LICENSE AND USE AGREEMENT
"NUCLEAR NERDS OF THE ACCIDENTAL APOCALYPSE" is a collection of digital artworks created and owned by Nuclear Nerds, LLC (the "Digital Collection"), a Minnesota limited liability company ("Licensor"), and made available for purchase by the public as non-fungible tokens ("Nuclear Nerds NFTs") residing on the Ethereum Network. Licensor, through its auctions of Nuclear Nerds NFTs on this website, enables users to purchase rights to the Nuclear Nerds NFTs, as described below. Fulfillment and management on the Ethereum Network of any purchase of Nuclear Nerds NFTs are governed by the Nuclear Nerds Smart Contract of the Ethereum Network. As between Licensor and any purchaser of any Nuclear Nerds NFT through this website ("Purchaser"), Purchaser shall be solely responsible for the validation of any transaction or contract facilitated by this website, prior to the acceptance thereof by Purchaser, and the management and security of Purchaser's "wallet" on the Ethereum Network; once any transaction or contract has been accepted or rejected by Purchaser, Licensor has no capacity to undo, reverse, or restore any such transaction or contract.
The foregoing, and the following terms and conditions, constitute a binding agreement between Licensor and Purchaser with respect to (a) the rights granted by Licensor to Purchaser in any Nuclear Nerds NFT purchased by Purchaser through any auction of Nuclear Nerds NFTs conducted by Licensor on this website (an "Auction"); (b) the conduct of any Auction by Licensor, and any participation therein by Purchaser; and (c) any use by Purchaser of this website.
In consideration of the foregoing, and for other good and valuable consideration, the receipt of which is hereby acknowledged, Licensor and Purchaser hereby agree as follows:
- Agreement. By participating in any Auction, purchasing any Nuclear Nerds NFT, or using this website in any way, Purchaser expressly acknowledges, agrees to, and accepts all of the terms and conditions set forth in this License and Use Agreement (this "Agreement"). Purchaser further acknowledges, agrees to, and accepts that Licensor may elect to amend, modify, or supplement any of the terms and conditions of this Agreement at any time; and that, upon the publication by Licensor on this website, all of the terms and conditions of such modifiedAre , amended, or supplemented Agreement shall apply automatically to any participation in any Auction, purchase of any Nuclear Nerds NFT, or use of this website by Purchaser following such publication.
Any changes to the Terms will apply on the date that they are made, and your continued access to or use after the Terms have been updated will constitute your binding acceptance of the updates. If you do not agree to any revised Terms, you may not access or use the Site.
- Rights. Provided, and for so long as, Purchaser is not in breach of this Agreement, Licensor hereby grants Purchaser the following rights in and to any Nuclear Nerds NFT purchased by Purchaser through Licensor's website (a "Purchased NFT"):
(a) The exclusive right to own and display, and to sell and transfer the exclusive right to own and display, on and through the Ethereum Network (i.e., blockchain) the unique digital artwork of each Purchased NFT (the "Unique Ownership Rights") pursuant to and in accordance with the Nuclear Nerds Smart Contract of the Ethereum Network (the "Smart Contract"). Notwithstanding anything to the contrary contained herein, Licensor and Purchaser hereby acknowledge and agree that, following the purchase by Purchaser of any Nuclear Nerds NFT pursuant to and in accordance with the terms and conditions of this Agreement, the Unique Ownership Rights are governed and mediated thereafter entirely by the terms and conditions of the Smart Contract.
(b) The exclusive right, in perpetuity throughout the universe, to copy, display, and use the Purchased NFT in digital form, along with any graphic digital enhancements or modifications of, or additions to, the Purchased NFT created by Purchaser, solely for the following purposes: (i) Purchaser's personal, non-commercial use; (ii) as part of a digital marketplace that permits the purchase and sale of digital display rights to the Purchased NFT; provided, however, that such marketplace verifies cryptographically such digital display rights to ensure that only the actual owner thereof can digitally display the Purchased NFT; and (iii) as part of a third-party website or digital application that permits the inclusion, involvement, or participation of the Purchased NFT; provided, however, that (A) such marketplace verifies cryptographically Purchaser's digital display rights to ensure that only the owner thereof can digitally display the Purchased NFT, and (B) the Purchased NFT is no longer visible once the owner thereof leaves such website or digital application.
(c) The non-exclusive right, in perpetuity throughout the universe, to create derivative works of the Purchased NFT in the form of non-digital merchandise, as conventionally defined, including, but not limited to, T-shirts, pajamas, caps, and other items of apparel, stuffed toys and novelties, posters, and stickers, and to sell such merchandise and derive and solely retain the revenue therefrom.
