TERMS & CONDITIONS FOR NFTS BOUGHT AS PART OF THE ANTONIA PIA GORDON® NFT COLLECTION

Date: 18.2.2022

These terms and conditions constitute a legally binding agreement (the “Agreement”) between you (also referred to herein as “You”, “Your” or “User”) and ANTONIA PIA GORDON®  ( “we” or “us”), governing your purchase of NFTs as part of the ANTONIA PIA GORDON®  NFT Collection Offering (the “Offering”). BY PARTICIPATING IN THIS OFFERING, YOU AGREE TO BE BOUND BY THESE TERMS AND ALL OF THE TERMS INCORPORATED HEREIN.

If you do not agree to the terms of this Agreement, you may not participate in the Offering. 

By entering into this Agreement, and/or by you participating in the ANTONIA PIA GORDON® NFT Offering, you expressly acknowledge that you understand this Agreement and accept all of its terms. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT PARTICIPATE IN THE OFFERING. 

  1. Definitions 

“Art” means any art, graphics, images, designs, logos, taglines, drawings, sounds and music that may be associated with an NFT in which you acquire Licensed Rights. 

“Equivalent” means the value, in US Dollars, of the market value of the relevant amount of cryptocurrency on the day of the transaction. 

“ANTONIA PIA GORDON” means ANTONIA PIA GORDON®  

“Name and Likeness” means name, nicknames, images, likenesses, marks, copyrights, trade dress colors, trade dress designs, and/or all other intellectual property of ANTONIA PIA GORDON®.  

"NFT" means any blockchain-tracked, non-fungible token. 

“Licensed Rights” with respect to an NFT means your rights to a Licensed NFT of which you are the current rightful licensee and which you acquired from a legitimate source, where proof of such purchase is recorded on the relevant blockchain. 

“Licensed NFT” means an NFT from ANTONIA PIA GORDON®. 

“Third Party IP” means any third-party patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, trademarks, know-how or any other intellectual property rights recognized in any country or jurisdiction in the world. 

  1. Ownership.You acknowledge and agree that ANTONIA PIA GORDON® (or, as applicable, its licensors) owns all legal right, title and interest in and to the Art and Name and Likeness, and all intellectual property rights therein. The rights that You have in and to the Licensed NFT and Art are limited to those expressly stated in Section 3 of this Agreement. ANTONIA PIA GORDON®and its licensors reserve all rights and ownership in and to the Licensed NFT, Name and Likeness, and Art not expressly granted to You in Section 3 of this Agreement. All purchases of Licensed NFTs, as well as associated charges, are non-refundable. This no-refund policy shall apply at all times regardless of Your decision to terminate usage of the Licensed NFT, any disruption to the operations of any components of the Licensed NFT, or any other reason whatsoever. 

  2. Rights. 

(a) Your Licensed Rights. You acknowledge and agree that the Licensed NFTs are made available solely for entertainment purposes. Without limiting the foregoing and subject to your continued compliance with this Agreement, ANTONIA PIA GORDON® grants you a worldwide, non-exclusive, non-transferable (except as specifically provided below in section 3 (b), royalty-free license to display the Art for your Licensed NFTs, solely for your own personal, non-commercial use. 

(b) Permissible Transfers of Your Licensed NFT. You have the limited right to transfer the Licensed NFT, provided that (i) the transferee accepts all of the terms of this Agreement and all ANTONIA PIA GORDON® is paid fifteen percent (15%) of the gross amounts paid by such party relating to the Licensed NFT, including but not limited to any transfer price and any other related compensation (e.g., (1).

