Particles Terms and Conditions
Last Updated: 1/12/2022
These Particles Terms and Conditions constitute a legally binding agreement (this “Agreement”) by and among you (“You” or “User”), Art SPV 1, LLC, a Delaware limited liability company (the “SPV” or “We”), and the Particle Foundation, a Delaware non-stock non-profit corporation (the “Particle Foundation”), governing your purchase of Particles (as defined below). Together, You, the SPV and the Particle Foundation are the “Parties,” and each individually a “Party.” BY PURCHASING PARTICLES, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS AND ALL OF THE TERMS INCORPORATED HEREIN. THE TERMS OF THIS AGREEMENT SUPERSEDE AND TAKE PRECEDENCE OVER ANY OTHER TERMS OF SERVICE THAT MAY NOW OR IN THE FUTURE BE APPLICABLE BUT THAT CONFLICT WITH THIS AGREEMENT. If You do not agree to the terms of this Agreement, the Particles are not for You and You may not purchase Particles.
By entering into this Agreement, You expressly acknowledge that You understand this Agreement and accept all of its terms. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT PURCHASE PARTICLES. You must also review and your purchase of Particles is also subject to and made in accordance with the Particle Bill of Rights, located at here, as may be amended from time to time.
“Art” means the painting “Love is in the Air” by Banksy.
“Digital Reference” means the original, creative work of expression that transforms the Art and incorporates the Art as a raw ingredient into a novel, original work that serves a wholly different purpose than the Art itself. The Digital Reference functions as a certificate of ownership and a digital reference to help You find the location of the Particle within the Art.
“Name and Likeness” means name, nicknames, images, likenesses, marks, copyrights, trade dress colors, trade dress designs and/or all other intellectual property of the Digital Reference, the Particle Foundation or the SPV.
“Particles” means the serialized, non-fungible tokens of the Digital Reference, which by purchasing You will acquire Licensed Rights (as defined herein). There exist 10,000 Particles and proof of ownership of all such Particles will be recorded on the relevant blockchain. Collectively, the Particles own 0.01% of the legal title in the physical Art.
“Third Party IP” means any third-party patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, trademarks, know-how or any other intellectual property rights recognized in any country or jurisdiction in the world.
(a) Particle owners are the only non-charitable owners of the physical Art. Each Particle holds a de minimis, subordinate, non-economic ownership right in the title of the physical Art equal to 0.000001%, meaning each Particle would have entitled its owner to the same percentage of any windfall payment related to the unexpected sale or loss of the physical Art or otherwise. However, in the case of such a windfall payment that would have been made, by this Agreement You hereby agree and covenant to contribute any value that would have been realized by You to the Particle Foundation. THE INTENTION BEHIND THE 0.000001% OWNERSHIP PERCENTAGE OF THE PHYSICAL ART IN EACH PARTICLE IS TO SEPARATE THE COMMERCIAL VALUE OF THE PHYSICAL ART AS IT EXISTS AT ANY TIME FROM THE COMMERCIAL VALUE OF THE PARTICLES.
(b) The rights that You are acquiring in Particles are limited to those expressly stated in Sections 2 and 3 of this Agreement. You acknowledge that except as expressly provided for in Sections 2 and 3 of this Agreement, the SPV, the Particle Foundation, and/or, as applicable, their licensors do not sell, license, assign, or otherwise transfer any other legal right, title and interest in and to the Art, Name and Likeness, and any other intellectual property rights that may be associated therewith (save for all such rights retained by the artist). The SPV, the Particle Foundation and/or, as applicable, their licensors reserve all other rights and ownership in and to Particles, Name and Likeness, the Digital Reference and the Art that are not expressly granted to You in Sections 2 and 3 of this Agreement (save for all such rights retained by the artist).
(a) Your Licensed and Other Rights. You acknowledge and agree that Particles are made available solely for entertainment and internal, non-commercial purposes. Without limiting the foregoing and subject to your continued compliance with this Agreement, the SPV and/or the Particle Foundation, as applicable, grants to You via your ownership of Particles: (i) a worldwide, non-exclusive, non-transferable (except as specifically provided below in Section 3(b)), royalty-free license to view and display the Digital Reference, solely for your own personal, non-commercial use (the “Licensed Rights”); (ii) certain privileges related to the Particle Foundation, including but not limited to access to any “museum,” both digital and/or physical, governed by the Particle Foundation, subject to the user terms and conditions as promulgated by the Particle Foundation from time to time in its reasonable sole discretion (which access may not be transferred to any third party nor leveraged for any non-personal, commercial purposes); (iii) voting rights on certain matters of community governance related to Particles, as determined in the sole discretion of the SPV; and (iv) unique, particularized title in the surface area of the Digital Reference as referenced by each Particle and represented by a serial number and QR code, which, for the sake of clarity, does not contain any rights or title in the physical Art.