All rights in any Purchased NFT not expressly granted to Purchaser in this Agreement, including but not limited to, the right to use and incorporate the Purchased NFT in any form of commercial narrative whatsoever, whether a graphic novel, short or long-form video or motion picture for exploitation in any and all media whatsoever, or otherwise, and the right to use the name or any trade or service mark or logo of Licensor in connection with any use whatsoever of the Purchased NFT.
- Auction. If you participate in any Auction, and thereby purchase any Nuclear Nerds NFT, the financial transaction effectuating such purchase shall be conducted solely through the Ethereum Network. Purchaser hereby acknowledges and agrees that Licensor has no access to or control over such transaction, including, but not limited to, the ability to reverse any such transation. Without limiting the generality of any other term of this Agreement, Purchaser hereby acknowledges and agrees that Licensor shall have no liability whatsoever to Purchaser or to any third party for any claim of or damage to Purchaser or any third party arising from any transaction or agreement Purchaser may engage in or enter into on the Ethereum Network. Purchaser further hereby acknowledges and agrees that Ethereum, in order to fund its service, requires the payment of a transaction fee (a “Gas Fee”) by the purchaser in every transaction conducted on the Ethereum Network.
- Use of Site. Purchaser shall be solely responsible for Purchaser's conduct while accessing or using this website, and for any consequences thereof. Purchaser agrees to use this website only for purposes that are legal, proper, and in accordance with the terms and conditions of this Agreement and any applicable laws or regulations. By way of example, and not as a limitation, Purchaser shall not (and shall not allow any third party to): (a) send, upload, distribute, or disseminate any unlawful, defamatory, harassing, abusive, fraudulent, hateful, violent, obscene, or otherwise objectionable content; (b) distribute viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or any other items of a destructive or deceptive nature; (c) impersonate another person; (d) upload, post, transmit, or otherwise make available through the Site any content that infringes the intellectual property or proprietary rights of any party or otherwise violates the legal rights of others; (e) engage in, promote, or encourage illegal activity (including, without limitation, money laundering); (f) interfere with other users' use of this website; (vii) use the website for any unauthorized commercial purpose; (g) modify, adapt, translate, or reverse engineer any portion of this website; (h) remove any copyright, trademark or other proprietary rights notices contained in or on this website or any part of it; (i) use any technology to collect information about this website for any unauthorized purpose; (j) access or use this website for the purpose of creating a product or service that is competitive with any of our products or services. If Purchaser engages in any of the activities prohibited herein, Licensor may, in its sole and absolute discretion, without notice to Purchaser, and without limiting any of its other rights or remedies at law or in equity, immediately suspend or terminate Purchaser's user account.
(a) PURCHASER EXPRESSLY ACKNOWLEDGES AND AGREES THAT ITS ACCESS TO AND USE OF THIS WEBSITE IS AT PURCHASER'S SOLE RISK, AND THAT THIS WEBSITE IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, LICENSOR MAKES NO EXPRESS WARRANTIES AND HEREBY DISCLAIMS ALL IMPLIED WARRANTIES REGARDING THIS WEBSITE AND ANY PART OF IT (INCLUDING, WITHOUT LIMITATION, THE WEBSITE, ANY SMART CONTRACT, OR ANY EXTERNAL WEBSITES), INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, CORRECTNESS, ACCURACY, OR RELIABILITY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PURCHASER, ITS SUBSIDIARIES, AFFILIATES, AND LICENSORS DO NOT REPRESENT OR WARRANT TO PURCHASER THAT: (i) PURCHASER'S ACCESS TO OR USE OF THIS WEBSITE WILL MEET PURCHASER'S REQUIREMENTS; (ii) PURCHASER'S ACCESS TO OR USE OF THIS WEBSITE WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR; (iii) USAGE DATA PROVIDED THROUGH THIS WEBSITE WILL BE ACCURATE; (iv) THIS WEBSITE OR ANY CONTENT, SERVICES, OR FEATURES MADE AVAILABLE ON OR THROUGH THIS WEBSITE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (v) THAT ANY DATA THAT PURCHASER DISCLOSES WHEN USING THIS WEBSITE WILL BE SECURE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN CONTRACTS WITH CONSUMERS, SO SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO PURCHASER.
(b) PURCHASER ACCEPTS THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET, AND AGREES THAT LICENSOR HAS NO LIABILITY OR RESPONSIBILITY FOR ANY BREACH OF SECURITY UNLESS IT IS DUE TO LICENSOR'S WILLFUL MISCONDUCT.
(c) LICENSOR SHALL NOT BE RESPONSIBLE OR LIABLE TO PURCHASER FOR ANY LOSSES PURCHASER MAY INCUR AS THE RESULT OF PURCHASER'S USE OF THE ETHEREUM NETWORK NOR DOES LICENSOR HAVE CONTROL OVER AND OR MAKE ANY GUARANTEES REGARDING ANY SMART CONTRACTS.
