By agreeing to these Terms, you hereby certify that you are at least 18 years of age. If you do not agree to these Terms, you must not access or use the Real Vision Collective or any other Services.
PLEASE READ THESE TERMS CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST REAL VISION ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW. HOWEVER, IF YOU ARE A RESIDENT OF A JURISDICTION WHERE APPLICABLE LAW PROHIBITS ARBITRATION OF DISPUTES, THE AGREEMENT TO ARBITRATE IN THESE TERMS WILL NOT APPLY TO YOU BUT THE GOVERNING LAW PROVISIONS WILL APPLY INSTEAD.
2. Connecting Your Wallet. In order to access and use the Services, including to purchase an NFT, you must have and connect your digital wallet supported on MetaMask, WalletConnect or other wallet extensions or gateways as allowed on the Services. Wallets allow you to purchase, store, and engage in transactions using the native Ethereum cryptocurrency, ETH. When you link your Wallet, you understand and agree that you are solely responsible for maintaining the security of your Wallet and your control over any wallet-related authentication credentials, including any seed phrase or private cryptocurrency keys, as well as NFTs or cryptocurrencies that are stored in or are accessible through your Wallet. Any unauthorized access to your Wallet by third parties could result in the loss or theft of NFTs and/or other assets held in your Wallet and any associated wallets, including any linked financial information such as bank account(s) or credit card(s). Real Vision is not responsible for managing and maintaining the security of your Wallet. Real Vision has no responsibility or liability to you for any unauthorized access to or use of your Wallet or if you are unable to locate your credentials.
3. Purchasing and Selling NFTs. The entity or person that purchases a Real Vision NFT is referred to as the “Purchaser,” whether the initial purchaser or a secondary purchaser. And the “Real Vision NFT” or “NFT” refers to an ERC-721 standard non-fungible token (i.e., a controllable electronic record recorded on a blockchain) that, as of its genesis issuance, contains the Underlying Art (defined below). When each Real Vision NFT is sold for the first time, the agreement for sale is between Real Vision and the initial Purchaser. If initial Purchaser decides to sell an NFT (“Secondary Sale”), then Real Vision is not a party to any agreement between the applicable buyer, seller, or facilitator of the Secondary Sale, but (a) the seller of the NFT in that Secondary Sale must represent and warrant that it will notify the subsequent Purchaser of the NFT of these Terms and require the subsequent Purchaser to comply with these Terms, (b) the applicable NFT License as set forth herein will automatically transfer to such subsequent Purchaser, and such other subsequent Purchasers will be subject to these Terms, and (c) you, as the seller or transferor of such NFT, will cease to have any further rights to such NFT or underlying NFT intellectual property. By placing an NFT purchase order on the site or through the Services (including by bidding in an auction), you agree that you are submitting a binding offer to purchase an NFT, you agree to pay all applicable fees associated with the transaction, and if Real Vision is the seller, you authorize Real Vision to automatically charge and collect such fees from your payment instrument or Wallet. No refunds are permitted except with respect to any statutory warranties or guaranties that cannot be excluded or limited by law.
4. Intellectual Property Ownership of Real Vision NFTs. When a Purchaser acquires a Real Vision NFT, the Purchaser owns all personal property rights to that Real Vision NFT (e.g., the right to display, sell, transfer, or otherwise dispose of that Real Vision NFT). Such rights, however, do not include the ownership of the intellectual property rights in the “Underlying Art” which means the artistic renderings and images of the Real Vision NFTs and the underlying creative elements and components that form them, such as the various visual options under each category. For avoidance of doubt, the Underlying Art is digital in nature and does not include, is not linked to, and is not sold together with, any items or representations that have physical dimensions such as mass or volume. Such rights are licensed pursuant to Section 5 below. The Purchaser represents and warrants that it will not transfer a Real Vision NFT in any subsequent transaction to a new Purchaser that 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 is (ii) listed on any U.S. Government list of prohibited or restricted parties. Real Vision NFTs may be available for purchase on one or more third-party platforms, such as OpenSea, or other marketplaces that may be established from time to time (each, a “NFT Marketplace”), which we do not operate. The access and use of the NFT Marketplace are subject to the separate Terms of the NFT Marketplace. Real Vision reserves the exclusive right to: (i) register and otherwise protect all intellectual property and other rights in the Underlying Art and in any Real Vision trademarks and (ii) enforce the intellectual property rights in the Underlying Art and in any Real Vision trademarks.
