TERMS AND CONDITIONS OF THE SABRACADABRA ORIG1NS NFTS AUCTION
SABRACADABRA LLC, For the commercial launch of the Collection, SABRACADABRA has created 111 blockchain-tracked, non-fungible tokens (“NFTs”), each associated with one original image (animated or not) of the artwork created by SABRACADABRA for the need of the Collection, each of which is being sold by SABRACADABRA on OpenSea starting on January 30th 2022 (the “Auction”).
These terms and conditions constitute a legally binding agreement (the “Agreement”) between, on the one hand (i) participants to the Auction (also referred to herein as “Participants” or individually as the “Participant”), Participants who successfully provided the highest bid and have been granted the ownership of the NFT or any subsequent owners of the NFT where proof of such ownership is recorded on the relevant blockchain (also referred to herein as “Owners” or individually as the “Owner”) (Participants and Owner are collectively referred to herein as “You” or “Your”), and on the other hand (ii) SABRACADABRA. This Agreement governs the purchase of NFTs as part of the Auction, details of which is further described on the dedicated website www.sabracadabra.com/nft, and the subsequent use of the purchased NFT.
BY ENTERING INTO THIS AGREEMENT AND/OR BY BIDDING IN THE AUCTION, YOU EXPRESSLY ACKNOWLEDGE THAT YOU UNDERSTAND THIS AGREEMENT, ACCEPT ALL OF ITS TERMS AND AGREE TO BE BOUND BY THIS AGREEMENT AND ALL OF THE TERMS INCORPORATED HEREIN AND ALL OF THIRD PARTY SERVICES’ TERMS OF SERVICE, IN PARTICULAR OZONE NETWORKS, INC D/B/A OPENSEA’S TERMS OF SERVICE AVAILABLE AT https://opensea.io/tos (the “OpenSea Terms of Service”). If You do not agree to the terms and conditions of this Agreement and/or third-party services’ Terms of Service, You may not bid in the Auction nor benefit from the Owner’s Rights.
“Art” means any art, graphics, images, designs, logos, taglines, and drawings that may be associated with an NFT.
“Name and Likeness” means names, nicknames, images, likenesses, marks, copyrights, trade dress colors, trade dress designs, and/or all other intellectual properties of SABRACADABRA.
“Owner’s Rights” means the rights to an NFT granted by this Agreement to the Owner.
“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.
“Third Party Services” means any services not operated by SABRACADABRA, but provided to You in the context of the Auction or use of the NFTs, including but not limited to services provided by the marketplace OpenSea; payment services; purchase, sale and exchange of digital assets; digital asset wallet; hardware wallet; storage services for the NFTs or the Art.
2. BIDDING CONDITIONS
2.1. Participation in the Auction is open only to individuals who have the right and authority, in accordance with relevant applicable laws, 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. You may not allow other persons to use Your Opensea user credentials, and You agree that You are the sole authorized user. You further represent and warrant that You are at least 18 years old, or the age of majority in Your country or territory, whichever is older.
2.2. As the successful bidder, Owner agrees to pay (i) the price of the NFT to SABRACADABRA, pursuant to the amount and payment method displayed on the OpenSea platform page dedicated to the NFT; (ii) royalties to SABRACADABRA of ten percent (10%) of the gross amounts paid by the Owner; (iii) all applicable fees associated with the transaction, including but not limited to Third Party Services’ fees pursuant to Third Party Services’ Terms of Service as applicable (Third Party Services’ fees can include but are not limited to gas fees); and (iv) all applicable taxes in accordance with Section 11.
2.3 As the successful bidder, Owner further agrees to provide Us with all information and documents We request in order to verify Your identity and to confirm that the crypto currency payment was made from the Owner’s Crypto Wallet. This verification may take up to three weeks and consequently postpone the effective transfer of the purchased NFT from SABRACADABRA’s crypto wallet to the Owner’s Crypto Wallet, which shall not occur in any event prior to the expiry of a fourteen (14) day period.
2.5. SABRACADABRA may also require You to provide additional information and documents in cases where it has reasons to believe that You are involved in money laundering or in any other illegal activity or that You are in breach of this Agreement. In such cases SABRACADABRA, in its sole discretion may pause or cancel Your Auction and, as the case may be, is entitled to deny the transfer of the NFT to the Owner’s Crypto Wallet and terminate the Agreement in the condition defined in Section 6 below.
