PLEASE READ THIS CO-MARKETING AND LICENSE AGREEMENT (this “AGREEMENT”) CAREFULLY BEFORE UTILIZING OR RECEIVING MODERNIST’S (AS DEFINED BELOW) SERVICES AND/OR UTILIZING, RECEIVING, OR PURCHASING THE NFT(S) (AS DEFINED BELOW). BY ACCEPTING THIS AGREEMENT, EITHER BY INDICATING YOUR ACCEPTANCE, BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, BY RECEIVING OR UTILIZING THE SERVICES SET FORTH HEREIN, OR BY PURCHASING, RECEIVING, OR UTILIZING THE NFT(S), YOU AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT IS A LEGALLY BINDING CONTRACT BETWEEN YOU AND MODERNIST. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT. ANY CHANGES, ADDITIONS OR DELETIONS BY YOU TO THIS AGREEMENT WILL NOT BE ACCEPTED AND WILL NOT BE A PART OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MUST NOT ACCESS, DOWNLOAD, INSTALL, USE, PURCHASE, OR RECEIVE THE NFT(S), WORK(S), OR SERVICES. YOU ACKNOWLEDGE AND AGREE THAT MODERNIST HAS MADE THE CURRENT VERSION OF THIS AGREEMENT, INCLUDING THE TERMS AND CONDITIONS OF THE DOCUMENTS THAT ARE INCORPORATED IN THIS AGREEMENT BY REFERENCE, AVAILABLE TO YOU ON MODERNIST’S WEBSITE OR OTHERWISE. YOU ACKNOWLEDGE AND AGREE THAT, OTHER THAN ANY ORDER FORM YOU ENTER INTO WITH MODERNIST, MODERNIST MAY REVISE AND UPDATE THE TERMS AND CONDITIONS OF THIS AGREEMENT FROM TIME TO TIME, INCLUDING TERMS AND CONDITIONS AND OTHER DOCUMENTS THAT ARE INCORPORATED IN THIS AGREEMENT BY REFERENCE. MODERNIST WILL MAKE SUCH REVISED AND UPDATED VERSIONS OF THIS AGREEMENT AVAILABLE ON MODERNIST’S WEBSITE, OR OTHERWISE PROVIDE YOU NOTICE OF THEM, AND YOUR CONTINUED USE OR RECEIPT OF THE SERVICES AND/OR NFT(S) SHALL REPRESENT YOUR ACCEPTANCE OF AND AGREEMENT TO THE THEN-CURRENT TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT YOU WILL FREQUENTLY CHECK THE MODERNIST WEBSITE FOR ANY REVISIONS AND UPDATES TO THIS AGREEMENT.
This Agreement, dated as of the date of purchase of the NFT(s), as defined in Paragraph 1 below, is made by and between you, the purchaser of the NFT(s) (“Participant”), and Solvv Inc. d/b/a Modernist, a Delaware corporation with offices located at 113 Cherry Street, No. 51447, Seattle, Washington 98104 (“Modernist”). Participant and Modernist shall sometimes be referred to herein collectively as the “Parties” and each, individually, as a “Party.”
