This Hypernet Purchase and License Agreement (this “Agreement”) is a legally binding agreement by and between the sweepstakes campaign artist (“Artist”) and the initial and any subsequent purchaser or acquirer of the Artist NFT (defined below) (“you” or “Purchaser”). Artist and each Purchaser may be referred to throughout this Agreement collectively as the “Parties” or individually as a “Party”.
Agreement to Terms. By purchasing or accepting an Artist NFT, you acknowledge that you have carefully read and agree to the terms of this Agreement. “Artist NFT” means a non-fungible token (NFTs), as of its genesis issuance, that is linked to a display of Artist Art. Artist NFTs are controllable electronic records recorded on a blockchain. “Artist Art” means the digital art that is provided by and owned by Artist and is linked to the Artist NFTs. For avoidance of doubt, the Artist NFT is digital in nature and does not include, is not linked to, and is not sold together with, any items or representations that have physical dimensions such as mass or volume. This Agreement governs your participation in the transactions, which are facilitated by Hypernet, Inc. (“Hypernet”), as well as subsequent transactions between Transferors and Transferees (as defined below). Hypernet is not a party to any transaction between Artist and Purchaser.
Ownership of Artist NFT.
When Purchaser acquires an Artist NFT, Purchaser owns all personal property rights to that Artist NFT (e.g., the right to freely sell, transfer, or otherwise dispose of that Artist NFT). Such rights, however, do not include the ownership of the intellectual property rights in the Artist Art. Such rights are licensed pursuant to Section 3 below.
Purchaser represents and warrants that it will not transfer an Artist NFT in any subsequent transaction to a Transferee that is (i) located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; or is (ii) listed on any U.S. Government list of prohibited or restricted parties (“Prohibited Transferees”).
License of Artist Art. Artist hereby grants to you, for so long as you own the Artist NFT (as recorded on the relevant blockchain), a non-exclusive, royalty-free license, with no right to sublicense, to use, copy, and display the Artist Art linked with your purchased Artist NFT solely for the following purposes: (i) for your own personal, non-commercial use, including to create one (1) back-up copy of the Artist Art and a single physical print out of the Artist Art, each to be retained only for so long as you own the associated Artist NFT; and (ii) efforts to sell or otherwise transfer the associated Artist NFT consistent with the ownership of it (e.g., posting the Artist Art on a sales listing on an NFT marketplace). The license in the prior sentence is non-transferrable, except that it will automatically transfer in connection with the transfer of the Artist NFT.
Reservation of Rights. All rights in and to the Artist Art not expressly provided for in this Agreement are hereby reserved by Artist. The Artist Art is licensed, not sold. Artist owns and will retain all title, interest, ownership rights and intellectual property rights in and to the Artist Art. Without limitation, Purchaser shall not, nor permit any third party to do or attempt to, do any of the following without express prior written consent from Artist: (i) modify the Artist Art; (ii) use the Artist Art to advertise, market, or sell any product or service; (iii) use the Artist Art in connection with media that depicts hatred, intolerance, violence, cruelty; (iv) use the Artist Art in any other form of media, except solely for Purchaser’s own personal, non-commercial use for so long as Purchaser owns the Artist NFT; (v) sell, distribute for commercial gain (including, without limitation, giving away in the hopes of eventual commercial gain), or otherwise commercialize merchandise that includes, contains, or consists of the Artist Art; (vi) attempt to register any trademark, copyright, or otherwise acquire additional intellectual property rights in or to the Artist Art; or (vii) otherwise utilize the Artist Art for Purchaser’s or any third party’s commercial benefit.
Payment and Fees.
Purchase and Sale. Without limiting any of the foregoing, the valid execution of this Agreement, including the delivery of the Artist NFT, is conditioned upon the following terms being met: (i) Purchaser’s provision to Artist, through the digital wallet associated with your Hypernet.ID (“Wallet”) to which the Purchaser’s Artist NFT will be delivered; and (ii) Purchaser’s successful completion of any applicable anti-money laundering, sanctions and other processes as may be requested by Artist or Hypernet. If the Purchaser fails to meet any of the conditions above, Artist or Hypernet may suspend the delivery of the purchased Artist NFT or if such conditions have not been met within the ten (10) calendar days following completion of the applicable Artist NFT promotion, terminate the transaction.
