Keepers NFT Terms
Keepers is a collection of up to 20,000 unique digital avatars, each represented by a non-fungible token (“Keepers NFT”) created by a smart contract on the Ethereum blockchain (“Keepers Smart Contract”). Each Keepers NFT is associated with digital artwork featuring a unique Keepers avatar (“Keepers Art”). This agreement (“Terms”) is between OI1, LLC (“OI1”) and anyone who purchases or owns a Keepers NFT. When you create a Keepers NFT via the Keepers Smart Contract, any of OI1’s websites or web interfaces, or a third party website or interface (a “Mint”), you acknowledge and agree to abide by these Terms. When you purchase an existing Keepers NFT by way of the Keepers Smart Contract, any of OI1’s websites or web interfaces, or a third party (a “Secondary Sale”), you acknowledge and agree to abide by these Terms. These Terms are not only made available via OI1’s websites and web interfaces representing the Keepers NFT collection but are further openly available to read directly via the Keepers Smart Contract.
a) You own your Keepers NFT: You have the exclusive right to hold, sell, transfer, and make blockchain transactions with your Keepers NFT as long as your digital wallet holds that Keepers NFT, as recorded by the Keepers Smart Contract, you can produce valid, cryptographically-signed and cryptographically-verifiable transactions tied to your blockchain account holding that Keepers NFT, and your actions are in accordance with the smart contract logic included in the Keepers Smart Contract. OI1 cannot seize, freeze, or modify the ownership of any Keepers NFT you own.
b) If you are part of an organization, partnership or corporation that owns the NFT, then these Terms are binding on the organization, partnership or corporation, and it is responsible for complying with the obligations set out in these terms and only it, as an entity, is allowed to take advantage of the license rights (pursuant to its internal governance processes and rules). Individual partners, shareholders, fractional owners or others who are part of the organization, partnership or corporation shall have no rights hereunder in their personal capacity.
c) OI1 owns the IP in the Keepers Art associated with your Keepers NFT. That means OI1 owns the copyrights, trademarks, and other intellectual property rights in that Keepers Art. However, OI1 grants you the license described below that allows you to use the Keepers Art for as long as you own the associated Keepers NFT.
d) You may own the IP to the new elements of a work that you develop (or have developed) that augment, are derived from or incorporate the Keepers Art. However, OI1 retains the copyright in the underlying Keepers Art and, because derivative works you develop are based on or incorporate the Keepers Art, your use of any such derivative work is subject to and requires a license from OI1. That license is set out in these Terms. If you sell a Keepers NFT, the license to use the Keepers Art associated with it transfers to the buyer of the Keepers NFT, and you may lose the right to continue using your derivative work unless you receive a sublicense from the new owner of the Keepers NFT.
e) Utility: Along with the license rights, Keepers NFT owners may be offered various benefits or entitlements, which may include access to Keepers Art Digital Files (as defined below), but these Terms do not guarantee any specific benefits or entitlements will be offered or will continue to be offered. OI1 makes no promises regarding utility, and any offered utility may be subject to additional terms and conditions that you have to accept and comply with to use such entitlement or benefit. “Keepers Art Digital Files” shall mean and refer to any 2D, 3D, or other electronic files that correspond to and may be used to generate digital images, products, and/or experiences. The intent behind the Keepers Art Digital Files is to give the owner of a Keepers NFT a fully-rigged and gameplay-ready, 3D metaverse asset, usable in 4K film, media and AAA video game environments. The Keepers Art Digital Files are digital files that correspond to and may be used to generate images and other audiovisual content of the Keepers Art associated with a particular Keepers NFT. The electronic files include but are not limited to Unreal Engine 5 assets that can be imported natively into Unreal Engine and support different production pipelines. The electronic files are also exported in the GLB universal format so that the assets can be adapted for use in a wide variety of engines and production pipelines. The electronic files associated with a particular Keepers NFT include but are not limited to all character assets included in the associated Keepers Art, from rigged meshes to high-resolution textures.
