By obtaining a unique, non-fungible token (such non-fungible token, an “NFT”), created by or on behalf of smile from The Lower East Side (“SMILE”) you agree to these NFT Digital Collectible Terms by and between you and SMILE (collectively, these “Terms”).
SMILE may update these Terms (1) to reflect changes in the usage of the NFT, (2) for legal, regulatory, or security reasons, or (3) to prevent abuse or harm. If SMILE materially changes these Terms, he’ll make every reasonable attempt to provide you with reasonable advance notice and the opportunity to review the changes, except in urgent situations, such as preventing ongoing abuse or responding to legal requirements.
1. The NFT is a unit of data, which may be part of a series of such data units, created by or on behalf of SMILE, that resides on a public blockchain and is specifically associated with one or more works of authorship owned or controlled by SMILE (“Digital Content”) such that, if you own the NFT, you can access such Digital Content through the NFT pursuant to these Terms (each NFT combined with the right to access the Digital Content associated with such NFT (subject to the terms and conditions of these Terms) shall be collectively referred to as the “Digital Collectible”). It is important to understand, and you hereby acknowledge and agree, that the NFT is separate from the Digital Content; the NFT itself is sold or otherwise transferred to you and, by owning the NFT, you receive the rights to access the Digital Content through the NFT, subject to and in accordance with these Terms. The Digital Content is neither stored nor embedded in the NFT, but is accessible through the NFT, subject to compliance with these Terms.
2. Subject to your compliance with these Terms, SMILE hereby grants to you, to the extent of SMILE’s rights in the Digital Content, and solely for so long as you own the NFT, the worldwide, non-exclusive, revocable, non-transferable, non-assignable, non-sublicensable worldwide right to access, view, and/or display the Digital Content associated with the NFT as part of the Digital Collectible, solely for your own personal, non-commercial use. Except as expressly set forth herein, all rights in the Digital Content are expressly reserved by SMILE and the NFT you obtained does not include any rights to the Digital Content, except as expressly provided in these Terms. Without limiting the foregoing, and for the avoidance of doubt, your ownership, possession, or control of the NFT does not provide you any ownership, copyright, title, or similar interest in any Digital Content.
3. The Digital Collectible is made available from the United States and is not intended by SMILE and his affiliates to be subject to any non-U.S. jurisdiction or law. The Digital Collectible may not be appropriate or available for use in some non-U.S. jurisdictions. Any use, sale or transfer of the Digital Collectible is at your own risk, and you must comply with all applicable laws, rules and regulations, including the laws of the United States relating to money laundering, the financing of terrorism, and economic sanctions (such as those administered by the Office of Foreign Assets Control), in connection with any such activities.
4. THE DIGITAL COLLECTIBLE IS INTENDED FOR CONSUMER ENJOYMENT, USE AND CONSUMPTION ONLY. IT IS NOT A “SECURITY,” AS DEFINED UNDER THE U.S. FEDERAL SECURITIES LAWS, OR UNDER THE SECURITIES LAWS OF ANY U.S. STATE.
5. The Digital Collectible may incorporate intellectual property, including copyrighted materials, trade names, trademarks or service marks, Digital Content including the name, likeness, image or any uniquely identifiable traits of any individual or character associated with such Digital Content (“Persona”), of SMILE or his licensors or affiliates (the “IP”). As between you and SMILE, the Digital Content and all other such IP is owned by SMILE. Your use of such IP is subject to the rights granted above and any additional restrictions imposed by the owner(s) of such IP to the extent that SMILE informs you of such additional restrictions, and you may not use any such IP in connection with any business, product or service, or in any manner that may imply endorsement of any business, message, product or service, or that is likely to cause confusion or dilute, blur, or tarnish such IP. All use of such IP, including any goodwill generated by such use, shall inure to the benefit of SMILE, and his affiliates and/or his and their licensors, as applicable.