  1. Restrictions. You agree that you may not, nor permit any third party to do or attempt to do any of the following without express prior written consent from ANTONIA PIA GORDON® in each case: (i) modify the Licensed NFT, Name and Likeness and/or Art for your Licensed NFT in any way, including, without limitation, the shapes, designs, drawings, attributes, or color schemes; (ii) use the Licensed NFT, Name and Likeness and/or Art for your Licensed NFTs to advertise, market, or sell any product or service; (iii) use the Licensed NFT, Name and Likeness and/or Art from your Licensed NFTs in connection with images, videos, or other forms of media that depict hatred, intolerance, violence, cruelty, or anything else that could reasonably be found to constitute hate speech or otherwise infringe upon the rights of others, drugs (including, without limitation, both prescription and non-prescription) or other supplements, death, pornography or other “adult only” or sexually explicit activities, massage parlors, prostitution or any dating or escort activities, weapons or ammunition, denigration or discrimination against individuals based on race, national origin, gender, religion, disability, ethnicity, sexual orientation, gender identity or age, medical conditions and/or political campaigns or causes; (iv) use the Licensed NFT, Name and Likeness and/or Art from Your Licensed NFTs in movies, videos, or any other forms of media, except solely for Your own personal, non-commercial use; (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 Licensed NFT, Name and Likeness and/or Art from Your Licensed NFTs; (vi) attempt to trademark, copyright, or otherwise acquire additional intellectual property rights in or to the Licensed NFT, Name and Likeness and/or Art from Your Licensed NFTs; or (vii) otherwise utilize the Art from your Licensed NFTs for Your or any third party’s commercial benefit. 

To the extent that the Licensed NFT, Name and Likeness and/or Art associated with Your Licensed NFTs contains Third Party IP You understand and agree as follows: (i) that You will not have the right to use such Third Party IP in any way except as incorporated in the Art, and subject to the license and restrictions contained herein; (ii) that, depending on the nature of the license granted from the owner of the Third Party IP, ANTONIA PIA GORDON® may need to pass through additional terms and/or restrictions on Your ability to use the Art; and (iii) to the extent that ANTONIA PIA GORDON® informs You of such additional restrictions in writing (email is permissible), You will be responsible for complying with all such restrictions from the date that You receive the notice, and that failure to do so will be deemed a breach of this Agreement. 

The restrictions in this Section 4 will survive the expiration or termination of this Agreement. 

  1. Termination of the License.The Licensed Rights granted to You hereunder shall automatically terminate and all rights shall return to ANTONIA PIA GORDON® if: (i) at any time You sell, trade, donate, give away, transfer, or otherwise dispose of Your Licensed NFT for any reason except as specially provided in section 3 of this Agreement;  (ii) You breach any of the Agreement; (iii) You have a trustee, receiver or similar party appointed for Your property, become insolvent, acknowledge Your insolvency in any manner, make an assignment for the benefit of your creditors, or file a petition of bankruptcy; (iv) You engage in any unlawful business practice related to the Licensed NFT; (iv) You initiate any legal actions, except an arbitration as specifically provided herein, against any of ANTONIA PIA GORDON®  and/or its officers, directors,  affiliates, agents, attorneys and employees. 

  2. DISCLAIMER OF WARRANTIES & LIMITATION OF LIABILITY. ALL LICENSED NFTs ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, ANTONIA PIA GORDON® DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL  ANTONIA PIA GORDON® 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 NFT, INCLUDING BUT NOT LIMITED TO THE LICENSED NFT, THE AUCTION, ANY TECHNOLOGY AND/OR PARTIES RELATED TO THE AUCTION, INCLUDING BUT NOT LIMITED TO BLOCKCHAIN, CRYPTO WALLETS. YOU AGREE THAT THIS LIMITATION OF LIABILITY APPLIES WHETHER SUCH ALLEGATIONS ARE FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR FALL UNDER ANY OTHER CAUSE OF ACTION, REGARDLESS OF THE BASIS UPON WHICH LIABILITY IS CLAIMED AND EVEN IF A DISCLAIMING PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND IN ANY EVENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANTONIA PIA GORDON® TOTAL AGGREGATE LIABILITY SHALL NOT EXCEED TEN PERCENT (10%) OF THE TOTAL SUM PAID DIRECTLY BY YOU TO ANTONIA PIA GORDON® FOR THE APPLICABLE LICENSED NFT. YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET AND AGREE THAT WE HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY BREACH OF SECURITY UNLESS IT IS DUE TO OUR GROSS NEGLIGENCE. IF APPLICABLE LAW DOES NOT ALLOW ALL OR ANY PART OF THE ABOVE LIMITATION OF LIABILITY TO APPLY TO YOU, THE LIMITATIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.  