Secondary Sale Royalties
You acknowledge and agree that OI1 is entitled to a 7% royalty on every Secondary Sale of a Keepers NFT (“Keepers Royalty”). OI1 reserves the right to collect the Keepers Royalty in perpetuity. You agree not to attempt to circumvent or evade the Keepers Royalty when you purchase or sell a Keepers NFT. Failure to honor the Keepers Royalty may lead to the revocation of the licenses granted under these Terms. Upon such revocation, you will lose access to the Keepers Art Digital Files, will forfeit your associated commercial license rights, and must immediately cease all use of the Keepers Art and any related rights granted under these Terms.
The license status for each Keepers NFT is publicly recorded and openly made available via the Keepers Smart Contract by querying the hasValidLicense() function (“License Function”) corresponding to that Keepers NFT. When the license for a given Keepers NFT has been revoked, the License Function will return False when queried. While these Terms do not guarantee any specific benefits or entitlements will be offered to Keepers NFT owners, you understand that benefits or entitlements may only be offered to Keepers NFT holders whose Keepers NFTs have not had their licenses revoked.
Keepers Art License
a) Grant: If and when you lawfully acquire and so long as you hold your Keepers NFT, OI1 grants you an exclusive (subject to subsection (c)), revocable (as expressly set forth in these Terms), worldwide, royalty-free, sublicensable license at no additional cost, to reproduce, distribute, create derivative works, display, perform, transmit, and use the Keepers Art in any and all media, for both commercial and non-commercial uses, subject to the restrictions below.
b) Restrictions and Reservations:
i. The license you receive under this agreement only extends to your complete Keepers Art and not to individual elements of it. You can create and use derivative works based on the Keepers Art, but you cannot exploit individual elements separately.
ii. The license does not grant you any rights to OI1’s trade names, brands, trade dress, or trademarks, which are reserved for OI1. The only OI1 trademark(s) you are authorized to use hereunder are trademark(s) that are unique to and included as part of the Keepers Art. You promise to use those trademarks in such a way that is consistent with this license but recognize that any goodwill generated by your use of those trademarks inures to the benefit of OI1. OI1 reserves the right to terminate your trademark rights if you violate the terms of this license or use the trademark in ways that is not consistent with the restrictions set forth in these Terms.
iii. You cannot use the Keepers Art in any way that expresses hate or encourages violence towards a person or group based on race, religion, gender, orientation, or disability.
iv. You cannot use the Keepers Art in a way that violates applicable laws.
v. Any rights not explicitly granted are reserved by OI1.
c) You grant OI1 a perpetual, non-exclusive, worldwide, royalty-free, sublicensable license to (i) publicly display and use your Keepers Art alone or alongside other Keepers Art for OI1’s promotional purposes, and (ii) create and authorize third parties to create avatars, characters, and objects based on your Keepers Art for you to claim and use in digital environments or applications.
a) Copyright Notices: You can include a copyright notice with your Keepers Art. If you create a derivative work during the license term, you can include a copyright notice identifying you or someone else as the copyright owner, provided that you also acknowledge that OI1is the owner of the Keepers Art, and include the OI1 copyright notice.
b) Copyright Registrations: Any application for copyright registration for derivative versions of your Keepers Art should identify “OI1” as the copyright owner of the underlying IP. Applications for derivative works can identify you or someone else as the copyright owner but should acknowledge the original Keepers Art as the pre-existing work.
c) Actions: If, under applicable law, you are allowed to bring a claim for infringement based on unauthorized use of your Keepers Art, your claim must be based on your Keepers Art alone, not other Keepers Art. OI1 may join any such action at its discretion and may take over the prosecution if it doesn’t materially prejudice your rights.
d) Disputes Among Owners: OI1 has no obligation to help resolve disputes between Keepers NFT owners.
Keepers NFT Transfers
a) No Decoupling: You cannot separate ownership of a Keepers NFT from these Terms in any way.
b) Termination of License: When your Keepers NFT is transferred to a new owner, your license to commercially exploit (or, for that matter, make an exploitation) ends immediately, you must stop using any trademark associated with you Keepers Art, and any trademark registrations must be abandoned unless transferred to the new owner under a separate written agreement.
c) Published Keepers Works: If you create and publish a work using your Keepers Art while you are the Keepers NFT owner, you can continue to use that work in line with these Terms after the transfer of the Keepers NFT. However, you’re responsible for any obligations or liabilities arising from the continued use of the work, and you cannot use the Keepers Art to create new works or materials after you transfer the Keepers NFT. For example:
• You can continue to run a digital series featuring your Keepers Art released during the license term, but creating or distributing new episodes would require a license from the new owner.