2.6. You acknowledge and agree that in some countries, and for certain people or entities, there may be restrictions on the purchase of NFTs under applicable export control and sanctions laws and regulations or restrictions on the sale of NFT, and therefore Your ability to purchase an NFT may be limited or restricted without any liability of SABRACADABRA.
You acknowledge and agree that SABRACADABRA, owns all legal right, title, and interest in and to the Art and Name and Likeness, and all intellectual property rights therein. The rights that You have in and to the NFT and Art are limited to those expressly stated in Section 4 of this Agreement. SABRACADABRA reserves all rights and ownership in and to the NFT, Name and Likeness, and Art not expressly granted to You in Section 4 of this Agreement.
4.1. Owner’s Rights. Owners acknowledge and agree that the NFTs are made available solely for entertainment purposes. Without limiting the foregoing and subject to the Owner’s continued compliance with this Agreement (and Third Party Services’ Terms of Service, in particular the Opensea Terms of Service), SABRACADABRA grants the Owner a worldwide, non-exclusive, non-transferable (except as specifically provided below in Section 4.2 below), royalty-free license, and solely for the Owner’s own personal, non-commercial use, to (i) store the Owner’s NFT in the Owner’s Crypto Wallet; and (ii) display the Art associated with the Owner’s NFT.
4.2. Permissible Transfers of the Owner’ NFT. The Owner has the limited right to transfer the NFT through the OpenSea platform only, provided that the Owner ensure that:
the transfer is carried out exclusively on the OpenSea marketplace;
the transferee and any subsequent transferee are bound by all of the terms of this Agreement and all of the terms of the Third Party Services, in particular OpenSea Terms of Service;
SABRACADABRA is paid ten percent (10%) of the gross amounts paid by such transferee (including any subsequent transferee) relating to the NFT. The Owner acknowledges and agrees that the foregoing amounts payable to SABRACADABRA under Section 4.2 hereof do not include, and are not intended to cover, any additional fees imposed or required by OpenSea or other Third Party Services, including without being limited to gas fees;
the Owner has not prior to the transfer breached this Agreement or the Third Party Services’ Terms of Service, in particular OpenSea Terms of Service;
prior to the transfer, the Owner’s license to the NFT has not been terminated;
the transferee provides SABRACADABRA with a valid e-mail address;
the transferee’s digital wallet is not owned by or associated with (i) a citizen or resident of, or located in, a geographic area that is the target of sanctions or embargoes imposed by the European Union, the United Kingdom, the United Nations or the United States or (ii) an individual, or an individual employed by or associated with an entity, identified on the US Department of Commerce’s Denied Persons or Entity List, the US Department of Treasury’s Specially Designated Nationals or Blocked Persons Lists, or the US Department of State’s Debarred Parties List, or similar lists promulgated by the government of the European Union, the United Kingdom, or the United Nations.
The Owner transferring the ownership acknowledges and agrees that, upon the transfer of the NFT pursuant to Section 4.2, (i) the Owner’s Rights granted under Section 4.1 shall terminate; and (ii) the transferee shall become the new Owner.
4.3. Owner’s Rights are granted for five (5) years as from the Owner’s receipt of the NFT (or on the date on which the blockchain that stores the NFT ceases to exist if such date occurs prior to such five-year period) only to the extent that Owner continues to own the NFT. If at any time the Owner transfers or otherwise disposes of the NFT for any reason, or if the license is terminated pursuant to Section 6, the license granted herein will immediately terminate with respect to that NFT without the requirement of notice, and the Owner will have no further rights with respect to the NFT.
5.1. Unless expressly permitted in this Agreement or with SABRACADABRA’s written consent, You may not:
(i) modify the Art associated to the NFT in any way, including, without limitation, the shapes, designs, drawings, attributes, or color schemes;
(ii) use the Art associated to the NFT to advertise, market, or sell any third-party product or service;
(iii) use the Art associated to the NFT 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 Art associated to the NFT in movies, videos, or any other forms of media, except to the limited extent that such use is expressly permitted in Section 4.1 above or solely for the Owner’s 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 Art associated to the NFT;
(vi) attempt to trademark, copyright, or otherwise acquire additional intellectual property rights in or to the Art associated to the NFT; or
(vii) otherwise utilize the Art associated to the NFT for Your or any third party’s commercial benefit.
