NFT License Agreement | Passport Bros LLC

Passport Bros LLC

NFT License Agreement

These terms (“Terms”) are a legally binding agreement by and between PASSPORT BROS LLC (“Passport Bros,” “we” or “us”) and any holder of a Passport Bros NFT (defined below) (“you” or “Holder”) governing the parties’ rights and obligations with respect to Passport Bros NFTs and the Art (defined below). “Passport Bros NFT” means a non-fungible token minted by a smart contract deployed and associated with the contract metadata containing these Terms or such other smart contract(s) as designated by PASSPORT BROS LLC from time to time in its sole discretion, including any replacement, upgrade or successor smart contract(s) that PASSPORT BROS LLC may designate in its sole discretion (the “Passport Bros NFT Smart Contract”). A Passport Bros NFT Smart Contract associates each Passport Bros NFT with a piece of digital art created by PASSPORT BROS LLC, which may be changed from time to time (the “Art”).

NOTICE REGARDING ARBITRATION AND CLASS ACTION WAIVER:

BY ACCEPTING THESE TERMS, YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND PASSPORT BROS LLC THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 10 (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 10 WILL NOT APPLY TO YOU, BUT THE PROVISIONS OF SECTION 12 (GOVERNING LAW AND FORUM CHOICE) AND RELEVANT PROVISIONS OF APPLICABLE LAW WILL STILL APPLY. FOR THE AVOIDANCE OF DOUBT, NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED AS AN OBLIGATION ON PASSPORT BROS LLC TO CREATE AND/OR PROVIDE ANY ACCESS RIGHTS, UTILITY RIGHTS OR ANY OTHER RIGHTS IN GENERAL IN RELATION TO YOUR PASSPORT BROS NFT(S). FOR THE AVOIDANCE OF DOUBT, NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED AS AN OBLIGATION ON PASSPORT BROS LLC TO CREATE AND/OR PROVIDE ANY REPLACEMENTS, SUBSTITUTIONS OR UPGRADES TO YOUR PASSPORT BROS NFT(S).

YOU ALSO WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS WIDE ARBITRATION.

1. OWNERSHIP.
(a) You Own Your Passport Bros NFT. When you own a digital wallet that holds a Passport Bros NFT, as recorded by the Passport Bros NFT Smart Contract, you hold the exclusive right to hold, sell, transfer and execute blockchain transactions involving that Passport Bros NFT (“Your Passport Bros NFT”). Except for the Passport Bros NFTs we own, PASSPORT BROS LLC has no right or ability to seize, freeze or otherwise modify the ownership of any Passport Bros NFT without authorization from the Holder; provided, the foregoing shall not restrict PASSPORT BROS LLC’ right to modify the Art.

(b) We Own (but License to You) the IP in Your Art. PASSPORT BROS LLC owns all rights, title and interest in and to the Art including any and all copyrights, trademarks and other intellectual property rights therein (“IP”). However, we grant you the Non-Commercial License (as defined below) to use the Art associated with Your Passport Bros NFT (“Your Art”) for as long as you hold Your Passport Bros NFT.

(c) Utility. Holders may be offered certain rights, benefits, entitlements, interests, preferences or privileges (collectively, “Utility”) from time to time, which the PASSPORT BROS LLC Founder and/or CEO reserves the right to revoke, reinstate and update at will without cause and are available to read on our Website (https://www.theofficialpassportbros.com) and/or any other website/webpage that PASSPORT BROS LLC may use to display the aforementioned "Utility", but these Terms in this Agreement do not confer any Utility except as granted by the Non-Commercial License. LLC makes no assurances of any Utility offered or proposed to be offered by PASSPORT BROS LLC and upon acceptance of this agreement by way of purchase neither PASSPORT BROS LLC and its affiliated entities nor the PASSPORT BROS LLC Founder and/or CEO shall be held liable for any damages and expenses (including attorneys fees) arising from all purchases or secondary sales of any Passport Bros NFT. Any Utility may be subject to other terms and conditions (e.g., In order to access entering any official Passport Bros event / assembly, attendees must be at least or older than the minimum age required to access any particular official Passport Bros events/ assembly, agree and/or adhere to the Terms, Agreements, Policies and Notices on our Website [https://www.theofficialpassportbros.com], present their PASSPORT BROS LLC Card [i.e., a digital membership, admission } by way of a Passport Bros NFT {non-fungible token}] upon request and do not have any part of their revocable, reinstated and updated utility currently revoked by the Passport Bros Founder and/or CEO). PASSPORT BROS LLC will not be responsible in any manner for any Utility offered, or proposed to be offered, by any third party.

(d) Replacement or Successor NFTs. From time to time and in PASSPORT BROS LLC’ sole discretion, you may be offered the opportunity and option to mint, claim or otherwise receive replacements, substitutions or upgrades to your Passport Bros NFTs (a “Successor NFT”). A Successor NFT may display new Art. In connection with, and to be eligible for the receipt or redemption of, a Successor NFT, you will be required to agree to any and all additional terms and conditions associated with such receipt or redemption, including but not limited to the burning of Your then-existing Passport Bros NFT, as PASSPORT BROS LLC shall determine and communicate to you from time to time. You are not obligated to mint, claim or receive a Successor NFT, but if you do, you agree to continue to be subject and bound by these Terms with respect to your Successor NFT.