• After the license term, you can sell existing inventories of merchandise featuring your Keepers Art created during the license term, but creating or distributing new merchandise would require a sublicense from the new owner.
Keepers NFT Owner’s Representations and Warranties
You represent and warrant that you:
a) are over the age of majority and have the legal capacity to enter into these Terms;
b) will only use and interact with any Keepers NFT and Keepers Art in accordance with these Terms;
c) will comply with all applicable laws in the exercise of their rights and obligations under these Terms and will not violate any rights of OI1, its licensors, or any rights of any third party; and
d) will honor, and in no way circumvent, any obligations related to the Keepers Royalty.
You understand and agree that failure to comply with any of the representations and warranties set forth herein may lead to the revocation of the licenses granted under these Terms. Upon such revocation, you will lose access to the Keepers Art Digital Files and must immediately cease all use of the Keepers Art and any related rights granted under these Terms.
a) EACH KEEPERS NFT AND KEEPERS ART IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, OI1 EXPLICITLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF THE COURSE OF DEALING OR USAGE OF TRADE.
b) OI1 WILL NOT BE RESPONSIBLE OR LIABLE TO OWNER FOR ANY LOSS IN CONNECTION WITH ANY KEEPERS NFT OR KEEPERS ART AND TAKES NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO YOU FOR, ANY USE OF OR INABILITY TO USE ANY KEEPERS NFT OR KEEPERS ART, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES, OR CLAIMS ARISING FROM: (I) USER ERROR SUCH AS FORGOTTEN PASSWORDS, INCORRECTLY CONSTRUCTED TRANSACTIONS, OR MISTYPED WALLET ADDRESSES; (II) THE BEHAVIOR OR OUTPUT OF ANY SOFTWARE OR HARDWARE; (III) DATA LOSS OR CORRUPTION; (IV) ANY FEATURES, DEVELOPMENT, ERRORS, OR OTHER ISSUES WITH BLOCKCHAIN NETWORKS OR WALLETS; (V) UNAUTHORIZED ACCESS TO ANY KEEPERS NFT OR KEEPERS ART; OR (VI) THE ACTS OR OMISSIONS OF ANY THIRD PARTY.
c) SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN CONSUMER CONTRACTS, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
Assumption of Risk
Owner accepts and acknowledges all risks associated with the following: a) Keepers NFTs and Keepers Art may be used in myriad ways. While OI1 strongly encourages transparency, communication, and research prior to acquiring a Keepers NFT, including understanding what previous and existing uses have been made of the Keepers NFT and Keepers Art and how those uses may affect value, any purchase of a Keepers NFT is at the purchaser’s own risk. OI1 is not responsible for verifying or providing information on how a Keepers NFT or its Keepers Art have been exploited. Additional documentation from an Owner may be necessary or prudent. b) OI1 is not responsible for determining or paying any taxes that apply to any Owner’s purchase, sale, or transfer of rights in each Keepers NFT. As between the parties, Owner is solely responsible for determining what, if any, taxes apply to such transactions. c) Transactions involving Keepers NFTs and Keepers Art rely on third-party or decentralized platforms, systems, or marketplaces. OI1 does not maintain, control, or assume any obligations with respect to such platforms, systems, or marketplaces.
Limitation of Liability
a) To the maximum extent permitted by law, no Indemnified Party will be liable for any incidental, special, exemplary, or consequential damages, or damages for lost profits, lost revenues, lost savings, lost business opportunity, loss of data or goodwill, service interruption, computer damage, or system failure, or the cost of substitute services of any kind arising out of or in connection with these Terms or from the use of or inability to use or interact with any Keepers NFT or Keepers Art, whether based on warranty, contract, tort (including negligence), product liability, or any other legal theory, and whether or not OI1 or its service providers have been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose. In no event will any Indemnified Party’s cumulative liability hereunder from all causes of action and all theories of liability exceed $100.