5.2. To the extent that Art associated to the NFT contains any third-party intellectual property rights (e.g., licensed intellectual property from SABRACADABRA), You understand and agree as follows:
(i) that You will not have the right to use SABRACADABRA intellectual property rights in any way except as incorporated in the Art associated to the NFT, and subject to the license and restrictions contained herein;
(ii) that, depending on the nature of the license granted from SABRACADABRA, SABRACADABRA may need to place additional restrictions on the Owner’s right to use the Art; and
(iii) upon receipt of SABRACADABRA’s written information on such additional restrictions (email is valid), Owner will be responsible for complying with all such restrictions, and failure to do so will be deemed a breach of this Agreement.
5.3. The restrictions set forth in this Section 5 will survive the expiration or termination of this Agreement.
6. TERMINATION OF THE LICENSE
The Owner’s Rights granted hereunder shall automatically terminate and all rights shall return to SABRACADABRA if:
(i) at any time the Owner sells, trades, donates, gives away, transfers, or otherwise disposes of the NFT for any reason except as specially provided in Section 4.2 of this Agreement;
(ii) the email address the Owner provides to SABRACADABRA is no longer valid;
(iii) Conditions of Section 2.5 are met;
(iv) the Owner breaches any of the terms of this Agreement and/or the Third Party Services’ Terms of Service, in particular OpenSea Terms of Service;
(v) the Owner has a trustee, receiver or similar party appointed for the Owner’s property, becomes insolvent, acknowledges insolvency in any manner, makes an assignment for the benefit of the Owner’s creditors, or files a petition of bankruptcy;
(vi) the Owner engages in any unlawful business practice related to the NFT;
(vii) the Owner initiates any legal actions, provided herein, against SABRACADABRA and/or and each of their parent, subsidiary and affiliate companies, and each of their respective officers, directors, members, affiliates, agents, attorneys and employees;
(viii) the Owner disparages SABRACADABRA or any parties related to SABRACADABRA; or
(ix) any of the Third Party Services ceases to provide their respective services.
7. DISCLAIMER OF WARRANTIES & LIMITATION OF LIABILITY
7.1 To the maximum extent permitted by applicable mandatory laws, the NFT and associated Art are provided “as is” and “as available” excluding any warranties of any kind, including, without limitation, any warranty for information, data, uptime or uninterrupted access, any warranties concerning the availability, correctness, accuracy, reliability, usefulness, or content of information, and any merchantability or fitness for a particular purpose, and We hereby disclaim any and all such warranties, express and implied. We do not warrant that the NFT and associated Art, content, functions or materials contained therein will be timely, secure, uninterrupted or error free, or that defects will be corrected. We make no warranty that the NFT will meet Your requirements. No advice, results or information, whether oral or written, obtained by You from Us or in relation to the NFT and/or associated Art shall create any warranty not expressly made herein.
7.2 To the maximum extent permitted by applicable mandatory law, We will not be liable to you for any loss or damage, whether in contract, tort, negligence, breach of statutory duty, or otherwise and howsoever arising, even if foreseeable, arising under or in connection with the use of, or inability to use, Third Party Services, the NFT and associated Art, including but not limited to any losses, damages or claims arising from: (i) Your error, such as forgotten passwords or incorrectly construed transactions; (ii) server failure or data loss; (iii) corrupted account files; (iv) unauthorized access or activities by third parties, including but not limited to the use of viruses, phishing, or other means of attack against the app, network, or the electronic account or (v) security weaknesses, fraud, counterfeiting, and other technological difficulties.
7.3 We are not responsible for losses due to blockchains or any other features of the Ethereum network or Third Party Services, including but not limited to late report by developers or representatives (or no report at all) of any issues with the blockchain supporting the Ethereum network, including forks, technical node issues, or any other issues having fund losses as a result. You acknowledge and agree that such technologies are novel, experimental and speculative and that therefore there is significant uncertainty regarding the operation and effects and risks thereof and the application of existing laws thereto.
7.4 We have no control over any Third Party Services. You acknowledge and agree that we are not liable for any loss or damage which may be incurred as a result of the availability or unavailability of the Third Party Services, or as a result of any reliance placed by You upon the protection and/or storage of any data You provide to those Third Party Services, or upon the completeness, accuracy or existence of any advertising, products or other materials on, or made available from, any Third Party Services. Please read the general terms applicable to such Third Party Services as you will be required to comply with such terms.