YOU AFFIRMATIVELY ACKNOWLEDGE THAT THE PHYSICAL WORK OF ART AND 99.99% OF THE TITLE TO THE PHYSICAL ART HAS BEEN OR WILL BE CONTRIBUTED TO THE PARTICLE FOUNDATION AND THAT BECAUSE OF THE ADDITIONAL CONTRACTUAL PROMISES MADE IN THIS AGREEMENT, YOU MAY NOT ACCESS ANY TITLE TO OR BENEFIT ECONOMICALLY FROM ANY VALUE DERIVED FROM THE PHYSICAL ART.
YOU FURTHER AFFIRMATIVELY ACKNOWLEDGE THAT YOUR OWNERSHIP OF ONE OR MORE PARTICLES DOES NOT GRANT TO YOU ANY INTELLECTUAL PROPERTY RIGHTS IN OR TO THE ART, AND THAT NOTHING IN THIS AGREEMENT WILL BE READ TO CONVEY SUCH AN INTEREST.
(b) Permissible Transfers of Your Particles. You have the limited right to transfer Particles, provided that: (i) the transferee accepts all of the terms and covenants of this Agreement; (ii) You have not prior to the transfer breached this Agreement; (iii) prior to the transfer your license to Particles has not been terminated; and (iv) the party purchasing Particles provides the SPV with a valid e-mail address. You hereby acknowledge that the transfer of Particles may be subject to certain transfer, listing, service, blockchain or other fees, which shall be borne by You and not any of the other Parties.
(c) Power of Attorney. The physical Art may be sold and You will not benefit. You hereby grant a permanent, all-encompassing right and Power of Attorney with respect to the title and physical work of Art to the Particle Foundation such that should the Particle Foundation determine, in its sole and absolute discretion, that it must sell or take any other action related to the Art in its physical form in furtherance of its charitable purpose, You hereby consent and affirmatively agree to any and all such actions as may be reasonably necessary to consummate the action determined to be taken by the Particle Foundation with respect to the physical Art. Furthermore, as noted above in Section 2, entitled “Ownership, subsection (a), You have made a promise to contribute any potential proceeds related to the physical Art that may be yielded from an extraordinary event, such as the destruction or theft of the physical Art, the failure of any museum established by the Particle Foundation, etc., and hereby grant a Power of Attorney to the Particle Foundation to affect the contribution of any such proceeds to the Particle Foundation. Thus, YOU WILL NOT BENEFIT FROM ANY SALE OR OTHER RECEIPT OF VALUE FROM THE PHYSICAL ART.
You agree that You may not, nor may permit any third party to do or attempt to, do any of the following without the express prior written consent from the SPV in each case: (i) reverse engineer, decompile, disassemble or otherwise modify Particles, Name and Likeness and/or the Digital Reference in any way, including, without limitation, the shapes, designs, drawings, attributes, or color schemes; (ii) use Particles, Name and Likeness and/or the Digital Reference to advertise, market, or sell any product or service; (iii) use Particles, Name and Likeness and/or the Digital Reference 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, drugs (including, without limitation, both prescription and non-prescription) or other supplements, death, pornography or other “adult only” or sexually explicit activities, massage parlors, prostitution or any dating or escort activities, weapons or ammunition, denigration or discrimination against individuals based on race, national origin, gender, religion, disability, ethnicity, sexual orientation, gender identity or age, medical conditions and/or political campaigns or causes; (iv) use Particles, Name and Likeness and/or the Digital Reference in movies, videos, or any other forms of media, except 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 Particles, Name and Likeness and/or the Digital Reference; (vi) attempt to trademark, copyright, or otherwise acquire additional intellectual property rights in or to Particles, Name and Likeness and/or the Digital Reference; (vii) otherwise utilize the Digital Reference for your or any third party’s commercial benefit other than in a subsequent sale of Particles; (viii) use Particles for any purpose that is unlawful or prohibited by this Agreement; or (ix) fractionalize the Particles or Digital Reference.
