ChartStars End User Content License
Last Updated: May 13, 2022
This End Content License (“Content License”) is among you and The Non-Fungible Token Company, Inc. (d/b/a Unblocked) (“Unblocked”) and Billboard Media, LLC (“Billboard”) (collectively, Unblocked and Billboard are referred to herein as the “Providers” or “we” or “our”). This Content License sets out the terms and conditions governing your right to access, display and/or perform (as applicable) certain Creative Works (as defined below) made available by the Providers and their licensors as part of your ownership of a unique, non-fungible token (“NFT”) associated with such Media. Each such NFT, as associated with the applicable Media, is referred to in this Media License as a Digital Collectible By purchasing or otherwise obtaining a Digital Collectible from Providers, either through an initial transfer from Providers or a subsequent transfer from the prior owner of the Digital Collectible, you agree to these Content License terms and you affirm that you are of the legal age of majority in your jurisdiction to enter into this Content License (or, if you are not, that you have obtained parental or guardian consent to enter into this Content License).
THIS CONTENT LICENSE CONTAINS IMPORTANT PROVISIONS INCLUDING AN ARBITRATION PROVISION THAT REQUIRES YOU AND PROVIDERS TO RESOLVE ALL DISPUTES BY BINDING ARBITRATION INSTEAD OF IN COURT. PLEASE SEE SECTION 12 TITLED “DISPUTE RESOLUTION” BELOW. YOU WAIVE YOUR RIGHT TO TRIAL BY JURY, AND EXCEPT AS PERMITTED BY LAW, YOU WILL NOT BE ABLE TO BRING ANY CLAIMS IN STATE OR FEDERAL COURT. YOU HAVE THE RIGHT TO OPT-OUT OF ARBITRATION AS EXPLAINED IN SECTION 12 BELOW.
We may change this Content License from time to time by notifying you of such changes by any reasonable means, including by posting the revised Content License. Any such changes will not apply to any dispute between you and us (or any one of us) arising prior to the date on which we posted the revised Content License incorporating such changes, or otherwise notified you of such changes. Purchasing or otherwise obtaining a Digital Collectible following any changes to this Content License will constitute your acceptance of such changes. The “Last Updated” legend above indicates when this Content License was last changed.
- The Digital Collectible is created by or on behalf of Providers and is specifically associated with one or more works of authorship created by Providers (or any one of them) or their licensors or their affiliates (each Provider, its licensors and their affiliates, collectively, the “Content Providers”) (such work, the “Creative Work”). It is important to understand, and you hereby acknowledge and agree, that the Digital Collectible is separate from the Creative Work. Although the Digital Collectible itself is sold or otherwise transferred to you, the Creative Work associated with the Digital Collectible is licensed to you, and not sold or otherwise transferred to you. The Creative Work is neither stored nor embedded in the Digital Collectible but is licensed to you, subject to compliance with this Content License.
- Subject to your compliance with this Content License, each Content Provider hereby grants to you, to the extent of its respective rights in the Creative Work, and solely for so long as you are the legal owner of the Digital Collectible, a non-exclusive, non-transferable, non-sublicensable license to access, view and/or display the Creative Work using the Digital Collectible, solely for your personal, non-commercial purposes. Except for the license granted above, the Content Providers retain all right, title and interest in and to the Creative Work. Further, notwithstanding anything to the contrary in this Content License, each Content Provider is not granting, and does not grant, any rights with respect to any sound recordings or musical compositions, including, without limitation, public performance rights, mechanical rights, other rights of reproduction or any other publishing rights, under this Content License, including with respect to Creative Works (including, for clarity, any underlying musical compositions in Creative Works), and such rights are excluded from the foregoing license.