8. ASSUMPTION OF RISK
As noted above, the NFTs are made available solely for entertainment purposes. You agree that You assume the following risks:
(A) To the extent there is a price or market for a blockchain asset such as a non-fungible token, 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 the NFT, and there is no guarantee that the NFTs will have or retain any value;
(B) the commercial or market value on an NFT that you purchase may materially diminish in value as a result of a variety of things such as negative publicity in connection with the SABRACADABRA brand;
(C) SABRACADABRA do not make any promises or guarantees about the availability of the NFT or the Art on the Internet or that they will host the NFT or the Art at any specific location and/or for any specific period of time;
(D) upgrades to the Ethereum platform, a hard fork or other change in the Ethereum platform, a failure or cessation of Ethereum, or a change in how transactions are confirmed on the Ethereum platform may have unintended, adverse effects on all blockchains using such technologies, including without limitation NFTs;
(E) the risk of changes to the regulatory regime governing blockchain technologies, cryptocurrencies, and tokens and new regulations, unfavorable regulatory intervention in one or more jurisdictions or policies any of which may materially adversely affect the use and value of the NFT;
(F) the risks related to taxation;
(G) that non-fungible tokens are not legal tender and are not back by any government; and
(H) SABRACADABRA is not responsible for any transaction between the Owner and a third party, including but not limited to transfers carried out pursuant to Section 4.2, SABRACADABRA shall have no liability in connection with any such transaction. In addition to assuming all of the above risks, the Owner shall (i) have obtained sufficient information to make an informed decision to license the NFT, (ii) understand and agree that the Owner is solely responsible for determining the nature, potential value, suitability and appropriateness of these risks.
9. GOVERNING LAW
This agreement and all matters related to it and/or any NFT shall be governed by, construed, and enforced in accordance with the laws of United States of America and the courts of California, United States of America shall have exclusive jurisdiction.
You will defend, indemnify, and hold SABRACADABRA, including each of their respective affiliates, subsidiaries, parents, successors and assigns, and each of SABRACADABRA’s respective officers, directors, employees, 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 the NFT and/or your participation in the auction, 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 the auction, communications seeking SABRACADABRA’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 auction or the NFT. This indemnity shall be applicable without regard to the negligence of any party, including any indemnified person.
You are responsible for all applicable tax including any VAT, sales or compensating use tax or equivalent tax wherever such taxes may arise. The successful bidder is responsible for any applicable taxes including any sales or use tax or equivalent tax wherever such taxes may arise on the price, the buyer’s premium, and/or any other charges related to this Auction. The applicable sales tax rate will be determined based upon the state or country where You are located. SABRACADABRA is not responsible for determining the taxes that may apply to your transaction(s).
12. PERSONAL INFORMATION
We use the personal information in order to provide you with services relating to the Auction and the NFTs, including to manage Our contractual relationship with you under this agreement.
You have certain rights regarding Your personal information, including the following rights to: access Your personal information; rectify the information We hold about You; erase Your personal information; restrict Our use of Your personal information; object to Our use of Your personal information; receive Your personal information in a useable electronic format and transmit it to a third party (right to data portability); and lodge a complaint with Your local data protection authority.
If You are provided a translation of this agreement, the original version in English will be used in deciding any issues or disputes which arise under this agreement.
If any term or provision of this agreement is invalid, illegal, or unenforceable in any jurisdiction, 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.
We may revise this agreement from time to time. You should read this agreement carefully prior to the purchase of the NFT.
The Agreement in force at the time of the purchase of the NFT will apply. If we revise this agreement and you have already purchased an NFT, the revised agreement will not apply to such purchase.
16. OTHER IMPORTANT TERMS
We may transfer our rights and obligations under this agreement to another organization, but this will not affect your rights or our obligations under this agreement. You may only transfer your rights or your obligations under this agreement to another person if we agree in writing.
This agreement is between you and us. No person who is not a party to this Agreement shall have any rights to enforce any of its terms. The rights of the parties to terminate, rescind or agree to any variation, waiver or settlement under this agreement are not subject to the consent of any other person.
If We fail to insist that You perform any of Your obligations under this agreement, or if We do not enforce our rights against You, or if we delay in doing so, that will not mean that We have waived our rights against You and will not mean that you do not have to comply with those obligations. If We do waive a default by you, we will only do so in writing, and any written waiver does not mean that we will automatically waive any later default by you.
17. CONTACT US
If you have any questions about this document please contact us via e-mail at firstname.lastname@example.org.