THIS NFT LICENSING AGREEMENT (“Agreement”) governs the use of the Sale NFTs (defined below) and constitutes a binding and enforceable legal contract between HOTMANIA LABS.( “Company”) and you, as the purchaser and/or holder of the Sale NFTs (“Purchaser”). Each of the Company and the Purchaser shall hereinafter be referred to as a“Party”, and collectively, the “Parties”.
The Company is the holder of digital non-fungible tokens known as “Hotmania Labs NFT” which is a collection of non-fungible and transferrable digital assets (“NFTs”) on Solana blockchain, as more fully described at https://www.xolos.io/ (“Website”). Each Hotmania Labs NFT holder is able to generate the $GXOLO token, which will be a currency of the ecosystem and grant access to additional functions in the NFT trading platforms.
The Purchaser has previously purchased from the Company certain NFTs and now wishes to receive additional NFTs from the Company pursuant to an upgrade implemented by the Company as per the terms and conditions set out in this Agreement. The Purchaser will authorise to pay a certain sum of $GXOLOtoken through the wallet connected to the Website to upgrade and receive additional NFTs. Such previously purchased NFTs and the newly distributed NFTs shall be referred collectively as the “Sale NFTs”.
Rights of the sale NFT
2.1. Upon receipt of the Sale NFTs, the Purchaser will own the underlying Sale NFTs completely and will have all personal property rights to the Sale NFTs, such as the right to freely sell, transfer or otherwise dispose of. The Purchaser will be entitled to have certain tangible rights, benefits, interests, preferences or privileges offered from time to time by the Company or third parties in their respective sole discretion (“Access Rights”) by virtue of its ownership of the Sale NFTs, subject to the parameters and restrictions as set out on the Website.
2.2. Without prejudice to clause 2.1 above, the Purchaser will not own the associated artwork, brand or other intellectual property associated with the Sale NFTs, except for the specific licensed rights set forth below:
a) non-exclusive, worldwide, royalty-free, license to use, reproduce, display, modify and create derivative works of the Sale NFTs for personal, non-commercial use.
2.3. Modification and Additional Features
(a) The Company permits the Purchaser to create modifications and derivative works for the Sale NFTs under the scope of the licenses granted in this Agreement.
(b) The license in this clause 2 does not include a right to create derivative works of the Sale NFTs except as necessary to adapt and depict the Sale NFTs in or on the goods or media created pursuant to this license, or as otherwise required in clause 2.4 below. This Agreement permits the Purchaser to mint and create new NFTs and NFT projects based on the Sale NFTs owned by the Purchaser, as long as the Purchaser does not use the Hotmania Labs Trademarks on, or to promote, such new NFTs.
(c) The Company may choose to make additional features, access, content, items or other benefits available to owners of the Hotmania Labs NFTs (“Additional Features”). The Company has no duty or obligation to provide the Purchaser with any Additional Features, and the Purchaser shall not expect any Additional Features when acquiring a Sale NFT. Additional Features may be subject to additional terms and conditions, which may be presented to the Purchaser at the time they are made available.
(d) The Purchaser acknowledges and agrees that the Company may use the Sale NFTs, modify or create derivative works of such Sale NFTs and create works of authorship similar or identical to the Purchaser’s own adaptations, derivative works and modifications of any Hotmania Labs NFTs, in order to create and provide the Additional Features, upgrade any Hotmania Labs NFTs or for promotion purposes. Accordingly, on behalf of the Purchaser and its heirs, successors and assigns, the Purchaser irrevocably covenants and agrees not to assert or bring any suit, claim, demand or challenge against the Company or its affiliates or licensees in connection with their use of any Hotmania Labs NFT or any adaptations, derivative works and modifications thereto, even if such artwork or content is similar to or the same as any adaptations, derivative works or modifications in any Hotmania Labs NFTs that are owned by the Purchaser.
