TERMS AND CONDITIONS OF USE FOR NFTS
Last Updated: November 23, 2021
By entering into this Agreement, and/or by you participating in the Offering, you expressly acknowledge that you understand this Agreement and accept all of its terms. If you do not agree to be bound by the terms and conditions of this Agreement, you may not participate in the Offering.
“Art” means any art, graphics, images, designs, logos, taglines, and drawings that may be associated with an NFT in which you acquire Licensed Rights.
“Equivalent” means the value, in US Dollars, of the market value of the relevant amount of virtual currency on the day of the transaction.
“Name and Likeness” means name, nicknames, images, likenesses, marks, copyrights and/or all other intellectual property of Long Table LLC.
“NFT” means any blockchain-tracked, non-fungible token.
“Licensed Rights” with respect to an NFT means your rights to a Licensed NFT of which you are the current rightful licensee and which you acquired from a legitimate source, where proof of such purchase is recorded on the relevant blockchain.
“Licensed NFT” means an NFT from Long Table LLC issued pursuant to the Offering.
“Third Party IP” means any third-party patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, trademarks, know-how or any other intellectual property rights recognized in any country or jurisdiction in the world.
(a) You acknowledge and agree that Long Table LLC owns all legal right, title and interest in and to the Art and Name and Likeness, and all intellectual property rights therein. Long Table LLC retains the physical slides of the Art and retains the right to sell, transfer, or license the physical slides. Long Table LLC retains the archive of the Art and retains the right to license the archive to museums, historical organizations, and other institutions, without limitation. Long Table LLC retains the right to: (A) license specific pieces of Art to individuals who wish to create products or collaborations based upon such Art; (B) bundle prints of the Art with the Licensed NFTs; and (C) produce physical prints of the Art to sell in physical form. None of the rights set forth in the preceding sentence constitute obligations or commitments by Long Table LLC to exercise these or any other rights in connection with the Offering or at any point in the future.
(b) The rights that you have in and to the Licensed NFT and Art are limited to those expressly stated in Section 3 of this Agreement. Long Table LLC and/or its licensor(s) reserve all rights and ownership in and to the Licensed NFT, Name and Likeness, and Art not expressly granted to you in Section 3 of this Agreement. All purchases of Licensed NFTs, as well as associated charges, are non-refundable. This no-refund policy shall apply at all times regardless of your decision to terminate usage of the Licensed NFT, any disruption to the operations of any components of the Licensed NFT, or any other reason whatsoever.
(a) Your Licensed Rights. You acknowledge and agree that the Licensed NFTs are made available solely for aesthetic and personal use purposes. Without limiting the foregoing and subject to your continued compliance with this Agreement and the Website Terms and Conditions of Use, Long Table LLC grants you a worldwide, non-exclusive, non-transferable (except as specifically provided in Section 3(b)), royalty-free (except as provided in Section 7(d)) license to display the Art for your Licensed NFT, solely for your own personal, non-commercial use. Such uses shall include, but not be limited to, printing physical copies of the Art for your personal use and display as well as the electronic display of the Licensed NFT including but not limited to the header for your personal Twitter or similar social media account, personal device screensaver, or personal computer background.
(b) Permissible Transfers of Your Licensed NFT. You have the limited right to transfer the Licensed NFT, provided that (i) the transferee accepts all of the terms of this Agreement and all of the terms of the Website Terms and Conditions of Use; (ii) the artist, Long Table LLC and certain other parties involved in producing, designing, and/or coordinating the Offering are paid in accordance with Section 7(d) of this Agreement; (iii) you have not prior to the transfer breached this Agreement or the Website Terms and Conditions of Use and (iv) prior to the transfer your license to the Licensed NFT has not been terminated. You acknowledge and agree that the amounts payable to Long Table LLC under Section 7(d) hereof do not include, and are not intended to cover, any additional fees imposed or required by the platform through which you are transferring the Licensed NFT.
