available solely for entertainment purposes, and, subject to your continued compliance with this Agreement, the Artist grants you a limited, non-exclusive, non-sublicensable, non-transferable (except as permitted in Section 4(b) below), license to display the Hero's Journey NFTs, solely for your own personal, non-commercial use (the "Licensed Rights").
(b) Permissible Transfers of Your Licensed Rights. You have the limited right to assign or transfer your Licensed Rights solely in connection with the sale or disposition of your Hero's Journey NFT, provided that: (i) the transferee accepts all of the terms of this Agreement; (ii) you have not, prior to the transfer or assignment, breached this Agreement; and (iii) prior to the transfer or assignment, your Licensed Rights have not been terminated. Any attempted transfer or assignment of your Licensed Rights that do not satisfy the requirements of this Section 4(b) shall be null and void and shall constitute a material breach of this Agreement.
(c) Non Fungible Trainers. If an original purchaser of the Hero's Journey NFT wishes to sell the Hero's Journey NFT on the secondary market, he or she may choose to do so either with the pair of physical trainers created by the Artist, as the case may be, or as a single item without the physical trainers. It is the intention of the Artist that the NTF and the corresponding pair of trainers remain together. However, secondary market buyers should ascertain before purchasing a Hero's Journey NFT whether or not the purchase will include the pair of physical trainers. Secondary market purchasers of a Hero's Journey NFT shall have no right, under any circumstances, to obtain or otherwise acquire a Physical Print from the Artist as a result of their purchase of a Hero's Journey NFT on the secondary market.
5. License Restrictions
You agree that, without the Artist’s express prior written consent, you may not, nor permit any third party to, do or attempt to do any of the following: (a) modify any Hero's Journey NFT Art in any way, including by modifying in any way any of the shapes, designs, drawings, attributes, or color schemes; (b) use any Hero's Journey NFT Art to advertise, market, or sell any product or service; (c) sell, distribute for commercial gain (including giving away in the hopes of eventual commercial gain), or otherwise commercialize merchandise that includes, contains, or consists of the Hero's Journey NFT Art; (e) attempt to trademark, copyright, or otherwise acquire additional Intellectual Property Rights in or to the Hero's Journey NFT Art ; or (f) utilize the Hero's Journey NFT Art for your or any third party’s commercial benefit.
6. Termination of the Licensed Rights
If you sell, trade, donate, give away, transfer, or otherwise dispose of your Hero's Journey NFT for any reason, your Licensed Rights will automatically and immediately terminate, and you will have no further rights in or to the Hero's Journey NFT Art. The Artist will use the Ethereum blockchain’s record for your Hero's Journey NFT to determine whether you no longer possess the applicable Hero's Journey NFT and associated Licensed Rights. The Artist may, but is not obligated to, provide you with notice regarding the revocation of your Licensed Rights. Additionally, the Licensed Rights shall automatically terminate and all rights shall return to the Artist if: (a) you make any assignment for the benefit of creditors, file a petition in bankruptcy or are adjudged bankrupt, or become insolvent or are placed in the hands of a receiver; (b) you engage in any unlawful business practice related to your Hero's Journey NFT; or (c) you disparage or initiate any legal action against the Artist, or his employees, agents, and/or attorneys (collectively, the "Artist Parties").
7. DISCLAIMER OF WARRANTIES & LIMITATION OF LIABILITY
YOU UNDERSTAND AND ACKNOWLEDGE THAT HERO’S JOURNEY NFTS ARE INTANGIBLE DIGITAL ASSETS THAT EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED ON THE ETHEREUM BLOCKCHAIN AND ARE NOT LEGAL TENDER OR INTENDED FOR INVESTMENT PURPOSES. ALL SMART CONTRACTS ARE ON AND ALL TRANSFERS OF HERO’S JOURNEY NFTS ARE CONDUCTED AND OCCUR ON THE DECENTRALIZED LEDGER WITHIN THE ETHEREUM BLOCKCHAIN. THE ARTIST HAS NO CONTROL OVER AND MAKES NO GUARANTEES OR PROMISES WITH RESPECT TO ANY OF THOSE SMART CONTRACTS OR TRANSFERS. ALL HERO’S JOURNEY NFTS AND THE HERO’S JOURNEY NFT ART ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. THE ARTIST DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE HERO’S JOURNEY NFTS OR ANY PART THEREOF (INCLUDING ANY SMART CONTRACT, EXTERNAL WEBSITES, HERO’S JOURNEY ART, OR SECONDARY SALES OF OR ALLEGED SECONDARY MARKETS FOR HERO’S JOURNEY NFTS), INCLUDING IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, CORRECTNESS, ACCURACY OR RELIABILITY.