5. NFT License.
(a) License. Subject to your compliance with these Terms, Real Vision hereby grants to you, for so long as you own a Real Vision NFT (as recorded on the relevant blockchain), a non-exclusive, worldwide, royalty-free, revocable license, with no right to sublicense, to use, copy, display the Underlying Art linked to your purchased Real Vision NFT for the following purposes: (i) for your own personal, non-commercial use (e.g., home display, display in a virtual gallery, or as a social media avatar), and you may 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 Real Vision NFT; and (ii) to sell or otherwise transfer the associated Real Vision NFT consistent with the ownership of it (e.g., posting a sales listing on an NFT marketplace) and these Terms.
(b) No Commercial Use. Because the Real Vision NFTs are intended to be a celebration of many Web3 and NFT communities, and use multiple third-party composite elements with consent from various artists under different terms, Real Vision is unable to allow for any commercial use of the Real Vision NFTs or Underlying Art without the prior written consent of Real Vision. Nothing in these Terms is meant to grant you any rights to any logos, trademarks, service marks, and trade dress associated with the Real Vision NFTs without prior written approval.
(c) Restrictions. You agree that you may not, nor permit any third party to do or attempt to do any of the foregoing without Real Vision’s express prior written consent in each case: (i) modify the Underlying Art for your Real Vision NFT in any way, including, without limitation, the shapes, designs, drawings, attributes, or color schemes; (ii) use the Underlying Art for your Real Vision NFTs to advertise, market, or sell any third party product or service; (iii) use the Underlying Art for your Real Vision NFTs in connection with images, videos, or other forms of media that depict hatred, intolerance, violence, cruelty, or anything else that could reasonably be found to constitute hate speech or otherwise infringe upon the rights of others; (iv) use the Underlying Art in movies, videos, or any other forms of media, except to the limited extent that such use is expressly permitted in Section 5(a) above or solely for your own personal, non-commercial use; (v) sell, distribute for commercial gain (including, without limitation, giving away in the hopes of eventual commercial gain), or otherwise commercialize merchandise that includes, contains, or consists of the Underlying Art for your Real Vision NFTs; (vi) attempt to trademark, copyright, or otherwise acquire additional intellectual property rights in or to the Underlying Art for your Real Vision NFTs; (vii) otherwise utilize the Underlying Art for your Real Vision NFTs for your or any third party’s commercial benefit; or (viii) to the extent that, depending on the nature of the license granted from the owner of the third party intellectual property used in the Real Vision NFT, Real Vision may need to pass through additional restrictions on your ability to use the Underlying Art; and (z) to the extent that Real Vision informs you of such additional restrictions in writing (email is permissible, as is public disclosure on social media, or changes to these terms), you will be responsible for complying with all such restrictions from the date that you receive the notice, and that failure to do so will be deemed a breach of this license. The restriction in this Section will survive the expiration or termination of this License.
6. Disclaimers, Limitations Of Liability, And Indemnification
(a) Disclaimers. YOUR ACCESS TO AND USE OF THE REAL VISION NFT AND UNDERLYING ART IS AT YOUR OWN RISK. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, REAL VISION, ITS PARENTS, AFFILIATES, PARTNERS, EMPLOYEES, OFFICERS, DIRECTORS, CONTRACTORS, HANDSOME LAWYERS, AGENTS, LICENSORS AND EQUITYHOLDERS (THE “REAL VISION ENTITIES”) DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT IN THE REAL VISION NFTS AND UNDERLYING ART. THE REAL VISION ENTITIES MAKE NO WARRANTY OR REPRESENTATION AND DISCLAIM ALL RESPONSIBILITY AND LIABILITY FOR: (A) THE COMPLETENESS, ACCURACY, AVAILABILITY, TIMELINESS, ORIGINALITY, SECURITY OR RELIABILITY OF THE REAL VISION NFTS AND UNDERLYING ART; (B) THE OPERATION OR COMPATIBILITY WITH ANY OTHER APPLICATION OR ANY PARTICULAR SYSTEM, DEVICE, BLOCKCHAIN, DIGITAL WALLET, HARDWARE OR MARKETPLACE; AND (C) WHETHER THE REAL VISION NFTS AND UNDERLYING ART WILL MEET YOUR REQUIREMENTS, OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE OR ERROR-FREE BASIS; AND (D) THE DELETION OF, OR THE FAILURE TO STORE OR TRANSMIT THE REAL VISION NFTS AND UNDERLYING ART. THE REAL VISION NFTS AND UNDERLYING ART ARE INTENDED FOR CONSUMER ENJOYMENT, USE AND CONSUMPTION ONLY.