  3. Assumption Of Risk.As noted above, the Licensed 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 an NFT, such markets and prices are extremely volatile, and variations in the price of other digital assets could materially and adversely affect the value of any digital asset(s) You own, including Your Licensed NFT, and there is no guarantee that Your Licensed NFTs will have or retain any value; (B) the commercial or market value on a Licensed NFT that You purchase may materially diminish in value as a result of a variety of things such as negative publicity ; (C) there are risks associated with using an Internet-native assets (e.g., non-fungible tokens, cryptocurrencies, etc.) including, but not limited to, 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 ANTONIA PIA GORDON® will not be responsible for any of these, however caused; (D) ANTONIA PIA GORDON® does not make any promises or guarantees about the availability of the Licensed NFT or the Art on the Internet or that they will host the Licensed NFT or the Art at any specific location and/or for any specific period of time; (E) upgrades to the Ethereum platform (or any other platform), a hard fork or other change in the Ethereum platform (or any other platform), a failure or cessation of Ethereum (or any other platform), or a change in how transactions are confirmed on the Ethereum platform (or any other platform) may have unintended, adverse effects on all blockchains using such technologies, including without limitation Licensed NFTs; (F) ANTONIA PIA GORDON® does not make any promises or guarantees related to  “Wallets”, Blockchain or any other third parties related to this auction and each of their applications and/or services, including but not limited to the continued availability of either and/or the protection and/or storage of any data you provide to those parties; (G) the risk of losing access to Licensed NFT due to loss of 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, unfavourable regulatory intervention in one or more jurisdictions or policies any of which may materially adversely affect the use and value of the Licensed NFT; (K) User is solely responsible for determining what, if any, taxes apply to User’s purchase, sale, or transfer of NFT. ANTONIA PIA GORDON® is not responsible for determining or paying the taxes that apply to such transactions. (L) that NFTs are not legal tender and are not backed by any government; and (M) ANTONIA PIA GORDON® is not responsible for any transaction between you and a third party (e.g., Your transfer of a Licensed NFT from a third party on the so-called “secondary market”), and ANTONIA PIA GORDON®  shall have no liability in connection with any such transaction. In addition to assuming all of the above risks, you acknowledge that You have obtained sufficient information to make an informed decision to license the Licensed NFT and that You understand and agree that you are solely responsible for determining the nature, potential value, suitability and appropriateness of these risks for yourself. ANTONIA PIA GORDON® cannot and does not represent or warrant that any Licensed NFT, or its supporting systems or technology, is reliable, current or error-free, meets Your requirements, or that defects in the Licensed NFT, or its supporting systems or technology, will be corrected. ANTONIA PIA GORDON® cannot and does not represent or warrant that the Licensed NFT or the delivery mechanism for it are free of viruses or other harmful components. You accept and acknowledge that ANTONIA PIA GORDON® will not be responsible for any communication failures, disruptions, errors, distortions or delays You may experience related to the Auction. (N)ANTONIA PIA GORDON® does not store, send, or receive cryptocurrency assets. Any transfer of cryptocurrency assets occurs within the supporting blockchain that is not controlled by ANTONIA PIA GORDON®. Transactions in NFT may be irreversible, and, accordingly, losses due to fraudulent or accidental transactions may not be recoverable. Some transactions of NFT shall be deemed to be made when recorded on a public blockchain ledger, which is not necessarily the date or time that User initiated the transaction. (O) Digital assets, including blockchain based assets such as NFT, are subject to developing laws and regulations throughout the world.

  4. Governing Law.This Agreement and all matters related to it and/or any Licensed NFT shall be governed by, construed, and enforced in accordance with the laws of the UNITED ARAB EMIRATES, as they are applied to agreements entered into and to be performed entirely within the UNITED ARAB EMIRATES and without regard to conflict of law principles, except to the extent that law is inconsistent with or pre-empted by federal law. 

  5. Changes to this Agreement. ANTONIA PIA GORDON® may make changes to this Agreement from time to time. When ANTONIA PIA GORDON® makes such changes, we 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 Licensed NFT and the Art after the Agreement has been updated will constitute your binding acceptance of the updates. 