Purchaser Qualification. Purchaser represents and warrants that it (i) is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; and (ii) is not listed on any U.S. Government list of prohibited or restricted parties.
Gas Fees. By accepting, buying or selling an Artist NFT on any third party NFT marketplace, you agree to pay all applicable fees and, if applicable, you authorize Artist or Hypernet to automatically deduct fees (including any transaction fees, or Gas Fees, as applicable) directly from Purchaser’s payments for the transaction. “Gas Fees” fund the network of computers that run the decentralized blockchain network, meaning that Purchaser will need to pay a Gas Fee for each transaction that occurs a blockchain network. Neither Hypernet nor Artist has insight into or control over these payments or transactions, nor does Artist have the ability to reverse any transactions. Accordingly, neither Artist nor Hypernet will have any liability to you or to any third party for any claims or damages that may arise as a result of any transactions of the Artist NFTs that you engage in.
Transfers: All subsequent transactions of the Artist NFTs are subject to the following terms: (i) the Artist NFT transferee (the “Transferee”) shall, by purchasing, accepting, accessing or otherwise using the Artist NFT or Artist Art, be deemed to accept all of the terms of this Agreement as a “Purchaser” hereof (other than with respect to Sections 5(a)); (ii) the Artist NFT transferor (the “Transferor”) shall provide notice to the Transferee of this Agreement, including a link or other method by which the terms of this Agreement can be accessible by the Transferee.
Hypernet’s Rights and Obligations to the Artist Art and Artist NFTs. The Parties acknowledge and agree that Hypernet is not responsible for repairing, supporting, replacing, or maintaining a website hosting the Artist Art, nor does Hypernet have the obligation to maintain any connection or link between an Artist NFT and the corresponding Artist Art.
Warranty Disclaimers and Assumption of Risk. Purchaser represents and warrants that it (a) is the age of majority in Purchaser’s place of residence (which is typically 18 years of age in most U.S. states) and has the legal capacity to enter into this Agreement, (b) that Purchaser will use and interact with the Artist NFTs and Artist Art only for lawful purposes and in accordance with this Agreement, and (c) that Purchaser will not use the Artist NFTs or Artist Art to violate any law, regulation or ordinance or any right of Artist, its licensors or any third party, including without limitation, any right of privacy, publicity, copyright, trademark, or patent. Purchaser further agrees that it will comply with all applicable law.
THE ARTIST NFTS ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, ARTIST EXPLICITLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. ARTIST MAKES NO WARRANTY THAT THE ARTIST NFTS WILL MEET PURCHASER’S REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. ARTIST MAKES NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY INFORMATION OR CONTENT ON THE ARTIST NFTS.
HYPERNET AND ARTIST WILL NOT BE RESPONSIBLE OR LIABLE TO PURCHASER FOR ANY LOSS AND TAKES NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO YOU FOR, ANY USE OF THE ARTIST NFT, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (I) USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED WALLET ADDRESSES; (II) SERVER FAILURE OR DATA LOSS; (III) CORRUPTED CRYPTOCURRENCY WALLET FILES; (IV) UNAUTHORIZED ACCESS TO ARTIST NFT; OR (V) ANY UNAUTHORIZED THIRD PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK AGAINST BLOCKCHAIN NETWORK UNDERLYING THE ARTIST NFTS.
THE ARTIST NFTS ARE INTANGIBLE DIGITAL ASSETS. THEY EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE APPLICABLE BLOCKCHAIN NETWORK. ANY TRANSFER OF TITLE THAT MIGHT OCCUR IN ANY UNIQUE DIGITAL ASSET OCCURS ON THE DECENTRALIZED LEDGER WITHIN SUCH BLOCKCHAIN NETWORK, WHICH HYPERNET AND ARTIST DO NOT CONTROL. HYPERNET AND ARTIST DO NOT GUARANTEE THAT ARTIST OR ANY ARTIST PARTY CAN EFFECT THE TRANSFER OF TITLE OR RIGHT IN ANY ARTIST NFT. PURCHASER BEARS FULL RESPONSIBILITY FOR VERIFYING THE IDENTITY, LEGITIMACY, AND AUTHENTICITY OF ASSETS PURCHASER PURCHASES OR RECEIVES. NOTWITHSTANDING INDICATORS AND MESSAGES THAT SUGGEST VERIFICATION, ARTIST MAKES NO CLAIMS ABOUT THE IDENTITY, LEGITIMACY, OR AUTHENTICITY OF ASSETS OR ANY PURPORTED SUBSEQUENT TRANSACTIONS.