2.4. No rights to Hotmania Labs Trademarks and Third Party Content
(a) Nothing in this Agreement will be interpreted to grant the Purchaser any rights to any Hotmania Labs Trademarks belonging to the Company. Without the Company’s written permission, the Purchaser may not use any Hotmania Labs Trademarks for any Commercial Use, including to register any domain names or social media accounts using any Hotmania Labs Trademarks. This includes any Hotmania Labs Trademarks that may be displayed or contained in any Sale NFTs, and the Purchaser will need to modify the Sale NFTs to remove or obfuscate such Hotmania Labs Trademarks before making any Commercial Use of such Sale NFT. The Purchaser may not remove, delete or obscure any trademark notice, copyright notice or other intellectual property notice in any Sale NFTs. All rights in and to the Sale NFTs and any other intellectual property of the Company not expressly licensed herein are hereby reserved by the Company. All goodwill arising from any use of the Hotmania Labs Trademarks will inure solely to the Company and its affiliates.
(b) From time to time, the Company and the Purchaser may collaborate with third parties to create the Hotmania Labs NFTs which may include artwork, images, works of authorship, logos, trademarks, service marks, or trade dress owned by a third party (“Third Party Content”). The license in this clause does not extend to any Hotmania Labs NFT that contains Third Party Content, and the Purchaser may not use, copy, reproduce, display, create derivative works of, or create new NFTs based on such Third Party Content, or any portion thereof, for any Commercial Use, unless the Company or the applicable third parties expressly provide the Company’s consent in writing or by public announcement. For the avoidance of doubt, the Purchaser is entitled to claim its rights over the digital or physical products created by any third party out of the Sale NFTs owned by the Purchaser.
(a) The licenses granted in this Agreement are non-transferrable, except that if the Purchaser sells or transfers the Sale NFTs, the Purchaser will no longer be granted the foregoing licenses in the Sale NFTs, and such license will transfer to the new owner of the Sale NFTs. In connection with any sales, transfers or similar transactions of the Sale NFTs, the transferee agrees that by purchasing, accepting, or otherwise acquiring the Sale NFT, they shall be deemed to accept and be bound by the terms of this Agreement.
To the extent that the Purchaser is not prohibited from doing so by any other terms or conditions applicable to a Sale NFT, the Purchaser may transfer the Sale NFT to a third party, provided that the following conditions are complied with:
(i) such transfer is conducted through the Website or other platform that cryptographically verifies that the Purchaser is the actual owner of the applicable Sale NFT;
(ii) such transfer complies with any applicable terms of the Website or other platform on which such sale or other transfer takes place and applicable laws, regulations, regulatory guidance and rules;
(iii) the Purchaser has not breached any of the terms of this Agreement before such transfer; and the license granted to the Purchaser under this Agreement has not been terminated prior to such transfer.
(iv) The Purchaser acknowledges and agrees that the Company has a right to set a royalty fee in relation to each transfer of the Sale NFT in perpetuity and uses those funds in any manner the Company sees fit.
Notwithstanding any provision to the contrary in this Agreement, the Purchaser may not use the Sale NFT in any way that constitutes unlawful, defamatory, harassing, abusive, fraudulent, racist, hateful, vulgar, cruel, illegal or obscene activity, or that promotes any such activity.
2.7. For the purposes of this Agreement:
(a) the “Commercial Use” means any activity that is performed with the intent to generate revenue, such as sale or transfer of items (including NFTs) on any marketplace, creating and selling merchandise or creating instruments such as game, music album or comic book;
(b) and the “Hotmania Labs Trademarks” mean any and all logos, trademarks, service marks and trade dress associated with the Company, the Hotmania Labs NFTs and any other names, products or service developed by the Company.
REPRESENTATION AND WARRANTIES
The Purchaser represents and warrants that the Purchaser:
(a) if individual, is at least 18 years old or of legal age to form a binding contract under applicable laws;
(b) is not subject to any financial sanctions, embargoes or other restrictive measures imposed by the United Nations, European Union, Office of Foreign Assets Control (OFAC) of the United States or any governmental authority in any jurisdiction;
(c) is not a citizen or resident of, or to the extent it is a corporate entity, not formed or incorporated in, any jurisdiction in which the entry into this Agreement or the ownership of the NFTs is prohibited by applicable laws;
(d)is not impersonating any other person; and
(e) shall not use the Sale NFT in any way that constitutes unlawful, defamatory, harassing, abusive, fraudulent, racist, hateful, vulgar, cruel, illegal or obscene activity, or that promotes any such activity.