(e) Acceptance of These Terms. Your continued ownership of Your Passport Bros NFT shall be deemed acceptance of these Terms. If you do not agree to these Terms, (i) any ownership and license rights are deemed immediately terminated, (ii) you are not permitted to use or display Your Art in any way, and (iii) you shall immediately either (1) return Your Passport Bros NFT to PASSPORT BROS LLC or (2) “burn” Your Passport Bros NFT such that it is permanently irretrievable by you and anybody else.

2. LICENSE.
(a) Non-Commercial License Grant. Subject to your acceptance of, and compliance with, these Terms, upon lawfully acquiring Your Passport Bros NFT and for so long as you hold Your Passport Bros NFT (both dates as recorded by the Passport Bros NFT Smart Contract) (the “Non-Commercial License Term”), PASSPORT BROS LLC grants to you a non-exclusive, universe-wide, royalty-free, license to use, copy and display (but without any right to sublicense, whether through one or more tiers) Your Art solely for your own personal, non-commercial use, including (i) for home display, display in a virtual gallery or as a social media avatar; (ii) to create a reasonable number of back-up copies and a physical print out, each to be retained only for so long as you own the associated Passport Bros NFT; and (iii) as part of a PASSPORT BROS LLC website or application, or the website or application of a third party approved in PASSPORT BROS LLC’ sole discretion, that permits the inclusion, involvement, or participation of Your Passport Bros NFT (the “Non-Commercial License”).

(b) Restrictions and Reservations.
(i). The Non-Commercial License does not grant you any rights in or to PASSPORT BROS LLC’ (or any other) trade names, brands, trade dress or trademarks (e.g., “Passport Bros”, “Passport Bros NFT”), all of which are expressly reserved to PASSPORT BROS LLC (collectively, “PASSPORT BROS LLC TM Rights”). You hereby agree that any PASSPORT BROS LLC TM Rights you purport to acquire, together with any associated goodwill, shall automatically, immediately, and at your expense be assigned to PASSPORT BROS LLC.

(ii). You may not use Your Art in a manner that 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.

(iii). You may not use Your Art in a manner that violates applicable law.

(iv). All rights not expressly granted herein are reserved by us.

3. ENFORCEMENT.
PASSPORT BROS LLC has no obligation to support the resolution of, or resolve any, dispute that may arise between Passport Bros NFT holders.

4. TRANSFERS.
(a) No Decoupling. Except as expressly provided herein, ownership of a Passport Bros NFT and the Non-Commercial License are not separable in any way. You may not engage in any transaction or activity that purports to decouple the Non-Commercial License from Your Passport Bros NFT.

(b) Termination of License. Upon the transfer of Your Passport Bros NFT to a new Holder, as recorded by the Passport Bros NFT Smart Contract: (i) your Non-Commercial License hereunder shall immediately and automatically terminate; (ii) you must discontinue any use of Your Passport Bros NFT Art.

5. HOLDER’S REPRESENTATIONS AND WARRANTIES.
Holder represents and warrants that Holder:
(a) is over the age of majority and has the legal capacity to enter into these Terms;

(b) will only use and interact with any Passport Bros NFT and Art in accordance with these Terms;

(c) will comply with all applicable law in the exercise of its rights and obligations under these Terms and will not violate any right of PASSPORT BROS LLC, its licensors or any right of any third party; and

(d) is not, and will not, execute a transaction involving a Passport Bros NFT 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.

6. WARRANTY DISCLAIMERS.
(a) EACH PASSPORT BROS NFT AND ART IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, PASSPORT BROS LLC 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.

(b) EACH PASSPORT BROS NFT IS AN INTANGIBLE DIGITAL ASSET THAT EXISTS ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED ON A BLOCKCHAIN. ANY TRANSFER OF OWNERSHIP THAT MIGHT OCCUR IN ANY UNIQUE DIGITAL ASSET OCCURS ON THE DECENTRALIZED LEDGER WITHIN SAID BLOCKCHAIN, WHICH PASSPORT BROS LLC DOES NOT CONTROL.

(c) LLC WILL NOT BE RESPONSIBLE OR LIABLE TO ANY HOLDER FOR ANY LOSS IN CONNECTION WITH ANY PASSPORT BROS NFT OR ART AND TAKES NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO ANY HOLDER FOR, ANY USE OF OR INABILITY TO USE ANY PASSPORT BROS NFT OR ART, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (I) USER ERROR SUCH AS FORGOTTEN PASSWORDS, SEED PHRASES, INCORRECTLY CONSTRUCTED TRANSACTIONS OR MISTYPED WALLET ADDRESSES; (II) THE BEHAVIOR OR OUTPUT OF ANY SOFTWARE OR HARDWARE; (III) DATA LOSS OR CORRUPTION; (IV) ANY FEATURES, DEVELOPMENT, ERRORS OR OTHER ISSUES WITH BLOCKCHAIN NETWORKS OR WALLETS; (V) UNAUTHORIZED ACCESS TO ANY PASSPORT BROS NFT OR ART; OR (VI) THE ACTS OR OMISSIONS OF ANY THIRD PARTY.