You agree that you may not, nor may you permit any third party to do or attempt to do any of the following without express prior written consent from Long Table LLC in each case: (i) modify the Licensed NFT, Name and Likeness, and/or Art for your Licensed NFT in any way, including, without limitation, the shapes, designs, drawings, attributes, or color schemes; (ii) use the Licensed NFT, Name and Likeness, and/or Art for your Licensed NFT to advertise, market, or sell any product or service; (iii) use the Licensed NFT, Name and Likeness, and/or Art from Your Licensed NFT in connection with images, videos, or other forms of media that depict hatred, intolerance, violence, cruelty, or anything else that could reasonably be found to constitute hate speech or otherwise infringe upon the rights of others; drugs (including, without limitation, both prescription and non-prescription) or other supplements; death; pornography or other “adult only” or sexually explicit activities; massage parlors, prostitution or escort activities; weapons or ammunition; denigration or discrimination against individuals based on race, national origin, gender, religion, disability, ethnicity, sexual orientation, gender identity or age, medical conditions; and/or political campaigns or causes; (iv) use the Licensed NFT, Name and Likeness, and/or Art from your Licensed NFT in movies, videos, or any other forms of media, except solely for your own personal, non-commercial use; (v) sell, distribute for commercial gain (including, without limitation, giving away in the hopes of eventual commercial gain), or otherwise commercialize merchandise that includes, contains, or consists of the Licensed NFT, Name and Likeness, and/or Art from your Licensed NFT; (vi) attempt to trademark, copyright, or otherwise acquire additional intellectual property rights in or to the Licensed NFT, Name and Likeness, and/or Art from your Licensed NFT; or (vii) otherwise utilize the Art from your Licensed NFT for your or any third party’s commercial benefit.
To the extent that the Licensed NFT, Name and Likeness, and/or Art associated with Your Licensed NFT contains Third Party IP, you understand and agree as follows: (i) that you will not have the right to use such Third Party IP in any way except as incorporated in the Art, and subject to the license and restrictions contained herein; (ii) that, depending on the nature of the license granted from the owner of the Third Party IP, Long Table LLC may need to pass through additional terms and/or restrictions on your ability to use the Art; and (iii) to the extent that Long Table LLC informs you of such additional restrictions in writing (e-mail is permissible), you will be responsible for complying with all such restrictions from the date that you receive the notice, and that failure to do so will be deemed a breach of this Agreement.
The restrictions in this Section 4 will survive the expiration or termination of this Agreement.
5. TERMINATION OF THE LICENSE
The Licensed Rights granted to you hereunder shall automatically terminate and all rights shall return to Long Table LLC if: (i) at any time you sell, trade, donate, give away, transfer, or otherwise dispose of your Licensed NFT for any reason except as specially provided in Section 3 of this Agreement; (ii) you breach any of the Agreement and/or Website Terms and Conditions of Use; (iii) you have a trustee, receiver or similar party appointed for your property, become insolvent, acknowledge your insolvency in any manner, make an assignment for the benefit of your creditors, or file a petition of bankruptcy; (iv) you engage in any unlawful business practice related to the Licensed NFT; (iv) you initiate any legal actions, except for binding arbitration as specifically provided in Section 6 of this Agreement, against any of Long Table LLC and/or its officers, directors, affiliates, agents, attorneys and employees.