(b) Limitations of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, YOU AGREE THAT IN NO EVENT WILL THE REAL VISION ENTITIES BE LIABLE (A) FOR ANY INDIRECT,SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE REAL VISION NFT OR THE UNDERLYING ART), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THESE TERMS OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE REAL VISION NFTS AND UNDERLYING ART OR THESE TERMS AND WHETHER IN CONTRACT, PRODUCT LIABILITY OR TORT (INCLUDING STRICT LIABILITY OR NEGLIGENCE) OR OTHERWISE, EVEN IF THE REAL VISION ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (B) FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE DELIVERY, USE OR PERFORMANCE OF THE REAL VISION NFTS AND UNDERLYING ART. THE MAXIMUM AGGREGATE LIABILITY OF THE REAL VISION ENTITIES FOR ALL DAMAGES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING STRICT LIABILITY OR NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED $1,000. SOME JURISDICTIONS) DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU.
(c) Assumption of Risk. THE VALUE OF THE REAL VISION NFT IS SUBJECTIVE, HAS NO INHERENT VALUE AND THEREFOR CAN BE VOLATILE. YOU AGREE TO ASSUME ALL RISK ASSOCIATED WITH THE USE AND VALUE OF THE REAL VISION NFT AND UNDERLYING ART. PLEASE NOTE SPECIFICALLY: THERE ARE RISKS ASSOCIATED WITH BUYING, TRADING, AND HOLDING DIGITAL ASSETS. VOLATILITY IN VALUE IS HIGHLY LIKELY, AND SOME OF THE PROTOCOLS AND TOKENS MAY FAIL ENTIRELY DUE TO FORKING, FLAWS IN THE CODE, HACKING OR OTHER MALICIOUS ATTACKS. YOU SHOULD INDEPENDENTLY CONSIDER ALL RISKS AND WARNINGS CAREFULLY AND SEEK APPROPRIATE PROFESSIONAL ADVICE BEFORE MAKING ANY DECISION TO BUY OR TRADE ANY DIGITAL ASSETS.
(d) Additional Liability. Purchaser is solely responsible for determining what, if any, taxes apply to Purchaser’s purchase, sale, or transfer of the Real Vision NFT. Real Vision is not responsible for determining or paying the taxes that apply to such transactions. Real Vision does not store, send, or receive cryptocurrency assets. Any transfer of cryptocurrency assets occurs within the supporting blockchain that is not controlled by Real Vision. Transactions of the Real Vision NFT may be irreversible, and, accordingly, losses due to fraudulent or accidental transactions may not be recoverable. Some transactions of the Real Vision NFT shall be deemed to be made when recorded on a public blockchain ledger, which is not necessarily the date or time that Purchaser initiated the transaction. Digital assets, including blockchain based assets such as the Real Vision NFT, are subject to developing laws and regulations throughout the world. Transactions involving the Real Vision NFT may rely on third-party platforms to perform transactions. If Real Vision is unable to maintain a good relationship with such platform providers; if the Terms and conditions or pricing of such platform providers change; if Real Vision violates or cannot comply with the Terms and conditions of such platforms; or if any of such platforms loses market share or falls out of favor or is unavailable for a prolonged period of time, access to and interactions of the Real Vision NFT will suffer.
(e) Fundamental Elements. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE REAL VISION ENTITIES AND YOU.
(f) Right to Revise, Interpret and Clarify. You recognize that the grant of rights reflected in Sections 3 and 5 and corresponding reservation of rights are novel and uncodified by law in many instances, and unforeseen circumstances may require clarification, interpretation and/or revision of the Terms. As such, Real Vision reserves the right to interpret and clarify these Terms in relation to such circumstances in its sole and exclusive discretion, and sufficient notice will be deemed given once the terms are published here. So please check back frequently.
(g) Indemnification. By entering into these Terms and accessing or using the Real Vision NFTs or Services you agree that you shall defend, indemnify and hold the Real Vision Entities harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) incurred by the Real Vision Entities arising out of or in connection with: (i) your violation or breach of any of these Terms or any applicable law or regulation; (ii) your violation of any rights of any third party; (iii) your access to or use of the Real Vision NFT or Underlying Art or Services; (iv) any modifications to or derivative works of the Underlying Art you create, or (v) any fraud, negligence or willful misconduct committed by you. For these limited purposes, the Real Vision Entities (other than Real Vision) are third party beneficiaries of the Terms.