6. In connection with the Digital Collectible, you have no rights to and may not, nor may you permit any third party to do, or attempt to do any of the following without SMILE’s express prior written consent in each case: (i) modify the Digital Content associated with the Digital Collectible in any way, including, without limitation, the sounds, shapes, designs, drawings, attributes or color schemes; (ii) use the Digital Content or any Persona associated with your Digital Collectible, or any other elements of the Digital Content, to advertise, market, promote, or sell any product or service or otherwise use the Digital Content or any Persona associated with your Digital Collectible for your or any third party’s commercial benefit; (iii) use the Digital Content or any Persona associated with your Digital Collectible in connection with images, videos or other forms of media that depict hatred, intolerance, violence, cruelty, political matters, X-rated material, nudity or partial nudity, materials exposing cruelty, physical, or emotional acts against any person or animal that are primarily intended to hurt or inflict pain, any prescription or habit-forming drugs, drug-related paraphernalia, firearms, tobacco products, alcohol, gambling, embarrassing personal hygiene products, adult-oriented or salacious products or services, or anything else that could reasonably be found to constitute hate speech, infringe upon the rights of others, generally be considered untrue, defamatory, obscene, profane or indecent, or otherwise harm or reasonably be likely to harm SMILE’s (or any of his licensors’ or affiliates’) names, brands, or reputation or contravenes applicable laws or SMILE’s (or any of his licensors’ or affiliates’) policies or guidelines; (iv) use the Digital Content in movies, videos, or any other forms of media, including, without limitation, the creation or minting of any new non-fungible tokens; (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 Digital Content (including any elements thereof) or any Persona associated with the Digital Collectible; (vi) attempt to trademark, copyright or otherwise acquire additional intellectual property rights in or to the Digital Content or any Persona associated with the Digital Collectible(s); (vii) otherwise utilize, distribute, display, publicly perform or otherwise reproduce the Digital Content and the Digital Collectible for your or any third party’s commercial benefit or personal gain (including, without limitation, crowd-funding or similar activities); (viii) create, sell, or attempt to create or sell, fractionalized interests in the NFT or the Digital Collectible; or (ix) separate, unlink, or decouple the Digital Content or any Persona from the NFT with which it is associated to form the Digital Collectible. SMILE and his affiliates may use or implement technical measures with respect to the security of the Digital Content or Digital Collectible and you will not take any action to interfere with, circumvent, disable or otherwise obstruct any such security-related features or other digital rights management functions associated with the Digital Content or Digital Collectible or reverse engineer or take any other action that may affect the technology associated therewith.
7. The limited license set forth in Section 2 applies only to the extent you continue to own the NFT. You may sell, assign or otherwise transfer the NFT to a third party, provided that the following conditions are met:
a. such sale, assignment or other transfer is conducted through an online non-fungible token platform that cryptographically verifies that you are the actual owner of the NFT being transferred (“Platform”);
b. such sale, assignment or other transfer must comply with (i) such Platform’s applicable terms and (ii) any applicable laws, regulations, regulatory guidance, and rules;
c. prior to such sale, assignment or other transfer, you must (i) provide written notice to the would-be transferee that such transferee’s use of (including any access to) the Digital Collectible will be conditional upon such transferee entering into the then-current version of these Terms, and (ii) ensure that such transferee is provided with an opportunity to review these Terms; and
d. such secondary sale, assignment or other transfer, and any future sale, assignment or other transfer by the secondary purchaser, assignee or transferee shall be free of any commission, royalty and/or other forms of percentage based transaction fees. The foregoing restriction shall be set in the NFT smart contract.
If at any time you sell, swap, donate, give away, transfer, or otherwise dispose of the NFT for any reason through any means, your rights under Section 2 will immediately terminate (without the requirement of notice) with respect to the Digital Content associated with the NFT. Your rights under Section 2 will also immediately terminate (without the requirement of notice) if you breach these Terms. If you sell or otherwise transfer the NFT, you agree that you will not have any claims against SMILE for any breach of these Terms by a purchaser. If you purchased the NFT, you hereby agree to hold SMILE and the seller of the NFT harmless from and against any and all violations or breaches of these Terms.