  6. Eligibility: 

(a) Participation in the ANTONIA PIA GORDON® NFT Collection Offering is open only to individuals who have the right and authority to enter into this Agreement, are fully able and competent to satisfy the terms, conditions, and obligations herein and who are using currency that such party is the lawful holder thereof. It is not available to Users who have had their User privileges temporarily or permanently deactivated. You may not allow other persons to use your User credentials, and You agree that You are the sole authorized user. 

(b) By becoming a User, you represent and warrant that you are at least 18 years old. 

  1. Indemnity:You will defend, indemnify, and hold ANTONIA PIA GORDON®, including each of their respective affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders, 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 Licensed NFT and/or Your participation in the Offering, including: (1) Your breach of this Agreement or the documents it incorporates by reference; (2) Your violation of any law or the rights of a third party as a result of your own interaction with such third party; (3) any allegation that any materials that You submit to us or transmit in the course of the auction, communications seeking ANTONIA PIA GORDON® consent to activities or otherwise, infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party; and/or (4) any other activities in connection with the Offering or the Licensed NFT. This indemnity shall be applicable without regard to the negligence of any party, including any indemnified person. 

  2. 12. If you are provided a translation of this Agreement, the original version in English will be used in deciding any issues or disputes which arise under this Agreement. 

  3. 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 ANTONIA PIA GORDON® under this Agreement be given by contacting the User at the contact information provided on the NFT Marketplace or directly to ANTONIA PIA GORDON®. User may give notice to ANTONIA PIA GORDON®  by contacting ANTONIA PIA GORDON® at the contact information provided on the NFT Marketplace or at hello@apgart.com.

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.

 

NFT Purchase and License Agreement

 

This NFT Purchase and License Agreement (this “Agreement”) is a legally binding agreement by and ANTONIA PIA GORDON®  (“APG” or “us”) and any purchaser of any NFT (defined below) (“you” or “Purchaser”) or any other licensee or third party service providers that are creating, marketing or handling the sales of such NFT. Each party referred to as a “Party”. This Agreement governs the rights and obligations with respect to the NFT. By purchasing a NFT, you acknowledge that you have carefully read and agree to the terms of this Agreement.

 

WHEN YOU AGREE TO THESE TERMS, YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND APG THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTIONS 14 “DISPUTE RESOLUTION” BELOW FOR DETAILS REGARDING ARBITRATION. HOWEVER, IF YOU ARE A RESIDENT OF A JURISDICTION WHERE APPLICABLE LAW PROHIBITS ARBITRATION OF DISPUTES, THE AGREEMENT TO ARBITRATE IN SECTION 14 WILL NOT APPLY TO YOU BUT THE PROVISIONS OF SECTION 13 (GOVERNING LAW) WILL APPLY INSTEAD.

 

1. Agreement to Terms.

 

(a) “NFT” means a non-fungible token (i.e., a controllable electronic record recorded on a blockchain) that, as of its genesis issuance, is associated with an image of NFT Art that is generated on a blockchain network. “NFT Art” means those images of ANTONIA PIA GORDON® and the underlying creative elements (i.e., “traits’ or “properties”) that form them,). For avoidance of doubt, the NFT Art 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.

 

(b) Additional Terms: NFT may be available for purchase on one or more third-party platforms, such as Verisart, OpenSea, Rarible (each, an “NFT Marketplace”), which we do not operate. The access and use of the NFT Marketplace are subject to the separate terms of the NFT Marketplace.

 

2. Ownership of a NFT.

 

(a) When Purchaser acquires a ANTONIA PIA GORDON®’s NFT Purchaser owns all personal property rights to that NFT (e.g., the right to freely sell, transfer, or otherwise dispose of that NFT). Such rights, however, do not include the ownership of the intellectual property rights in the NFT Art. Such rights are licensed pursuant to Section 3 below.

 

(b) Purchaser represents and warrants that it will not transfer a 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; or (iii) is listed on any of the European Union or United Nations sanctions lists (“Prohibited Transferees”).

