Particle Terms & Conditions of Sale
Last Updated: 6/12/2023
These Particles Terms and Conditions constitute a legally binding agreement (this “Agreement”) by and among you (“You”), 4JM Corp., a Delaware corporation (the “Company”), 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 Company 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 OR PROFIT FROM THE SALE OF THE ARTWORK (AS DESCRIBED HEREIN).
1. Definitions.
“Artwork” means the underlying original artwork that is associated with a Particle in which You acquire Licensed Rights. The Artwork will be maintained, insured, preserved and held in trust by the Particle Foundation on behalf of the Particle owners. The Artwork may exist in any physical, digital or any other tangible or non-tangible form or format.
“Digital Reference” means the original, creative work of expression that transforms the Artwork and incorporates the Artwork as a raw ingredient into a novel, original work that serves a wholly different purpose than the Artwork 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 Artwork.
“Name and Likeness” means name, nicknames, images, likenesses, marks, copyrights, trade dress colors, trade dress designs and/or all other intellectual property of the Artwork, the Digital Reference, the Company or the Particle Foundation.
“Particles” means the serialized, non-fungible tokens (“NFTs”) of the Artwork, and including the Digital Reference, which by purchasing You will acquire (i) Licensed Rights (as defined herein) and (ii) pro rata co-ownership in the underlying Artwork (as more fully described herein). The number of Particles that exists with respect to each underlying Artwork will be set and fixed by the Company prior to the initial sale of Particles. Proof of ownership of Particles will be recorded on the relevant public blockchain. This Agreement applies equally to the owners of Particles of the same underlying Artwork, and Particle owners have no rights (voting or otherwise) with respect to Particles of separate Artworks.
“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.
2. Ownership; Perpetual Loan of Artwork.
(a) One hundred percent (100%) of the title to the Artwork has been collectively contributed to the Particles (as evidenced on the blockchain); for example, if the number of Particles for a particular artwork is fixed and set at 10,000, then each Particle holds an equal 1/10,000th share (or 0.01%) of the ownership right in the title to the Artwork. Each Particle entitles its owner to the same percentage of any windfall payment related to the sale or unexpected loss of the underlying Artwork or otherwise.
(b) The rights that You are acquiring via ownership of the Particles are expressly limited to those rights provided for in Sections 2 and 3 of this Agreement, including the right to vote to affect the sale of the Artwork in accordance with Section 3(d) below. You hereby acknowledge that the Company, the Particle Foundation, and/or, as applicable, their licensors do not sell, license, assign, or otherwise transfer to You any other legal right, title and interest in and to the Artwork, Name and Likeness, and any other intellectual property rights that may be associated therewith (including all such rights retained by the artist of the Artwork).
(c) You hereby acknowledge and agree that the Artwork will be loaned on a perpetual basis to the Particle Foundation, subject to an Artwork Loan Agreement by and among the Particle owners, the Company and the Particle Foundation, under which the Particle Foundation will agree, among other requirements, to (i) display the Artwork at the Particle Foundation or elsewhere, (ii) continually maintain and preserve the Artwork and (iii) insure the Artwork. You hereby grant to the Company a permanent Power of Attorney to affect such perpetual loan of the Artwork and execute such Loan Agreement on your behalf, and this Power of Attorney shall bind all current and future Particle owners, including purchasers on the secondary market.
3. Rights.
(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 Company 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(c)), 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 Company and/or the Particle Foundation (for example, with respect to the display and exhibition of the Artwork at the Particle Foundation or elsewhere, location of future events, etc.); 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.
YOU AFFIRMATIVELY ACKNOWLEDGE THAT YOUR OWNERSHIP OF ONE OR MORE PARTICLES DOES NOT GRANT TO YOU ANY INTELLECTUAL PROPERTY RIGHTS IN OR TO THE ARTWORK, AND THAT NOTHING IN THIS AGREEMENT WILL BE READ TO CONVEY SUCH AN INTEREST.