To the extent that Particles, Name and Likeness and/or the Art incorporate or transform in any way any Third Party IP, You understand and agree as follows: (i) that You will not have the right to use such Third Party IP in any way except as incorporated in the Digital Reference, and subject to the license and restrictions contained herein; (ii) that, depending on the nature of the license granted from the owner of the Third Party IP, the SPV may need to pass through additional terms and/or restrictions on your ability to use the Digital Reference; and (iii) to the extent that the SPV informs You of such additional restrictions in writing (email is permissible), You will be responsible for complying with all such restrictions from the date that You receive such notice, and that failure to do so will be deemed a material breach of this Agreement.
All purchases of Particles, as well as associated charges, are non-refundable. This no-refund policy shall apply at all times regardless of your decision to terminate usage of Particles, any disruption to the operations of any components of Particles or any other reason whatsoever.
The restrictions in this Section 4 will survive the expiration or termination of this Agreement.
5. Termination of the License.
The Licensed Rights granted to You herein shall automatically terminate and all rights shall return to the SPV and/or Particle Foundation, as applicable, if: (i) at any time You sell, trade, donate, give away, transfer, or otherwise dispose of your Particles for any reason except as specially provided in Section 3 of this Agreement; (ii) You breach any of the terms and conditions of this Agreement; (iii) You have a trustee, receiver or similar party appointed for your property, become insolvent, acknowledge your insolvency in any manner, make an assignment for the benefit of your creditors or file a petition of bankruptcy; (iv) You engage in any unlawful business practice related to Particles; or (iv) You initiate any legal actions, except an arbitration as specifically provided herein, against the Particle Foundation, the SPV and/or any of their respective officers, directors, affiliates, agents, attorneys and employees.
6. REPRESENTATIONS & WARRANTIES.
YOU REPRESENT AND WARRANT THAT YOU ARE PURCHASING PARTICLES SOLELY FOR YOUR OWN COLLECTION, USE AND ENJOYMENT, AND NOT FOR SPECULATIVE OR INVESTMENT PURPOSES, FOR USE AS A SUBSTITUTE FOR CURRENCY OR MEDIUM OF EXCHANGE, RESALE OR REDISTRIBUTION AND THAT YOU ARE NOT ACQUIRING ANY EQUITY OR OTHER OWNERSHIP OR PROFIT-SHARING INTEREST IN THE SPV OR ITS AFFILIATES AS A RESULT OF YOUR ACQUISITION OF PARTICLES. YOU WARRANT AND COVENANT THAT YOU WILL NOT PORTRAY PARTICLES AS AN OPPORTUNITY TO GAIN AN ECONOMIC BENEFIT OR PROFIT, OR AS AN INVESTMENT, EQUITY, OR ANY OTHER OWNERSHIP OR PROFIT-SHARING INTEREST IN THE SPV OR ITS AFFILIATES. YOU REPRESENT AND ACKNOWLEDGE THAT LEGISLATIVE AND/OR REGULATORY CHANGES AT THE STATE, FEDERAL OR INTERNATIONAL LEVEL MAY ADVERSELY AFFECT THE USE, TRANSFER OR EXCHANGE OF PARTICLES. You understand that Particles are unique and that the value of Particles is solely dependent on another person’s interest in your Particles. You understand that the value of Particles is driven by many factors outside of your control and outside of the SPV’s and its affiliates’ control, and, therefore, You understand that there is no guarantee that, should You decide to sell your Particles, (i) You will be able to find a buyer for them and (ii) if you are able to find a buyer, that the price You receive will be higher or lower than what You spent to obtain your Particles. OWNERSHIP OF PARTICLES DOES NOT GIVE YOU ANY RIGHTS TO (1) EQUITY OR OTHER OWNERSHIP IN THE SPV OR ANY OF ITS AFFILIATES OR (2) ANY ROYALTIES FROM PARTICLES.