 

 

3. License to NFT Art Options.

When you purchase NFT under this Agreement you have one of the following options:

 

(a) Non-Commercial License to NFT  Art: Subject to your compliance with this Agreement, APG hereby grants to you, for so long as you own the NFT (as recorded on the relevant blockchain) a non-exclusive, royalty-free license, with no right to sublicense, to use, copy, and display the NFT  Art associated with your purchased NFT except for your own personal, non-commercial use (e.g., home display or as a social media avatar), including to create a reasonable number of back-up copies of such NFT  Art and a physical print out of the NFT  Art, each to be retained only for so long as you own the associated NFT; and (ii) to sell or otherwise transfer the associated NFT consistent with the ownership of it (e.g., posting the NFT  Art on a sales listing on an NFT marketplace) (the “Non-Commercial License”).

 

(b) You purchase a Commercial License to NFT Art: subject to your compliance with this Agreement, APG hereby grants to you, for so long as you own the NFT (as recorded on the relevant blockchain), a royalty-free, worldwide, revocable license, with the right to sublicense, to use, copy, distribute, and display the NFT  Art associated with the NFT that you own for Commercial Purposes (the “Commercial License”). “Commercial Purposes” means the creating, selling, and marketing of: (i) physical goods (e.g., apparel) or (ii) tangible or intangible media (e.g., comic books, e- books, video games, film and television productions), each that feature the NFT Art. These rights do not include the right to create derivative works of the NFT Art except to the extent necessary to depict the NFT in or on the goods or media created pursuant to the exercise of this license (e.g., reformatting the NFT into a different form of media).

 

(c) Purchase Options for a Commercial License to NFT Art:

 

APG creates a physical artwork and puts the JPEG file as NFT on an exchange for sale as well. Client buys:

 

  1. Only the physical artwork, however the NFT remains on the exchange for sale

  2. Both physical artwork and NFT, no other rights or copyrights

  3. Both but demands to destroy either the physical artwork or the NFT to keep the exclusivity of the either artwork or NFT. This option is only applicable if the NFT price is at least 10 times higher than the physical artwork.

  4. Client buys the physical artwork, the NFT and the license for merchandising only, but no other rights

 

(d) Transferability. The Non-Commercial License and the Commercial License are non-transferrable.

 

4. Reservation of Rights.

 

General. All rights in and to the NFT Art not expressly provided for in this Agreement are hereby reserved by APG. The NFT Art is licensed, not sold. APG owns and will retain all title, interest, ownership rights and intellectual property rights in and to the NFT 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 APG: (i) modify the NFT Art except as expressly permitted herein; (ii) use the NFT Art to advertise, market, or sell any product or service except as expressly permitted herein; (iii) use the NFT Art in connection with media that depicts hate speech, vulgarity, offensive behavior, violence, cruelty, or illegal activities or as otherwise prohibited in APG’s acceptable policies in this regard as amended from time to time; (iv) attempt to register any trademark, copyright, or otherwise acquire intellectual property rights in or to the NFT  Art; (v) represent or imply that your exercise of the Commercial License is endorsed by or affiliated with APG; or (vi) make defamatory or dishonest statements about APG, NFTs, or otherwise damage the goodwill, value or reputation of APG or the NFT.

 

(a) Particular Exceptions. Without limitation of Section 4(a) above, the license in Section 3(b) does not include: (i) the right to use the NFT  Art to create non-fungible tokens or other digital assets accounted for on a distributed ledger; (ii) the right to create derivative works of the NFT  Art except as expressly provided therein; or (iii) the right to use the NFT  Art as a trademark or brand, or for any other fundraising, advertising, marketing, or similar purposes (other than to advertise or market the merchandise or media that has been made in accordance with Section 3(b)).

 

(b) No Rights to Trademarks. For avoidance of doubt, the foregoing license does not include the right to, and you may not, use any APG trademarks (e.g., APG or NFT) in connection with your exercise of the license in Section 3(b). No trademark or other rights based on designation of source or origin are licensed to you. You may not register domain names, social media accounts or related addresses include or may be confusingly similar any APG trademarks.

 

(c) Enforcement. APG reserves the exclusive right to: (1) register and otherwise protect all intellectual property and other rights in any to the NFT Art and (2) enforce the intellectual property rights in and to the NFT Art.

 

(d) Right to Interpret and Clarify. APG and Purchaser recognize that the grant of rights reflected in Section 3 and corresponding reservation of rights in Section 4 is novel and unforeseen circumstances may require clarification. As such, APG reserves the right to interpret and clarify the terms of this Agreement in relation to such circumstances it deems novel or unforeseen.

