Last Revised: October 31, 2022
These Terms and Conditions (these “Terms”) govern your participation in The Non Fungible Token Company, Inc.’s (d/b/a Unblocked) (“Unblocked”, “we”, “us” or
“our”) creator program (the “Creator Program”) pursuant to which we may provide you certain services relating to minting, marketing, selling and supporting sales of non-fungible tokens or similar digital items (“NFTs”) to consumers on Unblocked’s NFT marketplace, Unblocked Exchange, currently available at https://unblocked.exchange/ (the “Platform”) and/or any related mobile application that we may develop in the future.
BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OF THESE TERMS OR BY OTHERWISE PROVIDING ANY CONTENT TO US, YOU ARE AGREEING TO BE BOUND BY THESE TERMS. Please read these Terms carefully.
As used herein, “you” means a participant in the Creator Program. If you are entering into these Terms on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these Terms, in which case the term “you” will refer to such entity.
1.1 Eligibility. You must be at least 18 years of age to participate in the Creator Program and you must reside in a jurisdiction where the Creator Services are offered.
1.2 Application. You must complete and submit an application form to be considered for the Creator Program. We will review all information submitted and may separately contact you with requests for additional information via the e-mail address included on your application. Acceptance of an application is at our sole discretion. We will notify you via e-mail to confirm whether or not you have been accepted in the Creator Program.
- Creator Services
2.1 Creator Services. Upon acceptance into the Creator Program, we will conduct an introductory call pursuant to which we will discuss the specifics of the services which we may perform for you, which may include: (a) strategy services such as assisting with creative design, NFT drop strategy and a go-to-market strategy; (b) technical services such as NFT minting and digital wallet creation, (c) marketing services; (d) fulfillment services relating to the fulfillment of any reward linked to an NFT; and (e) customer support services to assist with any issues or concerns with buyers of NFTs (collectively, the “Creator Services”).
2.2 Cooperation. You agree to cooperate in good faith in connection with our provision of the Creator Services, including by meeting periodically and to promptly provide information and materials we may request. We will be excused from meeting specified deadlines or performing specified responsibilities to the extent our delays or failures are caused by your delays or failures in providing us with reasonable cooperation or access to information or documentation necessary for the performance of Creator Services.
2.3 NFT Sales. All sales of Licensed NFTs (as defined below) will be completed on the Platform and/or a related mobile application that we may develop in the future and will be pursuant to the terms of service (available at https://support.unblocked.exchange/hc/en-us/articles/5675359058587-Unblocked-Terms-of-Service) and any and all guidelines, policies, and terms applicable to and available on the Platform, as such guidelines, policies, and terms may be amended from time to time in accordance with the terms therein (collectively, the “Platform Terms”). As further detailed in the Platform Terms, all NFT sales are transactions between you, as the seller, and an end user who buys or otherwise acquires the applicable Licensed NFT on the Platform or related mobile application (each, a “Buyer User”). We are not a party to any sales agreements between you and a Buyer User.
2.4 NFT Minting Services. We mint each Licensed NFT on a publicly available blockchain (such as the Flow blockchain). Once committed to the blockchain, the Licensed NFTs cannot be edited or changed, including by us or any other third party. You agree and acknowledge that (a) NFTs are not used to make payments and are not mutually interchangeable and therefore, these design features limit the usefulness of NFTs as a form of payment or substitute for currency and (b) NFTs, including any Licensed NFT, are only intended to be used for enjoyment as digital collectibles. You agree that you will not, and will not permit any other person to (i) portray the Licensed NFTs as an opportunity to gain an economic benefit or profit, or as an investment or equity interest, (ii) engage in any messaging or communications that promote the Licensed NFTs as investments or products that will appreciate in value, (iii) encourage the mistaken impression that any Licensed NFT should be viewed as investments or products that will appreciate in value, (iv) engage in any promotion or marketing of the Licensed NFT in a manner that is misleading or deceptive, or (v) encourage speculation on the potential value of any Licensed NFT.