HYPERNET AND ARTIST ARE NOT RESPONSIBLE ANY KIND OF FAILURE, ABNORMAL BEHAVIOR OF SOFTWARE (E.G., WALLET, SMART CONTRACT), BLOCKCHAINS OR ANY OTHER FEATURES OF THE ARTIST NFTS. HYPERNET AND ARTIST IS NOT RESPONSIBLE FOR CASUALTIES DUE TO LATE REPORT BY DEVELOPERS OR REPRESENTATIVES (OR NO REPORT AT ALL) OF ANY ISSUES WITH THE BLOCKCHAIN SUPPORTING THE ARTIST NFTS, INCLUDING FORKS, TECHNICAL NODE ISSUES OR ANY OTHER ISSUES HAVING FUND LOSSES AS A RESULT.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN CONTRACTS WITH CONSUMERS, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
Assumption of Risk. Purchaser accepts and acknowledges all risks associated with the following:
Purchaser is solely responsible for determining what, if any, taxes apply to Purchaser’s purchase, sale, or transfer of Artist NFTs. Neither Artist nor any other Artist Party is responsible for determining or paying the taxes that apply to such transactions.
Hypernet does not store, send, or receive cryptocurrency assets. Any transfer of cryptocurrency assets occurs within the supporting blockchain that is not controlled by Hypernet. Transactions in Artist NFTs may be irreversible, and, accordingly, losses due to fraudulent or accidental transactions may not be recoverable. Some transactions of the Artist NFTs shall be deemed to be made when recorded on a public blockchain ledger, which is not necessarily the date or time that Purchaser initiated the transaction.
There are risks associated with using an Internet based digital asset, including but not limited to, the risk of hardware, software and Internet connections, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to information stored within your Wallet. Artist will not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience when effecting Artist NFT transactions, however caused.
Digital assets, including blockchain based assets such as the Artist NFTs, are subject to developing laws and regulations throughout the world.
Transactions involving the Artist NFTs may rely on third-party platforms to perform transactions. If Hypernet is unable to maintain a good relationship with such platform providers; if the terms and conditions or pricing of such platform providers change; if Hypernet violates or cannot comply with the terms and conditions of such platforms; or if any of such platforms loses market share or falls out of favor or is unavailable for a prolonged period of time, access to and interactions of the Artist NFTs will suffer.
Links to Third Party Websites or Resources. Use and interaction of the Artist NFTs and Artist Art may allow Purchaser to access third-party websites (including websites that host the Artist Art) or other resources. Artist provides access only as a convenience and is not responsible for the content, products or services on or available from those resources or links displayed on such websites. Purchaser acknowledges sole responsibility for and assumes all risk arising from Purchaser’s use of any third-party resources. Under no circumstances shall Purchaser’s inability to view its Artist Art on a third-party website serve as grounds for a claim against Hypernet or Artist.
Termination of License to Artist Art. Purchaser’s license to the Artist Art shall automatically terminate and all rights shall revert to Artist if at any time: (i) Purchaser breaches any portion of this Agreement or (ii) Purchaser engages in any unlawful activity related to the Artist NFT (including transferring the Artist NFT to a Prohibited Transferee). Upon any termination, discontinuation or cancellation of Purchaser’s license to Artist Art, Artist may disable Purchaser’s access to the Artist Art and Purchaser shall delete, remove, or otherwise destroy any back up or single digital or physical copy of the Artist Art. Upon any termination, discontinuation or cancellation of the license in this Agreement, the following Sections will survive: 2, 4 through 16.
Indemnity. Purchaser shall defend, indemnify, and hold the Artist and Hypernet harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought by a third party (including any person who accesses or transacts using the Artist NFTs whether or not such person personally purchased the Artist NFTs) against any Artist Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with (a) your access to or use of your Hypernet.ID or (b) your breach of this Agreement.
Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER ARTIST NOR ITS SERVICE PROVIDERS, INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE ARTIST NFTS, INCLUDING HYPERNET, WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE ARTIST NFTS OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE OR INTERACT WITH THE ARTIST NFTS OR ACCESS THE ARTIST ART, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ARTIST OR ITS SERVICE PROVIDERS HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
TO THE MAXIMUM EXTENT PERMITTED BY THE LAW OF THE APPLICABLE JURISDICTION, IN NO EVENT WILL ARTIST’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE USE OF OR INABILITY TO USE OR INTERACT WITH THE ARTIST NFTS OR ACCESS THE ARTIST ART EXCEED THE STATED ARV OF THE NFT.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ARTIST AND PURCHASER.
Governing Law and Forum Choice. This Agreement and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of California, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 14 “Dispute Resolution,” the exclusive jurisdiction for all Disputes (defined below) that Purchaser and Artist are not required to arbitrate will be the state and federal courts located in the San Mateo County, California , and Purchaser and Artist each waive any objection to jurisdiction and venue in such courts.
Dispute Resolution.
Mandatory Arbitration of Disputes. The Parties each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof of the Artist NFTs transaction (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Artist agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and Artist are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
Exceptions. As limited exceptions to Section 14(a) above: (i) both Parties may seek to resolve a Dispute in small claims court if it qualifies; and (ii) both Parties each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights.
Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.
Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The Parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules, and Artist won’t seek to recover the administration and arbitrator fees Artist is responsible for paying, unless the arbitrator finds your Dispute frivolous. If Artist prevails in arbitration Artist will pay for all of its attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
Injunctive and Declaratory Relief. Except as provided in Section 14(b) above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the extent that you or Artist prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
Class Action Waiver. YOU AND ARTIST AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ Dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
Severability. With the exception of any of the provisions in Section 14(f) of these Terms (“Class Action Waiver”), if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
General Terms. This Agreement will transfer and be binding upon and will inure to the benefit of the parties and their permitted successors and assigns, in particular any Transferee. This Agreement constitutes the entire agreement, and supersedes any and all prior or contemporaneous representations, understandings and agreements, between the Parties with respect to the subject matter of this Agreement, all of which are hereby merged into this Agreement. Without limitation, the terms of any other document, course of dealing, or course of trade will not modify this Agreement, except as expressly provided in this Agreement or as the Parties may agree in writing. No amendment to this Agreement or waiver of any provision hereof will be valid or binding unless reduced to writing and duly executed by the Party or Parties to be bound thereby. Failure to promptly enforce a provision of this Agreement will not be construed as a waiver of such provision. Nothing contained in this Agreement will be deemed to create, or be construed as creating, a joint venture or partnership between the parties. Neither Party is, by virtue of this Agreement or otherwise, authorized as an agent or legal representative of the other Party. Neither Party to this Agreement is granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf or in the name of the other party, or to bind such other Party in any manner. Nothing contained in this Agreement will be deemed to create any third-party beneficiary right upon any third party whatsoever. Each of the Parties acknowledges that it has had the opportunity to have this Agreement reviewed or not by independent legal counsel of its choice. If any one or more of the provisions of this Agreement should be ruled wholly or partly invalid or unenforceable, then the provisions held invalid or unenforceable will be deemed amended, and the court or other government body is authorized to reform the provision(s) to the minimum extent necessary to render them valid and enforceable in conformity with the parties’ intent as manifested herein. The headings to Sections of this Agreement are for convenience or reference only and do not form a part of this Agreement and will not in any way affect its interpretation. Neither Party will be afforded or denied preference in the construction of this Agreement, whether by virtue of being the drafter or otherwise. For purposes of this Agreement, the words and phrases “include,” “includes”, “including” and “such as” are deemed to be followed by the words “without limitation”. Any notices or other communications provided by Artist or Hypernet under this Agreement be given by contacting the Purchaser at the contact information provided by Purchaser in connection with the applicable Artist NFT promotion or your Hypernet.ID. Notice is effective upon receipt. The Parties have agreed to contract electronically, and accordingly, electronic signatures will be given the same effect and weight as originals.