IN NO EVENT SHALL ANY OF THE ARTIST PARTIES BE LIABLE TO YOU FOR ANY PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER AND/OR DEVICE OR TECHNOLOGY FAILURE OR MALFUNCTION, OR FOR ANY FORM OF DIRECT OR INDIRECT DAMAGES, AND/OR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES BASED ON ANY CAUSES OF ACTION WHATSOEVER RELATED TO ANY THIRD-PARTY TECHNOLOGY OR PARTY RELATED TO ANY OF THE HERO’S JOURNEY NFTS, HERO’S JOURNEY NFT ART, AND NFT AUCTIONS.
IN NO EVENT AND UNDER NO THEORY OF LIABILITY, INCLUDING CONTRACT, STATUTE, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY, OR OTHERWISE, WILL ANY OF THE ARTIST PARTIES BE LIABLE TO YOU FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, OR LOST PROFITS ARISING FROM OR RELATING TO THIS AGREEMENT, THE HERO’S JOURNEY NFTS, THE HERO’S JOURNEY NFT ART, OR THE NFT AUCTION (EVEN IF THE ARTIST PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES), AND IN NO EVENT WILL THE AGGREGATE LIABILITY OF THE ARTIST PARTIES EXCEED US$100.
THE LIMITATIONS OF THIS SECTION WILL APPLY EVEN IF ANY REMEDY SET FORTH IN THIS AGREEMENT IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE AND TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
7. Assumption of Risk
Hero's Journey NFTs are made available solely for entertainment purposes. You agree that you assume the following risks: (a) to the extent there is a price or market for a blockchain asset such as a non-fungible token, (i) those prices and markets are extremely volatile, (ii) variations in the price of other digital assets could materially and adversely affect the value of any digital assets you own, including your Hero's Journey NFT, and (iii) there is no guarantee that your Hero's Journey NFTs will have or retain any value; (b) the commercial or market value of your Hero's Journey NFT may materially diminish in value as a result of a variety of things, including negative publicity associated with the Artist; (c) there are risks associated with using an Internet-native assets (e.g., non-fungible tokens, cryptocurrencies, etc.) including the risk of hardware, software and Internet connections and/or failures, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to information stored within your digital "wallet" or elsewhere, and the Artist Parties expressly disclaim any responsible for these risks; (d) the Artist Parties do not make any promises or guarantees about the availability of your or any other Hero's Journey NFTs or Hero's Journey NFT Art or that they will host your or any other Hero's Journey NFTs or Hero's Journey NFT Art at any specific location and/or for any specific period of time; (e) upgrades to the Ethereum blockchain, a hard fork or other change to the Ethereum blockchain, a failure or cessation of the Ethereum blockchain or its underlying cryptocurrency, or a change in how transactions are confirmed on the Ethereum blockchain may have unintended, adverse effects on all blockchains using those or similar technologies, including Hero's Journey NFTs; (f) the Artist Parties do not make any promises or guarantees related to Foundation.app, the MetaMask Wallet, the Ethereum Foundation, the Ethereum blockchain, or any other third parties related to the NFT Auctions (including any of their respective applications and/or services, as well as to the continued availability of or the protection or storage of any data you provide to those parties); (g) the risk of losing access to your Hero's Journey NFT due to loss of your private key(s), custodial error or purchaser error; (h) the risk of mining attacks; (i) the risk of hacking, security weaknesses, fraud, counterfeiting, cyber attacks and other technological difficulties; (j) the risk of changes to the regulatory regime governing blockchain technologies, cryptocurrencies, and tokens and new regulations, unfavorable regulatory intervention in one or more jurisdictions or policies any of which may materially adversely affect the use and value of the Hero's Journey NFTs; (k) the taxes due as a result of, and tax consequences associated with, any of your Hero's Journey NFT-related transactions; and (l) the risk of engaging in any transactions relating to your Hero's Journey NFTs with third parties (e.g., transferring your Hero's Journey NFT from a third party on any so-called "secondary market").