LIMITATION OF LIABILITY AND DISCLAIMER
4.1. Warranty disclaimers
(a) ALL SALE NFTS ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, THE COMPANY EXPLICITLY DISCLAIMS ON BEHALF OF ITSELF, ALL OTHER PERSONS, ENTITIES AND PARTIES THAT ARE OR IN THE FUTURE MAY PROVIDE ANY ACCESS RIGHTS, AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND REPRESENTATIVES (COLLECTIVELY, THE “DISCLAIMED PARTIES”) ANY AND ALL WARRANTIES, GUARANTEES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OR TRADE. THE COMPANY ON BEHALF OF ITSELF AND THE DISCLAIMED PARTIES MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE THAT THE SALE NFTS WILL MEET THE PURCHASER’S REQUIREMENTS, OR THE SALE NFTS WILL BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. NEITHER THE COMPANY NOR THE DISCLAIMED PARTIES MAKE ANY REPRESENTATION, WARRANTY REGARDING OR GUARANTEE REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY INFORMATION OR CONTENT RELATED TO THE SALE NFTS.
(b) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, NEITHER THE COMPANY NOR THE DISCLAIMED PARTIES WILL BE RESPONSIBLE OR LIABLE TO THE PURCHASER FOR ANY LOSS, AND TAKES NO RESPONSIBILITY FOR, AND WILL NOT BE LIABLE TO THE PURCHASER FOR, ANY USE OF THE SALE NFTS, 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) SERVER FAILURE OR DATA LOSS; (III) CORRUPTED FILES; (IV) UNAUTHORISED ACCESS TO THE SALE NFTS; OR (V) ANY THIRD PARTY ACTIVITIES, INCLUDING WITHOUT LIMITATION THE USE OF VIRUSES, HACKING, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK.
(c) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, NEITHER THE COMPANY NOR ANY DISCLAIMED PARTY IS RESPONSIBLE FOR ANY KIND OF FAILURE, ABNORMAL BEHAVIOR OF SOFTWARE (E.G., WALLET OR SMART CONTRACT), BLOCKCHAINS OR ANY OTHER FEATURES OF THE SALE NFTS. NEITHER THE COMPANY NOR ANY DISCLAIMED PARTY IS RESPONSIBLE FOR CASUALTIES DUE TO LATE REPORT BY DEVELOPERS OR REPRESENTATIVES (OR NO REPORT AT ALL) OF ANY ISSUES WITH THE BLOCKCHAIN SUPPORTING THE SALE NFTS, INCLUDING FORKS, TECHNICAL NODE ISSUES OR ANY OTHER ISSUES HAVING FUND LOSSES AS A RESULT.
4.2. Limitation of liability
(a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, NEITHER THE COMPANY NOR ANY DISCLAIMED 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 SALE NFTS OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, THE PURCHASE OF ANY SALE NFTS, FROM THE USE OF OR INABILITY TO USE OR INTERACT WITH THE SALE NFTS OR ACCESS OR FROM THE RECEIPT OR EXPLOITATION OF ANY ACCESS RIGHTS, OR THE LACK OF ACCESS RIGHTS, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY AND/OR ANY OF THE DISCLAIMED PARTIES 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.
(b) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, IN NO EVENT WILL THE AGGREGATE LIABILITY OF THE COMPANY AND THE DISCLAIMED PARTIES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE PURCHASE OF ANY SALE NFTS, FROM THE USE OF OR INABILITY TO USE OR INTERACT WITH ANY SALE NFTS OR ACCESS OR FROM THE RECEIPT OR EXPLOITATION OF ANY ACCESS RIGHTS, OR THE LACK OF ACCESS RIGHTS EXCEED THE PURCHASE PRICE PAID BY THE PURCHASER FOR THE SALE NFTS.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE COMPANY AND THE PURCHASER.