WHEREAS, Participant desires to purchase NFT(s) from Modernist; and
WHEREAS, Modernist is the owner of the Work, as defined in Paragraph 1 below, and wishes to grant to Participant a limited license as owner of those rights subject to the terms and conditions set forth herein; and
WHEREAS, Participant, as a purchaser of the NFT(s), shall have the limited right to market and promote the Work as specifically embodied in the NFT(s) and as set forth in this Agreement, and
WHEREAS, Modernist shall pay royalties to Participant for such marketing and promotion of the NFT(s) and other related Modernist products as set forth below;
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
Subject to the terms and conditions of this Agreement, Modernist hereby grants to Participant during the Term (as defined below) a limited, non-exclusive, non-transferable (except as provided in Section 15), non-sublicensable license throughout the world (the “Territory”), solely to display copies of the Work publicly in any and all of Participant’s personal social media platforms (e.g., Instagram, Twitter, and Facebook (hereinafter “Social Media”)). The “Work” is defined as the original visual art and sound recording portion as reproduced, distributed, adapted and displayed in the ERC-271 Ethereum non-fungible token(s) (each copy an “NFT” or multiple copies, the “NFTs”). Participant shall acquire a copy of the Work embodied in the NFT upon Participant’s acceptance of the terms of this Agreement by purchasing such NFT from Modernist. Notwithstanding any other provisions of this Agreement to the contrary, nothing in this Agreement will be deemed to be a grant by Modernist of a license, sublicense, or other grant of a right to Participant to use the Work in any means not contemplated by Participant’s ownership of the NFT or specifically granted in this Agreement, or to use any third-party rights or any rights under any third-party license that cannot be licensed, sublicensed, or granted without the consent, approval, or agreement of another party, unless such consent, approval, or agreement is first obtained by Participant, in writing, from Modernist. Modernist reserves all rights not expressly granted to Participant under this Agreement. No use by Modernist of the Work in any medium or manner will be deemed to interfere with the limited permissions made to Participant by Modernist herein. For the avoidance of doubt, Participant is solely permitted to publically display (as that phrase is defined in the 1976 Copyright Act) its copy of the Work on Participant’s personal Social Media platforms, as well as Metaverse Galleries, NFT galleries, in-real-life (IRL) NFT galleries, and other substantially similar media and settings.
2. Usage of the Work.
Notwithstanding any other provision to the contrary contained in this Agreement, Participant acknowledges and agrees that: (i) Participant shall abide by the copyright laws and what are considered to be sound practices for copyright notice provisions in the Territory; and (ii) Participant shall not use any copyright notices that conflict with, confuse, or negate any notices of or by Modernist. The Work may be displayed or used only in the form and in such manner specifically approved herein (or otherwise approved in writing by Modernist in advance), and Participant shall not translate, recast, edit, alter, modify, or create any adaptations or derivative works of the Work without Modernist’s prior written approval, specifically including adaptation in the form of a different non-fungible or digital token, whether now known or created in the future.
The term of this Agreement commences as of the Effective Date and, unless terminated earlier as provided herein, will remain in force for the life of copyright (the “Term”). Either party may terminate this Agreement on written notice to the other party if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receiving written notice thereof. Either party may terminate this Agreement by written notice to the other party if the other party: (i) becomes insolvent or admits its inability to pay its debts generally as they become due; (ii) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven (7) business days or is not dismissed or vacated within forty-five (45) days after filing; (iii) is dissolved or liquidated or takes any corporate action for such purpose; (iv) makes a general assignment for the benefit of creditors; or (v) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. Further, Modernist may terminate this Agreement at anytime for Cause, in Modernist’s sole discretion. “Cause” shall mean, without limitation: (A) any behavior on the part of Participant that is harmful or derogatory to the Solvv and Modernist community and/or brand, as well as the NFT community; and/or (B) Participant’s breach of this Agreement and/or any action by Participant which is inconsistent with the terms, provisions, promises, conditions, covenants, warranties, and/or representations of this Agreement.Upon the expiration or termination of this Agreement for any reason, all rights of display granted under this Agreement will revert immediately to Modernist and Participant shall use its best efforts to cause to be inactivated and erased all digital copies of the Work in its control and possession and return or, at Modernist’s written request, destroy, any tangible copies of the Work. Upon Modernist’s request, Participant shall provide an affidavit to Modernist attesting to such erasure or destruction. Without limiting the generality of the two immediately preceding sentences, Modernist acknowledges and recognizes that Social Media platforms create backups of Participant’s posts that may be beyond Participant’s ability to delete.Any rights or obligations of the parties in this Agreement which, by their nature, should survive termination or expiration of this Agreement will survive any such termination or expiration, including the rights and obligations set forth in this Section 3, as well as Sections 4-21 (except Sections 6-7 in instances of breach by Participant).
As consideration for the rights granted herein, Participant shall pay Modernist a one-time fee in an amount determined solely by Modernist and referenced in the smart contract for the token(s) bought by Participant. Such fee is not refundable.