(b) Particle Platform Registration. In order to purchase Particles in their primary sale, purchasers will be required to register an account on the “Particle Platform”, the Company’s proprietary NFT trading platform and the exclusive trading platform of the “Particle Collection.” Your use of the Particle Platform will be governed by the Particle Platform Terms of Use, available here [LINK]. The creation of an account on the Particle Platform will require each person to undergo and pass the Company’s know your customer (KYC) and anti-money laundering (AML) verification standards, as determined in the Company’s sole discretion. In order to exercise and obtain any of the rights or benefits granted to Particle owners vis-à-vis this Agreement (including all voting rights described herein and the receipt of any potential economic proceeds from the sale of Artwork), You must hold your Particles in a wallet verified by the Particle Platform as further described in the Particle Platform Terms of Use.
(c) 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 Company 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.
(d) Sales of Artwork. Any owner of a Particle may solicit bona fide offers from either third parties or other Particle owners to purchase no less than one hundred percent (100%) of the full legal title to the Artwork. All such offers shall be presented to the community of Particle owners and put to a vote, after the bona fide offer has been presented to the Company and the Company has set the conditions of the vote. The Company will use commercially reasonable efforts to inform each Particle owner of (a) any impending vote regarding the sale of Artwork and (b) how, and on what timeframe, they may exercise their voting rights. The proposed funds as part of any bona fide offer for the Artwork will be held by a smart contract in escrow prior to the vote of Particle owners.
Each Particle entitles its owner to one (1) vote, meaning that the owner of five (5) Particles will get five (5) votes with respect to any vote among the Particle owners. In order to be valid, any vote with respect to the proposed sale of the Artwork requires that, at a minimum, owners representing at least ten percent (10%) of the outstanding Particles must participate in such vote. So long as the minimum voting threshold is met, the majority vote of the participating Particle owners (the “Requisite Holders”) may affirmatively approve the sale of the Artwork as described herein (an “Approved Sale”). In the case of an Approved Sale, You hereby (i) agree to consent to, vote for, and raise no objections against the Approved Sale on the terms and conditions approved by the Requisite Holders, (ii) warrant to execute and deliver such additional documents, instruments, conveyances and assurances, and to take all such further actions as may be reasonably required, to assist in the consummation of the Approved Sale and (iii) grant to the Company a Power of Attorney if required by the Company to consummate, on your behalf, any of the acts and transactions contemplated in sub-clauses (i) and (ii), in the event of your failure to satisfy any of your obligations contained in this Section 3(d).
The Company agrees to facilitate, in a decentralized manner, the consummation of the Approved Sale as is reasonably necessary via, for example, its development and maintenance of smart contracts which enable the offering and sale process and the front-end user interface with enables the interaction between Particle owners and any offers on the applicable Artwork; the Company will not vet or assess any such offers from an economic perspective on behalf of the Particle owners. Each Particle owner will be entitled to the pro rata proceeds of the Approved Sale, provided that the Company shall be reimbursed for and entitled to reduce your pro rata share by (i) the Facilitation Fee (as defined below) and (ii) any additional reasonable transaction expenses, fees and taxes incurred by assisting and facilitating the Approved Sale, including the cost of packing, securing, shipping and/or transporting the Artwork (such amount to be determined in the Company’s sole reasonable discretion). In order to receive your pro rata share of proceeds, You must redeem your Particle(s) on the Particle Platform, after which such Particles will be subsequently burned and no longer in existence; rather, if You do not redeem your Particle(s) on the Particle Platform, You will not be sent your pro rata share of proceeds, and although your Particles will not be burned (and will continue on in existence) the metadata of any retained Particles will be amended such that they no longer represent any ownership in the title to their underlying Artwork.
Due in part to the democratic and decentralized nature of the Approved Sale process as described above, You may be forced to sell your Particles against your objection and disapproval of the Approved Sale on any basis, and without consideration for the total percentage of Particles You may own. YOU MAY BE FORCED AND REQUIRED TO SELL AND RELINQUISH YOUR RIGHTS IN THE ARTWORK (AND ALL RIGHTS AND PRIVILEGES ASSOCIATED THEREWITH) AGAINST YOUR WILL. YOU MAY BE FORCED TO SELL AND RELINQUISH YOUR RIGHTS IN THE ARTWORK FOR LESS THAN YOUR PRO RATA PORTION OF THE CURRENT MARKET VALUE OF THE ARTWORK. YOUR PRO RATA PORTION OF THE PROCEEDS FROM AN APPROVED SALE MAY BE LESS THAN THE CURRENT MARKET VALUE OF YOUR PARTICLES. PERSONS HOLDING A MINORITY PERCENTAGE OF THE OVERALL PERCENTAGE OF CERTAIN PARTICLES MAY ALONE AFFECT AN APPROVED SALE OF THE ARTWORK, INCLUDING WITHOUT YOUR PARTICIPATION.
