ARBITRATION NOTICE: YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION OR A TRIAL BY JURY. BELOW, THESE TERMS EXPLAIN SOME EXCEPTIONS AND HOW YOU CAN OPT OUT OF ARBITRATION.
EXPORT CONTROLS NOTICE: BY ACCESSING, USING, OR HOLDING ANY BROADSIDE NFTS, AS DEFINED BELOW, YOU REPRESENT THAT YOU ARE NOT A “SANCTIONED PERSON,” AS DEFINED BELOW.
These terms (“Terms”) are a legally binding agreement by and between Dazzle Ship, LLC (“Dazzle Ship,” “we” or “us”) and any owner of a Broadside NFT (defined below) (“you” or “Owner”) governing the parties’ rights and obligations with respect to the matters identified herein. By owning, holding, buying, selling, or attempting to acquire any Broadside NFT, you agree to abide by these Terms. Please carefully review these Terms. If you don’t agree with these Terms, you may not access, use, or purchase any NFTs identified herein or participate in any Utility (as defined below) associated therewith.
The Broadside Smart Contract associates each Broadside NFT with a piece of digital art featuring one of the Broadside characters (“Broadside Characters”). The Broadside Character may change and evolve over time from the look and appearance that it has at the time of purchase or receipt.
Broadside Characters comprising artwork, traits, features, and/or elements created by Dazzle Ship (the “Exclusive PFPs”). Dazzle Ship owns all rights, title, and interest in and to the Exclusive PFPs, including any and all copyrights, trademarks, and other intellectual property rights therein. However, we grant you a broad license to use the Exclusive PFP associated with Your Broadside NFT (“Your Exclusive PFP”), subject to these Terms, for as long as you hold such Broadside NFT, as set forth below.
CC0 PFPs shall be freely available for use by their Owners and the public under the CC0 License, subject to the restrictions set forth in Section 4 (Restrictions and Reservations) and the other terms and conditions herein.
Grant. Subject to your acceptance of, and compliance with, these Terms, upon lawfully acquiring a Broadside NFT associated with an Exclusive PFP, and for so long as you own that Broadside NFT (both as recorded by the Broadside Smart Contract) (the “License Term”), Dazzle Ship grants to you an exclusive, universe-wide, royalty-free, sublicensable license to reproduce, distribute, prepare derivative works based upon, publicly display, publicly perform, transmit, and otherwise use and exploit, Your Exclusive PFP (“License”). The License is intended to be broad, enabling you to make both commercial and noncommercial uses of Your Exclusive PFP, in any and all media, whether existing now or invented later, subject only to these Terms and the restrictions set forth below. The License extends only to Your Exclusive PFP—meaning the complete selection and arrangement of all base layers, features, traits, attributes, and other elements that comprise Your Exclusive PFP. While the License allows you to create and exploit Derivative Broadside Works (defined below), the License does not grant you rights in any individual element of Your Exclusive PFP, or the license to exploit any individual element separate and apart from Your Exclusive PFP.
You may include the following copyright notice with Your Exclusive PFP: “Broadside © 2022 Dazzle Ship, LLC” (the “Dazzle Ship Copyright Notice”). Subject to your compliance with these Terms, you may include a copyright notice identifying you, or such other person you designate, as the copyright owner of any Derivative Broadside Work you create under the authority of the License during the License Term, provided that you also include the Broadside Copyright Notice.
Copyright Registrations. Any application to obtain a copyright registration in Your Exclusive PFP shall identify “Dazzle Ship, LLC” as the copyright owner of the Broadside Character. Any application to obtain a copyright registration in a Derivative Broadside Work may identify you or such other person you designate as the copyright owner and shall identify Your Exclusive PFP as a preexisting work underlying the Derivative Broadside Work.
Actions. To the extent applicable law authorizes you to bring a claim for infringement based upon the unauthorized use of Your Exclusive PFP, you agree that (1) you shall not exercise that right against Dazzle Ship; (2) any such claim shall be based solely upon the unauthorized use of Your Exclusive PFP, not another Broadside Character—for example, on the ground that the other Broadside Character is substantially similar to Your Exclusive PFP; and (3) Dazzle Ship may, in its sole discretion, join and, with your consent (which shall not be unreasonably withheld), take over control of the prosecution of any such action.
