GAMEDAY+ NFT LICENSE TERMS
DATE LAST UPDATED: JUNE 12, 2022
1. HOW YOU CAN USE YOUR NFT.
If you own a Gameday+ NFT (“NFT”), Data + Sports, Inc. (the “Company,” “we,” “us” or “Data + Sports”) grants you a license to use the NFT in accordance with the following terms (the “Terms”). Please read the following Terms carefully as they set out the above as well as other contractual terms which will be binding on you:
2. Sale of NFTs.
2.1. “NFT” means a cryptographic token issued by the Company which represents a license issued by the Company to a particular person to use a particular NFT. EACH PERSON WHO SELLS, PURCHASES OR OTHERWISE POSSESSES AN NFT, WHETHER FROM THE COMPANY OR FROM ANOTHER HOLDER OF AN NFT, IS SUBJECT TO THE LICENSE THAT FOLLOWS AND, THEREBY, WITHOUT FURTHER ACTION, AGREES TO BE BOUND BY SUCH LICENSE.
2.2. To purchase an NFT, you need to place an order for the desired NFT through your account. You agree to pay all fees due for the NFT at the time you order the NFT at the Company’s then-quoted price for such NFT. You may purchase an NFT by entering an approved payment method into the Company’s payment portal. Company may modify its NFT fee schedule at any time, and any modifications will be posted on the platform and effective immediately, without further notice.
2.3. Company may collect a fee and/or commission of up to 10% of the total value of any NFT transaction you undertake with your NFT. The applicable transaction fee will be determined by the Company and hard-coded into the NFT smart contract.
2.4. EXCEPT AS REQUIRED BY LAW, ALL NFT PURCHASES ARE FINAL AND NON-REFUNDABLE. NO REFUNDS, RETURNS OR EXCHANGES WILL BE PERMITTED FOR ANY REASON. ALL SALES ARE FINAL.
2.5. “NFT Holder” means at each time, the person, other than the Company, who lawfully holds exclusive title to and ownership of an NFT, for so long as such person continues to hold such title to and ownership of such NFT. In the event of a blockchain fork (“Fork”) creating copies of the NFTs at the same addresses at which they were then held immediately prior to such Fork, the scope of the term “NFT Holder,” and all licenses granted to and other rights of a NFT Holder under these Terms, shall be deemed to include each person who lawfully holds exclusive title to and ownership of the copies of such NFTs that are included on the Fork the Company determines is the authoritative fork for the purposes of these Terms. The parties acknowledge and agree that, as a result of the preceding sentence, in a Fork, the aggregate number of NFTs may be increased, which could have an adverse effect on the value of each NFT or the aggregate value of the total NFTs. The parties hereby irrevocably release and discharge the other from any and all losses arising from any such Fork.
3. License Terms and Specific Restrictions Applicable to NFTs
3.1. License to use NFT. The Company hereby grants to each NFT Holder a license to display and use the NFT purchased or received by such NFT Holder, upon the following terms and conditions and the other provisions of these Terms:
• The license is perpetual, non-exclusive, non-sublicensable, royalty-free, and worldwide.
• For any NFT Holder, the license to use a NFT or any derivative work from a n NFT commences when such NFT Holder acquires the corresponding NFT and terminates automatically when such NFT Holder transfers, sells, destroys, or surrenders that NFT, or violates any of these Terms.
• The NFT Holder may use any NFT in relation to which such NFT Holder owns the corresponding NFT to the exclusion of all other NFT Holders. The NFT Holder may not use any NFT relation to which such NFT Holder does not own the corresponding NFT.
• The NFT Holder may use an NFT without attribution to the Company.
• The NFT Holder may copy, display, distribute, and create derivative works of the NFT for personal, commercial or non-commercial use (the “Personal Use Right”). The NFT Holder agrees that the Personal Use Right is to use a NFT whole and entire, and not any part thereof or form of display which would obscure or diminish any individual part of a NFT such that the NFT resembles a different NFT, or comes to resemble a NFT the NFT Holder does not own.
• The NFT Holder may sell, transfer, or assign all (but not less than all) of its right, title, and interest in and to its license to use a given NFT (a “Resale”) only by selling the associated NFT. Upon such Resale, all of the NFT Holder’s rights and interests in and to the NFT, including all of the NFT Holder’s rights and interests in and to the Personal Use Right in relation to such NFT, will be considered sold, transferred, or assigned, as the case may be, to the buyer, transferee, or assignee of such NFT including the license to resell the NFT (the “Resale Right”). The NFT Holder’s rights, title and interest in the NFT may not be assigned, sold or transferred, in whole or in part, to any person and the Resale Right may not be exercised, in whole or in part, without a sale and transfer of the NFT itself to the assignee, purchaser or transferee, as applicable. Evidence that a person has access to the private keys of a given NFT shall be sufficient evidence for the Company to treat such person as being entitled to exercise the rights of a NFT Holder over that NFT, subject to these Terms.
• The NFT Holder may not delegate, sublicense, temporarily assign, mortgage, charge, or pledge the NFT Holder’s Personal Use Right, Resale Right, or NFT.
• The Personal Use Right does not grant any rights to use the words “Gameday,” “Gameday+” or the Company’s corporate logo or any trademark of the Company in connection with the use of any NFT.