(e) Restrictions on Sales of Artwork; Fees. The purchase price paid for any Artwork in an Approved Sale must at a minimum be equal to the original total price of the initial sale or offering of the relevant Particles, as calculated in US dollars (or a US dollar equivalent value as reasonably determined by the Company). In consideration of the Company’s efforts in helping to facilitate an Approved Sale and provide any other reasonable assistance in a decentralized manner, the Company will be entitled to no more than a 20% fee of the net proceeds of any Approved Sale (the “Facilitation Fee”). In all instances where either the artist of an Artwork, a gallery which previously held the Artwork or any other person is entitled to a portion of the proceeds from the subsequent sale of such Artwork, all such fees as previously negotiated between such person and the Company shall be deducted from the Facilitation Fee.
4. Restrictions.
You agree that You may not, nor may permit any third party to do or attempt to, do any of the following without the prior express written consent of the Company in each instance: (i) reverse engineer, decompile, disassemble, make any derivative works of 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 to engage in, promote, or encourage illegal activity (including, without limitation, money laundering) or for any purpose that is prohibited by this Agreement; or (ix) sub-divide or fractionalize the Particles or Digital Reference or any representations thereof.
To the extent that Particles, Name and Likeness and/or the Artwork 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 Company 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 Company 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.
You hereby agree not to take any actions that will violate or potentially compromise the status of the Particle Foundation as a 501(c)(3) non-profit corporation pursuant to the Internal Revenue Code of 1986, as amended, and You hereby consent and affirmatively agree to take any and all such actions (with respect to your Particles or otherwise) as may be reasonably necessary to maintain such status as determined by the Particle Foundation in its sole reasonable discretion.
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 Company 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 Company and/or any of their respective officers, directors, affiliates, agents, attorneys and employees. If You are deemed by the Company to be noncompliant with this Agreement at any time, you may neither exercise your voting rights with respect to the potential sale of the Artwork nor may You profit from the sale of the Artwork (in each case, as des.
6. REPRESENTATIONS & WARRANTIES.
(a) Financial Risk. 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 COMPANY 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 COMPANY 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 Company’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 COMPANY OR ANY OF ITS AFFILIATES OR (2) ANY ROYALTIES FROM PARTICLES.
(b) Non-U.S. Person Status. Particles will be offered only outside of the United States to non-U.S. persons. In connection with your purchase of Particles, You hereby represent that You (i) are not a “U.S. person” as defined under Rule 902 of Regulation S of the U.S. Securities Act of 1933, as amended, (ii) are not purchasing Particles on the account of or benefit any U.S. persons and (iii) will not transfer, gift or sell Particles to any U.S. persons in violation of this Agreement. If You have any questions or concerns about your status as a non-U.S. person and your ability to make the representations contained in this Section 6(b), You hereby agree to consult with legal counsel prior to your purchase of 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 COMPANY 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 COMPANY OR THE PARTICLE FOUNDATION, THEIR AFFILIATES OR THEIR 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 COMPANY AND PARTICLE FOUNDATION 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. YOU AGREE THAT THE TOTAL, AGGREGATE LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR OWNERSHIP, PURCHASE AND/OR SALE OF PARTICLES, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, IS LIMITED TO THE AMOUNTS YOU ACTUALLY PAID FOR PARTICLES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE.