 

5. Fees and Purchaser Obligations.

 

(a) Purchase and Sale. The valid execution of this Agreement, including the delivery of the purchased NFT, is conditioned upon the following terms being met: (i) Purchaser’s payment and APG’s receipt of the purchase price, if applicable, (ii) Purchaser’s provision to APG a compatible network wallet address (“Wallet”) to which the Purchaser’s NFT will be delivered; and (iii) Purchaser’s successful completion of any applicable anti-money laundering, sanctions and other processes as may be requested by APG. If the Purchaser fails to meet any of the conditions above, APG may suspend the delivery of the purchased NFT or terminate the transaction.

 

(b) 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 or any other European Union and United Nations sanctioned lists.

 

(c) Gas Fees. By buying or selling an NFT on an NFT Marketplace, you agree to pay all applicable fees and, if applicable, you authorize APG or any other third party service provider authorized by APG to automatically deduct fees (including any transaction fees, or Gas Fees, as applicable) directly from Purchaser’s payments for the transaction or subsequent transactions. “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 via the blockchain network. APG has no insight into or control over these payments or transactions, nor does APG have the ability to reverse any transactions. Accordingly, APG will have no liability to you or to any third party for any claims or damages that may arise as a result of any transactions of NFTs that you engage in.

 

(d) Transfers: All subsequent transactions of an NFTs are subject to the following terms: (i) a NFT transferee (the “Transferee”) shall, by purchasing, accepting, accessing or otherwise using an NFT or NFT  Art, be deemed to accept all of the terms of this Agreement as a “Purchaser” hereof (other than with respect to Sections 5(a) and 5(c)); (ii) a NFT 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.

 

(e) Purchaser further acknowledges and agrees that all subsequent transactions of an NFT will be effected on the blockchain network governing NFT, and Purchaser will be required to make or receive payments exclusively through its cryptocurrency wallet.

 

6. APG’s Rights and Obligations to the NFT Art and NFT. The Parties acknowledge and agree that APG is not responsible for the ultimate rendering of the NFT Art.

 

7. 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 countries) and has the legal capacity to enter into this Agreement, (b) that Purchaser will use and interact with its purchased NFTs and NFT  Art only for lawful purposes and in accordance with this Agreement, and (c) that Purchaser will not use its purchased NFT or NFT  Art to violate any law, regulation or ordinance or any right of APG, 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 NFTS ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, APG 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. APG MAKES NO WARRANTY THAT THE NFT WILL MEET PURCHASER’S REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. APG MAKES NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY INFORMATION OR CONTENT RELATED TO THE NFT.

 

APG 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 A 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 ONCHAIN 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 NFT.

 

NFT’S 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 APG DO NOT CONTROL. APG DO NOT GUARANTEE THAT APG OR ANY APG PARTY CAN EFFECT THE TRANSFER OF TITLE OR RIGHT IN ANY NFT. PURCHASER BEARS FULL RESPONSIBILITY FOR VERIFYING THE IDENTITY, LEGITIMACY, AND AUTHENTICITY OF ASSETS PURCHASER PURCHASES THROUGH THE NFT MARKETPLACE. NOTWITHSTANDING INDICATORS AND MESSAGES THAT SUGGEST VERIFICATION, APG MAKES NO CLAIMS ABOUT THE IDENTITY, LEGITIMACY, OR AUTHENTICITY OF ASSETS ON THE NFT MARKETPLACE OR ANY PURPORTED SUBSEQUENT TRANSACTIONS.

 

APG IS NOT RESPONSIBLE ANY KIND OF FAILURE, ABNORMAL BEHAVIOR OF SOFTWARE (E.G., WALLET, SMART CONTRACT), BLOCKCHAINS OR ANY OTHER FEATURES OF A NFTS. APG 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 NFT, 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.

 

8. Assumption of Risk. Purchaser accepts and acknowledges all risks associated with the following:

 

(a) Purchaser is solely responsible for determining what, if any, taxes apply to Purchaser’s purchase, sale, or transfer of NFT. APG is not responsible for determining or paying the taxes that apply to such transactions.