2.5 Rewards Fulfillment Services. As part of the Creator Services, we may advise you with respect to rewards that may be offered in connection with the sale of a Licensed NFT. You are free to elect any type of reward that is offered to Buyer Users of the Licensed NFTs; provided, however that (a) all rewards must be redeemed, received or otherwise fulfilled within three (3) months of the sale of the Licensed NFT, or such other time period as may be agreed to by Unblocked in writing and (b) rewards are only given in connection with the primary sale of a Licensed NFT. Notwithstanding anything to the contrary, unless otherwise agreed to by us, you shall remain solely responsible for delivering or fulfilling the applicable reward to the Buyer User and we are not liable for any breach or default by you in failing to deliver or fulfill any reward offered in connection with the sale of a Licensed NFT. For example, if a reward is a physical good, we may assist to gather contact information from the Buyer Users; however, you remain responsible for shipping the applicable physical good to such Buyer Users. If a reward is a digital good and we agree to deliver such digital good to Buyer Users, then you are responsible for delivering the applicable digital good to us in a timely manner and in a format as requested by us.
2.6 Buyer Users Data. We may receive certain information regarding Buyer Users, which may include personal information such as such a Buyer User’s name, contact information and/or social media accounts (the “Buyer Users Data”). If we receive any Buyer Users Data and have the right to disclose such Buyer Users Data to you, then upon your reasonable request, we will provide you such Buyer Users Data. You may only use the Buyer Users Data to (a) fulfill a reward offered in connection with a Licensed NFT purchased by such Buyer User and/or (b) send Buyer Users information regarding your other projects and content. You may not disclose the Buyer Users Data to any third party or otherwise use the Buyer Users Data for any purpose other than as expressly set forth in this Section 2.6. You are solely responsible for complying with all applicable laws and regulations in your storage, processing and use of the Buyer User Data.
2.7 Creator Services Changes. The regulatory regime governing blockchain technologies, cryptocurrencies, tokens, and other crypto-based items is uncertain, and new regulations or policies may materially adversely affect our performance of the Creator Services, and therefore we may from time to time, at our sole discretion, revise the manner in which we perform the Creator Services and/or amend the type of Creator Services we may provide.
- License Grants
3.1 Your Content. You are solely responsible for all images, video, content, art, design, drawings and other materials that you Submit to us in connection with our performance of the Creator Services (“Your Content”). For purposes of these Terms, to “Submit” content means to upload, post, deliver, provide, or otherwise transmit including any submission through electronic delivery including email.
3.2 Content License. You hereby grant us a worldwide (excluding any jurisdictions that may be prohibited by applicable law, such as applicable sanctions laws), non-exclusive, right to use, reproduce, display, and modify (but solely for adaptation purposes) Your Content in connection with (a) the creation of unique artwork, content and media that is based on Your Content (“NFT Media”) and that is linked to unique NFTs (“Licensed NFTs”), (b) the sale of such Licensed NFTs on the Platform and any related mobile application that we may develop in the future (and which sale of the Licensed NFTs will include a license granted to the Buyer User of any such Licensed NFTs for the right to display (and copy to the extent necessary to display) the NFT Media associated with such Licensed NFTs for non-commercial use), and (c) the promotion of such NFT Media, Licensed NFTs, and the Platform.
3.3 Name, Image, Likeness License. If you are an individual or if you provide personal services of an individual, you hereby grants us a worldwide (excluding any jurisdictions that may be prohibited by applicable law, such as applicable sanctions laws), non-exclusive license to use your name, image, photo, likeness, voice and biographical information, or the name, image, photo, likeness, voice and biographical information of the applicable individual whose personal services are provided (the foregoing licensed rights together with Your Content, the “Licensed IP”) in connection with our promotional and marketing activities and our provision of the Creator Services, including in connection with the creation of Licensed NFTs and the sale of such Licensed NFTs on the Platform and/or any related mobile application that we may develop in the future (and which sale of the Licensed NFTs will include a license granted to the Buyer User of any such Licensed NFTs for the right to display (and copy to the extent necessary to display) the NFT Media associated with such Licensed NFTs for non-commercial use).
3.4 Consents. You are responsible for obtaining any and all necessary consents, approvals, licenses, releases and rights from any third parties who appear in, or may otherwise have rights in the Licensed IP and for paying any third parties who may be entitled to a royalty or other fee (including public performance organizations) in connection with any of the licensed uses or other rights and privileges granted to us hereunder.
3.5 Content Guidelines. The Licensed IP (a) may not contain any material that depicts graphic violence, promotes harmful or dangerous behavior, is libelous, defamatory, obscene, sexually explicit or in a manner intended to incite hatred on grounds of race, gender, religion or sexual orientation and (ii) must at all times be, in compliance with the Platform Terms, including all content guidelines, policies and requirements set forth therein
3.6 Approval Rights. We will collaborate with you in connection with the creative process for how the Licensed IP is used to create NFT Media and you will have the right to approve the NFT Media and Licensed NFT created hereunder, which approval will not be unreasonably withheld, conditioned or delayed.