- You will not: (a) separate, unlink or decouple the Creative Work from the Digital Collectible; (b) modify the Creative Work in any way, including, without limitation, the sounds, shapes, designs, drawings, attributes or color schemes; (c) use the Creative Work, including the name, likeness, image or persona of any artist associated with such Creative Work, or any instrument or other object associated with such artist (“Persona”), to advertise, market, promote, or sell any third party product or service or otherwise use the Creative Work or any Persona associated with the Creative Work for your or any third party’s commercial benefit; (d) trademark, copyright or otherwise acquire additional intellectual property rights in or to the Creative Work or any Persona associated with the Creative Work; (e) use the Creative Work or any Persona associated with the Creative Work in connection with images, videos or other content, including content that is hateful, intolerant, violent, cruel or that could reasonably be found to constitute hate speech or infringe upon the rights of others; or (f) create or sell fractionalized interests in the Digital Collectible or the Creative Work. Additionally, you will neither attempt nor assist others to do any of the foregoing.
- The Creative Work may incorporate intellectual property, including copyrighted materials, trade names, trademarks or service marks, and the names, likenesses, images or Personas of Content Providers, or their respective artists or individuals or entities associated with Content Providers (the “IP”). Such IP is owned by the Content Providers. Your use of such IP is subject to the license granted above, and you may not use any such IP in connection with any business, product or service, or in any manner that may imply endorsement of any business, message, product or service, or that is likely to cause confusion or dilute or tarnish such IP. All use of such IP, including any goodwill generated by such use, shall inure to the benefit of the Content Providers.
- We may at any time, if we believe such action must be taken to avoid legal liability or we are obligated to do so, remove or modify the Creative Work (or otherwise blur, mute or obscure the Creative Work so that such Creative Work is unviewable or inaudible); in which case we will use good faith efforts to provide you with replacement creative works to be associated with your Digital Collectible subject to your continued compliance with this Content License and the Billboard ChartStars Terms and Conditions (the “Terms”) (and in such event, such replacement creative work will then be deemed the “Creative Work” associated with your Digital Collectible).
- You must not remove, alter or obscure any copyright, trademark or other proprietary rights notices included as part of the Creative Work. This includes, but is not limited to, (a) identification of Billboard or Unblocked or any others designated to receive attribution and (b) a copyright, trademark or other intellectual property notice. Other than your compliance with the foregoing obligation, you have no right to use the name, trademarks, logos, or other IP rights of Content Providers, or their respective artists or individuals or entities associated with Content Providers.
- THE DIGITAL COLLECTIBLE IS INTENDED FOR CONSUMER ENJOYMENT, USE AND CONSUMPTION ONLY. IT IS NOT A “SECURITY,” AS DEFINED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED, OR THE SECURITIES LAWS OF ANY U.S. STATE.
- You may sell or otherwise transfer the Digital Collectible to a third party, provided that the following conditions are met:
a. such sale or other transfer must be cryptographically verified (i.e., proof of such sale or other transfer must be recorded on the relevant blockchain);
b. such sale or other transfer must comply with (i) any applicable terms of the marketplace or other platform on which such sale or other transfer takes place and (ii) any applicable laws, regulations and rules; and
c. prior to such sale or other transfer, you must (i) provide written notice to the would-be transferee that such transferee’s use of (including any access to) the Creative Work will be conditional upon such transferee entering into the then-current version of the Content License, and (ii) ensure that such transferee is provided with an opportunity to review the Content License.
Upon any sale or other transfer of the Digital Collectible, your license to the Creative Work will immediately terminate (without the requirement of notice). Your license to the Creative Work will also immediately terminate (without the requirement of notice) if you breach this Content License (or the Terms).
You acknowledge and agree that Content Providers or their designee(s) may receive royalties from your sale of, and any other future sale of, the Digital Collectible via a smart contract embedded in the Digital Collectible.
- EACH PROVIDER PROVIDES THE DIGITAL COLLECTIBLE, AND LICENSES THE CREATIVE WORK, TO YOU ON AN “AS IS” BASIS, AND EXPRESSLY DISCLAIMS ANY WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL ANY CONTENT PROVIDER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR OTHER NON-DIRECT DAMAGES OF ANY KIND, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE MAXIMUM AGGREGATE LIABILITY OF ANY CONTENT PROVIDER FOR ALL DAMAGES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE ONE HUNDRED U.S. DOLLARS ($100).