You also acknowledge and agree that: (i) you have obtained sufficient information to make an informed decision regarding the Hero's Journey NFTs; (ii) you are solely responsible for determining the nature, potential value, suitability and appropriateness of these risks for yourself; (iii) none of the Artist Parties covenant, represent, or warrant that any Hero's Journey NFT, or its supporting systems or technology, is reliable, current or error-free or otherwise meets your requirements, that defects in the Hero's Journey NFT, or its supporting systems or technology, will be corrected, or that the delivery mechanism for Hero's Journey NFTs will be free of viruses or other harmful components; and (iv) none of the Artist Parties will be responsible for any communication failures, disruptions, errors, distortions or delays you may experience related to any NFT Auction or the Hero's Journey NFTs.
8. Governing Law
This Agreement and all matters related to it and/or any Hero's Journey NFTs, Hero's Journey NFT Art, or NFT Auctions will be governed by the laws of the United Kingdom, without regard to its conflict of laws rules (except to the extent that law is inconsistent with or preempted by UK law). All disputes related to this Agreement or the Hero's Journey NFTs, Hero's Journey NFT Art, or NFT Auctions will be brought solely in the United Kingdom and you consent to personal jurisdiction in these courts.
9. Changes to this Agreement
The Artist may make changes to this Agreement from time to time. When the Artist makes such changes, he will make the updated Agreement available on this website and update the "Last Updated" date at the beginning of the Agreement accordingly. Please check this page periodically for changes. Any changes to this Agreement will apply on the date that they are made, and, by way of example, your continued access to or use of the Hero's Journey NFT Art after the Agreement has been updated will constitute your binding acceptance of the updates.
10. Eligibility
You cannot participate in any NFT Auction, purchase or use any Hero's Journey NFT, or display any Hero's Journey NFT Art if you: (a) are not able to form legally binding contracts (for example, if you are under 18 years old); or (b) are a person with whom transactions are prohibited under economic or trade sanctions.
11. Indemnity
You will defend, indemnify, and hold any and all of the Artist Parties harmless from any claims, actions, suits, losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of your license, sale or possession of the Hero's Journey NFT and any Licensed Rights and/or your participation in the NFT Auction, including: (a) our breach of this Agreement or any third-party terms; (b) your violation of any law or the rights of any third party as a result of your own interaction with that third party; (c) any allegation that any materials or communications that you submit to us or transmit in the course of any Hero's Journey NFT Auction infringe or otherwise violate the Intellectual Property Rights of any third party; or (d) any other activities in connection with any NFT Auction or the Hero's Journey NFT. This indemnity shall be applicable without regard to the negligence of any party, including any indemnified person. We reserve the right to control the defense of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims.
12. Taxes
You are solely responsible for all taxes and charges (including any VAT, sales, or compensating-use tax or equivalent tax and any taxes on the resale of any Hero's Journey NFT) that apply in connection with any Auction and any subsequent transaction involving any Hero's Journey NFT. The applicable tax rate will be determined based upon the state, county, or locale. The Artist Parties are not responsible for determining the taxes that may apply to any of your transactions.
13. Miscellaneous
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Use of section headers in this Agreement is for convenience only and will not have any impact on the interpretation of any provision. Throughout this Agreement, the use of the word "including" means "including but not limited to." The obligations in this Agreement that are intended by their terms to survive the expiration or termination of this Agreement shall so survive, including Sections 1-3, and 5-13.