6. ARBITRATION AGREEMENT
Any claim, dispute, or controversy (whether in contract, tort, or otherwise, whether preexisting, present or future, and including statutory, common law, intentional tort and equitable claims) between Buyer and Seller (such term to include any of Seller’s agents, employees, principals, successors, assigns, affiliates) arising from or relating to this Agreement, its interpretation, or the breach, termination or validity of this Agreement, the relationships which result from this Agreement (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to this Agreement), Seller’s advertising, or any related purchase, shall be resolved exclusively and finally by binding arbitration administered by American Arbitration Association (“AAA”) in accordance with its then existing Commercial Arbitration Rules. Such proceedings will be governed by the substantive (but not procedural) law of California and will take place in either the County of Los Angeles, California, or the County of New York, New York, unless an alternative forum is mutually agreed to in writing by Buyer and Seller. The AAA and not any federal, state, or local court or agency shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, conscionability, or formation of this Agreement, including but not limited to any claim that all or any part of this Agreement is void or voidable. The arbitration will be limited solely to the dispute or controversy between Buyer and Seller. Neither Buyer nor Seller shall be entitled to join or consolidate claims by or against other buyers of Seller or arbitrate any claim as a representative or class action or in a private attorney general capacity. This transaction involves interstate commerce, and this provision shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1–16). Any award of the arbitrator shall be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction. Seller will be responsible for paying any arbitration filing fees and fees required to obtain a hearing to the extent that such fees exceed the amount of the filing fee for initiating a claim in the court of general jurisdiction in the state in which Buyer resides. Each party shall pay for its own costs and attorney’s fees, if any. However, if any party prevails on a statutory claim that affords the prevailing party attorney’s fees, or if there is a written agreement providing for fees, the arbitrator may award reasonable fees to the prevailing party, under the standards for fee shifting provided by law.
(a) Payment in full for the Licensed NFT in the virtual currency Ethereum (ETH) will be due upon purchase. Payment must be made via a digital MetaMask virtual currency wallet transfer to Long Table LLC. Ethereum constitutes the sole currency that will be accepted during this Offering, and Long Table LLC reserves the right to accept additional currencies in future offerings. The digital wallet must be registered to the Buyer. You agree, upon our request, to provide documentation confirming that the Ethereum payment was made from a digital wallet registered in your name. Partial payments for a Licensed NFT from multiple digital wallets will not be allowed. Although Ethereum constitutes the exclusive blockchain on which this Offering will occur, Long Table LLC reserves the right to conduct future offerings of Licensed NFTs on other blockchains. Please contact Long Table LLC prior to the sale for further information relating to those digital wallets from which payment will be accepted as well as the other limitations and requirements set forth in this Section.
(b) Each digital wallet may be used to purchase, and subsequently contain, one (1) Licensed NFT for every thirty-six (36) Licensed NFTs available during this Offering, with groupings designated by Long Table LLC and specified by an alphanumeric code displayed alongside each Licensed NFT (specifically, grouping 1 shall encompass Licensed NFTs 36AA1 through 36AA36, grouping 2 shall encompass Licensed NFTs 36AB1 through 36AB36, and so forth). Nothing in this Section shall be construed as a guarantee that any grouping in the Offering will contain exactly 36 Licensed NFTs, and this limitation shall remain in full force and effect with respect to any grouping containing less than 36 Licensed NFTs.
(c) Upon receipt of payment, the Licensed NFT will be instantaneously transferred to Buyer’s digital wallet. Please contact Long Table LLC for further details regarding the transfer process for the Licensed NFT.
(d) In the event that Buyer re-sells the Licensed NFT following the initial transfer of the Licensed NFT from Seller to Buyer, Buyer agrees that, in accordance with the smart contract associated with the Licensed NFT, Long Table LLC and certain other parties involved in producing, designing, and/or coordinating the Offering shall be entitled to an aggregate amount of ten percent (10%) of the gross amount paid to you upon re-sale of the Licensed NFT, including but not limited to any transfer price and any other related compensation (e.g., (1) if the transfer price is the Equivalent of $100,000, then Long Table LLC will be entitled to the Equivalent of $10,000, or (2) if the transfer price is Equivalent to $100,000 and an additional $50,000 is paid as related use fee, then Long Table LLC would be entitled to $15,000), and such payment shall be paid on the same terms and at the same time as you are paid. Please consult the smart contract associated with the Licensed NFT for specifics, including the mechanism by which such amount shall be withdrawn from your proceeds due from any re-sale of the Licensed NFT.