3.2. Data + Sports, Inc. retains exclusive interest in and ownership of its intellectual property, including without limitation all patents, copyrights, trademarks (together with the goodwill symbolized thereby), trade secrets, know-how, and other confidential or proprietary information, and other intellectual property rights (collectively “Intellectual Property Rights”), whether incorporated in any NFT or otherwise. Each NFT Holder acknowledges and agrees that the Company’s Intellectual Property Rights subsist in, and the Company retains all Intellectual Property Rights in, each and any NFT, part thereof or combination thereof.
3.3. Except for the grant of the Personal Use Right and the Resale Right in accordance with these Terms, nothing in these Terms functions to assign or transfer, nor creates any right in favor of any person to use, any of the Company’s Intellectual Property Rights.
4. Restrictions.
Each NFT Holder will not, and agrees not to cause or allow any other person to:
4.1. use the NFT in any way that exceeds the terms of the NFT Holder’s license to the NFT;
4.2. use the NFT with material that violates any third-party rights, or otherwise take any action in connection with the NFT that infringes the intellectual property or other rights of any person or entity;
4.3. register or apply to register, object to the registration of, seek to cancel, or otherwise claim or assert rights in, a trademark, design mark, service mark, sound mark, or tradename (“Mark”), that uses any Third Party NFT; claim or enforce ownership rights in any Third Party NFT; or make any attempt to prevent any third party from using any Third Party NFT, regardless of the degree of similarity between the NFT Holder’s Mark and the Third Party NFT or any other legal rights the NFT Holder may have in relation to the use of a Third Party NFT, whether at common law, equity, statute, or otherwise. “Third Party NFT” means any NFT, part thereof or combination thereof, in whole or in part, which a NFT Holder does not have a license to use. This Section 4.3 shall survive any termination of these Terms;
4.4. use the NFT in a manner that is tortious, defamatory, in association with any unlawful goods or service, or in any way that violates any applicable laws, rules, or regulations;
4.5. remove, obscure or alter any proprietary notices associated with the NFT, or give any express or implied misrepresentation that the NFT Holder or another third party represent or are affiliated with the Company or the holder of the copyright or other applicable intellectual property rights in any NFT;
4.6. use the NFT other than for the benefit of the NFT Holder;
4.7. use or exploit the NFT in any manner other than as expressly permitted in these Terms;
4.8. modify the NFT or any part thereof.
For the avoidance of doubt, in order to use an NFT for a purpose not authorized by these Terms, the NFT Holder must first (1) obtain a license directly from the Company; and (2) secure additional permissions as necessary. The Company shall be under no obligation to grant or negotiate or offer such additional license, and may either grant or withhold such license in its sole and absolute discretion.
5. Indemnification Obligations. Without limiting the obligations in these Terms, each NFT Holder agrees to indemnify, hold harmless, compensate and reimburse the Company and its respective subsidiaries, affiliates, officers, agents, employees, partners, and licensors from or for any claim, demand, loss, or damages, including reasonable attorneys’ fees, arising out of or related to NFT Holder’s use of the NFTs or NFT Holder’s violation of these Terms.
6. Injunctive Relief. Notwithstanding anything else in these Terms, any NFT Holder hereby agrees that, in the event of NFT Holder’s or any third party’s unauthorized access to, or use of, the NFTs in violation of these Terms, the Company shall be entitled to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction, without providing notice or opportunity to cure.
7. DISCLAIMER OF WARRANTY. THERE IS NO WARRANTY FOR THE NFT, TO THE EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT WHEN OTHERWISE STATED IN WRITING THE COPYRIGHT HOLDERS AND/OR OTHER PARTIES PROVIDE THE NFT “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE NFT IS WITH YOU. SHOULD THE NFT PROVE DEFECTIVE, YOU ASSUME THE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
8. LIMITATION OF LIABILITY. IN NO EVENT UNLESS REQUIRED BY APPLICABLE LAW OR AGREED TO IN WRITING WILL THE COMPANY BE LIABLE TO YOU FOR DAMAGES, INCLUDING ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE NFT (INCLUDING BUT NOT LIMITED TO LOSS OF DATA OR DATA BEING RENDERED INACCURATE OR LOSSES SUSTAINED BY YOU OR THIRD PARTIES OR A FAILURE OF THE NFT TO OPERATE WITH ANY OTHER PLATFORMS, WALLETS, OR OTHER SOFTWARE), EVEN IF SUCH NFT HOLDER OR OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. Amendments. The Company may make changes to these Terms from time to time. If the Company makes changes, we may provide you with notice of such changes, such as by sending an email, providing a notice through our Services or updating the date at the top of these Terms. Unless we state otherwise, the amended terms will be effective immediately, and your continued use of our Services after we provide such notice will confirm your acceptance of the changes. If any NFT Holder does not agree to such amended terms, that NFT Holder must stop using its NFT.
10. Governing law. This Agreement is governed by and construed in accordance with the laws of the State of Delaware. Any dispute arising from this Agreement will be governed by and construed and enforced in accordance with the laws of the State of Delaware, without regard to conflict of law rules or principles (whether of Delaware or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of Wilmington, New Castle County, Delaware.