3.7 No Obligation to Produce or Exploit. Notwithstanding anything to the contrary, we have no obligation to use or exploit the Licensed IP, or to otherwise produce, release, sell, advertise or exploit any Licensed NFT. If Licensed NFTs are produced, you acknowledge and agree that we make no representation or warranty that the proceeds thereof will be sufficient to generate any minimum amount of profits or returns for you. Nothing contained herein shall be construed to obligate us to take any action to maximize revenues or to create a fiduciary relationship between you and Unblocked and you hereby release Unblocked, our affiliates and our and their respective officers, employees, directors, agents and representatives (the “Unblocked Entities”) from any liability whatsoever for any loss or damage you may suffer by reason of our failure to use or exploit the Licensed IP or otherwise produce, release, sell, advertise or exploit Licensed NFTs.
- Intellectual Property: As between you and Unblocked, (a) you shall own all rights, title and interest in the Licensed IP and NFT Media created hereunder that uses Licensed IP and (b) Unblocked shall own all right, title and interest in and to the Platform and Licensed NFTs, other than your rights in the Licensed IP and NFT Media that uses the Licensed IP. All rights not expressly granted hereunder are reserved by the applicable party.
- Revenue Share; Payment.
5.1 Revenue Share. You will receive a percentage of the amounts received by Unblocked from sales of the Licensed NFTs as agreed upon in a separate Revenue Share Addendum to be entered into by you and Unblocked (the “Revenue Share Addendum”).
5.2 Payment. Within thirty (30) days after the end of each month, Unblocked will send you a report of all the sales of Licensed NFTs in the immediately preceding month. Concurrently with the delivery of such report, Unblocked will pay you the amounts due to you pursuant to the revenue share set forth in the Revenue Share Addendum; provided, however that no payment will be made if the amounts due to you are less than $100 and such amounts will roll over to the next month until the amounts due to you equal at least $100. Notwithstanding the foregoing, if all the Licensed NFTs have sold and no further Licensed NFTs are anticipated to be made available for sale, then we will pay you the amounts due to you for the completed sales. . All amounts will be paid in US Dollars by ACH to your designated bank account.
- Representations and Warranties; Disclaimer.
6.1 By Company. Unblocked represents and warrants that it will perform the Creator Services in a professional and workmanlike manner and in compliance with all applicable laws and regulations.
6.2 By You. You represent and warrant the following with respect to all the Licensed IP: (a) you are the sole and exclusive owner of the Licensed IP, free and clear of all liens or encumbrances, or otherwise has the right to grant the rights granted to us hereunder; (b) it is not necessary for us to obtain the consent or permission of, or to pay any amounts to, any third party in order to use the rights pursuant to the licenses granted hereunder; (c) there are no claims, litigation or other proceedings pending or threatened which would adversely affect any of the Licensed IP or rights granted hereunder; (d) the use, display and exploitation of the Licensed IP as contemplated hereunder will not (i) infringe or misappropriate any copyright, patent, trademark, trade dress, trade secret, image, or other intellectual property right, (ii) violate any applicable laws and regulations, including false advertising, unfair competition, defamation, or privacy laws and regulations or (iii) violate any person’s privacy or publicity rights, moral rights or similar rights; and (e) the Licensed IP complies with the terms and conditions of These Terms.
6.3 DISCLAIMER. EXCEPT FOR THE WARRANTIES EXPLICITLY SET FORTH IN THIS SECTION 6, EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
- Confidentiality. You agree and acknowledge that in the course of providing the Creator Services, we may disclose to you certain non-public and/or proprietary information (“Proprietary Information”). Proprietary Information include any information marked as confidential and any information that a reasonable person would understand to be confidential in light of the circumstances of disclosure. You agree: (a) to take reasonable precautions to protect our Proprietary Information and (b) not to use or divulge to any third person any of our Proprietary Information. The restrictions in this Section 7 will not apply to information that you can show by reasonable evidence (i) is or becomes generally available to the public, or (ii) was in its possession or known by you prior to receipt from us, or (iii) was rightfully disclosed to you without restriction by a third party, or (iv) was independently developed without use of any of our Proprietary Information or (v) is required to be disclosed by law.
- Term and Termination.
8.1 Term. These Terms are effective as of the date you accept these Terms or when you first Submit any content to us, whichever is earlier, and will continue until terminated in accordance with the provisions of this Section 8 or upon mutual agreement of you and Unblocked.