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 Company is not responsible for any of these risks however caused; (D) the Company does not make any promises or guarantees about the availability of Particles on the Internet or that they will host Particles at any specific location and/or for any specific period of time; (E) upgrades to the relevant blockchain, a hard fork or other change in the relevant blockchain, a failure or cessation of the relevant blockchain, or a change in how transactions are confirmed on the relevant blockchain having certain unintended, adverse effects on products using such technology(ies), including, without limitation, Particles; (F) the Company does not make any promises or guarantees related to the relevant 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 Artwork creator’s continued ownership of the intellectual property rights, including copyrights, in and to the Artwork; and (O) the Company 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 Company 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 Company 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 Company 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 Company is not responsible for any communication failures, disruptions, errors, distortions or delays You may experience related to the purchase of Particles.
The purchase of Particles is not intended to be an offering of securities in any jurisdiction nor does it constitute an offer or an invitation to purchase shares, securities or other financial products; however, if the Particles were to become subject to the jurisdiction of the U.S. securities laws, then Particles may need to become registered securities in the U.S. (with additional legal and regulatory scrutiny) and Particle owners may become subject to increased and/or new costs and fees. Due to the artistic nature of the Particle Collection, Particles have not been registered with or approved by any regulator in any jurisdiction. It remains your sole responsibility to assure that the purchase of Particles and the associated rights in the Artwork is in compliance with all applicable laws and regulations in your jurisdiction (including the Bank Secrecy Act of 1970, the USA PATRIOT Act of 2001 and the rules and regulations of the U.S. Department of the Treasury, the Financial Crimes Enforcement Network (FinCEN) and the Office of Foreign Assets Control (OFAC) in the United States).
For the purposes of this Section 8, the “Company” is to include the Company, its affiliates and the Particle Foundation.
9. Ethereum Network.
Each Particle is an NFT on the Ethereum blockchain, and any financial transactions that You engage in in Particles will be conducted solely through the Ethereum network. Ownership of the Particles is mediated entirely by the Particle smart contract run on the Ethereum network – at no point may the Company seize, freeze, or otherwise modify the ownership of any Particle.
You are entirely responsible for the safety and management of your own private Ethereum wallet(s) and for validating all transactions and contracts generated by this website before approval. Furthermore, as the Particle smart contract runs on the Ethereum network, there is no ability to undo, reverse, or restore any transactions. The Company will have no liability to You or to any third party for any claims or damages that may arise because of any transactions in Particles that You engage or any other transactions that You conduct via the Ethereum network.
Ethereum requires the payment of a transaction fee (a “Gas Fee”) for every transaction that occurs on the Ethereum network. The Gas Fee funds the network of computers that run the decentralized Ethereum network. This means that You will need to pay a Gas Fee for each Particle transaction.
THE COMPANY WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSSES YOU INCUR AS THE RESULT OF YOUR USE OF THE ETHEREUM NETWORK. YOU ASSUME ALL RESPONSIBILITY FOR ANY ADVERSE EFFECTS OF DISRUPTIONS OR OTHER ISSUES AFFECTING ETHEREUM OR THE ETHEREUM NETWORK.
10. Tax.
You are responsible for all applicable tax obligations associated with the purchase and sale of Particles and the Artwork, including but not limited to any VAT, sale or compensating use tax or equivalent tax wherever such taxes may arise.
11. 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.
12. Changes to this Agreement.
The Company may make changes to this Agreement from time to time. When such changes are made, the Company will make the updated Agreement available at [www.particlecollection.com/terms] 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.
13. Assignment.
You may not assign this Agreement either in whole or in part without the express written consent of the Company.
14. Eligibility.
(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) Only to such non-U.S. persons who may accurately and definitively make the representations and warranties contained in Section 6(b) of this Agreement.
(c) If an individual, by purchasing Particles, You represent and warrant that You are at least eighteen (18) years old.
15. Indemnity.
You will defend, indemnify, and hold the Company, 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 misuse of the Particles, Name and Likeness and/or the Digital Reference; (3) your violation of any applicable laws, rules or regulations, or the rights of a third party as a result of your own interaction with such third party; (4) any allegation that any materials that You submit to us or transmit in the course of purchasing Particles, communications seeking the Company’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 (5) 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.
16. 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
17. Severability.
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.
18. Waiver.
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.
19. 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.
20. No Third Party Beneficiaries.
There are no third party beneficiaries to this Agreement.
21. Entire Agreement.
This Agreement is the entire agreement concerning its subject matter and supersedes any prior or concurrent communications among the parties.