7. DISCLAIMER OF WARRANTIES & LIMITATION OF LIABILITY.
ALL PARTICLES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE SPV AND THE PARTICLE FOUNDATION DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL THE SPV, THE PARTICLE FOUNDATION, ITS AFFILIATES OR ITS SERVICE PROVIDERS BE LIABLE TO YOU 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 PARTICLES, INCLUDING BUT NOT LIMITED TO THE PURCHASE AND SALE OF PARTICLES AND ANY TECHNOLOGY AND/OR PARTIES RELATED TO THE PURCHASE AND SALE OF PARTICLES. YOU 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. YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET AND AGREE THAT THE PARTICLE FOUNDATION AND WE HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY BREACH OF SECURITY UNLESS IT IS DUE TO OUR GROSS NEGLIGENCE. IF APPLICABLE LAW DOES NOT ALLOW ALL OR ANY PART OF THE ABOVE LIMITATION OF LIABILITY TO APPLY TO YOU, THE LIMITATIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
8. Assumption of Risk.
As noted above, Particles are available solely for entertainment and internal, non-commercial purposes. You agree that You assume the following non-exhaustive list of risks related to the purchase of Particles: (A) to the extent there is a price or market for a blockchain asset, such as Particles, such markets and prices are extremely volatile, and variations in the price of other digital assets could materially and adversely affect the value of any digital asset(s) You own, including your Particles, and there is no guarantee that your Particles will have or retain any value; (B) the commercial or market value of a Particle that You purchase may materially diminish in value as a result of a variety of reasons, such as negative publicity; (C) there are risks associated with using Internet-native assets (e.g., non-fungible tokens, cryptocurrencies, etc.) including, but not limited to, the risk of hardware, software and Internet connections and/or failures, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to information stored within your digital “wallet” or elsewhere, and the SPV is not responsible for any of these risks however caused; (D) the SPV does not make any promises or guarantees about the availability of Particles or the Digital Reference on the Internet or that they will host Particles or the Digital Reference at any specific location and/or for any specific period of time; (E) upgrades to the Avalanche blockchain, a hard fork or other change in the Avalanche blockchain, a failure or cessation of the Avalanche blockchain, or a change in how transactions are confirmed on the Avalanche blockchain having certain unintended, adverse effects on products using such technology(ies), including, without limitation, Particles; (F) the SPV does not make any promises or guarantees related to the Avalanche public blockchain or any other third parties related to the purchase and sale of Particles and each of their applications and/or services, including but not limited to the continued availability of either and/or the protection and/or storage of any data You provide to those parties; (G) the risk of losing access to Particles due to loss of private key(s), custodial error or purchaser error; (H) the risk of mining attacks; (I) the risk of hacking, security weaknesses, fraud, counterfeiting, cyberattacks and other technological difficulties; (J) the risk of changes to the regulatory regime governing blockchain technologies, cryptocurrencies, tokens and new regulations, and/or unfavorable regulatory intervention in one or more jurisdictions or policies any of which may materially adversely affect the use and value of Particles; (K) risks related to taxation; (L) that Particles are not legal tender and are not back by any government; (M) the risk that legislative and/or regulatory changes at the state, federal or international level may adversely affect the ownership, use, transfer, or exchange of Particles; (N) the risks associated with the original Art creator’s continued ownership of the intellectual property rights, including copyrights, in and to the Art; and (O) the SPV is not responsible for any transaction between You and any third party (e.g., your transfer of Particles to a third party on the so-called “secondary market”), and the SPV has no liability in connection with any such transaction. In addition to assuming all of the above risks, You acknowledge that You have obtained sufficient information to make an informed decision to purchase Particles and that You understand and agree that You are solely responsible for determining the nature, potential value, suitability and appropriateness of these risks for yourself. The SPV cannot and does not represent or warrant that any Particles, or its supporting systems or technology, is reliable, current or error-free, meets your requirements, or that defects in Particles, or its supporting systems or technology, will be corrected. The SPV cannot and does not represent or warrant that Particles or the delivery mechanism for them are free of viruses or other harmful components. You accept and acknowledge that the SPV is not responsible for any communication failures, disruptions, errors, distortions or delays You may experience related to the purchase of Particles.
For the purposes of this Section 8, “SPV” is to include the SPV, its affiliates and the Particle Foundation.