 

(b) APG does not store, send, or receive cryptocurrency assets. Any transfer of cryptocurrency assets occurs within the supporting blockchain that is not controlled by APG. Transactions in NFT may be irreversible, and, accordingly, losses due to fraudulent or accidental transactions may not be recoverable. Some transactions of NFT 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.

 

(c) 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. APG will not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience when effecting NFT transactions, however caused.

 

(d) Digital assets, including blockchain based assets such as the NFTs, are subject to developing laws and regulations throughout the world.

 

(e) Transactions involving an NFT may rely on third-party platforms to perform transactions. If APG or any of its third party service providers is unable to maintain a good relationship with such platform providers; if the terms and conditions or pricing of such platform providers change; if APG 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 a NFT will suffer.

 

9. Links to Third Party Websites or Resources. Use and interaction of NFTs and NFT Art may allow, from time to time, Purchaser to access third-party websites or other resources. APG 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 NFT Art on a third-party website serve as grounds for a claim against APG.

 

10. Termination of License to NFT Art. Purchaser’s license to the NFT Art shall automatically terminate and all rights shall revert to APG if at any time: (i) Purchaser breaches any portion of this Agreement or (ii) Purchaser engages in any unlawful activity related to a NFT (including transferring an NFT to a Prohibited Transferee). Upon any termination, discontinuation or cancellation of Purchaser’s license to NFT Art, APG may disable Purchaser’s access to the NFT Art and Purchaser shall delete, remove, or otherwise destroy any back up or single digital or physical copy of the NFT Art. Upon any termination, discontinuation or cancellation of the license in this Agreement, the following Sections will survive: 2, 4, 6 through 15.

 

11. Indemnity. Purchaser shall defend, indemnify, and hold APG and any other third party service provider appointed by APG 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 a NFT whether or not such person personally purchased an NFT) against APG, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with (a) your access to or use of the NFT Marketplace or (b) your breach of this Agreement.

12. Limitation of Liability.

 

(a) TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER APG NOR ITS SERVICE PROVIDERS, INVOLVED IN CREATING, PRODUCING, OR DELIVERING AN ONCHAIN NFT 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 NFT OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE OR INTERACT WITH A NFT OR ACCESS THE NFT ART, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT APG 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.

 

(b) TO THE MAXIMUM EXTENT PERMITTED BY THE LAW OF THE APPLICABLE JURISDICTION, IN NO EVENT WILL APG’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE USE OF OR INABILITY TO USE OR INTERACT WITH A NFT OR ACCESS THE NFT ART EXCEED ONE HUNDRED U.S. DOLLARS ($100.00).

 

(c) THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN APG AND PURCHASER.

 

13. Governing Law and Forum Choice. This Agreement and any action related thereto will be governed by the Federal Laws of the United Arab Emirates and the Emirate of Dubai, without regard to its conflict of law’s provisions. Except as otherwise expressly set forth in Section 14 “Dispute Resolution,” the exclusive jurisdiction for all Disputes (defined below) that Purchaser and APG are not required to arbitrate will be the Courts of Dubai, and Purchaser and APG each waive any objection to jurisdiction and venue in such courts.

 

14. Dispute Resolution. ‌

 

  • Mandatory arbitration of disputes: Any dispute arising out of the formation, performance, interpretation, nullification, termination or invalidation of this Agreement or arising therefrom or related thereto in any manner whatsoever, shall be settled by arbitration in accordance with the provisions set forth under the Rules of arbitration (“the Rules”) of the Dubai International Arbitration Centre . The number of arbitrators shall be three (z) appointed in compliance with the Rules, the place of arbitration shall be Dubai and the venue shall be the premises of the Dubai International Arbitration Centre. The language of arbitration is English.

 

(b) Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the Rules, and APG won’t seek to recover the administration and arbitrator fees APG is responsible for paying, unless the arbitrator finds your Dispute frivolous. If APG prevails in arbitration APG 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

 

15. 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 APG under this Agreement be given by contacting the Purchaser at the contact information provided on the NFT Marketplace or directly to APG. Purchaser may give notice to APG by contacting the APG at the contact information provided on the NFT Marketplace or at hello@apgart.com . 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.