- Limitation of Liability.
(a) PURCHASER UNDERSTANDS AND AGREES THAT LICENSOR SHALL NOT BE LIABLE TO PURCHASER OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES WHICH PURCHASER OR SUCH THIRD PARTY MAY INCUR, HOWSOEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF PROFITS (WHETHER INCURRED DIRECTLY OR INDIRECTLY), LOSS OF GOODWILL OR BUSINESS REPUTATION, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR ANY OTHER INTANGIBLE LOSS, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) PURCHASER AGREES THAT LICENSOR'S TOTAL AGGREGATE LIABILITY TO PURCHASER FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR PURCHASER'S ACCESS TO OR USE OF (OR PURCHASER'S INABILITY TO ACCESS OR USE) ANY PORTION OF THIS WEBSITE, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, IS LIMITED TO THE GREATER OF (A) THE AMOUNTS PURCHASER ACTUALLY PAID LICENSOR PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE, OR (B) FIVE HUNDRED DOLLARS ($500.00) U.S.
(c) PURCHASER ACKNOWLEDGES AND AGREES THAT LICENSOR HAS MADE THIS WEBSITE AVAILABLE TO PURCHASER AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE WARRANTY, DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN. LICENSOR WOULD NOT BE ABLE TO PROVIDE THIS WEBSITE TO PURCHASER WITHOUT THESE LIMITATIONS.
- Assumption of Risks. Purchaser acknowledges and agrees to each of the following:
(a) The prices of NFTs are extremely volatile and fluctuations in the prices of other NFTs may impact the price of any Purchased NFT both positively and negatively. Given such volatility, NFTs such as any Purchased NFT should not be considered an investment. Purchaser assume all risks in that connection.
(b) No information on this website (or any other documents mentioned therein) is or may be considered to be advice or an invitation to enter into an agreement for any investment purpose. Further, nothing on this website qualifies or is intended to be an offering of securities in any jurisdiction nor does it constitute an offer or an invitation to purchase shares, securities, or other financial products. Due to the artistic nature of the project, the Digital Collection has not been registered with or approved by any regulator in any jurisdiction. It remains Purchaser's sole responsibility to assure that the purchase of any Purchased NFT and the associated art is in compliance with laws and regulations in Purchaser's jurisdiction.
(c) Purchaser assumes all risks associated with using an Internet-based currency, 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 Purchaser's wallet.
(d) NFTs, cryptocurrencies, and blockchain technology are relatively new and the regulatory landscape is unsettled. New regulations could negatively impact such technologies impacting the value for any Purchased NFT. Purchaser understand and accept all risks in that regard.
(e) Purchaser assumes all responsibility for any adverse effects of disruptions or other issues impacting Ethereum or the Ethereum Network.
- Indemnification. Purchaser agrees to hold harmless and shall indemnify Licensor and its subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers, or partners from and against any claim, liability, loss, damage (actual and consequential) of any kind or nature, suit, judgment, litigation cost, and reasonable attorneys' fees arising out of or in any way related to (i) Purchaser's breach of this Agreement, (ii) Purchaser's misuse of this website, or (iii) Purchaser's violation of applicable laws, rules, or regulations in connection with its access to or use of this website.
- Children. This website is not intended for children. Purchaser must be at least 18 years old to access this website or purchase a Nuclear Nerds NFT. If Purchaser is under 18 years old, Purchaser is not permitted to use this website for any reason. By accessing this website, Purchaser represents and warrants that Purchaser is at least 18 years of age.
- Dispute Resolution. All disputes arising out of or in connection with this Agreement, including without limitation Purchaser's access or use of this website, or to any products sold or distributed through this website, shall be referred to and finally resolved by arbitration under the rules of the American Arbitration Association. The case shall be adjudicated by a single arbitrator and shall be administered by the American Arbitration Association in accordance with its applicable rules. Each party shall bear its own fees and costs associated with the arbitration proceedings. The place of arbitration shall be New York, New York. The award of the arbitrator shall be final and binding, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing, Licensor may seek and obtain injunctive relief in any jurisdiction in any court of competent jurisdiction.
WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THIS WEBSITE OR ANY PRODUCTS SOLD OR DISTRIBUTED THROUGH THIS WEBSITE, OR THE SMART CONTRACTS: (a) PURCHASER HEREBY EXPRESSLY GIVES UP PURCHASER'S RIGHT TO HAVE A TRIAL BY JURY; AND (b) PURCHASER HEREBY EXPRESSLY GIVES UP PURCHASER'S RIGHT TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS IN ANY LAWSUIT, INCLUDING BUT NOT LIMITED TO CLASS ACTION LAWSUITS INVOLVING ANY SUCH DISPUTE.