TERMS OF INTELLECTUAL PROPERTY LICENSE FOR APOCALYPTIC APES NON-FUNGIBLE TOKENSHEADING
Last Updated August 5, 2022
This COPYRIGHT LICENSE AGREEMENT for Apocalyptic Apes Non-Fungible Tokens (NFT) (the “Agreement“), dated as of August 5, 2022 (the “Effective Date“), is made by and between the owner of the digital wallet containing the NFT (“Licensee” or “you”), and Apocalyptic Apes, LLC (“Licensor“), a State of California Limited Liability Company.
Apocalyptic Apes NFTs are a collection of 8,888 digital assets on the Ethereum blockchain. Each NFT represents a unique hash associated with an underlying work of art (“Art”). The Art resides on the Interplanetary File System (IPFS) and is tied to a distinct content identifier (CID). All copyrights and trademarks associated with Apocalyptic Apes are owned by Licensor.
By receiving, whether by purchase, transfer, or other acquisition, an Apocalyptic Apes NFT and holding it in your digital wallet you agree to the terms and conditions set forth in this Agreement.
The “Art” is defined as the imaged housed on the Interplanetary File System (IPFS) and assigned to the NFT by the Content ID (CID) and is a part of the generative profile picture collection known as the Apocalyptic Apes.
The Licensor may modify this Agreement from time to time. It is your duty to ensure compliance with this Agreement.
Have fun with your Apocalyptic Ape. You have a broadly construed commercial use license to enjoy.
1.1 Commercial Use License. Subject to the terms and conditions of this Agreement, Licensor grants to you a non-exclusive, sublicensable, worldwide commercial use license to display, transmit, and create derivative works based on the Art in any and all formats and media whether currently in existence or later devised.
(a). Reservation of Rights. Licensor reserves all rights not expressly granted to you under this Agreement, and, explicitly, the right to use the NFT and associated Art in promotional and marketing materials.
(b). Transfer of License. Your commercial use license ends when your NFT is transferred, whether by sale, gift, or other means, to another digital wallet. The new owner will assume the commercial use license in accordance with these terms and conditions.
1.2 Personal Use. You may use the Art associated with your NFT for any non-commercial purpose which does not actively generate revenue.
Representations and Warranties.
2.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that:
(a). it has the full right, power, and authority to enter into this Agreement and to perform its obligations hereunder;
(b). when executed and delivered by such party, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
2.2 Licensor’s Representations and Warranties. Licensor represents and warrants, solely to and for the benefit of Licensee, that it owns the Art in connection with Licensee’s uses permitted hereunder in the Territory.
2.3 Licensee’s Representations and Warranties. Licensee represents and warrants that:
(a). Licensee will not engage or participate in any activity or course of action that could diminish or tarnish the image or reputation of the Art or Licensor, or cause confusion as to the ownership of the Art; and
(b). To Licensee’s knowledge in the exercise of reasonable diligence, the Licensee’s use of the Work will not infringe, misappropriate, or otherwise violate the US intellectual property or other US rights of any third party or violate any applicable regulation or law.
2.3 Disclaimer of Representations and Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7, LICENSOR HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE LICENSED PROPERTY, INCLUDING SPECIFICALLY ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE.
3.1 Licensee Indemnification. Licensee shall indemnify, defend, and hold harmless Licensor and its officers, directors, employees, agents, affiliates, successors, permitted assigns, and licensees the/each an “Indemnified Party”) from and against any losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers, arising out of or in connection with any third-party claim, suit, action, or proceeding (each a “Third-Party Claim”) relating to any actual or alleged breach by Licensee of its representations, warranties, covenants, or other obligations hereunder.
3.2 Indemnification Procedure. The Indemnified Party shall promptly notify Licensee on becoming aware of a Third-Party Claim under this Section 8. Licensee shall promptly assume control of the defense and investigation of the Third-Party Claim, with counsel reasonably acceptable to the Indemnified Party, and the Indemnified Party shall reasonably cooperate with Licensee in connection therewith, in each case, at Licensee’s sole cost and expense. The Indemnified Party may participate in the defense of such Third-Party Claim, with counsel of its own choosing and at its own cost and expense. Licensee will not settle any Third-Party Claim on any terms or in any manner that adversely affects the rights of any Indemnified Party without the Indemnified Party’s prior written consent which consent shall not be unreasonably withheld, conditioned, or delayed). If Licensee fails or refuses to assume control of the defense of such Third-Party Claim, the Indemnified Party will have the right, but no obligation, to defend against such Third-Party Claim, including settling such Third-Party Claim after giving notice to Licensee, in each case, in such manner and on such terms as the Indemnified Party may deem appropriate. Neither the Indemnified Party’s failure to perform any obligation under this Section 8.2 nor any Indemnified Party’s act or omission in the defense or settlement of any such Third-Party Claim will relieve Licensee of its obligations under this Section 8.2, except to the extent that Licensee can demonstrate that it has been materially prejudiced as a result thereof.
4.1 Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR WILL NOT BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, OR ENHANCED DAMAGES, OR FOR ANY LOSS OF ACTUAL OR ANTICIPATED PROFITS (REGARDLESS OF HOW THESE ARE CLASSIFIED AS DAMAGES), WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE (INCLUDING THE ENTRY INTO, PERFORMANCE, OR BREACH OF THIS AGREEMENT), REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5.1 Interpretation. For purposes of this Agreement: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. This Agreement is intended to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
5.2 Entire Agreement. This Agreement, including and together with any related attachments, is the sole and entire agreement of the parties with respect to the subject matter herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, whether written or oral, with respect to such subject matter.
5.3 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect the enforceability of any other term or provision of this Agreement, or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the parties shall negotiate in good faith to/the court may modify this Agreement to effect the original intent of the parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
5.4 Assignment. Licensee shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Licensor. Any purported assignment or delegation in violation of this Section 12.4 is null and void. Licensor may freely assign or otherwise transfer any of its rights or delegate any of its obligations under this Agreement. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
5.5 Relationship of the Parties. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party has authority to contract for nor bind the other party in any manner whatsoever.
5.6 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and nothing herein, express or implied, is intended to or will confer upon any third party any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.
5.7 Amendment and Modification. No amendment or modification to this Agreement is effective unless it is in writing and signed by an authorized representative of each party.
5.8 Waiver. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the waiving party. No waiver by any party will operate or be construed as a waiver of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.