5. Ownership and Protection.
Except for the limited license to display the Work as expressly granted to Participant in this Agreement, Participant acknowledges that all right, title, and interest in and to the Work, as well as any adaptations, modifications, or improvements made thereto by Participant, are owned by Modernist. If Participant acquires any rights in the Work by operation of law, decree of court, or otherwise, Participant hereby irrevocably assigns such rights to Modernist without further action by either party. Participant agrees not to dispute or challenge or assist any person or entity in disputing or challenging Modernist’s rights in and to the Work.Participant shall, at its sole expense, maintain any copies of the Work within Participant’s possession, custody, or control under first-class conditions and shall take all then-available measures to protect and safeguard the Work. Participant shall immediately notify Modernist in writing with reasonable detail of any: (i) actual, suspected, or threatened infringement of the Work; (ii) actual, suspected, or threatened claim that use of the Work infringes the rights of any third party; or (iii) any other actual, suspected, or threatened claim to which the Work may be subject. For this purpose, Participant acknowledges and agrees that Modernist may have certain droit moral rights in the Work as set forth in the international Berne Treaty at 6bis(1) and/or in the Visual Artists’ Rights Act of 1990.With respect to any of the matters listed in Section 5(b): (i) Modernist has exclusive control over, and conduct of, all claims and proceedings with regard to the Work, to the exclusion of Participant; (ii) Participant shall use its best efforts to provide Modernist with all assistance that Modernist or its legal counsel may reasonably require in the conduct of any claims or proceedings; and (iii) Modernist shall bear the cost of any proceedings and will be entitled to retain all sums recovered in any action for its own account.
In consideration of Participant’s efforts to market Modernist’s Work, name, logo(s), special campaigns, and other intellectual properties, Modernist shall pay to Participant a royalty equal to a fraction, the numerator of which is the number of tokens acquired by Participant under this Agreement and the denominator of which is nine thousand, seven hundred twenty-four (9,724), multiplied by a percentage (to be determined by Modernist in its sole discretion and which may be changed from time to time) of the Net Sales of all Licensed Products in the Territory during the Term (the “Royalty”). “Net Sales” means the gross amount invoiced by Modernist for sale of Licensed Products less: (a) discounts allowed in amounts customary in the trade; (b) sales, tariff duties, and use taxes directly imposed and with reference to particular sales; (c) outbound transportation prepaid or allowed; (d) amounts allowed or credited on returns; (e) commissions paid to individuals for the sale of Licensed Products or for cost of collections; and (f) all costs, expenses, and other amounts paid in manufacturing, creating, promoting, marketing, and selling the Licensed Products. “Licensed Products” shall mean visual art pieces and merchandise embodying the Work and sold by Modernist.
Modernist shall pay out all Royalties for each semi-annual accounting period at the end of such semi-annual period, which dates shall be May 31 and November 30 of each calendar year. The first semi-annual accounting period for purposes of calculating Royalties to be paid shall begin June 1, 2023. Participant shall make all payments in the cryptocurrency Ethereum and pay out Royalties to a secured account designated by Modernist and accessible by Participant. Within thirty (30) business days of Participant’s written request, Modernist shall provide Participant with an accounting statement for the applicable accouting period with information sufficient to calculate the Royalty due Participant. Participant may request no more than one (1) accounting statement per semi-annual accouting period. Participant acknowledges and agrees that it shall have a period of seven (7) days to withdraw its Royalties from the secured account described in section 7(a) above, after which Participant will waive, surrender, and abandon any and all right, title, and interest to the Royalties for such accounting period and such Royalties shall automatically be deemed the property of Modernist. If Modernist is prohibited by a governmental authority in any country from making any Royalty payment due under this Agreement, or if Participant is so prohibited from withdrawing its Royalty payment, then within the prescribed period for making the payment, Participant shall promptly request permission from the governmental authority to make and/or withdraw such payment and, after receiving permission from the governmental authority, shall so inform Modernist, after which Modernist shall have sixty (60) days to pay out the Royalties. If permission is not received within sixty (60) business days after Participant's request, then Modernist, in its sole discretion, shall deposit the Royalties in the currency of the relevant country in a bank account within that country designated by Participant. Any fees associated with such bank account, or any currency or NFT exchange rate fees, shall be deducted from the Royalty payment.All royalty statements and all other accountings rendered by Modernist to Participant shall be binding upon Participant and not subject to any objection by Participant for any reason unless specific objection in writing, stating the basis thereof, is given to Modernist within one (1) year after the date such statement is rendered to Participant. Following Modernist’s receipt of such specific objection in writing, Participant shall have the right to examine Modernist’s financial books and records relating to Participant’s account once per calendar year at Modernist’s regular place of business during regular business hours at Participant’s sole expense. Participant shall be prohibited from maintaining any action, claim, or proceeding against Modernist in any forum or tribunal with respect to any statement or accounting due hereunder unless such action, claim, or proceeding is commenced against Modernist in a court of competent jurisdiction within one (1) year after the date such statement is rendered.