9. Governing Law; Dispute Resolution.
This Agreement and all matters related to it and/or any Particles shall be governed by, construed, and enforced in accordance with the laws of the State of Delaware, as they are applied to agreements entered into and to be performed entirely within the State of Delaware and without regard to conflict of law principles, except to the extent that law is inconsistent with or preempted by federal law. This Agreement will not be governed by the U.N. Convention on Contracts for the International Sale of Goods. To the fullest extent permitted by law, each party to this Agreement waives its right to seek remedies in court, including any right to a jury trial. Any controversy or claim arising out of or relating to this Agreement, its enforcement or interpretation, or because of an alleged breach, default, or misrepresentation in connection with any of its provisions (“Claims”), as well as the determination of the scope or applicability of this agreement to arbitrate, shall be settled by binding arbitration conducted by JAMS according to its Comprehensive Arbitration Rules and Procedures before a single arbitrator. In agreeing to arbitrate all Claims, You waive all rights to a trial by jury in any action or proceeding involving any Claim. The arbitration shall be held in New York County, New York, and judgment on the award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. Furthermore, the arbitration provision shall survive termination of this Agreement. Subject to the limitations set forth below, the arbitrator shall have authority to award legal and equitable relief available in the courts of the State of New York, provided that, the arbitrator shall not have authority to award punitive damages, consequential damages, special damages, or attorney’s fees and related costs. Any and all claims shall be arbitrated on an individual basis only, and shall not be consolidated or joined with or in any arbitration or other proceeding involving a Claim of any other party. You agree that the arbitrator shall have no authority to arbitrate any Claim as a class action or in any other form other than on an individual basis. FOR THE AVOIDANCE OF DOUBT, THE PARTIES ACKNOWLEDGE AND AGREE AND UNDERSTAND THAT BY AGREEING TO ARBITRATE ANY CLAIM OR CLAIMS ON AN INDIVIDUAL BASIS ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE PARTIES WAIVE ALL RIGHTS TO A TRIAL BY JURY OR TO PROCEED AS PART OF A CLASS IN ANY ACTION OR PROCEEDING INVOLVING ANY SUCH CLAIM OR CONTROVERSY.
10. Changes to this Agreement.
The SPV may make changes to this Agreement from time to time. When such changes are made, We will make the updated Agreement available here and update the “Last Updated” date at the beginning of the Agreement accordingly. Please check this page periodically for changes. Any changes to this Agreement will apply on the date that they are made and, by way of example, your continued access to or use of Particles after the Agreement has been updated will constitute your binding acceptance of the updates.
You may not assign this Agreement either in whole or in part without the express written consent of the SPV.
(a) Only to persons who have the right and authority to enter into this Agreement, are fully able and competent to satisfy the terms, conditions, and obligations herein and who are using currency that such party is the lawful holder thereof may purchase Particles and enter into this Agreement.
(b) If an individual, by purchasing Particles, You represent and warrant that You are at least eighteen (18) years old.
You will defend, indemnify, and hold the SPV, the Particle Foundation and each of their respective affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, service providers, agents, or shareholders, harmless from any claims, actions, suits, losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of your license, sale or possession of Particles and/or the purchase and sale of your Particles, including: (1) your breach of this Agreement or the documents it incorporates by reference; (2) your violation of any law or the rights of a third party as a result of your own interaction with such third party; (3) any allegation that any materials that You submit to us or transmit in the course of purchasing Particles, communications seeking the SPV’s consent to activities or otherwise, infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party; and/or (4) any other activities in connection with the purchase or sale of Particles or Particles themselves. This indemnity shall be applicable without regard to the negligence of any party, including any indemnified person.
14. Translation; Headers.
If You are provided a translation of this Agreement, the original version in English will be used in deciding any issues or disputes that arise under this Agreement. The section headings and subheadings contained in this Agreement are included for convenience only and shall not limit or otherwise affect the terms of this Agreement
If any term or provision of this Agreement, or the application of such provision, is invalid, illegal, or unenforceable in any jurisdiction or under any applicable statute or rule of law, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction, and such other terms or provision of this Agreement shall remain in full force and effect.
Failure to insist upon strict compliance with any term or provision of this Agreement by any Party will not be deemed to constitute a waiver by such Party of any of its rights upon a subsequent act or failure to act
17. No Agency.
This Agreement does not create an agency, partnership or joint venture. The parties are independent contractors and do not intend this Agreement to create any agency, partnership or joint venture relationship between them.
18. No Third Party Beneficiaries.
There are no third party beneficiaries to this Agreement.
19. Entire Agreement.
This Agreement is the entire agreement concerning its subject matter and supersedes any prior or concurrent communications among the parties.