7. Dispute Resolution.
(a) Mandatory Arbitration of Disputes. You and Real Vision each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof of the Real Vision NFT transaction (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Real Vision agree that the New York Law governs the interpretation and enforcement of this Agreement, and that you and Real Vision are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of this Agreement.
(b) Exceptions. As limited exceptions to the Section above: (i) both parties may seek to resolve a Dispute in small claims court if it qualifies; and (ii) both parties each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights.
(c) Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by JAMS under its JAMS Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”) then in effect, except as modified by this Agreement. The JAMS Rules are available at https://www.jamsadr.com/. A party who wishes to start arbitration must submit a written Demand for Arbitration to JAMS and give notice to the other party as specified in the JAMS Rules. JAMS provides a form Demand for Arbitration at https://www.jamsadr.com/. Any arbitration hearings will take place in Los Angeles, California, unless we both agree to a different location but, in any case, any such arbitration will be conducted remotely to the extent permitted by the JAMS Rules. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
(d) Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules, and applicable laws.
(e) Injunctive and Declaratory Relief. Except as provided in Section 7(b) 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 Real Vision 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.
(f) Class Action Waiver. YOU AND REAL VISION AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ Dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your 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 of this Agreement (“Class Action Waiver”), if an arbitrator or court of competent jurisdiction decides that any part of this Agreement is invalid or unenforceable, the other parts of this Agreement will still apply.
8. Termination of License. If you materially breach any of the provisions of these Terms, Real Vision may terminate all of the licenses granted to you under these Terms. Real Vision will use commercially reasonable efforts to provide you with notice of such termination, though for the avoidance of doubt your licenses shall terminate regardless of whether such notice is actually received. Upon the termination of your licenses, you shall cease all use of the rights granted herein. The following sections shall survive the termination of these Terms and shall continue in full force and effect subsequent to and notwithstanding any termination of these Terms by Real Vision or you: Sections 3 through and including 9. Termination will not limit any of Real Vision’s other rights or remedies at law or in equity.
(a) Legal Stuff. These Terms constitutes the entire and exclusive understanding and agreement between Real Vision and you regarding the Real Vision NFT and Underlying Art and supersedes and replaces any and all prior oral or written understandings or agreements between Real Vision and you regarding the Real Vision NFT and Underlying Art. If any provision of these Terms shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions. These Terms and the licenses granted hereunder may be freely assigned by Real Vision. Any purported assignment in violation of these Terms will be null and void. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Failure to promptly enforce a provision of this Agreement will not be construed as a waiver of such provision. Nothing contained in this Agreement will be deemed to create, or be construed as creating, a joint venture or partnership between the parties. Neither party is, by virtue of this Agreement or otherwise, authorized as an agent or legal representative of the other party. Neither party to this Agreement 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, or to bind such other party in any manner. Nothing contained in this Agreement will be deemed to create any third-party beneficiary right upon any third party whatsoever. Each of the parties acknowledges that it has had the opportunity to have this Agreement reviewed or not by independent legal counsel of its choice. Neither party will be afforded or denied preference in the construction of this Agreement, whether by virtue of being the drafter or otherwise. Purchaser may give notice to Real Vision by contacting Real Vision at Legal@RealVision.com.
(b) Links to Third party Websites or Resources. Use and interaction of the Real Vision NFT and Underlying Art may allow Purchaser to access third-party websites (including websites that host the Underlying Art) or other resources. Real Vision provides access only as a convenience and is not responsible for the content, products or services on or available from those resources or links displayed on such websites. Purchaser acknowledges sole responsibility for and assumes all risk arising from Purchaser’s use of any third-party resources. Under no circumstances shall Purchaser’s inability to view Underlying Art on a third-party website serve as grounds for a claim against Real Vision.
(c) Governing Law and Forum Choice. This Agreement and any action related thereto will be governed by the laws of the State of New York, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in the “Dispute Resolution” section above, the exclusive jurisdiction for all Disputes (defined below) that you and/or Purchaser and Real Vision are not required to arbitrate will be the courts located in the State of New York, and Purchaser and Real Vision each waive any objection to jurisdiction and venue in such courts.
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