b) By purchasing or owning a Keepers NFT, Owner acknowledges that the exclusions and limitations of damages set forth above are fundamental elements of the basis of the bargain between OI1 and Owner.
a) Mandatory Arbitration of Disputes: Any dispute, claim, or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation, or validity thereof, or the use of the Keepers NFT or Keepers Art (“Dispute”) must be resolved solely by binding, individual arbitration and not in a class, representative, or consolidated action or proceeding. Each party waives the right to a trial in court and/or by a jury. This arbitration provision shall survive any termination of these Terms.
b) Exceptions: As a limited exception to the section above: (i) the parties may seek to resolve a Dispute in small claims court if it qualifies; and (ii) each party retains the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of its intellectual property rights.
c) Conducting Arbitration and Arbitration Rules: The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org. Any arbitration hearings will take place in the county (or parish) where one lives, with provision to be made for remote appearances to the maximum extent permitted by the AAA rules, unless the parties both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability, and scope of these Terms.
d) Arbitration Costs: Payment of all filing, administration, and arbitrator fees will be governed by the AAA Rules, and OI1 won’t seek to recover the administration and arbitrator fees for which OI1 is responsible unless the arbitrator finds your Dispute is frivolous. If OI1 prevails in arbitration, OI1 will pay all of its attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration, you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
e) Injunctive and Declaratory Relief: Except as provided above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the extent that you or OI1 prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
f) Class Action Waiver: YOU AND OI1 AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if a Dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims.
Governing Law and Forum Choice
These Terms and any action related thereto will be governed by the U.S. Federal Arbitration Act, federal arbitration law, and the laws of the State of New York, without regard to its conflict of laws provisions. Except as otherwise expressly set forth under the Dispute Resolution section, the exclusive jurisdiction for all Disputes (defined above) will be the state and federal courts located in the State and City of New York, and you and OI1 each waive any objection to jurisdiction and venue in such courts.
OI1 reserves the right to amend these Terms at any time. The revised or amended terms will become enforceable against any subsequent Keepers NFT owner at the time that they acquire ownership of the Keepers NFT associated with the Keepers Art. Current NFT owners have the discretion to adopt the amended terms if they so choose but are not obligated to do so. OI1 acknowledges the importance of stability in these Terms and does not take amendments lightly. We will only attempt to update these Terms if we believe it is necessary to address unforeseen developments, events, or circumstances. In such cases, we will use all reasonable efforts to minimize any changes to maintain the spirit of the original agreement as much as we can.
a) These Terms will transfer and be binding upon and will inure to the benefit of the parties and their permitted successors and assigns.
b) These Terms constitute the entire agreement, and supersede any and all prior or contemporaneous representations, understandings, and agreements, between the parties with respect to the subject matter of these Terms, all of which are hereby merged into these Terms.
c) Failure to promptly enforce a provision of these Terms or any rights related to the Keepers NFT or Keepers Art will not be construed as a waiver of such provision or rights.
d) Nothing contained in these Terms will be deemed to create, or be construed as creating, a joint venture or partnership between the parties. Neither party is, by virtue of these Terms or otherwise, authorized as an agent or legal representative of the other party. Neither party is granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf or in the name of the other party. Nothing contained in these Terms will be deemed to create any third-party beneficiary right upon any third party whatsoever.
e) The parties shall execute and deliver to the other party any and all such other instruments in reasonable mutually acceptable form and substance and shall take any and all such other actions as may be reasonably necessary to carry the intent of these Terms into full force and effect.
f) If any one or more of the provisions of these Terms should be ruled wholly or partly invalid or unenforceable, then the provisions held invalid or unenforceable will be deemed amended, and the arbitrator, court, or other government body is authorized to reform the provision(s) to the minimum extent necessary to render them valid and enforceable in conformity with the parties’ intent as manifested herein.
g) The headings to sections of these Terms are for convenience or reference only and do not form a part of these Terms and will not in any way affect its interpretation.
h) Neither party will be afforded or denied preference in the construction of these Terms, whether by virtue of being the drafter or otherwise.
i) For purposes of these Terms, the words and phrases “include,” “includes,” “including,” and “such as” are deemed to be followed by the words “without limitation.”