This License for Commercial Use is created to give common ground for all parties in regards to what kind of rights the NFT Artist wants to grant to the Owner of an NFT.
By adding this license to the NFT the Artist agrees to the Agreement. By purchasing the NFT the Owner agrees to the Agreement.
The Artist shall conform to securing all third-party permissions and clearances as may be necessary to enable the Owner to exercise the rights granted under this agreement.
The Owner shall accord credit on any use or reproduction of the Art in the name of the Artist.
Why do we need a License to sell an NFT?
This license shall create more security for both sides: The Artist and The Owner.
It is supposed to create an understanding about what the Owner is getting by purchasing an NFT. At the same time this license shall give the Artist the ability to secure his Art in a way that the Artist is used to having in the real world.
By doing this, this License will be a next step to adopt NFTs for everyday real world use cases.
The Owner is allowed to use the Art for Commercial Use. The permitted uses include to
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create additional, physical reproductions of the Art for Commercial Use.
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create additional, digital manifestations of the Art for Commercial Use.
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make use of the Art, for instance for advertising purposes, in physical and non-physical media including TV, internet, intranet, online shops, social-media campaigns, for its commercial physical and non-physical duplication including as décor for products, in connection with slogans, headlines-, and texts (except if offensive).
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distribute and sell the Art in any kind and way as long as the Owner keeps the original purpose of the Art in mind.
Conditions of Use: The Owner agrees and undertakes that
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The Owner is not allowed to re-mint the NFT for commercial purposes.
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Artist is the creator of the Art and retains the right to claim original authorship of the Art.
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The Usage rights of the Art are non-transferable and non-assignable other than by resale of the NFT.
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Using the Art in connection with illegal or highly offensive media such as (but not limited to) racism, hatred, violence or cruelty are forbidden.
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Any and all attempts to copyright, trademark or in any way claim that the Owner is the original creator and any and all attempts to gain rights to the IP of the Art are forbidden.
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The Owner shall not alter in any way the Art except to the extent absolutely necessary to exercise the rights granted under this agreement provided that any intellectual property rights arising in respect of the alterations shall vest in the Artist.
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The Owner shall accord credit on any use or reproduction of the Art in the name of the Artist and shall agree with all other parties who display the Art for the NFT sale that they shall accord use the same credit.
Art
is the work of art that is the subject of this license;
Artist
is the original creator of the Art;
Blockchain
is a distributed database that is shared among the nodes of a computer network;
Being in possession
means to have a NFT in a wallet where the Owner has access to. The Owner has to proof this whenever needed (e.g. connect the wallet to a website to confirm the ownership and to get access);
Commercial Use
all uses of the NFT by the user for the purposes of advertising, marketing or otherwise to advance the aim of generating revenue;
Credit
credit to persons include individuals, corporate bodies (wherever incorporated), unincorporated associations and partnerships;
Data File
means a digital capture of the Art or the Metadata relating hereto or to the Parties;
Image
means a visible copy of the Art;
IP
the relevant Intellectual Property of the Art;
NFT
means non-fungible token;
Own
a) specifically regarding NFT’s means the controller of the unique Wallet that (as verified on the Blockchain) has custody of the specific NFT. The NFT must have been acquired by legitimate means;
b) - specifically regarding the Art refers to original ownership by the author as stipulated by laws of countries adhering to the Berne-Convention;
Owner
the person who owns the NFT;
Personal Use
non-public use of the NFT by the user for the purposes of quietly enjoying the art and not for the purposes of generating revenue;
Purpose
means the limited purpose for which Artist authorizes The Owner to use the Art pursuant to this License;
Territory
means the entire universe;
Wallet
means digital or hardware wallet, a software app used as storage of crypto currency and tokens and as payment tool for such currency;
1.1 In this Agreement, unless the context otherwise requires:
a)
references to persons include individuals, corporate bodies (wherever incorporated), unincorporated associations and partnerships;
b)
the headings are inserted for convenience only and do not affect the construction of the Agreement;
c)
references to one gender include all genders; and
d)
any reference to an enactment or statutory provision is a reference to it as it may have been, or may from time to time be amended, modified, consolidated or re-enacted.