Termination of License. Upon the transfer of Your Broadside NFT to a new Owner, as recorded by the Broadside Smart Contract: (1) your License hereunder and any sublicenses you granted during the License Term shall immediately and automatically terminate; (2) you must discontinue any use of Your Exclusive PFP as a trademark or other source identifier; and (3) any trademark and corresponding registration obtained in connection with your exercise of the License shall be deemed abandoned unless duly transferred to the new Owner under a separately negotiated written agreement.
Published Broadside Works. If, during the License Term, you create and make available to the public a work using Your Exclusive PFP (a “Published Broadside Work”), you may, except as set forth herein, continue to use and exploit that Published Broadside Work in accordance with these Terms after the License Term; provided, however, that: (1) you will be responsible for any obligations or liabilities arising from your continued use of the Published Broadside Work after the License Term; and (2) this privilege does not allow you to use the Exclusive PFP to create any new works or materials after the License Term. Thus, for example:
After the License Term, you may sell off existing (at the time of transfer) inventories of merchandise featuring Your Exclusive PFP that were created and offered for sale during the License Term, but the creation or distribution of any new merchandise or inventory featuring Your Exclusive PFP would require a license from the new Owner.
These Terms do not grant you any rights in or to Dazzle Ship’s (or any other) trade names or trademarks (e.g., “Broadside,” “Dazzle Ship” or any related names) (collectively, “Dazzle Ship TM Rights”), all of which are expressly reserved to Dazzle Ship. You hereby agree that any Dazzle Ship TM Rights you purport to acquire, together with any associated goodwill, shall automatically, immediately, and at your expense be assigned to Dazzle Ship. For the sake of clarity, the Dazzle Ship TM Rights do not include Your Broadside Character, in which you may acquire trademark rights through the exercise of your rights in accordance with, and subject to, these Terms and applicable law.
You may not use any Broadside Character in a manner that: (i) is pornographic or sexually explicit; (ii) expresses hate or encourages violence towards a person or group based on membership in a protected class, such as race, religion, gender, orientation, or disability.
You may not use any Broadside Character in a manner that violates applicable law or these Terms.
All rights not expressly granted herein are reserved by us.
Owners of Broadside NFTs may be offered different rights, benefits, entitlements, or other utility (collectively, “Utility”), but these Terms do not confer any Utility except as granted by the License, if applicable. Dazzle Ship makes no assurances of any Utility, and any Utility offered to Owners by Dazzle Ship, if any, shall be in Dazzle Ship’s sole and absolute discretion. To the extent any third party offers any Utility in connection with any Broadside NFTs or subjects the same to additional terms and conditions (collectively, “Third-Party Terms”), you understand and agree that Dazzle Ship shall not be a party to or have any responsibility or liability whatsoever for, arising out of, relating to, or in connection with such Third-Party Terms.
Owner represents and warrants that Owner:
- has the legal capacity to enter into these Terms;
- will only use and interact with any Broadside NFT and Broadside Character in accordance with these Terms;
- in the exercise of its rights and obligations under these Terms, will comply with all applicable laws and will not violate any right of Dazzle Ship, its licensors, or any right of any third party;
- has not and will not knowingly execute a transaction involving a Broadside NFT or Broadside Character with any person who 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 (ii) listed on any U.S. Government list of prohibited or restricted parties.
EACH BROADSIDE NFT AND BROADSIDE CHARACTER IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, DAZZLE SHIP EXPLICITLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, 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.
EACH BROADSIDE NFT IS AN INTANGIBLE DIGITAL ASSET THAT EXISTS ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED ON THE ETHEREUM BLOCKCHAIN. ANY TRANSFER OF OWNERSHIP THAT MIGHT OCCUR IN ANY UNIQUE DIGITAL ASSET OCCURS ON THE DECENTRALIZED LEDGER WITHIN THE ETHEREUM BLOCKCHAIN, WHICH DAZZLE SHIP DOES NOT CONTROL.
