ChartStars End User Content License
Last Updated: August 17, 2022
This End User 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 Creative
Works. Each such NFT, as associated with the applicable Creative Works, is referred
to in this Content 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.
[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.
1. The Digital Collectible is created by or on behalf of Providers and is specifically
associated with one or more works of authorship and/or other IP (as defined
below) 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, our Terms of Service, and any
other terms we may now or in the future impose on you, including those on behalf
of the Content Providers.
2. Subject to your compliance with this Content License, our Terms of Service, and
any other terms we may now or in the future impose on you, including those on
behalf of Content Providers, 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 limited, revocable, non-exclusive,
non-transferable (except solely in accordance with the Section 8 herein), non-
sublicensable license to access, view and/or display the Creative Work that is
made accessible by the Digital Collectible owned by you in the territories
designated by us, 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. The Content Providers expressly reserve all rights in
and to their respectively owned Creative Work that are not expressly granted to
you by the Providers on behalf of those Content Providers in this Content License.
Further, and notwithstanding anything to the contrary in this Content License, the
Content Providers are not granting, and do 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. For the sake of
clarity, you understand and agree: (i) that your ownership of a Digital Collectible
does not give you any ownership of, or rights or licenses in or to, the Creative
Work (including, without limitation, the Content Provider’s copyright or other
intellectual property rights in and to the associated Creative Work, whether now or
hereafter created) other than the limited license to you expressly granted above;
(ii) that you do not have the right, except as otherwise expressly provided in this
Content License, to reproduce, distribute, publicly display, publicly perform, create
derivative works of, or otherwise commercialize any elements of the Creative Work
without the prior written consent of the applicable Content Provider, in each case,
which consent the Content Provider may withhold in its sole and absolute
discretion; and (iii) that you will not apply for, register, or otherwise use or attempt
to use any Content Provider’s respectively owned Creative Work or other
intellectual property, including but not limited to its trademarks or service marks, or
any confusingly similar marks, anywhere in the world without the respective
Content Provider’s prior written consent in each case, which consent the Content
Provider may withhold at its sole and absolute discretion.
3. 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.
4. 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.
5. 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, or terminate access to, the
Creative Work (or otherwise blur, mute or obscure the Creative Work so that such
Creative Work is unviewable or inaudible) that is made accessible by the Digital
Collectible; 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 of Service (the “Terms”) (and in such event, such replacement creative
work will then be deemed the “Creative Work” associated with your Digital
Collectible). You acknowledge and agree that: (a) you do not have any right to
use any IP in any way except as incorporated within the Creative Works, and
subject to the licenses and restrictions set forth herein; (b) depending on the
nature of the license granted from the Content Provider, we may need to (and
hereby reserve the right to) pass through additional restrictions on use of such IP;
and (c) if we inform you of such additional restrictions, you are responsible for
complying with such restrictions from the date you receive notice and your failure
to do so will be deemed a breach of these Terms and the license herein.
6. 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, Unblocked, other Content
Provider, 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.
7. 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.
8. 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.
9. 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).
10. For any Digital Collectible that links to or is associated with a Creative Work, the
Content Providers do not represent, warrant or guarantee that others have not
created or downloaded their own copies of such Creative Work (including via
unauthorized ripping or downloading of such Creative Work), or that others will not
attempt to sell their own Digital Collectibles featuring such Creative Work. We,
Billboard, and the Content Providers have no obligation or liability to take down
such other Digital Collectibles featuring such Creative Works. Further, the
foregoing does not restrict us, Billboard, or the Content Providers from selling
other Creative Work associated with the same event, individual or property as
made available by any Digital Collectible (including limited edition or unique Digital
Collectibles).
11. 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.
12. 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 the Providers each 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.
13. 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, Billboard and/or Unblocked, as applicable,
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, the Providers (jointly or severally) 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 legal@pmc.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, the Providers
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 the Providers (jointly or severally) 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 THE PROVIDERS UNDERSTAND AND AGREE THAT
YOU, AND THE PROVIDERS (JOINTLY OR SEVERALLY) 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
THE PROVIDERS 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 THE PROVIDERS 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 THE PROVIDERS (JOINTLY OR
SEVERALLY), 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
the Providers each 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 the Providers each 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.
14. 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. Except as expressly set forth in the section above regarding the
arbitration agreement, you, we, and our Content Providers agree that, except for
our Content Providers, there are no third-party beneficiaries intended under these
Terms.