- You shall defend, indemnify and hold harmless all Content Providers and their respective artists, directors, officers, employees, licensors, content providers, agents and representatives, from any third-party claim or action arising from your breach or alleged breach of this Content License or any unauthorized use of the Creative Work.
- This Content License is governed by the laws of the State of New York, without giving effect to its conflict of law principles, and the proper venue for any disputes arising out of or relating to any of the same will be the arbitration venue set forth in Section 12 below, or if arbitration does not apply, the state or federal courts sitting in the State of California. You waive any and all objections to such jurisdiction and venue and waive personal service of process and agree that any summons and complaint commencing an action in any such court shall be properly served and shall confer personal jurisdiction if served by registered or certified mail. Any action or suit brought with respect to this Content License shall be tried by a court and not by a jury. YOU WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY SUCH ACTION OR SUIT. You and Billboard agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or construction of this Content License.
- Dispute Resolution
a. Informal Resolution. Each party agrees that before it seeks arbitration or any other form of legal relief related to this Content License or the Creative Works it shall provide written notice to the other of the specific issues in dispute (the “Dispute”). Within thirty days after such notice is received, knowledgeable executives of the party or the individuals themselves shall hold at least one meeting (in person or by video- or tele-conference) for the purpose of attempting in good faith to resolve the Dispute. The parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision.
b. Binding Arbitration.
i. Where informal resolution fails, you agree that any remaining Dispute relating in any way to this Content License or your use of the Creative Works, shall be submitted to confidential binding arbitration. If there is a dispute about whether this arbitration provision can be enforced or applies to the Dispute, you and Billboard agree that the arbitrator will decide that issue. However, any claim that all or part of the Class Action Waiver is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.
ii. Arbitration under this Content License is under the Federal Arbitration Act which governs the interpretation and enforcement of this provision. The arbitration will be administered by the JAMS in accordance with its Comprehensive Arbitration Rules and Procedures and the JAMS Consumer Minimum Standards (together, the “Rules”) then in effect (those rules are deemed to be incorporated by reference to this section, and as of the date of this Content License). Arbitration shall be conducted by one (1) arbitrator as selected pursuant to the Rules; the arbitrator's award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction. You have a right to have the arbitration conducted via telephone, or as an in-person hearing in your hometown area (if you live in the United States) or another location that is reasonably convenient to you.
iii. Payment for any and all reasonable JAMS filing, administrative and arbitrator fees will be in accordance with the Rules. If the value of your claim does not exceed $10,000, Billboard will pay for the reasonable filing, administrative and arbitrator fees associated with the arbitration, unless the arbitrator finds that either the substance of your claim or the relief sought was frivolous or brought for an improper purpose, except that if you have initiated the arbitration claim, you will still be required to pay the lesser of $250 or the maximum amount permitted under the JAMS Rules for arbitration claims initiated by you. you are still responsible for all additional costs that you incur in the arbitration, including without limitation, fees for attorneys or expert witnesses.
c. Opt-Out. You have the right to opt out of binding arbitration and the waiver of class provisions set forth in this Content License within thirty (30) days of agreeing to this Content License (or, if this Section 12 is amended hereafter, within thirty (30) days of such amendment being effective) by notifying us of your decision to opt-out with a communication labeled “Arbitration Opt-Out” to email@example.com or by mail at Billboard Media, LLC, 475 Fifth Ave, New York, NY 10017, Attention: Licensing, otherwise you shall be bound to arbitrate disputes in accordance with these this Content License. In order to be effective, the opt-out notice must include your full name and your mailing address. If you opt-out of these arbitration provisions, Billboard also will not be bound by them. If you have decided to opt-out of Binding Arbitration, all Disputes shall be heard in a court of competent jurisdiction.
d. Exceptions to Arbitration. Notwithstanding anything in this Content License to the contrary, you may instead assert your Dispute in “small claims” court, but only if your Dispute qualifies, your Dispute remains only in court, and your Dispute remains on an individual and non-representative and non-class basis. Further, you and Billboard will have the right to bring an action in a court of proper jurisdiction for: (i) any Dispute related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; or (ii) injunctive or other equitable or conservatory relief. Such claims shall be brought before a judicial proceeding in a court of competent jurisdiction.