From time to time, Modernist may disclose or make available to Participant information about its business affairs, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, including but not limited to business operations and strategies, marketing, creative elements, artwork, visual representations, research material and data, specifications, processes, and technological developments, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section by Participant; (b) is or becomes available to Participant on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of Participant before being disclosed by or on behalf of Modernist; or (d) was or is independently developed by Participant without reference to or use, in whole or in part, of any of Modernist’s Confidential Information. Participant shall: (i) protect and safeguard the confidentiality of Modernist’s Confidential Information with at least the same degree of care as Participant would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (ii) not use Modernist’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (iii) not disclose any such Confidential Information to any person or entity, except: (A) to Participant’s officers, employees, agents, consultants, and legal advisors who need to know the Confidential Information to assist Participant, or act on its behalf, to exercise its rights or perform its obligations under the Agreement; or (B) pursuant to applicable federal, state, or local law or regulation, or a valid order issued by a court or governmental agency of competent jurisdiction, provided that Participant shall first provide Modernist with: (1) prompt written notice of such requirement so that Modernist may seek, at its sole cost and expense, a protective order or other remedy; and (2) reasonable assistance, at Modernist’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.
9. Representations and Warranties.
Participant represents and warrants that: (i) Participant will not engage or participate in any activity or course of action that could diminish or tarnish the image or reputation of the NFT(s), the Work, or Modernist, or cause confusion as to the ownership of the Work; (ii) Participant’s display of the Work will not infringe, misappropriate, or otherwise violate the intellectual property or other rights of any third party or violate any applicable regulation or law; (iii) it has the full right, power, and authority to enter into this Agreement and to perform its obligations hereunder; and (iv) this Agreement will constitute the legal, valid, and binding obligation of Participant, enforceable against it in accordance with its terms.By signing this Agreement, and specifically, as it relates to its purchase of the NFT(s) or payment of royalties hereunder, Participant hereby waives and relinquishes its rights under any laws governing data protection and privacy, specifically waiving, without limitation, its rights under the European Union’s General Data Protection Regulation (“GDPR") and the California Consumer Privacy Act (“CCPA”).EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 9, MODERNIST EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE LICENSED PROPERTY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE.