4.3. Assumption of risk
The Purchaser accepts and acknowledges all risks associated with the following:
(a) the disclaimers set forth in clause 4.1 above;
(b) any Access Rights, and the lack of Access Rights, as may be the case from time to time;
(c) that the Purchaser is solely responsible for determining what, if any, taxes and gas fees apply to the Purchaser’s purchase, sale or transfer of the Sale NFTs. The Company is not responsible for determining or paying the taxes or gas fees that apply to such transactions;
(d) that the Sale NFTs are digital assets recorded and transferrable on the Solana blockchain. Any transfer of a Sale NFT occurs through automated processes on the Solana blockchain, which is not controlled in any capacity by the Company. Transactions involving the Sale NFTs may be irreversible, and accordingly, losses due to fraudulent or accidental transactions may not be recoverable. Some transactions of the Sale NFTs shall be deemed to be made when recorded on the Solana blockchain ledger, which is not necessarily the date or time that the Purchaser initiated the transaction;
(e) that there are risks associated with using an Internet based digital asset, including but not limited to, the risk of hardware, software and Internet connections, the risk of malicious software introduction, and the risk that third parties may obtain unauthorised access to information stored within the Purchaser’s wallet. The Company will not be responsible for any communication failures, disruptions, errors, distortions or delays that the Purchaser may experience when effecting transactions involving the Sale NFTs, however caused, including any gas fees paid or payable in connection therewith. The Company does not store the Purchaser’s password, passkey, private key or other credentials needed to access the Sale NFTs following the sale and will not be able to recover such items if the Purchaser should lose them. The Purchaser should keep a copy of the Purchaser’s password, private key or passkey in a secure location;
(f) that transactions involving the Sale NFTs may rely on the third party platforms to perform transactions which are outside of the Company’s control. Use and interaction of the Sale NFTs may allow the Purchaser to access the third party websites or other resources. All such websites are provided only as a convenience and neither the Company nor the Disclaimed Parties are responsible for the content, products or services on or available from those resources or links displayed on such websites. Without limiting in this clause 4, the Purchaser acknowledges sole responsibility for and assumes all risk arising from the Purchaser’s use of any third party resources. Under no circumstances shall the Purchaser’s inability to view any image or display associated with a Sale NFT on a third party website serve as grounds for a claim against the Company or any Disclaimed Party;
(g) and that the Company reserves the right to refuse or reject any offer to deliver the Sale NFTs to the Purchaser in the event that, based on information available to the Company, the Company suspects the Purchaser is connected with money laundering, terrorism financing, or any other illegal activity. In addition, the Company shall be entitled to use any possible efforts for preventing money laundering, terrorism financing or any other illegal activity, including without limitation blocking of the Purchaser’s digital wallet or providing information regarding the Purchaser to any regulatory authority.
(The Purchaser shall defend, indemnify, and hold the Company and all Disclaimed Parties (collectively, the “Hotmania Labs Parties”) harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought by a third party (including any person who accesses or transacts using the Sale NFTs whether or not such person personally purchased the Sale NFTs) against any Hotmania Labs Party, or on account of the investigation, defence, or settlement thereof, arising out of or in connection with:
(a) the Purchaser’s purchase, ownership, use and interaction with the Sale NFTs;
(b)the Purchaser’s breach or anticipatory breach of this Agreement;
(c) the Purchaser’s violation or anticipatory violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental and quasi-governmental authorities in connection with the Purchaser’s use or interaction with the Sale NFTs; and
(d) any misrepresentation made by the Purchaser (all of the foregoing, “Claims and Losses”).
The Purchaser will cooperate as fully required by the Company in the defence of any Claim and Losses. Notwithstanding the foregoing, the Company may act on behalf of the Purchaser to agree to any settlement or compromise with respect to any Claims and Losses, and any such agreement shall bind and be an obligation of the Purchaser. The Company reserves the right to assume the exclusive defence and control of any Claims and Losses. The Purchaser will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of the Company.
6.1. Termination right
This Agreement may be terminated:
(a) by mutual agreement between the Parties;
(b) when the Purchaser is no longer the owner of the Sale NFTs; or
(c) by the Company, immediately by written notice to the Purchaser, if (i) the Company reasonably suspects that the Purchaser is connected with money laundering, terrorism financing, or any other illegal activity; or (ii) a material breach of any representation or warranty given by the Purchaser occurs at any time.
6.2. Effect of termination
(a) This Agreement will cease to have any force or effect, and no Party will have any further liability or obligation under this Agreement, immediately upon termination in accordance with clause 6.1.