Unless exempted by law, the Buyer will be required to pay the local sales tax (if any) on the total purchase price. If the Licensed NFT is delivered to a buyer residing in a state where Long Table LLC is not required to collect sales tax, it is the responsibility of the Buyer to self-assess any sales or use tax and remit it to the taxing authorities in that state.
9. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
ALL LICENSED NFTs ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, LONG TABLE LLC DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL LONG TABLE LLC BE LIABLE TO YOU FOR ANY PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER AND/OR DEVICE OR TECHNOLOGY FAILURE OR MALFUNCTION, OR FOR ANY FORM OF DIRECT OR INDIRECT DAMAGES, AND/OR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES BASED ON ANY CAUSES OF ACTION WHATSOEVER RELATED TO ANY NFT, INCLUDING BUT NOT LIMITED TO THE LICENSED NFT, THE OFFERING, ANY TECHNOLOGY AND/OR PARTIES RELATED TO THE OFFERING, INCLUDING BUT NOT LIMITED TO BLOCKCHAIN, DIGITAL WALLET AND/OR ANY RELATED TECHNOLOGY. YOU AGREE THAT THIS LIMITATION OF LIABILITY APPLIES WHETHER SUCH ALLEGATIONS ARE FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR FALL UNDER ANY OTHER CAUSE OF ACTION, REGARDLESS OF THE BASIS UPON WHICH LIABILITY IS CLAIMED AND EVEN IF A DISCLAIMING PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND IN ANY EVENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LONG TABLE LLC’S TOTAL AGGREGATE LIABILITY SHALL NOT EXCEED TEN PERCENT (10%) OF THE TOTAL SUM PAID DIRECTLY BY YOU TO LONG TABLE LLC FOR THE APPLICABLE LICENSED NFT. YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET AND AGREE THAT WE HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY BREACH OF SECURITY UNLESS IT IS DUE TO OUR GROSS NEGLIGENCE. IF APPLICABLE LAW DOES NOT ALLOW ALL OR ANY PART OF THE ABOVE LIMITATION OF LIABILITY TO APPLY TO YOU, THE LIMITATIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
10. ASSUMPTION OF RISK
As noted above, the Licensed NFTs are made available solely for aesthetic and personal use purposes. You agree that you assume the following risks: (A) To the extent there is a price or market for a blockchain asset such as an NFT, such markets and prices are extremely volatile, and variations in the price of other digital assets could materially and adversely affect the value of any digital asset(s) you own, including your Licensed NFT, and there is no guarantee that your Licensed NFT will have or retain any value; (B) the commercial or market value of a Licensed NFT that you purchase may materially diminish in value as a result of a variety of things such as negative publicity; (C) there are risks associated with using Internet-native assets (e.g., non-fungible tokens, virtual currencies, etc.) including, but not limited to, the risk of hardware, software and Internet connections and/or failures, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to information stored within your digital wallet or elsewhere, and Long Table LLC will not be responsible for any of these, however caused; (D) Long Table LLC does not make any promises or guarantees about the availability of the Licensed NFT or the Art on the Internet or that we will host the Licensed NFT or the Art at any specific location and/or for any specific period of time; (E) upgrades to the Ethereum platform, a hard fork or other change in the Ethereum platform, a failure or cessation of Ethereum, or a change in how transactions are confirmed on the Ethereum platform may have unintended, adverse effects on all blockchains using such technologies, including without limitation Licensed NFTs; (F) Long Table LLC does not make any promises or guarantees related to MetaMask Wallet, blockchain or any other third parties related to the Offering and each of their applications and/or services, including but not limited to the continued availability of either and/or the protection and/or storage of any data you provide to those parties; (G) the risk of losing access to your Licensed NFT due to loss of private key(s), custodial error or purchaser error; (H) the risk of mining attacks; (I) the risk of hacking, security weaknesses, fraud, counterfeiting, cyber-attacks and other technological difficulties; (J) the risk of changes to the regulatory regime governing blockchain technologies, virtual currencies and tokens, and new regulations, unfavorable regulatory intervention in one or more jurisdictions or policies any of which may materially adversely affect the use and value of the Licensed NFT; (K) the risks related to taxation; (L) that NFTs are not legal tender and are not backed by any government; and (M) Long Table LLC is not responsible for any transaction between you and a third party (e.g., your transfer of a Licensed NFT from a third party on the so-called “secondary market”), and Long Table LLC shall have no liability in connection with any such transaction. In addition to assuming all of the above risks, you acknowledge that you have obtained sufficient information to make an informed decision to license the Licensed NFT and that you understand and agree that you are solely responsible for determining the nature, potential value, suitability and appropriateness of these risks for yourself. Long Table LLC cannot and does not represent or warrant that any Licensed NFT, or its supporting systems or technology, is reliable, current or error-free, meets your requirements, or that defects in the Licensed NFT, or its supporting systems or technology, will be corrected. Long Table LLC cannot and does not represent or warrant that the Licensed NFT or the delivery mechanism for it are free of viruses or other harmful components. You accept and acknowledge that Long Table LLC will not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience related to the Offering.