8. SMILE PROVIDES THE NFT, AND GRANTS THE RIGHTS DESCRIBED HEREIN TO THE DIGITAL CONTENT ASSOCIATED WITH SUCH NFT, TO YOU, ON AN “AS IS” BASIS, AND EXPRESSLY DISCLAIMS ANY WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, YOU UNDERSTAND AND AGREE THAT (A) THE DIGITAL CONTENT ASSOCIATED WITH THE NFT YOU HAVE RECEIVED IS NOT NECESSARILY RARE, UNIQUE OR EXCLUSIVE, (B) THERE MAY BE IDENTICAL COPIES OF THE DIGITAL CONTENT ASSOCIATED WITH THE NFT THAT YOU HAVE RECEIVED, (C) SMILE MAKES NO CLAIMS WITH RESPECT TO IDENTITY, LEGITIMACY, OR AUTHENTICITY OF THE DIGITAL CONTENT, DIGITAL COLLECTIBLE OR NFT THAT YOU HAVE RECEIVED, (D) YOU ARE SOLELY RESPONSIBLE FOR VERIFYING THE IDENTITY, LEGITIMACY, AND AUTHENTICITY OF THE NFT YOU RECEIVE OR OF ANY LINKED OR ASSOCIATED DIGITAL CONTENT OR THE DIGITAL COLLECTIBLE, AND (E) IN NO EVENT WILL YOU HAVE RECOURSE AGAINST SMILE OR HIS AFFILIATES, OR HIS AND THEIR LICENSORS FOR ANY CLAIMS OR LOSSES WITH RESPECT TO THE NFT YOU HAVE RECEIVED OR ANY DIGITAL CONTENT ASSOCIATED WITH SUCH NFT. IN NO EVENT WILL SMILE OR HIS AFFILIATES, OR HIS AND THEIR LICENSORS, BE LIABLE FOR ANY (I) LOSS OF, OR INABILITY FOR YOU TO ACCESS, THE DIGITAL CONTENT OR DIGITAL COLLECTIBLE FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, AS A RESULT OF ANY DOWNTIME, FAILURE, OBSOLESCENCE, REMOVAL, TERMINATION, FAILURE TO IMPLEMENT ANY TECHNICAL OR OTHER CONTINGENCIES, OR OTHER DISRUPTION RELATING TO THE STORAGE OF OR ACCESS TO ANY DIGITAL CONTENT OR DIGITAL COLLECTIBLE OR (II) INDIRECT, INCIDENTAL, CONSEQUENTIAL OR OTHER NON-DIRECT DAMAGES OF ANY KIND, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES INCURRED BY OR UNDER OR IN CONNECTION WITH THESE TERMS, THE DIGITAL CONTENT OR THE NFT. THE MAXIMUM AGGREGATE LIABILITY OF SMILE, HIS AFFILIATES AND HIS AND THEIR LICENSORS FOR ALL DAMAGES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE TEN U.S. DOLLARS ($10).
9. You agree that you shall defend, indemnify and hold harmless SMILE and his affiliates, and his and their respective directors, officers, employees, licensors, content providers, agents and representatives, from any third-party claim or action arising from your breach or alleged breach of these Terms or any unauthorized use of the Digital Content or the Digital Collectible.
10. These Terms do not, and shall not be construed to, create any partnership, joint venture or agency between you and SMILE. If any provision of these Terms is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions. You shall not assign, transfer or otherwise dispose of these Terms (including any of your rights or obligations under these Terms), and any purported assignment, transfer or other disposition shall be null and void. These Terms constitute the entire agreement between you and SMILE with respect to the NFT and the Digital Collectible and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and SMILE relating to the NFT, the Digital Content, or the Digital Collectible, including, without limitation, any Platform Terms. Without limiting the foregoing, in the event of a conflict between these Terms and any Platform Terms, these Terms control.
11. You agree that, in addition to SMILE, any of SMILE’s affiliates and licensors, as applicable, associated with the Digital Content will have the right to enforce these Terms and any of their rights hereunder against you.
Effective Date: March 30, 2022