DAZZLE SHIP WILL NOT BE RESPONSIBLE OR LIABLE TO OWNER FOR ANY LOSS IN CONNECTION WITH ANY BROADSIDE NFT OR BROADSIDE CHARACTER AND TAKES NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO OWNER FOR, ANY USE OF OR INABILITY TO USE ANY BROADSIDE NFT OR BROADSIDE CHARACTER, 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) THE BEHAVIOR OR OUTPUT OF ANY SOFTWARE, PROTOCOL, NODE SERVER ERROR OR FAILURE, OR DATA LOSS OR CORRUPTION; (iii) ANY FEATURES, DEVELOPMENT, ERRORS, OR OTHER ISSUES WITH BLOCKCHAIN NETWORKS OR WALLETS; (iv) UNAUTHORIZED ACCESS TO ANY BROADSIDE NFT OR BROADSIDE CHARACTER; OR (v) THE ACTS OR OMISSIONS OF ANY THIRD PARTY.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN CONSUMER CONTRACTS, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
Owner accepts and acknowledges all risks associated with the following:
- The value of digital assets and artwork is subjective. Digital assets, including NFTs, and artwork have no inherent value. As a result, their prices can be volatile. By purchasing or otherwise using any Broadside NFT or Broadside Character, you agree to assume all risks associated therewith, including the risk that the Broadside NFT or Broadside Character loses any or all of its value.
- Broadside NFTs and Broadside Characters may be used in a variety of ways. While we strongly encourage transparency, communication, and research prior to acquiring a Broadside NFT, including as to how previous or existing exploitations of Broadside Characters may affect the value of a Broadside NFT, Dazzle Ship is not responsible for verifying or providing information on how a Broadside NFT or its Broadside Character have been exploited. Additional research and documentation may be necessary or prudent.
- Dazzle Ship is not responsible for determining or paying any taxes that apply to any Owner’s purchase, sale, or transfer of rights in any Broadside NFT or Broadside Character. As between the parties, Owner is solely responsible for determining what, if any, taxes apply to such transactions..
- Transacting on a blockchain, including, without limitation, signing or effectuating transactions using a digital wallet, contains inherent risk. Such risks include but are not limited to: (i) risk of sudden asset price changes; (ii) risk of smart contract failure or exploit; (iii) risk of hardware, software, or connectivity failure; (iv) risk of malicious software; (v) risks of unauthorized access to your digital wallet; (vi) risk that you will no longer successfully retain ownership of or access to NFTs; (vii) risk that any data or any artwork becomes unavailable or decoupled from the NFT, including, without limitation, because of an outage, data loss, or pursuant to a valid Digital Millennium Copyright Act takedown procedure; (viii) risk from regulatory inquiries, regulatory actions, legislation, or court rulings; and/or (vi) risks, bugs, malfunctions, cyberattacks, or changes to a blockchain network (e.g., forks) or related technologies that disrupt or result in a total loss of NFTs, their market value, or digital funds.
- Transactions involving Broadside NFTs and Broadside Characters rely on third-party or decentralized platforms, systems, networks, protocols, or marketplaces. We do not maintain, control, or assume any obligations with respect to any of the foregoing. To the extent that Dazzle Ship provides links or access third party platforms, sites, or other resources, it does so only as a convenience and is not responsible for the content, products, or services on or available from those third parties or through any content displayed thereon or for the results of Owner’s use thereof.
Owner acknowledges and understands that neither Dazzle Ship nor any of its related entities nor anyone working on their behalf, including their respective officers, directors, employees, representatives, agents, affiliates, licensees, successors, and assigns makes any representation regarding the likelihood of appreciation of the Broadside NFTs or Broadside Characters associated therewith nor any element thereof, and has no control whatsoever on the value of any NFT, including on any secondary markets, which are completely outside of the control of any of the foregoing parties.
Owner shall defend, indemnify, and hold Dazzle Ship, its licensors, affiliates, representatives, and service providers, and each of them, and all of their respective officers, directors, employees, and agents (the “Indemnified Parties”) harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, expenses, and other similar results or occurrences (including attorneys’ fees) that directly or indirectly arise from or are related to or in connection with any claim, suit, action, dispute, demand, proceeding, occurrence, process, or other similar activity, that is initiated, made, brought, or financed by a third party (including any person who accesses or transacts using any Broadside NFT or Broadside Character, whether or not such person personally purchased a Broadside NFT) against the Indemnified Parties, or on account of the investigation, defense, or settlement thereof, arising out of, related to, or in connection with: (a) your access to or use of any NFT marketplace or third-party or decentralized services or products, (b) your breach or alleged breach of these Terms, (c) your exercise or attempted exercise of the License, or (d) your actual or alleged violation of applicable law. Counsel to be used in the defense of such claim must be approved by Dazzle Ship in writing prior to retention of such counsel and, upon our request, you will allow us to participate in the defense of any such claims. You will not enter into any settlement or compromise of any claim or litigation or that includes an admission of liability without our prior written consent.