8.2 Termination for Breach. In the event either you or Unblocked fails to cure a breach of these Terms within thirty (30) days after receiving written notice thereof, then the non-breaching party may terminate these Terms upon written notice.
8.3 Effect of Termination; Survival. No termination of these Terms shall affect any rights or liabilities of a party that accrued prior to the date of termination. The provisions of Sections 3.7, 4, 5, 6, 7, 8.3, 9, 10, 11, 12 and 13 shall survive.
- LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNBLOCKED SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY CLAIMING THROUGH YOU FOR (A) ANY INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) ARISING OUT OF THESE TERMS OR (B) ANY DAMAGES IN EXCESS OF AMOUNTS PAID TO YOU FOR SALES OF LICENSED NFTS IN THE SIX (6) MONTH PERIOD PRIOR TO THE DATE THE CLAIM FIRST AROSE, IN EACH CASE WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF EITHER UNBLOCKED HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
10.1 By Unblocked. We will indemnify, defend and hold harmless you from and against any damages, losses, expenses, costs or liabilities incurred by you in connection with any claim, action, lawsuit or proceeding (each, a “Claim”) brought against you by a third party alleging that a Licensed NFT infringes upon such third party’s intellectual property right if such infringement would not have occurred but for an unauthorized modification made by us to the NFT Media or Licensed IP. If you are seeking indemnification under this Section 10.1, you must provide Unblocked with prompt written notice of the relevant Claim and permit Unblocked to control the defense of such Claim, including any settlement of such Claim.
10.2 By you. You will indemnify, defend and hold harmless the Unblocked Entities from and against any damages, losses, expenses, costs or liabilities incurred by any Unblocked Entity in connection with any Claim brought against any Unblocked Entity by a third party arising from or related to (a) Unblocked’s use of the Licensed IP in accordance with these Terms, including any Claim alleging that the Licensed IP infringes any intellectual property right or otherwise violates the rights of such third party; provided, that you will not have any indemnification obligation with respect to a Claim subject to indemnification by us under Section 10.1 and (b) your use of the Buyer Users Data. If you are obligated to indemnify any Unblocked Entity hereunder, then you agree that Unblocked (or, at its discretion, the applicable Unblocked Entity) will have the right, in its sole discretion, to control any Claim and to determine whether Unblocked wishes to settle, and if so, on what terms, and you agree to fully cooperate with Unblocked in the defense or settlement of such claim.
- Updating these Terms. We may modify these Terms from time to time in which case we will update the “Last Revised” date at the top of these Terms. If we make changes that are material, we will use reasonable efforts to attempt to notify you, such as by e-mail. However, it is your sole responsibility to review these Terms from time to time to view any such changes. The updated Terms will be effective as of the time of posting, or such later date as may be specified in the updated Terms. Your continued access or use of the Creator Services after the modifications have become effective will be deemed your acceptance of the modified Terms.
- Miscellaneous. You may not assign your rights and obligations under these Terms, without our express prior written consent. We may freely assign these Terms. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable. These Terms and any dispute arising hereunder shall be governed by the laws of the State of California, without regard to the conflicts of law provisions thereof. All disputes arising out of or in connection with these Terms will be resolved in accordance with the Platform Terms. Unblocked shall not be liable to you, nor be deemed to have defaulted under or breached these Terms, for any delay in or impairment or failure of performance or in providing the Creator Services resulting in whole or in part from externally caused interference, damage or disruption to network components, transmission or pipeline facilities (which includes network, electrical or other common systems), irreparable component, transmission or pipeline failure (the failure or interruption of pipeline facilities), acts of God, severe weather conditions; governmental decrees or controls, epidemics, pandemics, strikes, labor disputes, acts of war or civil unrest, acts of third parties, inability to obtain permits and licenses, or supplies or any other circumstances or causes beyond the reasonable commercial control of Unblocked. Each of you and Unblocked shall be and act as an independent contractor and shall not bind nor attempt to bind the other to any contract. Any notices in connection with these Terms will be in writing and sent, if to Unblocked, to our e-mail address set forth in Section 13 and, if to you, to the e-mail address set forth on your Creator Program application.
- Contact Us. All inquiries regarding the Creator Program or these Terms should be directed to:
The Non Fungible Token Company, Inc. (d/b/a Unblocked)
340 S LEMON AVE #7003
WALNUT, CA 91789.