2. Warranty and Indemnity
2.1 the Artist warrants and undertakes that:
a)
the Artist is the exclusive owner of any and all rights in and to the Art and that no other individual or entity may claim any rights, title and/or interest in and to said Art;
b)
the Art will contain nothing that will infringe any rights of any third party, nor be contrary to any law, nor does it contain any obscene, blasphemous or defamatory matter, and its exploitation shall not place any person in contempt of court nor in breach of any provision of any statute;
c)
Artist is not aware, having made full and reasonable enquiry, of any claim by any third party that the Art or any pre-existing material incorporating the Art or included within the Art, or the exploitation of the Art by either party, has infringed or will infringe any rights of any third party. The Artist agrees that the Artist shall immediately inform The Owner if the Artist becomes aware of any such claim
Artist undertakes and agrees to indemnify and hold NMKR and The Owner harmless from all and any claims, actions, proceedings, demands, obligations, liabilities, losses, costs, charges, damages, fines, judgments, assessments, penalties and other expenses incurred or suffered by NMKR or The Owner as a result of or arising from any act or omission of the Artist under this Agreement, or at law.
The Owner recognizes that the Artist is the sole and exclusive owner in the Territory of all right, title and interest in the Art and all copies of the Art; and shall not at any time do or suffer to be done any act or thing which is likely to in any way prejudice the Artist's ownership title.
3.2 the Owner further agrees that:
a)
it shall not make any representation or do any act which may be taken to indicate that it has any right, title or interest in or to the ownership or use of any of the Art except under the terms of this Agreement and The Owner further acknowledges that nothing contained in this Agreement shall give the Owner any right, title or interest in or to the Art save as granted under this Agreement;
b)
The Owner shall include in its advertisements and other media statements to the effect that the Artist is the creator and owner of the Art.
4. Assignment and Other Dealings
The Artist shall not be entitled at any time to assign, transfer or charge all or any of its rights and/or obligations under this agreement or to subcontract the performance of any of its obligations under this agreement.
If the Owner assigns, transfers or charges any of its rights and/or obligations under this agreement or sub-contract the performance of any of its obligations under this agreement, The Owner will notify the Artist as soon as practicable after such assignment, transfer, or charge or subcontracting, together with particulars of the assignee, transferee, chargee or sub-contractor.
5. Disclaimer of warranties & limitation of liability
The licensed NFT is provided without warranties of any kind either express or implied except for the representations and warranties which have been stipulated herein and by NMKR’s General Terms and Conditions.
To the fullest extent permissible pursuant to applicable law, The Owner disclaims all warranties, express or implied, including, but not limited to, implied warranties of non-infringement, merchantability and fitness for a particular purpose.
In no event shall the Owner be liable to Artist 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 the licensed NFT, its sale and resale, any technology and/or parties related to the auction, including but not limited to the Cardano blockchain. Both parties 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.
The Owner´s total aggregate liability shall not exceed the total sum paid directly by The Owner to the Artist for the NFT.
Artist accepts the inherent security risks of providing information and dealing online over the internet and agrees that NMKR has no liability or responsibility for any breach of security unless it is due to its gross negligence.
If there is a disagreement between the Artist and The Owner on the interpretation of this agreement or any aspect of the performance by either party of its obligations under this agreement, representatives of the parties will, within 10 days of receipt of a written request from either party to the other, meet in good faith and try to resolve the disagreement without recourse to legal proceedings.
If resolution does not occur within 7 days after meeting, the parties may jointly resolve to appoint a mediator or independent expert to do so.
Nothing in this clause restricts either party's freedom to seek urgent relief to preserve a legal right or remedy, or to protect intellectual property, proprietary or trade secret rights.
This Agreement contains the entire Agreement between the parties regarding the subject matter of this Agreement, and there are no other promises or conditions in any other Agreement, whether oral or written.
Each provision of this Agreement and each part of any provision shall be severable.
If any provision or term of this Agreement shall become or be declared illegal, invalid or unenforceable for any reason whatsoever the term or provision shall be divisible from this Agreement and shall be deemed to be deleted from this Agreement provided always that if the deletion substantially affects or alters the commercial basis of this Agreement the parties shall negotiate in good faith to amend or modify the provisions and terms of this Agreement as may be necessary or desirable in the circumstances (such agreement not to be unreasonably withheld or delayed by either party).
9. Waivers and Amendments
No failure or delay by the Artist in exercising any right, power or privilege under this Agreement including (but not limited to) the right to terminate this Agreement shall operate as a waiver of that right, power or privilege, nor shall any single or partial exercise by the Artist of any right, power or privilege preclude any further exercise of any other right, power or privilege.
The rights and remedies provided for are cumulative and not exclusive of any rights and remedies provided by law.
No provision of this Agreement may be amended, modified, waived, discharged or terminated otherwise than by the express written agreement of the parties to this Agreement nor may any breach of any provision of this Agreement be waived or discharged except with the express written consent of the party not in breach.
10. Governing Law and Jurisdiction
This document is governed by and is to be construed in accordance with Swiss Law.