- TO THE MAXIMUM EXTENT PERMITTED BY LAW, NO INDEMNIFIED PARTY 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 SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE OR INTERACT WITH ANY BROADSIDE NFT OR BROADSIDE CHARACTER, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT DAZZLE SHIP OR ITS SERVICE PROVIDERS HAVE 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. IN NO EVENT WILL ANY INDEMNIFIED PARTY’S CUMULATIVE LIABILITY HEREUNDER FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY EXCEED $100.
- BY PURCHASING OR OWNING A BROADSIDE NFT, OWNER ACKNOWLEDGES THAT THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN DAZZLE SHIP AND OWNER.
- Mandatory Arbitration of Disputes. Any dispute, claim, or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation, or validity thereof, or the use of the Broadside NFT or Broadside Character (“Dispute”) must be resolved solely by binding, individual arbitration and not in a class, representative, or consolidated action or proceeding. Each party waives the right to a trial in court and/or by a jury. This arbitration provision shall survive any termination of the License or these Terms.
- Exceptions. As a limited exception to the above: (i) the parties may seek to resolve a Dispute in small claims court if it qualifies; and (ii) each party retains the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of its 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 one lives, with provision to be made for remote appearances to the maximum extent permitted by the AAA rules, unless the parties 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 these Terms.
- Arbitration Costs. Payment of all filing, administration, and arbitrator fees will be governed by the AAA Rules, and Dazzle Ship won’t seek to recover the administration and arbitrator fees for which Dazzle Ship is responsible unless the arbitrator finds your Dispute is frivolous. If Dazzle Ship prevails in arbitration, Dazzle Ship will pay 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 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 Dazzle Ship 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 DAZZLE SHIP AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if a Dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with a party’s 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.
Disputes Among Owners. Dazzle Ship has no obligation to support the resolution of, or resolve any, dispute that may arise between or involve any Broadside NFT owners.
Dazzle Ship reserves the right to clarify or amend these Terms by publicly publishing a new version of them, including, but not limited to, on TERMS, or any successor website.
These Terms and any action related thereto will be governed by the U.S. Federal Arbitration Act, federal arbitration law, and the laws of the State of New York, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in the Disputes Section, the exclusive jurisdiction for all Disputes (defined above) will be the state and federal courts located in the State and City of New York, and you and Dazzle Ship each waive any objection to jurisdiction and venue in such courts.
The License applies only to the Broadside NFT on the blockchain that Dazzle Ship, in its sole discretion, may designate, which designation shall apply retroactively. Thus, for example, if a fork or other event purports to result in duplicate Broadside NFTs, only the non-fungible token recorded on the blockchain designated by Dazzle Ship will be eligible to receive the benefit of the License. Any license purportedly granted hereunder to the owner of a non-fungible token recorded on a blockchain not designated by Dazzle Ship is void ab initio.
These Terms constitute the entire agreement, and supersede any and all prior or contemporaneous representations, understandings, and agreements, between the parties with respect to the subject matter of these Terms, all of which are hereby merged into these Terms. Without limitation, the terms of any other document, publication, course of dealing, or course of trade will not modify these Terms, except as expressly provided herein or as the parties may agree in writing.
Failure to promptly enforce a provision of these Terms or any rights related to the Broadside NFT or Broadside Character will not be construed as a waiver of such provision or rights.
Nothing contained in these Terms will be deemed to create, or be construed as creating, a joint venture or partnership between the parties. Neither party is, by virtue of these Terms or otherwise, authorized as an agent or legal representative of the other party. Neither party 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. Nothing contained in these Terms will be deemed to create any third-party beneficiary right upon any third party whatsoever.
The parties shall execute and deliver to the other party any and all such other instruments in reasonable mutually acceptable form and substance and shall take any and all such other actions as may be reasonably necessary to carry the intent of these Terms into full force and effect.
If any one or more of the provisions of these Terms should be ruled wholly or partly invalid or unenforceable, then the provisions held invalid or unenforceable will be deemed amended, and the arbitrator, 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 these Terms are for convenience or reference only and do not form a part of these Terms and will not in any way affect its interpretation.
Neither party will be afforded or denied preference in the construction of these Terms, whether by virtue of being the drafter or otherwise.
For purposes of these Terms, the words and phrases “include,” “includes”, “including” and “such as” are deemed to be followed by the words “without limitation”.