11. GOVERNING LAW
This Agreement and all matters related to it and/or any Licensed NFT shall be governed by, construed, and enforced in accordance with the laws of the State of California, and without regard to conflict of law principles, except to the extent that law is inconsistent with or preempted by federal law.
12. CHANGES TO THIS AGREEMENT
Long Table LLC may make changes to this Agreement from time to time. When Long Table LLC makes such changes, we will make the updated Agreement available on this website (https://thedigitalarchive.art/terms-and-conditions-of-use) and update the “Last Updated” date at the beginning of the Agreement accordingly. Please check this page periodically for changes. Any changes to this Agreement will apply on the date that they are made and, by way of example, your continued access to or use of the Licensed NFT and the Art after the Agreement has been updated will constitute your binding acceptance of the updates.
(a) Participation in the Offering is open only to individuals who have the right and authority to enter into this Agreement, are fully able and competent to satisfy the terms, conditions and obligations herein, and are using currency that such party is the lawful holder thereof. It is not available to Users who have had their User privileges temporarily or permanently deactivated. You may not allow other persons to use your User credentials, and you agree that you are the sole authorized user.
(b) By becoming a User, you represent and warrant that you are at least 18 years old.
You will defend, indemnify, and hold Long Table LLC, including each of our respective affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders, harmless from any claims, actions, suits, losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of your license, sale or possession of the Licensed NFT and/or your participation in the Offering, including: (1) your breach of this Agreement or the documents it incorporates by reference; (2) your violation of any law or the rights of a third party as a result of your own interaction with such third party; (3) any allegation that any materials that you submit to us or transmit in the course of the Offering, whether communications seeking Long Table LLC’s consent to activities or otherwise, infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party; and/or (4) any other activities in connection with the Offering or the Licensed NFT. This indemnity shall be applicable without regard to the negligence of any party, including any indemnified person.
If you are provided a translation of this Agreement, the original version in English will be used in deciding any issues or disputes which arise under this Agreement.
16. COURSE OF DEALING
No course of dealing between the Parties to this Agreement shall constitute a waiver of any term or condition of the Agreement, nor shall such course of dealing affect such term or condition in any way or the right of a party at any time to avail itself of such remedies as it may have for any breach of such term or condition.
Long Table LLC’s failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision unless agreed to in writing by Long Table LLC.
The Buyer may not assign or transfer this Agreement without the prior written consent of Long Table LLC, and any attempt to assign this Agreement in violation of the forgoing shall be null and void.
If any of the provisions of this Agreement shall be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Agreement, but rather the Agreement shall be construed as if not containing the particular invalid or unenforceable provision or provisions, and your rights and obligations shall be construed and enforced accordingly, to effectuate the essential intent and purposes of this Agreement.
20. CONTACT US
If you have any questions or concerns, including if you need to access this Agreement in an alternative format, we encourage you to contact us via e-mail at firstname.lastname@example.org.