(d) PASSPORT BROS LLC WILL NOT BE RESPONSIBLE TO ANY HOLDER FOR ANY LOSS IN CONNECTION WITH ANY MODIFICATION TO ART OR IF NO SUCH MODIFICATION OCCURS.

(e) PASSPORT BROS LLC WILL NOT BE RESPONSIBLE TO ANY HOLDER FOR ANY LOSS IN CONNECTION WITH ANY REPLACEMENT OR UPGRADE OF A PASSPORT BROS NFT, SUCCESSOR NFT OR PASSPORT BROS NFT SMART CONTRACT OR IF NO REPLACEMENT OR UPGRADE OCCURS.

(f) SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN CONSUMER CONTRACTS, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.

7. ASSUMPTION OF RISK.
Holder accepts and acknowledges all risks associated with the following:
(a) PASSPORT BROS LLC is not responsible for determining or paying any taxes that apply to any Holder’s purchase, sale or transfer of rights in each Passport Bros NFT. As between the parties, Holder is responsible for determining what, if any, taxes apply to such transactions.

(b) Transactions involving Passport Bros NFTs and Art rely on third-party or decentralized platforms, systems or marketplaces. We do not maintain, control or assume any obligations with respect to such platforms, systems or marketplaces. To the extent that PASSPORT BROS LLC provides links or access to 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.

8. INDEMNITY.
Holder shall defend, indemnify and hold PASSPORT BROS LLC, 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, demand or proceeding or other similar occurrence, process or activity that is initiated, made, brought or financed by a third party (including any person who accesses or transacts using any Passport Bros NFT or Art, whether or not such person personally purchased a Passport Bros 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 services or products; (b) your breach or alleged breach of these Terms; (c) your exercise or attempted exercise of the Non-Commercial 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 Passport Bros LLC 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.

9. LIMITATION OF LIABILITY.
(a) 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 PASSPORT BROS NFT OR ART, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT PASSPORT BROS LLC 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 ONE HUNDRED DOLLARS ($100).

(b) BY PURCHASING OR OWNING A PASSPORT BROS NFT, HOLDER ACKNOWLEDGES THAT THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PASSPORT BROS LLC AND HOLDER.

10. DISPUTE RESOLUTION.
(a) 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 Passport Bros NFT or Art (“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 Non-Commercial License or these Terms.

(b) Exceptions. As a limited exception to Section 10(a) 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.

(c) 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.

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

(e) Injunctive and Declaratory Relief. Except as provided in Section 10(d) 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 Passport Bros LLC 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 reliefs shall be stayed pending the outcome of the merits of any individual claims in arbitration.

(f) Class Action Waiver. YOU AND PASSPORT BROS LLC 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.

(g) Severability. With the exception of any of the provisions in Section 10(f) (Class Action Waiver), if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.

11. AMENDMENTS.
PASSPORT BROS LLC reserves the right to clarify or amend these Terms by publicly publishing a new version of them, including, but not limited to, on Passport Bros , (https://www.theofficialpassportbros.com) and any other website that LLC may use to display these Terms.

12. GOVERNING LAW AND FORUM CHOICE.
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 Section 10 (Dispute Resolution), 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 Passport Bros LLC each waive any objection to jurisdiction and venue in such courts.

13. MISCELLANEOUS.
(a) The Non-Commercial License applies only to the Passport Bros NFT on the blockchain that Passport Bros LLC, 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 Passport Bros NFTs, only the non-fungible token recorded on the blockchain designated by PASSPORT BROS LLC will be eligible to receive the benefit of the Non-Commercial License. Any license purportedly granted hereunder to the owner of a non-fungible token recorded on a blockchain not designated by PASSPORT BROS LLC is void ab initio.

(b) These Terms will transfer and be binding upon and will inure to the benefit of the parties and their permitted successors and assigns.

(c) 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 in Sections 11 or 13(a) or as the parties may agree in writing.

(d) Failure to promptly enforce a provision of these Terms or any rights related to the PASSPORT BROS NFT or Art will not be construed as a waiver of such provision or rights.

(e) 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.

(f) 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.

(g) 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.

(h) 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.

(i) Neither party will be afforded or denied preference in the construction of these Terms, whether by virtue of being the drafter or otherwise.

(j) 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”.

(k) Holder may give notice to PASSPORT BROS LLC by contacting PASSPORT BROS LLC at info@theofficialpassportbros.com. Notice is effective upon receipt.

(l) The parties have agreed to contract electronically and, accordingly, electronic signatures or any other forms of acceptance permitted by law, will be given the same effect and weight as original signatures.