e. Waiver of Class Actions and Class Arbitrations.
i. YOU AND BILLBOARD UNDERSTAND AND AGREE THAT YOU, AND BILLBOARD MAY EACH BRING CLAIMS AGAINST THE OTHER PARTY ONLY IN AN INDIVIDUAL CAPACITY AND NOT ON A CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE BASIS, INCLUDING, WITHOUT LIMITATION, FEDERAL OR STATE CLASS ACTIONS, OR CLASS ARBITRATIONS. YOU UNDERSTAND AND AGREE THAT YOU AND BILLBOARD EACH ARE WAIVING THE RIGHT TO PURSUE OR HAVE A DISPUTE RESOLVED AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE OR REPRESENTATIVE PROCEEDING. ACCORDINGLY, UNDER THE ARBITRATION PROCEDURES OUTLINED IN THIS SECTION, AN ARBITRATOR SHALL NOT COMBINE OR CONSOLIDATE MORE THAN ONE PARTY’S CLAIMS WITHOUT THE WRITTEN CONSENT OF ALL AFFECTED PARTIES TO AN ARBITRATION PROCEEDING. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU AND BILLBOARD AGREE THAT NO DISPUTE SHALL PROCEED BY WAY OF CLASS ARBITRATION WITHOUT THE WRITTEN CONSENT OF ALL AFFECTED PARTIES.
ii. NOTWITHSTANDING THE FOREGOING, THIS SUBSECTION SHALL NOT APPLY TO REPRESENTATIVE PRIVATE ATTORNEYS GENERAL ACT CLAIMS BROUGHT AGAINST BILLBOARD, WHICH ARE ADDRESSED SEPARATELY.
f. PAGA Claims. Notwithstanding any other provision of this Content License or the arbitration provisions, to the fullest extent permitted by law: (1) you and Billboard agree not to bring a representative action on behalf of others under the Private Attorneys General Act of 2004 (“PAGA”), California Labor Code § 2698 et seq., or any subsequent law, in any court or in arbitration, and (2) for any claim brought on a private attorney general basis, including under the California PAGA, both you and Billboard agree that any such dispute shall be resolved in arbitration on an individual basis only (i.e., to resolve whether you have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or collective proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) (collectively, “representative PAGA Waiver”). Notwithstanding any other provision of this Content License, the arbitration section or the associated rules, disputes regarding the scope, applicability, enforceability, revocability or validity of this representative PAGA Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If any provision of this representative PAGA Waiver is found to be unenforceable or unlawful for any reason: (i) the unenforceable provision shall be severed from this Content License; (ii) severance of the unenforceable provision shall have no impact whatsoever on any arbitration provisions or the requirement that any remaining claims be arbitrated on an individual basis pursuant to the arbitration provisions; and (iii) any such representative PAGA or other representative private attorneys general act claims must be litigated in a civil court of competent jurisdiction and not in arbitration. To the extent that there are any Disputes to be litigated in a civil court of competent jurisdiction because a civil court of competent jurisdiction determines that the representative PAGA Waiver is unenforceable with respect to those Disputes, the parties agree that litigation of those Disputes shall be stayed pending the outcome of any individual Disputes in arbitration.
- This Content License does not, and shall not be construed to, create any partnership, joint venture or agency between you and any Content Provider. If any provision of this Content License is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from this Content License and will not affect the validity and enforceability of any remaining provisions. You shall not assign, transfer or otherwise dispose of this Content License (including any of your rights or obligations under this Content License), and any purported assignment, transfer or other disposition shall be null and void. This Content License along with the Terms constitute the entire agreement between you and Providers with respect to the Digital Collectible and the Creative Work and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and Providers relating to the Digital Collectible or the Creative Work.
Copyright ©2022 The Non Fungible Token Company, Inc. (d/b/a Unblocked). All rights reserved.