Upon the termination of this Agreement, all rights and/or licenses granted by the Company to the Purchaser in relation to the Sale NFTs shall terminate automatically. The Purchaser shall cease all marketing, distribution or sale of goods, services and media that feature the Sale NFTs and shall cease all further use of the Sale NFTs.
Notwithstanding clause 6.2(a), termination of this Agreement will be without prejudice to the accrued rights and liabilities of the Parties that are existing as at the date of termination or the provisions of clauses 4, 5 and 6, each of which will survive termination of this Agreement.
All notices, requests, demands and determinations for us under this Agreement (other than routine operational communication) shall be sent to: firstname.lastname@example.org
8.1. Invalid or unenforceable
If a provision of this Agreement is invalid or unenforceable in a jurisdiction, the provision: (a) will be read down or severed in that jurisdiction to the extent of the invalidity or unenforceability; and (b) will not affect the validity or enforceability of that provision in another jurisdiction or any other provision of this Agreement.
No waiver of any provision or any right arising under this Agreement will be valid or effective unless given in writing and signed by the Party or an authorised officer of the Party granting the waiver. Further, no waiver of any right or breach of any terms of this Agreement will operate as a waiver of any other right or breach of any other term of this Agreement.
The Company reserves the right to change or modify this Agreement at any time and at the Company’s sole discretion. If the Company makes changes that are material, the Company will use reasonable efforts to attempt to notify the Purchaser, such as by placing a prominent notice on the first page of the Website. However, it is the Purchaser’s sole responsibility to review the Agreement from time to time to view any such changes. The Purchaser’s continued access or use of the Sale NFTs after the Agreement has been updated will be deemed the Purchaser’s acceptance of the modified terms of the Agreement.
8.4. Further assurances
Each Party must, at its own expense, whenever requested by another Party, promptly do or cause to be done everything reasonably necessary to give full effect to this Agreement and the transactions contemplated by this Agreement.
8.5. Rights cumulative
The rights, remedies and powers of the Parties under this Agreement are cumulative and not exclusive of any rights, remedies or powers provided to the Parties by law.
The provisions of this Agreement will inure to the benefit of and be binding on the Parties and their respective successors and permitted substitutes and assigns and (where applicable) legal personal representatives.
8.7. No partnership
The Parties do not intend to create, and this Agreement does not constitute, a partnership, agency, trust or other arrangement and unless otherwise expressly stated in this Agreement, no Party has the authority to act for, or incur any obligation on behalf of, any other Party.
8.8. Third party rights
Except where expressly provided for in this Agreement, any person who is not a Party has no right to enforce or enjoy the benefit of any provision of this Agreement. The consent of any person who is not a Party is not required to vary or rescind this Agreement at any time.
This Agreement and the rights, obligations and relationships of the Parties will be governed by and construed in accordance with the laws of the Republic of México (without reference to any principles of conflicts of law).
(a) Any dispute, controversy, difference or claim arising out of or in connection with this Agreement, including any question regarding its existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating thereto, shall be referred to and finally resolved by arbitration administered by the Arbitration Centre of Mexico (CAM)in accordance with the CAM Rules for the time being in force.
(b) The seat of arbitration shall be México. The arbitration proceedings shall be conducted in English. The arbitral tribunal shall consist of three (3) arbitrators. The arbitral award shall be final and binding upon all Parties to the arbitration. For the avoidance of doubt, during the course of arbitration, the Parties shall make reasonable efforts to continue to abide by and perform this Agreement except for those matters submitted to arbitration.
(c) Unless the Parties to the arbitration otherwise expressly agree in writing, the Parties to the arbitration must keep confidential all awards from arbitral proceedings, together with all materials in the arbitration proceedings created for the purpose of the arbitration and all other documents produced by any party in the arbitration proceedings not otherwise in the public domain, save and to the extent that disclosure may be required under any law or regulation or in connection with any legal or arbitration proceedings.
(d) Any award of the arbitral tribunal shall be final and binding on the Parties to the arbitration, and each of such Party shall waive to the fullest extent permitted by law any right it may otherwise have under the laws of any jurisdiction to any form of appeal, annulment, action to set-aside or vacate, collateral attack, or any other challenge to such award(s).