Participant shall indemnify, defend, and hold harmless Modernist and its officers, directors, employees, agents, affiliates, successors, assigns, and Participants (each an “Indemnified Party”) from and against any losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers, arising out of or in connection with any third-party claim, suit, action, or proceeding (each a “Third-Party Claim”) relating to any actual or alleged breach by Participant of its representations, warranties, covenants, or other obligations hereunder. The Indemnified Party shall notify Participant upon becoming aware of a Third-Party Claim under this Section. Participant shall promptly assume control of the defense and investigation of such Third-Party Claim, with counsel reasonably acceptable to the Indemnified Party, and the Indemnified Party shall reasonably cooperate with Participant in connection therewith, in each case, at Participant’s sole cost and expense. The Indemnified Party may participate in the defense of such Third-Party Claim, with counsel of its own choosing and at its own cost and expense. Participant shall not settle any such Third-Party Claim without such Indemnified Party’s prior written consent. If Participant fails or refuses to assume control of the defense of such Third-Party Claim, the Indemnified Party has the right, but no obligation, to defend against such Third-Party Claim, including settling such Third-Party Claim after giving notice to Participant, in each case, in such manner and on such terms as the Indemnified Party may deem appropriate. Neither the Indemnified Party’s failure to perform any obligation under this Section nor any Indemnified Party’s act or omission in the defense or settlement of any such Third-Party Claim will relieve Participant of its obligations under this Section except to the extent that Participant can demonstrate that it has been materially prejudiced as a result thereof.
Participant acknowledges and agrees that: (a) monetary damages at law are a fully adequate remedy to compensate Participant for any breach or threatened breach of this Agreement by Modernist; and (b) an action at law for monetary damages is Participant’s sole and exclusive remedy for any such breach. No breach by Modernist of this Agreement will entitle Participant to equitable relief, including specific performance, injunctive relief, rescission, or any other form of equitable remedy. Without limiting the generality of the immediately preceding two sentences, Participant shall not seek equitable relief to rescind this Agreement or seek injunctive relief to enjoin or otherwise restrain or limit the use or other exploitation of the Work or any rights therein, nor will it bring any claim, demand, or action against Modernist under the GDPR or CCPA.Participant acknowledges that a breach by Participant of this Agreement may cause Modernist irreparable damages, for which an award of damages would not be adequate compensation, and agrees that, in the event of such breach or threatened breach, Modernist will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance, and any other relief that may be available from any court, in addition to any other remedy to which Modernist may be entitled at law or in equity. Such remedies are not exclusive but are in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.MODERNIST WILL NOT BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, LIQUIDATED, SPECIAL, OR EXEMPLARY DAMAGES OR PENALTIES, INCLUDING LOSSES OF BUSINESS, REVENUE, OR ANTICIPATED PROFITS, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER MODERNIST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
For purposes of this Agreement: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. This Agreement is intended to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
13. Entire Agreement.
This Agreement, including and together with any related attachments, constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, including but not limited to any statements, visions, roadmaps, and/or playbooks previously published or otherwise dissmenated by Modernist, with respect to such subject matter.
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect the enforceability of any other term or provision of this Agreement, or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the court may modify this Agreement to effect the original intent of the parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
Participant may only transfer and assign all of its rights and obiligations under this Agreement to a third party, and only on the condition that it gives written notice to such third party of this Agreement and the rights and obligations contained herein and, thereafter, such third party expressly agrees in writing to all the terms and conditions contained herein and promptly gives written notice to Modernist of such transfer and assignment of this Agreement. Participant shall not assign any other of its rights or delegate any other of its obligations, either individually or collectively, under this Agreement without the prior written consent of Modernist. Any purported assignment or delegation in violation of this Section is null and void. Modernist may freely assign or otherwise transfer any of its rights or delegate any of its obligations under this Agreement. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
16. Choice of Law; Venue.
This Agreement and all matters arising out of or relating to this Agreement are governed by the laws of Oregon, without giving effect to any conflict of laws provisions thereof. Either party shall institute any legal suit, action, or proceeding arising out of or relating to this Agreement in the federal or state courts in each case located in Portland, Multnomah County, Oregon, and each party irrevocably submits to the exclusive jurisdiction of such courts in any legal suit, action, or proceeding.
17. Relationship of the Parties.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party has authority to contract for nor bind the other party in any manner whatsoever.
18. No Third-Party Beneficiaries.
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or will confer upon any third party any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.
19. Amendment and Modification.
No amendment or modification to this Agreement is effective unless it is in writing and signed by an authorized representative of each party."
No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof, or the exercise of any other right, remedy, power, or privilege.
21. Attorneys’ Fees.
In the event that any claim, suit, action, or proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party will be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.